Pietrobelli v Jewell Family Nominees Pty Ltd

1. [1]

   By a statement of claim filed 20 May 2019 (“the statement of claim”), Narelle Pietrobelli (“the plaintiff”) commenced an action in negligence against Jewell Family Nominees Pty Ltd t/as Tiger Putt Putt (“the defendant”) (“the proceedings”).

2. [2]

   The defendant was the registered proprietor of the business which, operated at a premises, known as the Tiger Putt Putt and Little Tiges Play Centre (“the business”). The defendant had the care, control and management of the premises, as at that time. The business was owned by Mark Jewell and Amy Jewell. Mr Jewell was 50% shareholder and Mrs Jewell was 50% shareholder as well as the sole Director and Secretary of the business.

3. [3]

   In 2007, Mr and Mrs Jewell executed the lease on behalf of the defendant with the owner to lease the premises for a period of five years with an option to renew, commencing on 1 April 2007. Mr and Mrs Jewell leased the premises until the business was no longer financially viable. The lease was terminated in 2019.

4. [4]

   Although the plaintiff commenced the proceedings against the owner of the premises (as the first defendant), she did not pursue that case and consented to judgment being entered in the first defendant's favour. Accordingly, these proceedings have continued against only the defendant.

5. [5]

   On 2 July 2016, the plaintiff was in attendance at the premises for the purposes of attending a birthday party for a six year old daughter of family friends, the Douet family.

6. [6]

   Prior to the date of the incident Mr Douet made enquiries with the defendant about booking a party room for his daughter, Caitlin's party. He was advised that the two downstairs rooms were booked out however there was an upstairs room that was available. The party room was booked on that basis.

7. [7]

   Mr Douet arrived at the premises around midday with his wife and daughter.

8. [8]

   At approximately 1:15pm, the plaintiff arrived at the premises. The plaintiff attended with her disabled daughter, Bethany, then 13 years of age.

9. [9]

   Upon arrival the plaintiff’s daughter participated in the putt putt activity. The plaintiff recalled paying $8.00 for her daughter to play. Whilst the plaintiff’s daughter and other children at the party played on the putt putt course in the premises, the plaintiff sat in the coffee/cafeteria area with the other parents.

10. [10]

    The plaintiff’s husband, Mr Joshua Pietrobelli, arrived some time later after attending their son Anthony’s football game.

11. [11]

    The party then relocated upstairs to the party room where party food was to be supplied for the children. Mr Douet described the party room as having a “stale and very musty smell” and that the room was set up with some tables and chairs and it was illuminated with lights. Further, he described the room as having tables and chairs stored in one corner of the room. The defendant substantially contested those statements. However, for reasons given later I accept the evidence.

12. [12]

    Access to the party room was by way of a stairway which consisted of 16 steps with a single handrail positioned along the length of the stairway. The stairs were constructed from steel and the step treads were covered in carpet (“the stairs”). Approximately 2.1 m above the floor, vertically in line with the second step down from the top landing of the stairway was a light which consisted of two spotlights (“the stair lights”). An issue in the proceedings was whether the stair lights were on at the time of the incident.

13. [13]

    At approximately 4.00pm, the plaintiff left the party room and commenced her descent of the stairs. The plaintiff went down a few stairs. The plaintiff stated that it was one or two stairs, before turning around to the people behind her and saying words to the effect of “Be Careful. You can’t get your foot properly on the stairs”. After taking a few further steps, the plaintiff then fell down the stairs. The plaintiff stated that the fall occurred after taking a further one or two steps. The defendant contended that the plaintiff fell at least four to six steps down from the top of the stairs and in the top half of the stairway. The plaintiff recalled hitting her hand and falling down the remainder of the stairs, landing amidst chairs against the small wall at the bottom of the stairs sustaining injury (“the incident”).

14. [14]

    An ambulance was initially called but then cancelled. A second ambulance was then called. The plaintiff remained at the foot of the staircase until she was treated by ambulance officers.

15. [15]

    An ambulance arrived and took the plaintiff to Shellharbour Hospital where she was assessed.

16. [16]

    Mr Jewell then made a handwritten incident report which was subsequently signed by both himself and Mr Pietrobelli.

17. [17]

    The plaintiff was assessed at Shellharbour Hospital and X-Rays were taken. The plaintiff was told she had a bulging disc but could go home and rest. The plaintiff elected to go home.

18. [18]

    The following day the plaintiff spent the day laying on the couch. The plaintiff was then driven to Wollongong Hospital, where she was admitted from 4 July 2016 until her discharge on 13 July 2016. At the time of her discharge the plaintiff was transferred to Port Kembla Rehabilitation Hospital until 24 August 2016.

19. [19]

    The Court had before it substantial material filed with respect to the proceedings, which consisted of evidentiary statements, medical evidence, including clinical reports and various documentations relied upon by the parties.

20. [20]

    The following evidentiary statements were filed on behalf of plaintiff:

    1. (1)

       Evidentiary Statements of Narelle Pietrobelli sworn on 8 May 2020 and 13 October 2020

    2. (2)

       Evidentiary Statement of Joshua Pietrobelli sworn on 7 May 2020

    3. (3)

       Evidentiary Statement of Karina Pietrobelli sworn on 8 May 2020

    4. (4)

       Evidentiary Statement of Rhiannon Douet sworn on 19 August 2020

    5. (5)

       Evidentiary Statement of Laurent Douet sworn on 19 August 2020

21. [21]

    The following evidentiary statement was filed on behalf of the defendant:

    1. (1)

       Evidentiary Statement of Mark Jewell sworn on 11 June 2020

22. [22]

    All of the individuals who provided an evidentiary statement were called and gave evidence in the proceedings.

23. [23]

    The plaintiff relied on the following liability reports:

    1. (1)

       Report of John Dimopoulos from Dohrmann Consulting dated 17 February 2017 (“Mr Dimopolous Primary Report”), and four supplementary reports dated 8 September 2017, 9 April 2018, 31 March 2020 and 13 August 2020

    2. (2)

       Report of Dr Jennifer Long dated 9 September 2020 (“Dr Long Report”)

    3. (3)

       Report of Mark Dohrmann from Dohrmann Consulting, dated 16 September 2020 (“Report of Mark Dohrmann”)

24. [24]

    The defendant relied on the following liability reports:

    1. (1)

       Report of Dr John Cooke dated 7 November 2019

    2. (2)

       Report of Mark Bullen dated 22 May 2020

    3. (3)

       Report of Professor Stephen Dain dated 27 May 2020 (“Professor Dain Report” and a supplementary report dated 20 October 2020 (“Professor Dain Supplementary Report”).

    4. (4)

       Report of Dr Andrew McIntosh dated 29 May 2020 (“Dr McIntosh Report”)

25. [25]

    The parties relied on the following Liability Conclave Joint Reports:

    1. (1)

       Architectural expert conclave report John Dimopoulos, Dr Cooke and Mark Bullen dated 24 September 2020 (“Architectural Conclave Report”)

    2. (2)

       Lighting expert conclave report Dr Long, Professor Dain and John Dimopoulos dated 22 October 2020 (“Lighting Conclave Report”)

    3. (3)

       Ergonomic expert conclave report Mark Dohrmann, Dr Mcintosh and John Dimopoulos dated 26 October 2020 (“Ergonomic Conclave Report”)

26. [26]

    The parties engaged numerous experts on various liability issues, which have been listed above. As was agreed by the parties at the hearing, the individual expert reports were tendered on the basis of providing a background and criticisms for matters that are contained in the joint reports. Therefore, the individual reports produced by the experts were tendered as background but were superseded in effect by the joint reports. The experts who prepared the Ergonomic Conclave Report were called and gave concurrent evidence at the hearing.

27. [27]

    The plaintiff relied on the following medico-legal reports:

    1. (1)

       Reports of Dr Darveniza dated 23 April 2018 and 3 March 2020.

    2. (2)

       Reports of Dr Buckleu dated 10 July 2018 and 10 February 2020

    3. (3)

       Reports of Jonathon Phillips dated 12 August 2019 and 30 September 2020

    4. (4)

       Report of Jacqueline Scott dated 21 January 2020

28. [28]

    The defendant relied on the following medico-legal reports:

    1. (1)

       Dr Adam Martin dated 28 November 2019

    2. (2)

       Dr Greg Bruce dated 19 November 2019

    3. (3)

       Dr Grant Walker dated 8 October 2019

    4. (4)

       Sanja Zeman dated 25 January 2020

    5. (5)

       Professor James Bright dated 29 April 2020

    6. (6)

       Reports of Dr Harvey Sutton dated 6 May 2020 and 7 May 2020.

29. [29]

    The parties relied on the following Quantum Conclave Joint Reports:

    1. (1)

       Psychiatric conclave report of Dr Phillips and Dr Martin dated 29 October 2020

    2. (2)

       Rehabilitation conclave report Dr Buckley and Dr Harvey-Sutton dated 21 October 2020

    3. (3)

       Neurological conclave report Jacqueline Scott and Sanja Zeman dated 8 October 2020

    4. (4)

       Supplementary Occupational Therapist conclave report Jacqueline Scott and Sanja Zeman dated 11 November 2020

30. [30]

    Dr Phillips and Dr Martin took part in the conclave report identified above and also gave evidence before the Court at hearing.

31. [31]

    The plaintiff relied on the following Hospital Records:

    1. (1)

       Shellharbour Hospital Records

    2. (2)

       Port Kembla Hospital updated records served beyond the date of subpoenaed material

32. [32]

    The plaintiff relied on the following treatment medical records/reports:

    1. (1)

       New Albion Medical Centre updated records served beyond the date of subpoenaed material

    2. (2)

       Dr Khan, psychologist updated records served beyond the date of subpoenaed material

    3. (3)

       Shellharbour City General Practice notes

    4. (4)

       Dr D Manohar notes

    5. (5)

       Medical Report from Dr Carol Ting, dated 17 February 2016 (“Dr Ting Report”)

33. [33]

    The following reports and standards were also tendered in the proceedings:

    1. (1)

       Preamble to Building Code of Australia 2010

    2. (2)

       Stairway Falls, An ergonomic analysis of 80 cases” by Joseph and Ors, dated January 2009 (the “Stairways Fall paper”)

34. [34]

    Prior to the defendant leasing the premises, the premises was being used as a Motor Vehicle Showroom.

35. [35]

    Prior to the defendant commencing business at the premises, Mr Jewell contacted Shellharbour City Council (“the Council”), to enquire about a development application for the premises (“the Development Application”).

36. [36]

    On 14 July 2009, Mr Jewell lodged a development application with the Council for approval to use the premises as an indoor putt putt and children’s play centre under the name “Tiger Putt Putt & Little Tiges Centre and Café & Signage”.

37. [37]

    On 5 November 2009, the development application was approved. There were no development plans relating to the second level of the premises.

The Layout of the Premises

1. [38]

   The premises was a large industrial style warehouse. The premises had two roller doors that were approximately 8 by 8 metres at the south facing front entrance and two identical north facing doors at the back of the building. Those doors opened to the side.

2. [39]

   The front entrance also had glass windows and a glass door for entry situated immediately inside the roller doors. The south facing roller doors at the front entrance were always fully opened when the Centre was open to the public.

3. [40]

   The north facing roller doors at the back of the premises were generally left open but were occasionally closed during the inclement weather to prevent any water ingress into the premises.

4. [41]

   There were two levels to the premises, the ground floor and an upstairs area. The ground floor had a number of putt putt golf holes and children’s play equipment inside the premises. There were also a number of video game machines and arcade style games.

5. [42]

   Below is an image showing a general view of the upstairs party room (arrowed) located above a small office and amenities area.

6. [43]

   The upstairs area compromised of a room and a separate toilet. When the defendant commenced leasing the premises, the upstairs area had been used as an office. The upstairs room was painted and used it as a “party room” throughout the duration of the lease.

7. [44]

   The party room was available to hire to the general public. The party room was solely accessible by the stairs. Below is an image of the stairs looking up from the bottom of the stairway.

8. [45]

   The premises had large factory style lighting hanging from the roof. The stair lights were positioned approximately 2.1 m above the floor, vertically in line with the second step down from the top landing of the stairway The globes used were 100 watts. An image of the light positioned above the stairway appears below.

9. [46]

   There are two light switches for the lights positioned above the stairway, one at the top of the stairway (Image 4) and the second located at the bottom of the stairway (Image 5).

10. [47]

    When the lease commenced, there were translucent roofing panels throughout the premises. Due to deterioration, those panels were sprayed with a bonding agent that darkened the panels.

The Stairs

1. [48]

   Mr Dimopolous’s Primary Report provided a table describing the architectural features of the stairs. That Table was adopted by the experts for the purposes of the Architectural Conclave Report and represented an uncontroversial background for the Ergonomic Conclave Report, as well as the concurrent evidence of experts, in that respect. The Table also formed the foundation for many of the contentions advanced by the parties in the proceedings.

2. [49]

   The table is set out in full below.

3. [50]

   The Table requires some explanation.

4. [51]

   The going dimensions was described as “the length of the step or the amount of area provided on the step for the user to place their feet on”.

5. [52]

   Mr Dimopolous did not define a riser in his report or oral evidence. The Oxford Dictionary defines a riser as a vertical section between the treads of a staircase. The Macquarie dictionary defines riser as “the vertical face of a stair step”. That definition is consistent with the use of the expression by the experts in the Architectural Conclave Report and the Ergonomic Conclave Report.

6. [53]

   The expression slope of going was defined as the “sloping leading down to the front of the stairs”.

7. [54]

   Some further explanation of the columns of the table are required beyond mere definition.

8. [55]

   The riser and the going columns have various numerical entries upon which an asterisk appears. Mr Dimopolous indicated where there was a step variation is in excess of +/- 5mm from adjacent steps. He explained that he attached significance to a 5mm step variation because the BCA standards allows for a tolerance of +/- 5mm on the variations in going and riser dimensions. Anything outside that variation is non-compliant.

9. [56]

   It should be noted, at this juncture, that I will ultimately find Mr Dimopolous to be an expert witness of credit who had significant experience giving expert opinions in matters to do with trips, slips and falls. He explained that the 5mm step variation obtains its significance because of variations in stair geometry has been shown to significantly contribute to accidents on stairs.

10. [57]

    Mr Dimopolous explained that the numbers shown in the fourth column labelled “Quantity” represented a formula twice the sum of the figure shown in the riser column and the figure show in in the going. The column shows the slope relationship calculated from the riser and going dimensions. He explained that the significance of those amounts is that variation is one of a number of factors which impacts how well an individual can interpret their next step.

11. [58]

    The last column was defined as slope of going he explained the significance of that column due to all the steps tilting downwards (when walking down the stairs) which further increases the risk of slipping down the stairs.

12. [59]

    In the Ergonomic Conclave Report, the experts agreed that the stairs did not comply with the cl D2.13 of the Building Code Australia 2010 (the “BCA”) in the following respects:

    1. (1)

       The goings, were below the minimum dimension of 250 millimetres required by cl D2.13(a)(ii)

    2. (2)

       The goings and risers were not consistent throughout the flight as contrary cl D2.13(a)(iii)

13. [60]

    It may be noted that experts concluded that the handrail was complaint with cl D2.17 of the BCA and the carpet on the stairs was complaint with the cl D2.13(a)(v) of the BCA.

14. [61]

    The experts gave opinions as to the mechanisms for the plaintiffs fall. One mechanism that was discussed and was critical to the question of liability, in this matter, was “an overstep”. An overstep occurs where a foot lands during descent past the nosing of the step, causing the foot to slip down the front of the step

15. [62]

    By the statement of claim, the plaintiff claimed, damages, interest and costs.

16. [63]

    Relevant aspects of the pleadings are extracted below:

17. [64]

    By an amended statement of particulars filed by the plaintiff on 30 June 2020, the particulars of injuries received are extracted below:

18. [65]

    The plaintiff also gave particulars of continuing disabilities and hospitalisation, The particulars of out of pocket expenses were in three parts, past expenses treatment, future expenses treatment and future Motor Vehicle/Home Modifications. Those are extracted below:

19. [66]

    The plaintiff also gave particulars of claim for domestic assistance or attendant care and care of others. The particulars in relation to loss and earning capacity and future economic loss, were summarised in the following terms:

20. [67]

    A statement of issues was filed on the 20 November 2020. The statement of issues is extracted below:

21. [68]

    Some elaboration is required as to the first stated issue.

22. [69]

    The plaintiff pleaded that her fall occurred when her foot “slipped off a stair tread” (see pleading 6 of the claim).

23. [70]

    There are a number of mechanisms by which a person may slip on a step. Mr Dimopolous stated that the slip may occur, for example, where there is insufficient coefficient of friction. However, it was common ground in this matter that the issue raised by this pleading was whether the plaintiff had slipped because she had overstepped.

24. [71]

    The defendant submitted that failed to make out her pleaded case in that respect (“the first contention”).

25. [72]

    In short summary, the defendants first contention was as follows:

    1. (1)

       The plaintiff was required to prove that she fell as a result of her foot slipping off the stair tread on the balance of probabilities (it being accepted that an overstep and a slip are “different in that they are different parts of the same mechanism”).

    2. (2)

       The only direct evidence of how the plaintiff fell was from the plaintiff herself. When that evidence is properly understood, the plaintiff’s evidence is that she did not know why she fell. Further, even the evidence that the plaintiff did give as to knowing how she fell, does not establish she slipped off the stair tread.

    3. (3)

       In any event, in the plaintiff’s evidence she stated she did know why she fell, and the evidence should be given no weight, because she was an unreliable historian. The Court should find her unreliability infected a number of aspects of her evidence, including her pre-existing medical and psychiatric problems.

    4. (4)

       There were a number of medical records which recorded information regarding the circumstances of the accident should not attract any weight.

    5. (5)

       The plaintiff must rely, therefore, on proving that she slipped off the stair tread by persuading the Court to draw an inference to that effect.

    6. (6)

       Having regard to the evidence no such inference should be drawn. There are a number of other equally plausible reasons why the plaintiff fell, related to the condition of the stairs.

    7. (7)

       Accordingly, the Court should find the plaintiff has failed to establish on the balance of probabilities her pleaded case, namely, that she slipped off the stair tread.

26. [73]

    I should deal with these contentions as the first issue discussed under the heading “Liability” below.

The Plaintiff

1. [74]

   The plaintiff tendered the aforementioned evidentiary statements and was subject to cross examination at the hearing.

2. [75]

   The plaintiff was born in Brisbane and lived with her natural mother until the age of 9 after which time she was placed into various care institutions. Whilst in care she was subject to physical and sexual abuse.

3. [76]

   The plaintiff married her first husband, Robert Coulson, at the age of 15 and they had four children together. The plaintiff's first husband Robert died when the plaintiff was about 20 years of age.

4. [77]

   The plaintiff completed her schooling in or about 1991. She met her husband, Joshua, in about 1994. Together they had five children, one of whom, Naomi, died soon after her birth in early 2001.

5. [78]

   The plaintiff commenced study as an assistant in nursing at the age of about 21 years.

6. [79]

   She worked intermittently in aged care between caring for her children. She later worked in disability services.

7. [80]

   Between 2006 and 2008, the plaintiff conducted a home cleaning business, cleaning residential and commercial properties.

8. [81]

   In 2009, the plaintiff commenced work as a disability care worker for the Disability Trust. She worked as a carer/respite support person in group homes around the Illawarra region, generally casually or part time work. Around that same time, she also worked as a casual callout nursing assistant with Starz Nursing Agency in the High Care Unit.

9. [82]

   In approximately 2010, the plaintiff commenced work with the University of Wollongong in the Graduate School of Medicine as an Indigenous Community Engagement Officer. She ceased work at the university in August 2013.

10. [83]

    In about 2014, the plaintiff established a day care centre at Albion Park, named Dreamtime Family Day Care Centre. The centre was approved for four children a day and was open 10-12 hours each day. That business closed on 7 January 2016, due to the plaintiff's ill health, having experienced nausea, headaches and anxiety. The plaintiff's pre-accident medical issues are dealt with in significantly more detail below, however around this time the plaintiff came under the care of Dr Carol Ting, endocrinologist.

11. [84]

    She was looking at obtaining work in the childcare industry or as a disability support worker.

12. [85]

    At that time the plaintiff resided with her Mr Pietrobelli, her daughter Josephine (then aged 20 years), son Anthony (then aged 18 years) and Bethany (then aged 15 years). Her other daughter, Karina, was no longer living at home. At the time of the incident the plaintiff was the principal carer for her family.

13. [86]

    Up to the time of the incident the plaintiff was responsible for cleaning, vacuuming, cooking, washing, ironing, school transport, shopping and the like. Mr Pietrobelli worked long hours and provided only minimal assistance throughout the home. The children did provide some assistance.

14. [87]

    In her evidentiary statement dated 8 May 2020, the plaintiff provided the following description of previous health conditions:

15. [88]

    In her evidentiary statement of 13 October 2020, the plaintiff identified that she had accepted a position with Wollongong Hospital as a Senior Aboriginal Health Worker in palliative care. The job was 20 hours per week, and she commenced the position on the 7 October 2020 and was still in the position at the time of the hearing of this matter.

16. [89]

    I will later discuss the pre-incident health, post incident injuries and various considerations concerning quantum later in this judgment. At this juncture, I will consider closely the plaintiff’s evidence as to the incident and various issues as to her credit raised by the defendant both in that respect and in relation to her case on damages.

17. [90]

    At approximately 4:00pm the plaintiff left the upstairs party room and commenced her descent of the stairs. Access to the party room was only via the stairs.

18. [91]

    At paragraphs 29 and 30 of her evidentiary statement of 8 May 2020, the plaintiff stated:

19. [92]

    When asked about whether she had experienced dizziness prior to July 2016, the plaintiff responded that she was not dizzy at the time of the fall. That exchange is extracted below (T46.42):

20. [93]

    The plaintiff's evidence was that she was wearing flat summer sandals at the time of the incident (T179.11). She described the sandals as being "strapped around my ankle and strapped across my ... top of my foot" (T179.21). That is extracted below:

21. [94]

    As earlier mentioned, the plaintiff was the subject of cross examination at the hearing.

22. [95]

    She stated, “there is more that I can remember but I can’t remember everything” (T169.1), it was however conceded that the purpose of her statement was to set out everything she thought was important (T169.3).

23. [96]

    The plaintiff accepted that she did not have a “completely clear memory of what happened” when she was coming down the stairs. That is extracted below (T166.35):

24. [97]

    It was then suggested to the plaintiff that she did not know why she fell. In response, she stated (T169.16):

25. [98]

    When questioned further in relation to coming down the stairs and that the treads were narrow, she gave the following evidence (T169.36):

26. [99]

    When questioned further about her evidentiary statement, the plaintiff gave the following evidence (T170.9):

27. [100]

    The plaintiff was asked whether she was sure that she was holding the handrail. In response she gave the following evidence (T172.11):

28. [101]

    When cross-examined about where on the stairs she fell, the plaintiff gave the following evidence (T172.38):

29. [102]

    The plaintiff was cross examined further as to where it was on the staircase from which she fell. The following exchange took place (T180.21):

30. [103]

    It was suggested to the plaintiff that it was not dark at the point where she fell. The plaintiff did not accept that proposition (T173.21). She also gave the following evidence (T173.04):

31. [104]

    It was submitted by Mr Hooke SC, with whom Mr Smith appeared for the plaintiff, that the plaintiff’s version of the circumstances of the incident is corroborated by the histories noted in the ambulance and hospital records. The defendant submitted, that the plaintiff’s evidence in relation to her health leading up to the incident was “unreliable” and that no “significant weight” should be placed on contemporaneous ambulance and hospital records. Those ambulance and hospital records will be discussed later in this judgment. For present purposes I will briefly consider the plaintiff’s evidence.

32. [105]

    When the plaintiff was asked in cross-examination about the records the following exchange took place (T176.35):

33. [106]

    The plaintiff submitted that the Court should accept the plaintiff’s evidence “as a witness of truth”. It was submitted that the plaintiff gave her evidence as best she could, albeit with some difficulties with her concentration and reading at various times due to her medication (T73.42, T135.21, T155.16). It was submitted that it might be expected that the plaintiff could not recall some events that were put to her from her medical records.

34. [107]

    As mentioned, the defendant submitted that the plaintiff was an “unreliable historian” and that her evidence was unreliable, largely due to the discrepancies in the plaintiff recollection of medical reports. Reference was made to particular aspects of her evidence, namely, her pre-existing medical and psychiatric problems, post injury complaints and the circumstances of the incident and the cause of her fall. The defendant submitted that the stark example of the plaintiff’s unreliability was that the plaintiff maintained throughout her evidence that in five to six months leading up to the accident, she was well, which the defendant submitted was not the case..

35. [108]

    Overall, I found the plaintiff was a witness of truth. My observation of the plaintiff was that she demonstrated a willingness to assist the Court and made appropriate concessions about her lack of ability to recall dates and the specificity of certain events. She occasionally became confused in certain parts of her evidence, such as when she asked for a hospital record to be read to her because she could not focus sufficiently to read, but those circumstances merely confirmed her frankness as to her limitations at various stages, which, I accept, was affected, by the strong medication she was under during the trial. I do not consider she was evasive, obfuscating, or being deceptive

36. [109]

    In particular, I do not consider her statements as to a lack of recollection as to some aspects of her fall represent the plaintiff to be an unreliable witness but, as I will discuss, below the witness candidly distinguishing between that which she could recall, namely, observations of the steps at the point where she paused to communicate her impression of the state of the stairs to her friends and the subsequent step or steps she could not recall, at which point, she then fell.

37. [110]

    The plaintiff’s credit in relation to medical records will be discussed later in this judgment. It is sufficient to note at this juncture that I accept that there were some deficiencies with the plaintiff’s recollection particularly as to medical records, but, does not warrant a conclusion that the plaintiff was an unreliable witness.

The Evidence of Mr Pietrobelli

1. [111]

   As earlier mentioned, Mr Pietrobelli provided an evidentiary statement. Mr Pietrobelli was also the subject of cross examination at the hearing.

2. [112]

   In summary, Mr Pietrobelli gave the following evidence in relation to the incident:

   1. (1)

      He went up and down the stairs on a number of occasions, to enable him to go outside to smoke cigarettes.

   2. (2)

      Mr Pietrobelli described the stairs and surrounding area in the following terms:

   3. (3)

      Mr Pietrobelli did not witness the plaintiff's fall. He believes he was outside with Mr Laurent Douet having a cigarette at the time. Someone informed him that the plaintiff had had a fall. He then went inside and observed the plaintiff lying on the floor at the bottom of the stairs.

3. [113]

   Mr Pietrobelli was cross examined at length about the lighting around the stairs.

4. [114]

   He confirmed that the light above the stairs was not active. That is extracted below (T205.11):

5. [115]

   He was questioned as to why the lack of lighting was not recorded in an incident report completed by Mr Jewell. Mr Pietrobelli confirmed that he had not written any of the document, although he conceded that he had signed it. He gave the following evidence (T207.03):

6. [116]

   Mr Pietrobelli did not accept the proposition that he would have written in the incident report if he had thought that the stairs were unsafe because they were dark. That exchange is extracted below (T207.27):

7. [117]

   Notwithstanding the fact that the defendant called no direct evidence that the light in question was on, it was positively put to Mr Pietrobelli that the light was on, a proposition to which he disagreed (T208.14):

8. [118]

   Overall, my observation was Mr Pietrobelli to be an honest and frank witness and ultimately a witness of credit.

The Evidence of Laurent Douet

1. [119]

   Mr Douet's evidence in chief was to the effect that he had attended the premises on many occasions prior to the date of the incident, (he estimated on perhaps 12-15 separate occasions). On those occasions he had taken his children and had only ever attended birthday parties in the two party rooms that were located downstairs. He was unaware that there was a third party room upstairs.

2. [120]

   Mr Douet's made enquiries with the defendant about booking a party room for his daughter, Caitlin's party. He was advised that the two downstairs party rooms were booked out but there was an upstairs party room that was available.

3. [121]

   Mr Douet, his wife and daughter arrived at the premises around midday on 2 July 2016, to set up for the party.

4. [122]

   In his Evidentiary Statement, Mr Douet described the party room as "not aired out and had a very stale and musty smell ... it looked and smelled like a storage room".

5. [123]

   Mr Douet described the area generally as being "quite dull/ dark". His evidence was that there were no lights on the stairs and that the stairwell was "quite dark".

6. [124]

   In relation to the stairs, Mr Douet's evidence in chief was as follows:

7. [125]

   Mr Douet did not witness the plaintiff's fall. He was outside with Mr Pietrobelli when they were informed that the plaintiff had fallen.

8. [126]

   In cross examination, it was suggested to Mr Douet that his observation of the staircase being in dim was only in relation to where he found the plaintiff, at the bottom of the stairs. Mr Douet disagreed. He stated (T226.50):

9. [127]

   It was also positively put to Mr Douet that the light switch was already on (T227.20); a proposition that he rejected.

The Evidence of Rhiannon Douet

1. [128]

   Ms Douet’s evidence in chief was that she was following the plaintiff as the plaintiff began descending the stairs. Ms Douet recalled that the plaintiff was holding onto the handrail and moving slowly down the stairs with her daughter Bethany. She could not recall precisely which step the plaintiff was on when the plaintiff fell, but stated that the plaintiff had gone down perhaps one third of the way and then fell to the bottom. Ms Douet did not recall the plaintiff saying anything before or during the fall.

2. [129]

   Ms Douet expressed the view that the stairway was quite dark, and she did not recall that there was any light illuminating the pathway of the stairs. The premises generally looked dark.

3. [130]

   Ms Douet observed that the stairs were of metal tread with carpet on them. She described the stairs as being awkward to walk down as they were narrow. In order to get down the stairs she stated that she had to turn her feet sideways at an angle so that they were fully on the tread. In doing this she was able to have enough footing on the tread to go down safely.

4. [131]

   Ms Douet had been to the premises about three or four occasions prior to the incident. She had never been to the upstairs party room prior to day of the incident and did not know that it was used by the public. She believed that the upstairs area was a storage room.

5. [132]

   In cross-examination, the following exchange took place (T231.01):

The Evidence of Mark Jewell

1. [133]

   I consider that the plaintiff’s analysis in written submissions as to Mr Jewell’s evidence to be both fair, accurate and appropriately fixed upon the inadequacies of his evidence. That analysis substantially underpins what follows. Overall, my observations of Mr Jewell and the following analysis results in a conclusion that he was an unsatisfactory witness.

2. [134]

   Mr Jewell's evidence in chief was contained in his Evidentiary Statement and was subject to cross examination at the hearing.

3. [135]

   Mr Jewell's evidence was that in the event of an incident or injury at the centre, an incident report would be completed by himself or staff working at the centre. A formal incident reporting form was not employed but rather a written note.

4. [136]

   In relation to the lighting, his evidence was that there was a separate light fitting situated at the top of the relevant stairs, and that those lights were turned on if the upstairs party room was being used. There was a switch at the top and at the bottom of the stairs.

5. [137]

   In relation to the events on the day of the incident, Mr Jewell was riding his bicycle when he received a call from an employee, Francene Dewes (“Ms Dewes”), who advised him of the plaintiff's fall. Mr Jewell then attended to the premises and spoke to Mr Pietrobelli. While Mr Jewell was talking to Mr Pietrobelli, Mr Jewell stated he observed the plaintiff walking out of the premises unassisted.

6. [138]

   An ambulance was initially called but then cancelled. A second ambulance was then called again. Mr Jewell then made a handwritten incident report which was subsequently signed by both himself and Mr Pietrobelli.

7. [139]

   In cross-examination Mr Jewell gave evidence that on a typical Saturday his wife and daughters would work at the premises, and they would send employees from the cake shop to help out. On the day of the incident, however, Mr Jewell's wife and daughters were not working.

8. [140]

   When asked who was managing the premises on the day of the incident, Mr Jewell stated that it was one of the girls from the cake shop and that they would float the staff in between as required. He nominated an employee by the name of Frances or Francene, who no longer worked with them.

9. [141]

   Mr Jewell also confirmed that he was not present at the time of the incident. He did not believe that he had been to the premises earlier that day but could not recall.

10. [142]

    Mr Jewell confirmed that he was not present when the plaintiff left the premises, nor was he present when the second ambulance was called due to mobility issues.

11. [143]

    Mr Jewell was then taken to the incident report (Court Book, volume 1, page 171) and it was put to him that he had altered the document after he had Mr Pietrobelli sign it. He ultimately agreed, and conceded that he had added material above Mr Pietrobelli's signature but not before, in my view, being evasive.

12. [144]

    Mr Jewell also conceded that, if the plaintiff had been up walking unassisted towards the exit of the premises, as had been his evidence in chief, there would have been no reason for her to go back and sit down at the bottom of the stairs.

13. [145]

    When questioned about the business’ record keeping in relation to incidents, Mr Jewell agreed that he was not heavily involved with the management of the business on a day-to-day basis and that his main focus was the cake shop.

14. [146]

    In relation to the management and operation of the business, Mr Jewell gave the following evidence:

    1. (1)

       “It was like a self-run self it was only a very small, simple little business that was run very simply and sharing it between staff in the shop and that kind of thing."

    2. (2)

       "I probably organised the running of it and then handed to the staff to work there.”

    3. (3)

       The people who worked at the business worked there randomly from the cake shop.

    4. (4)

       “It didn't need to be run, it was simply a business that you learnt how to do it, and then you will just work there."

    5. (5)

       There was no written system of how things were to be done at the business.

    6. (6)

       " .. . there was no standard procedure book."

    7. (7)

       That it was a simple thing that any of his staff could go and do on a particular day.

    8. (8)

       That it could be done without any need for any instruction from Mr Jewell or anyone else because it was all self-evident - "it was a fairly simple business; yeah".

    9. (9)

       In relation to the lighting of the stairs, Mr Jewell agreed that the system that he had in place was to hope that the lights over the stairs had to be on if there was a party going on upstairs.

15. [147]

    Mr Jewell agreed with the proposition that if the lights over the stairs were on it would not be a reasonable description that the area of the stairs was dark.

16. [148]

    Mr Jewell estimated that at least about 50,000 had used the stairs whilst the defendant had leased the premises prior to the incident. He based that estimate on there being 10-15 parties per week at the venue and then assumed only five of those parties utilised the upstairs party room, with 15-20 children and an equal number of adults.

17. [149]

    He referred to having checked a diary for the purpose of making that estimate. I agree with the submission of the plaintiff that his evidence in relation to the present whereabouts of that diary was evasive. He initially stated that a lot of the material that he had was damaged in a flood that had been through the venue (T255.01). It was then pointed out to him that at paragraph 25 of his own evidentiary statement the only flood that had occurred, occurred some time prior to the incident (page 96 of volume 1 of the Court Book).

18. [150]

    He was then taken to a subpoena for production that was issued on the defendant in August 2020 which required production of various documents (the schedule of the subpoena can be found at page 4051 of the Court Book). He conceded that he had managed to find one diary (T257.20), but then stated he did not provide that diary to his solicitors as he did not find it at the time (T257.45).

19. [151]

    Mr Jewell's Evidentiary Statement was completed on 11 June 2020, which contained his estimate of approximately 50,000 people using the stairs. The subpoena for production was issued in August 2020, approximately two months later. There is a tension between Mr Jewell estimate of 50,000 people on a diary that must have been in his possession at some stage leading up to June 2020 and that diary then not available to produce in compliance with the subpoena for production.

20. [152]

    Similarly, no documents were produced by the defendant in response to the balance of the subpoena, which included various incident reports. This is so, notwithstanding Mr Jewell's own evidence that the defendant had a system in place to make handwritten notifications of any such incidents or injuries.

21. [153]

    Mr Jewell ultimately, made the following concession :

22. [154]

    Mr Jewell was taken to the Development Application that had been submitted by the defendant in July 2009. He had no explanation as to why the intended usage plan that was lodged with his development application did not include a second floor (T261.38 to T263.19). It was put to Mr Jewell that he did not submit a plan for the upstairs as it was not part of the planned operation of the business that they would use the upstairs room as part of the business for hosting parties. He did not accept (T263.13) that proposition but it is open to infer because apart from the unreliability of his evidence. it is difficult to conceive of any other (legal) explanation for its omission from the Development Application.

23. [155]

    Mr Jewell was then taken to the patron numbers permitted pursuant to the Development Application (page 154 of volume 1 of the Court Book), which limited the maximum number of patrons at the premises at any one time to not exceed 50 persons. Notwithstanding this fact, Mr Jewell was still not prepared to resile from his estimate of 50,000 patrons utilising the stairs (T267.13).

24. [156]

    It was then suggested to Mr Jewell that on the day of the incident when the party hosts arrived for the upstairs party, all the tables and chairs in the party room were stacked in the corner. In response he said:

25. [157]

    Mr Jewell conceded that a stale, musty, unventilated room with no furniture set up but rather furniture stacked and stored in the corner was not the picture of a party room:

26. [158]

    Mr Jewell agreed that if a party room had been booked and the people arrived on time for the party and that it was not set up, the defendant's system, such as it was, had failed (T269.09).

27. [159]

    Mr Jewell also eventually conceded that, if the lights over the stairs were not on when party guests arrived to go to the upstairs room, that the defendant's system in relation to the lighting, such as it was, had failed (T270.15).

28. [160]

    The defendant submitted, that even if the stairs were not used 50,000 times, and there was an absence of records and deficiencies Mr Jewell’s evidence this could not prove the opposite, namely, those circumstances could not prove that nobody had ever gone up the stairs. All that the plaintiff can do is limit the 50,000 to the point where it is clear that for approximately 10 years, there had been no previous problems or issues and that must go into, if nothing else, the probability that the harm would occur if care were not taken. However, in the absence of Mr Jewell’s evidence there is an absence of evidence of continuous and substantial use of the party room and evidence to suggest the contrary, namely, a low usage.

29. [161]

    The plaintiff submitted that the ad hoc nature of Mr Jewell’s record keeping, the absence of evidence of previous falls on those stairs goes nowhere. I will return to this issue, but I consider there is considerable force in this submission.

30. [162]

    In my view, Mr Jewell’s evidence should not be accepted unless corroborated by other evidence.

31. [163]

    The plaintiff submitted there was no explanation given by the defendant for its failure to call Ms Dewes, or any other staff members working on the premises on the day of the incident, and the plaintiff therefore invited the Court to draw a Jones v Dunkel inference (of the kind in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8) that the uncalled evidence would not have assisted the defendant.

32. [164]

    The defendant submitted that there was no cross examination to properly establish the matters necessary for the Court to draw a Jones v Dunkel inference, despite what was submitted by the plaintiff. It was submitted that the difficulty with the plaintiff’s submission, as a matter of law, was twofold:

    1. (1)

       It is not enough, to show that Ms Dewes was an employee of the defendant. The plaintiff would need to establish that the defendant still had some involvement with the employee, namely, that she was still employed by the defendant.

    2. (2)

       The defendant was not asked whether Ms Dewes was still employed by the defendant; they were never asked.

33. [165]

    It was ultimately submitted that, there was simply no scope for a Jones v Dunkel inference and, even if there was, it does not go anywhere because there is no evidence of any problems, difficulties, falls, knowledge of risks and Jones v Dunkel does not permit the Court to conclude that the evidence would have been that there were previous falls or that there were previous incidents or knowledge of unsafeness. Mr Jewell gave evidence that there were staff employed in the cake shop, who were running the business on the day of the plaintiff's incident. Those employees were responsible for all aspects of the operation of the enterprise, including management, and the implementation of the alleged system of turning on the lights above the stairs which the plaintiff fell. Presumably, they were also responsible for setting up the upstairs party room. Their identity was within the knowledge of the defendant, and, in particular, Mr Jewell.

34. [166]

    In my view those witnesses, and in particular, Ms Dewes plainly could have given evidence of the extent of the use of the upstairs party room, the setting up of it, the status of the lights above the stairs, and whether they were switched on at the time of the incident. They may also have been able to give evidence in relation to other incidents involving the stairs although that much is clear.

35. [167]

    I agree with the submissions of the plaintiff that it was for the defendant to explain their absence. If Mr Jewell's record keeping was so haphazard that he could not identify them, he could have said so but, in any event, it was clear Ms Dewes was working on the day of the incident. It is true that Ms Dewes was no longer an employee of the defendant. However, if that had been on bad terms, or she could not be located, that evidence could and should have been given.

36. [168]

    Otherwise, Ms Dewes and other potential employees or former employees of the defendant were witnesses clearly within the defendant's camp, and who could clearly have given evidence upon significant matters in issue. The defendant chose not to call them, and has offered no evidence as to why: see Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at 576 [15]-[16].

37. [169]

    The fact that Mr Jewell was called, but not asked anything in chief, or in re-examination, about the matter suggests that there is no explanation available that would displace the Jones v Dunkel inference: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-G.

38. [170]

    As earlier identified, there were a number of expert reports tendered to the Court in the form of both individual and joint reports.

39. [171]

    I will consider both individual reports and the joint reports in turn below, noting again that the individual reports produced by the experts were tendered as background to the criticisms contained in the joint reports but were ultimately superseded in effect by the joint reports.

Individual Reports

1. [172]

   Mr Dimopoulos attended the premises on 15 December 2016, to undertake a view of the premises and to take various measurements and photographs. He was accompanied by the plaintiff at the inspection.

2. [173]

   Mr Dimopoulos graduated from Swinburne University in 1990, with a Bachelor’s Degree in Mechanical Engineering, with Honours, and completed courses in failure analysis and Occupational Health and Safety.

3. [174]

   Mr Dimopoulos is a professional consulting engineer and is qualified to give expert opinions on the functioning of machines and structures, including the actions and effects of forces and movements. He is also qualified to give expert opinions in matters to do with kinematics and dynamics. He has experience in investigations of slips and falls involving stairways and steps, in the context of litigated personal injuries claims and has also been a contributing member of Australian Standards Committee DB/96- Slip resistance of flooring surfaces.

4. [175]

   Mr Dimopoulos prepared his report on a set of assumed facts which included the following:

   1. (1)

      As to the plaintiff, Mr Dimopoulos stated:

   2. (2)

      In relation to the incident Mr Dimopoulos stated:

5. [176]

   Mr Dimopoulos opined that two significant factors contributed to the incident, firstly, the going dimension of the stairs and secondly, the irregularity of the step dimensions. Both are discussed in more detail below, commencing with the going dimension.

6. [177]

   Mr Dimopoulos measured the third step and opined that the going measurement was significantly lower than that required by any Building Regulation in place from 1973 to 2016. That opinion was extracted below:

7. [178]

   Mr Dimopoulos, included in his report a figure illustrating that the nosing material is important. That figure and accompanying notation is extracted below:

8. [179]

   Mr Dimopoulos found that the second significant factor was the inconsistency of the step around the third step in his report. At 7.12 of his report, he outlined:

9. [180]

   Mr Dimopoulos then opined as to the likely cause of the plaintiff’s fall at 7.17 to 7.23, as follows:

10. [181]

    Mr Dimopoulos concluded at 7.24:

11. [182]

    Mr Dimopoulos identified measures which were available to the defendant to prevent exposing the plaintiff to risk. They are extracted below:

12. [183]

    Mark Dohrmann, prepared a report dated 16 September 2020. This report was prepared at the request of the plaintiff.

13. [184]

    Mr Dohrmann is a professional consulting engineer, with additional post-graduate qualifications in ergonomics. He has practised for approximately forty-five years as a safety advisor, specialising in the identification and prevention of strain injuries. He is qualified to give expert opinions in matters to do with trips, slips and falls and has prepared reports in over two thousand litigated matters involving slips, trips and falls.

14. [185]

    Mr Dohrmann prepared his report based on the briefing material that was supplied and did not attend the site.

15. [186]

    Mr Dohrmann concluded at 7.6 of his report:

16. [187]

    Mr Dohrmann was asked to respond to three questions, I will turn to each question in turn below.

17. [188]

    Mr Dohrmann was firstly asked about the presence of the handrail and the coefficient of the carpet, and their contribution to the incident. His response is extracted below:

18. [189]

    Mr Dohrmann was then asked whether on the balance of probabilities the plaintiff’s fall would have likely been avoided had the flight had consistent goings of no less than 240mm, to which he responded:

19. [190]

    Lastly, Mr Dohrmann was then asked whether on the balance of probabilities the plaintiff’s fall would likely have been avoided had the flight had proprietary nosing product installed over the front nosing’s of the steps, to which Mr Dohrmann replied “probably”. His reasons are extracted below:

20. [191]

    Mr Dohrmann was also asked to comment specifically on the report of Dr McIntosh, parts of his response are extracted below:

21. [192]

    Mr Dohrmann concluded at 10.1 of his report:

22. [193]

    Dr Andrew McIntosh prepared a Biomechanics and Ergonomics Report dated, 29 May 2019. This report was prepared at the request of the defendant.

23. [194]

    Dr McIntosh has a qualification as a Doctor of Philosophy. In his career he has applied designed standards and regulations to assist in the design and development of safe and functional work systems. He has also researched in the biomechanical and ergonomic issues related to slips, trips and falls as well as the biomechanics of human movement.

24. [195]

    Under the heading “Plaintiff’s particular attributes and stair descent” Dr McIntosh outlined:

25. [196]

    Also, under this heading Dr McIntosh indicated that the plaintiff’s obesity and pre-medical conditions would have been a risk factor in the plaintiff’s fall:

26. [197]

    Dr McIntosh was asked to comment on the presence of the handrail and the dynamic coefficient of the friction on the stairs and how those factors are likely to have been involved in the incident. His response is extracted below:

27. [198]

    Dr McIntosh was asked to opine whether it was likely that the plaintiff’s fall would have been avoided if the stairs had consistent goings of no less than 240mm. His response is extracted below:

28. [199]

    On balance, Dr McIntosh concluded the following:

29. [200]

    As earlier identified, Professor Stephen Dain prepared two lighting reports at the request of the defendant in these proceedings, namely, the Dain Report and the Supplementary Dain Report.

30. [201]

    Professor Dain is a registered optometrist with specific research interest relating to occupational and environmental optometry. He has previously provided reports related to both vision and lighting in both occupational and road accidents.

31. [202]

    Professor Dain attended the premises on Friday 3 April 2020, from 4.25pm to 5.15pm (around this time the sun was in the same position as on the day of the incident).

32. [203]

    Professor Dain observed that the premises had been changed and observed it was different to the time of the incident.

33. [204]

    Professor Dain noted as to the lights at the top of the stairs at 7.6 of his report:

34. [205]

    From the photographs and description of the stair lights, Professor Dain identified that Phillips 100W spotlights were the most likely lights used at the time of the incident.

35. [206]

    Professor Dane identified that the major contribution to the lighting of the stairs would have been from the stair lights located at the top of the stairs. That is extracted below:

36. [207]

    Professor Dain identified that there was no way to determine the contribution of lighting in the rest of the premises. However, he found it possible to model the illuminance on the stairs at the time of the incident as follows:

37. [208]

    Professor Dain calculated the illuminances of each step of the stairs, in tabular form as follows:

38. [209]

    He noted that the calculation did not include light reflected from the surrounds, most notably, the wall. While the wall was painted black at the time of inspection, at the time of the incident it appears to have been cream, as such, he noted that there would have been some measurable contribution to the illuminances from a wall so coloured. As a consequence, his modelling would be and underestimation. Closer to the bottom of the stairs there would have been an increasing contribution of lighting from other sources, namely, daylight entering the doorway, the high bay lighting and other light sources in the general area.

39. [210]

    In conclusion, Professor Dain found the following:

40. [211]

    Professor Dain in his supplementary report was instructed to revise the modelling of light levels on the stairs that was presented in his report on the basis that the lights in the fitting were compact fluorescent lights. This was on the basis of the photograph provided in Dr Long’s Report. That photo is extracted below:

41. [212]

    On that basis, Professor Dain stated (at 4.4-4.6) in his supplementary report as follows:

42. [213]

    Professor Dain calculated the level of illuminances at each step on the stairs with the variation of fluorescent lights. That table is extracted below:

43. [214]

    Professor Dain then noted that the calculation does not include light reflected from the surrounds, most notably the wall. As a consequence, the illuminances are an underestimation. This would be more the case with these sources than with the 100W spot lights originally measured and modelled because the CFLs lack the directional effect of the mirror in the spotlight and more light would be incident on and reflected from the wall. Closer to the bottom of the stairs, it was noted, that there would be increasing contribution of lighting from the other sources and natural light through the open roller door.

44. [215]

    Professor Dain concluded that in the vicinity of the step where the accident occurred (assumed step 3), the modelling complies with Australian and New Zealand Standard AS/NZS 1680.0 (“AS/NZS 1680.0”) (minimum 20 lx) with all the CFLs measured.

45. [216]

    Dr Jennifer Long prepared a lighting report dated 9 September 2020. Dr Long also participated in the Lighting Conclave Report which will be discussed below. Dr Long was not called at the hearing.

46. [217]

    Dr Long is a registered optometrist, Certified Professional Ergonomist and Certified Generalist OHS Professional. Dr Long’s has a Bachelor of Optometry (Honours Class 1), Master of Safety Science and PhD, all obtained from the University of New South Wales. Dr Long has also completed a 12 month “Principles of Lighting” course at TAFE Plus, NSW in 2005.

47. [218]

    Dr Long’s area of expertise is visual ergonomics, that is, the interaction between vision and the environment.

48. [219]

    Dr Long noted at heading five under “Investigations” that she did not conduct a site assessment as she understood “that the site has been refurbished to accommodate new tenants”. The following changes were noted:

49. [220]

    Dr Long also noted that she did not conduct any testing of the lamps to mathematically model the illuminance on the stairs.

50. [221]

    Dr Long was asked to respond to three questions sent in the letter of instruction. Those questions are extracted below:

51. [222]

    I will deal with question 6.2 and 6.3 in turn below.

52. [223]

    Firstly, in response to question 6.2, Dr Long concluded that she was unable to make a judgment about compliance based on the measurements provided by Dr Dimopoulos, for the following reasons:

53. [224]

    Secondly, in response to questions 6.3, Dr Long agreed with Professor Dain’s process for the modelling on the stairs. However, she opined that Professor Dain used the incorrect light source for modelling. Dr Long opined that as a result his calculations cannot be used for this matter.

54. [225]

    Overall, Dr Long concluded:

Conclave Reports

1. [226]

   Dr Jennifer Long, Professor Stephen Dain and Mr John Dimopoulos prepared the Lighting Conclave Report, dated 22 October 2020. Dr Jennifer Long and Professor Stephen Dain were not required for cross-examination at the hearing.

2. [227]

   The experts were asked three questions, each will be considered in turn below.

3. [228]

   Firstly, the experts were asked about the codes and standards applicable to lighting at the premises. The experts identified a total of four codes and standards that applied in relation to lighting at the premises, they are listed below:

   1. (1)

      The BCA 2010, Volume 1, Section F, Part 4.4(b).

   2. (2)

      AS/NZS 1680.0:2009 Interior lighting Part 0: Safe movement.

   3. (3)

      AS/NZS 1680.1:2016 Interior and workplace lighting Part 1: General principles and recommendations.

   4. (4)

      AS/NZS 1680.2.1:2008, interior and workplace lighting Part 2.1: Specific applications – circulation spaces and other general areas.

4. [229]

   Secondly, the experts were asked to consider the likely level of illuminance in and around the subject stair area that the plaintiff would have encountered in two parts, namely, if the lights were on and if the lights were off. In the joint report, the following answer was given:

   1. (1)

      If the lights were on the experts agreed that the illuminance levels would have been at least those reported in the modelling reports reported by Professor Dain in his two reports, namely, a minimum of 20 lux. The illuminance provided in the modelling did not include other lighting in the vicinity, which would add to the actual illuminance in an unpredictable way.

   2. (2)

      If the lights were off, the experts agreed that the level of illuminance was unknown and unknowable due to insufficient detail about the contribution of other lighting on the stairs, be it natural or artificial.

5. [230]

   Finally, the experts were then asked to consider whether the lighting in and around the subject area was compliant with the relevant code or standards.

6. [231]

   In relation to AS/NZS 1680.0 with the lights on, the experts found:

   1. (1)

      With the lights on, the experts agreed that in the vicinity of step number 3 on the stairs, there was a least 20 lux from the spotlights or the compact, fluorescent lamps according to the calculations supplied by Professor Dain in his reports.

   2. (2)

      With the lights on, over the whole stairway, the experts referenced the report of Professor Dain, dated 27 May 2020, which showed that there was at least 20 lux on all of the stairs. The compact fluorescent modelling in Professor Dain’s report dated 20 October 2020 shows that there was less than 20 lux on some of the stairs. The experts agreed that they could not know whether other lighting in the vicinity contributed additional illumination that may have resulted in compliance with the standard.

7. [232]

   In relation to AS/NZS 1680.1 with the lights on, the experts found:

   1. (1)

      With lights on, over the whole stairway, the experts agreed that the illuminances from the spotlights or the compact fluorescent lamps comply with the uniformity requirement of a minimum mean of 0.3, based on the modelling reports in Professor Dain’s reports.

8. [233]

   In relation to AS/NZS 1680.2.1 with the lights on, the experts found:

   1. (1)

      With the lights on, in the vicinity of step 3, the experts stated that the recommended maintained illuminance level was 80 lux (maintained illuminance is defined in s 1.4.4 of AS/NZS 1680.1). Based on Professor Dain’s modelling of the spotlights, the experts agreed that compliance with the 80 lux requirement would have been met in the vicinity of step 3.

   2. (2)

      However, based on Professor Dain’s modelling of the fluorescent lamps, the experts agreed that compliance with the 80 lux requirement would not have been met in the vicinity of step 3.

   3. (3)

      Further, whilst they agreed that compliance would not have been achieved in the vicinity of step 3, it could be not know whether other lighting in the vicinity contributed additional illumination that may have resulted in compliance with the standard.

   4. (4)

      With the lights on, the experts agreed, based on modelling provided by Professor Dain, that the requirement were not met over the whole stairway with either the spotlights or the compact fluorescents alone.

9. [234]

   With the lights off, Professor Dain and Mr Dimopoulos, based on their observations when they had attended the site, agreed that it was debateable whether the lighting complied with AS/NZS 1680.0, and most unlikely that it complied with AS/NZS 1680.2.1. Dr Long was not in a position to comment as she had not attended the site.

10. [235]

    Mr John Dimopoulos, Dr John Cooke and Mr Mark Bullen prepared the Architectural Conclave Report. Dr John Cooke and Mr Mark Bullen were not required for cross-examination at hearing in relation to their joint report.

11. [236]

    The authors were asked a set of five questions. Those are considered in turn below.

12. [237]

    Firstly, the authors were asked to identify any relevant codes or standards that applied to the stairs as at the time of the plaintiff's incident. Those are listed below:

    1. (1)

       The BCA 2010 cll D2.13 (Goings and Risers). D2.16 (Balustrades or barriers) and D2.17 (Handrails) which apply by statutory force.

    2. (2)

       Australian Standard Handbook HB 197:1999 An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials.

    3. (3)

       Australian/New Zealand Standard AS/NZS 4586-1999 Slip resistance classification of new pedestrian surface materials (“AS/NZS 4586-1999”); and

    4. (4)

       Australian Standard AS 4663-2013 Slip resistance measurement of existing pedestrian surfaces (“AS 4663-2013”).

13. [238]

    The experts agreed that it appeared, based on the dimensions to which the stairs are constructed, that the stairs were designed to comply with AS 1657-1992 Fixed platforms, walkways, stairways and ladders – Design, construction and installation (“AS 1657”).

14. [239]

    The experts agreed that the standard AS 1657 did not apply to the stairs at the time of the incident but rather applied to the previous use of the premises, namely, a motor mechanic’s workshop, if access was only to a non-habitable room (BCA cl D2.18).

15. [240]

    Secondly, the experts were asked whether the stairs were compliant to the relevant standards identified above.

16. [241]

    The experts agreed that the stairs complied with cl D2.13 of the BCA, in respect of:

    1. (1)

       The individual riser heights

    2. (2)

       The stair quantity

    3. (3)

       The number of rises in the flight.

17. [242]

    However, the authors agreed that the stairway did not comply with clause D2.13 of the BCA in that:

    1. (1)

       The goings, were below the minimum dimension of 250 millimetres required by cl D2.13(a)(ii)

    2. (2)

       The goings and rises were not consistent throughout the flight as required by cl D2.13(a)(iii)

18. [243]

    Overall, the experts agreed that the stairway did not comply with clause D2.13 of BCA 2010. It was noted that the answer to this question was dealing purely with the stair flight and not the handrail and balustrade (which will be discussed with respect to the third question below). Further, the opinion did not cover any of the artificial lighting requirements set out in the BCA 2010.

19. [244]

    The experts agreed that, if the design and construction of the stairs was considered for compliance with AS 1657, then the stairs would not be compliant for the same reasons, namely, the goings were below the minimum requirement, and the goings and rises were not consistent throughout the flight.

20. [245]

    Thirdly, the experts were asked whether the handrail complied with the relevant standards. The experts agreed that the handrail complied with clause D2.17 of BCA 2010, in that:

    1. (1)

       The handrail was located along at least one side of the flight

    2. (2)

       The stairway was less than 2 metres wide and therefore only one handrail is required

    3. (3)

       The handrail was fixed at a height not less than 865 millimetres measured above the nosing. This height was 980 millimetres by measurement; and

    4. (4)

       The handrail was continuous between the stair flights, as required.

21. [246]

    Fourthly, when asked whether the carpet on the stair chairs were compliant with the relevant standards, the experts agreed that the carpet complied with clause D2.13(a)(v) of the BCA 2010, as it provided the treads with a non-slip finish. Further, the experts agreed that AS 4663-2013 and AS/NZS 4586:1999, do not provide any slip resistance compliance requirements but rather these standards prescribe tests for measuring the slip resistance of pedestrian surfaces.

22. [247]

    The experts came to this conclusion by reference to the tests conducted by Dr Cooke in accordance with AS 4663-2013, whereby, Dr Cooke concluded that the carpet was, when dry, “far more slip resistant than required” and the dynamic coefficient was measured as 1.04 in accordance with cl A2 of AS 4663-2013. The experts gave individual reasons for coming to this conclusion. Those reasons are summarised below:

    1. (1)

       Mr Dimopoulos only held this view for flat and level sections of the carpet

    2. (2)

       Dr Cooke opined that the carpet was flat and level at the time of the incident based on his observations on site.

    3. (3)

       Mr Bullen considered that the tread at the incident site (the second or third step) had the following fall from the nosing to the back of the tread (as reported at paragraph 25g of his report):

23. [248]

    Lastly, the experts were asked whether the applicable codes or standards required the installation of proprietary nosing. The expert’s response is summarised below:

    1. (1)

       The experts agreed that the applicable codes did not require the installation of the proprietary nosing. The reason for this was that the carpet on the stairs provided the treads with a non-slip finish fulfilling the requirements of the BCA 2010.

    2. (2)

       Mr Dimopoulos held the view that although the applicable codes do not require the installation of a proprietary nosing, there is no prohibition on their use where appropriate.

    3. (3)

       Dr Cooke and Mr Bullen agreed that there is no prohibition on the use of such nosings.

24. [249]

    Mr Mark Dohrmann, Dr Andrew McIntosh and Mr John Dimopoulos prepared the Ergonomic Conclave Report, dated 26 October 2020. The authors of that report were required for cross-examination and gave concurrent evidence.

25. [250]

    I will first turn to the Ergonomic Conclave Report before turning to the concurrent evidence. The experts were asked 11 questions, I will consider questions, 3, 4, 5, 6, 7, 8, 9 and 11, in turn below.

26. [251]

    The experts were asked at question 3to describe the possible mechanisms by which the plaintiff fell down the stairs. Mr Dimopoulos (with whom Mr Dohrmann agreed) stated that there were a number of possible mechanisms, including:

    1. (1)

       Trip- where the trailing leg gets caught on the step as it is coming through down to the next step.

    2. (2)

       Slip- where the leading foot slips as it lands on the horizontal section of the tread.

    3. (3)

       Overstep/slip – where the foot lands past the nosing, causing the foot to slip down the front of the step.

27. [252]

    Mr Dimopoulos noted:

28. [253]

    Dr McIntosh disagreed with the observation of Mr Dimopoulos that “one of the most common mechanisms is an overstep/slip…which is typically triggered due to short and irregular sized goings”, due to the statement being “vague and not specific”.

29. [254]

    Dr McIntosh placed reliance on the six possible mechanisms identified in his report as being possible cause of the plaintiff’s fall down the stairs (I will later turn to those mechanisms). Those six possible mechanisms were divided into two categories: loss of stable basis support on stance via five possible mechanisms and secondly a trip on the descending leg. The former mechanisms are extracted below:

30. [255]

    Dr McIntosh also identified that the plaintiff’s obesity was a risk factor for falling and may have initiated her fall or prevented her from recovering once her stability was perturbed.

31. [256]

    The authors were then asked at question 4 to opine as to which of the mechanisms identified, on the balance of probabilities, was more likely to have occurred in relation to the plaintiff's fall. Dr McIntosh was not able to say which of the mechanisms identified was more probable to have occurred.

32. [257]

    Dr McIntosh agreed that inconsistencies in going dimensions are a risk or contributing factor for falls on staircases. However, he opined that when descending stairs, there is a risk of harm to individuals and that overstepping also occurs on stairs that are compliant with a standard or the BCA. He opined that the likelihood of overstepping “is likely to be slightly elevated with the stairs with the stairs where the fall occurred in comparison to building code compliant stairs”. He concluded that the measured risk of harm associated with the stairs at the premises was “one to 50,000 patrons” and opined that it was “not possible to say that the fall was initiated by an overstep related to the state of the stairs”.

33. [258]

    Mr Dimopoulos and Mr Dohrmann both opined that the undersized going and its smaller depth than the preceding going were, on the balance of probabilities, the most likely cause of the plaintiff's fall (being a reference to the third stair).

34. [259]

    Notwithstanding, Mr Dimopolous having identified a larger of group of precautions that may have been taken than listed in question 5, the experts were asked to confine their opinion to three possible steps that the defendant may have taken. Those steps consisted of firstly, rebuilding the staircase, secondly, preventing access to the staircase and lastly, installing a proprietary nosing product.

35. [260]

    Question 5 and the answers provided by the experts were as follows:

36. [261]

    The experts were then asked at question 6 to opine whether the stairs posed a risk of harm to someone who was descending them. Mr Dimopoulos and Mr Dohrmann agreed that the stairs did pose a risk of harm due to the stair dimensions and inconsistencies described in his report, which increased the risk of an overstep.

37. [262]

    The experts were then asked to consider in question 7 what action could have been taken by the defendant in response to the risk of harm. Their responses are extracted below:

38. [263]

    The experts were then asked to consider in question 8, whether on the balance of probabilities the taking of the actions referred to in question 7 would have, more likely than not, prevented the plaintiff's fall. Mr Dohrmann answered in the affirmative, noting that preventing access would eliminate the risk of a fall whilst increasing the depth or length of the goings and making them regular, in compliance with the applicable provisions of the BCA 2010, would have reduced the risk of an overstep. A contrast strip would have also reduced the risk. Mr Dimopoulos agreed with Mr Dohrmann.

39. [264]

    Dr McIntosh noted that the plaintiff's fall could have been prevented by eliminating access to the stairs. If access to the stairs was allowed, he was not able to say whether any other actions would have, more likely than not, have prevented the plaintiff's fall on the basis that he did not know what initiated the plaintiff's fall or its mechanism.

40. [265]

    The experts were then asked to express an opinion as to whether if the staircase had been constructed with consistent riser and going dimensions, together with goings of not less than 240mm it was more likely than not the plaintiff's fall would have been prevented.

41. [266]

    Mr Dimopoulos pointed out that the BCA required minimum going dimensions of 250mm rather than 240mm. He expressed the view that had the staircase been built with those minimum requirements, along with consistent riser and going dimensions then, in his opinion, it was more likely than not the incident would have been prevented. Mr Dohrmann was in agreement. Dr McIntosh stated it was not possible to say.

42. [267]

    The experts next considered a proprietary nosing product being installed, in conjunction with consistent riser and going dimensions. Both Mr Dimopoulos and Mr Dohrmann agreed that that additional step would, more likely than not, have prevented the plaintiff's fall. Again, Dr McIntosh was not able to say whether it was more likely than not.

43. [268]

    The above experts gave concurrent evidence before the Court in relation to the Ergonomic Conclave Report.

44. [269]

    During concurrent evidence, Mr Dimopoulos opined that the third step was “more likely” were the fall occurred. That is extracted below:

45. [270]

    When asked whether an individual would be able to restrain themselves where a slip has already occurred, the following exchange took place:

46. [271]

    When asked whether an individual’s characteristics impact the amount of overstep that will cause them to slip forward, the following exchange took place (T340.39):

47. [272]

    When Mr Dimopoulos was asked about his evidence as to the position of a person’s foot on the step, he responded (T345.16):

48. [273]

    Later it was put to the experts that there were other potential causes for the plaintiff's fall, such as losing her balance, having a "dizziness episode" or having turned to talk to somebody and leant forward and falling down the stairs. Mr Dimopoulos agreed that those scenarios were possible. That part of the evidence is extracted below:

49. [274]

    It was then put to Mr Dimopoulos that there was nothing within his area of expertise that permitted him to say that the most likely cause of the fall was the goings were short and inconsistent. He responded (T348.12):

50. [275]

    Dr McIntosh disagreed with the view of Mr Dimopoulos that the most likely cause of the fall was the goings were short and inconsistent. That is extracted below:

51. [276]

    The experts were then asked to assume that the plaintiff slipped down the stairs and had no dizziness beforehand. Dr McIntosh’s response is extracted below (T357.22):

52. [277]

    Both Mr Dohrmann and Mr Dimopoulos agreed that the description provided was likely a result of an overstep. That exchange is extracted below:

53. [278]

    During the conclave evidence, Dr McIntosh explained that at least in relation to stair descent, an expectation of regularity was not as important as when walking on a flat surface. That evidence is extracted below:

54. [279]

    When Mr McIntosh was asked whether the incident was most likely caused by short or irregular goings, he responded:

55. [280]

    Mr Dohrmann was asked to determine whether a different size going would have prevented the plaintiff’s accident on the basis it was an “overstep slip”, that exchange is extracted below:

56. [281]

    Lastly, during the concurrent evidence the experts were asked to consider whether a different size going would have prevented the plaintiff’s fall on the basis that it was an overstep. This question was first addressed to Mr Dohrmann who agreed that it was necessary to analyse the following factors:

    1. (1)

       analyse the point of the foot when her body is moving forward (T337.14)

    2. (2)

       know the angle of her body in relation to her foot (T337.20)

    3. (3)

       know the momentum at which she was moving down and placing her foot (T337.25)

    4. (4)

       know the angle at which she put her foot down (T337.35)

    5. (5)

       know the type if shoes and in particular the size of heel she was wearing (T337.39); and

    6. (6)

       know where she put her foot on the stairs (T337.44)

57. [282]

    Mr Dimopoulos accepted that those factors are relevant to access whether an overstep would have been prevented by a longer going (T340.39-44):

58. [283]

    Mr Dimopoulos also accepted that “generally” it would also be necessary to analyse the “tipping point” (T344.7):

59. [284]

    However, in relation to tipping points and whether it would be necessary to know where the plaintiff had placed her foot before being able to express an opinion as to whether compliance with the BCA would have made any difference, the following exchange took place (T346.13):

60. [285]

    In relation to irregularities, Mr Dimopoulos accepted that a smaller difference reduced the risk of injury, however, emphasised the significance of any variation above that which allowable in the BCA (346.49):

61. [286]

    Dr McIntosh was asked whether “as a matter of common sense and human experience” the fallings of the staircase made a contribution to the fall, to which he responded (T363.23):

Overview of Central Disputes Between Experts

1. [287]

   After reviewing the evidence of the experts, it is clear there are three central features of the disagreement between Dr McIntosh and the opinions of Mr Dimopoulos and Mr Dohrmann. They are as follows:

   1. (1)

      Whether the Court should conclude that the existence of a stair pattern with irregular risers and undersized goings, in both cases contrary to the requirements of the BCA should result in a conclusion that there is a higher probability of an overstep resulting in a slip and fall than stairs complaint with the BCA. In other words, whilst there is an acceptance that an overstep is a possible basis for the fall in question whether there was a greater probability of fall on these stairs than stairs that ae complaint.

   2. (2)

      Whether the mechanisms identified by Dr McIntosh for the fall down the stairs are of equal probability. The counterpoint was whether an overstep being one of the six mechanisms represented a greater probability for the fall than the other mechanisms, assuming they can be proven to have existed at the time.

   3. (3)

      Whether the defendant should have taken the precautions referred to in question 5 in addition to existing measures of a handrail and carpet treads over the stairs.

2. [288]

   It may be observed that there was not a significant difference between the experts as to the answer to question 7.

3. [289]

   These issues will be discussed in greater detail after turning to my findings of credit.

Qualifications of the Experts

1. [290]

   Various issues were raised about the qualifications of the experts to express opinions about the ergonomic considerations arising in relation to the stairs or other biomechanical considerations.

2. [291]

   I will turn to those considerations momentarily but will first deal with the manner that Dr McIntosh and Mr Dohrmann approached the issue of qualifications. Unusually. Dr McIntosh in his report embarked a critique of Mr Dimopoulos’ qualifications in his report. Similarly, Mr Dohrmann embarked upon a critique of Dr McIntosh’s qualifications during concurrent evidence in an apparent rebuke of Dr McIntosh having challenged Mr Dimopoulos’ qualifications.

3. [292]

   Whilst these approaches may be permissible in certain circumstances, in the present case, the impression is clearly created that both Dr McIntosh and Mr Dohrmann were inclined to advocate for the cause for whom they gave evidence, beyond a mere insistence, in Dr McIntosh’a case, in the maintenance of his case hypothesis (although in Mr Dohrmann’s case the evidence seemed to be principally argued in favour of Mr Dimopoulos’s qualification).

4. [293]

   I have earlier set out the respective qualifications and expertise of the respective experts. In my view, Mr Dimopoulos is well qualified to express the opinions that he has in his report and the Ergonomic Conclave Report (and his own report). Whilst Dr McIntosh endeavoured to suggest that Mr Dimopoulos’s qualifications to apply design standards and regulations to assist in the design and the development of safe and functional workplaces and work systems as well as the study of biomechanics of human movement including walking on the flat, ramps and stairs were limited. It appears to me, without repeating my earlier analysis, that the attacks should be rejected because:

   1. (1)

      Mr Dimopoulos is a professional consulting engineer with a Bachelor’s Degree in Mechanical Engineering, with Honours. He was qualified to give expert opinions on the functioning of machines and structures, including the actions and effects of forces and movements. He has experience in investigations of slips and falls involving stairways and steps, in the context of litigated personal injuries claims.

   2. (2)

      Mr Dohrmann is also well qualified to provide an expert opinion in this matter. I highlight in this regard his forty-five year experience as a safety advisor, specialising in the identification and prevention of strain injuries, combined with his preparation of reports in two thousand litigated matters involving slips, trips and falls.

5. [294]

   On the other hand, Dr McIntosh experience had some limitations Dr McIntosh has a Doctor of Philosophy with expertise in the field of biomechanics and ergonomic factors. Dr McIntosh was not involved in the development of the BCA and much of the unpaid work he had performed was in assisting with various standards relating to personal protective equipment (T366.21).

6. [295]

   Overall, I find that the qualifications of both Mr Dimopoulos and Mr Dohrmann and their experience and expertise are superior to that of Dr McIntosh’s and is more appropriate to the issues at hand.

7. [296]

   I will firstly turn to the submissions of the parties in relation to the credit of the experts before turning to my findings.

8. [297]

   The plaintiff submitted with some force that the opinions of Mr Dohrmann and Mr Dimopoulos would be preferred over that of Dr McIntosh for following reasons:

   1. (1)

      Dr McIntosh evidence had examples of him acting as an advocate for the defendant. Reference was made again to his evidence in the witness box where he described Mr Dimopoulos as having said that these stairs had missing steps and she was going down blindfold in the pitch dark (T356.7) as follows:

   2. (2)

      The fact that Dr McIntosh was unwilling to “obdurate refusal to concede the bleeding obvious does him no credit”. Further, reliance was placed on Dr McIntosh responses in concurrent evidence, whereby, he was unable to reach a conclusion on certain issues by responding "I can't say", or I will not opine whether measures put to him during his evidence would have made a difference or was a cause of this injury, this incident. An example is extracted below:

9. [298]

   It was submitted by the plaintiff that Mr Dimopoulos was measured, made concessions where appropriate and did his best to engage with every question that was asked of him, even when he found them difficult to relate to what was going on or to the building code or to his own experience.

10. [299]

    In relation to the credibility Mr Dimopoulos the defendant submitted:

    1. (1)

       That the research identified by Mr Dimopoulos to support his contention that "short and inconsistent goings are very - the main reason for falls on stairs" (T348:12-13) was demonstrated to be flawed by Dr McIntosh (T349:39-50, T350:1-23), but in any event is not specific to the plaintiff with her physical characteristics and history of dizziness and unexplained falls.

    2. (2)

       Further, that Mr Dimopoulos' opinion in respect of causation was based on an incorrect assumption that the plaintiff fell on the third step (T323:18-36). The fact that he chose the third step for the purposes of the joint report because he assumed that it was the width of the going that caused the plaintiff to fall and therefore it was "more likely that the incident would have occurred on the third step, given its dimension" (T324:1-10) confirms that his opinion was infected with hindsight reasoning and should be given little weight. He maintained that position throughout his evidence

11. [300]

    The defendant submitted that Mr Dohrmann's opinion (as to breach and causation) should not be accepted, as he was an advocate for the plaintiff. The following was relied upon in that regard:

    1. (1)

       he conceded that he had discussed the matter with Mr Dimopoulos but had not identified any such consultation in his report (T326:23-32; T327:26-35);

    2. (2)

       his comments regarding Dr McIntosh's qualifications (Ex 1 p1202 at [9.7]) were inappropriate for an expert complying with the Code of Conduct. The cross examination on that issue was most telling (see T327:37-49; T328 - T329);

    3. (3)

       it was clear that his report had been prepared in consultation with Mr Dimopoulos, despite his reluctance to accept that was the case. His explanation for the use of the pronoun "we", should not be accepted (T330:29- 50; T331:1-8) neither should his explanation for the fact that the concluding paragraph if his report (Ex 1 p1206 at 10.11) was in almost identical terms to that in Mr Dimopoulos' first report (Ex 1 p1124 at 7.24) - see 1331:10-50; 1332; 1333:1-16;

    4. (4)

       Mr Dohrmann recorded that a number of facts were "uncontroverted" rather than what would be more properly labelled as "assumed" for the purposes of his report (Ex 1 p1199 at 7.5; 1333:21-50; 1334:1-10);

    5. (5)

       Mr Dohrmann's criticism of Dr McIntosh's report which was explored during the cross-examination went beyond that expected of an expert complying with the Code of Conduct (see 1334:11-49, 1335; 1336:1-33).

Dr McIntosh

1. [301]

   I will commence my discussion of the credit experts, commencing with Dr McIntosh.

2. [302]

   Central to Dr McIntosh’s evidence was that there was number of equally plausible mechanism which could have caused the plaintiff’s fall. However, this position was not maintained throughout his evidence and as a result his evidence was inconsistent. When Dr McIntosh was pressed during concurrent evidence to opine purely based on likelihoods the more likely reason for the plaintiff falling, he opined that the more likely reason was obesity and a history of falls (T363.23).

3. [303]

   I agree with the plaintiff that Dr McIntosh often engaged in periods of advocacy throughout concurrent evidence and failed to make appropriate concession. The illustration provided by the plaintiff from (T356.7) of the transcript is an example of Dr McIntosh engaging in advocacy. That is extracted below:

4. [304]

   In relation to the failure to make appropriate concessions, an example was that Dr McIntosh agreed in concurrent evidence that stairs, by their very nature, were dangerous (T353.03). He also agreed in general terms that complying with standards and building codes is important. However, he then did not make the logical concession that there was a relationship between non-compliance and the risk of injury.

5. [305]

   An example of this was his response to a question in concurrent evidence where he was asked to opine as to whether the plaintiffs fall was most likely caused by short or irregular goings to which he responded, “absolutely not” (T350.24).

6. [306]

   A further example of this was when he was asked to assume a lady falling downstairs, having slipped down approximately 10 narrow carpeted stairs, having denied feeling dizzy prior, hit her head on the way down, and having had a good recollection of events, he was not prepared to make a concession that the scenario presented was a classic description of the sequelae of an overstep (T357.26).

7. [307]

   A further example was when Dr McIntosh opined that an expectation of regularity is “far more true of people’s gait on a flat surface” then when approaching the ascending or descending of stairs.

8. [308]

   This contention illustrated the view that Dr McIntosh would advance a proposition which was purely to support his theory rather than providing a considered and informed view on the propositions that were put to him.

9. [309]

   In the Ergonomic Conclave Report, Dr McIntosh stated that “the plaintiff’s obesity was a risk factor for falling and may have initiated her fall or prevented her from recovering once her stability was perturbed”. In support of this opinion, he drew particular attention to paragraphs 85 to 88 of his report.

10. [310]

    A further inconsistency with Dr McIntosh’s evidence was in relation to obesity. There are two fundamental Dr McIntosh’s use of obesity as an alternative and more likely mechanism for the fall, than overstep.

11. [311]

    I have earlier discussed the first of these difficulties by reference to Dr McIntosh’s reversion for their being six available mechanisms of equal probability for the fall (including overstep).

12. [312]

    Dr McIntosh emphatically stated that obesity and (later in his evidence obesity and mobility) were the more likely cause of the fall. Notwithstanding, that at least implicitly, obesity must have formed a component of the six mechanisms which he had earlier identified, (either being directly referable to a mechanism such as impairment or indirectly as contributing to those mechanisms). It was not suggested in his report that obesity was a separate and significant factor to the six mechanisms.

13. [313]

    The second difficulty with Dr McIntosh’s thesis for obesity being the most likely cause of the fall was that his report itself is suggestive of a different conclusion and is thereby inconsistent with this account. This may be illustrated by the following:

    1. (1)

       A footnote in his report identified why obesity should not be used as a primary factor a causal factor in the fashion that Dr McIntosh ultimately came to. In his report he states:

    2. (2)

       The Stairway Falls paper relied upon by Dr McIntosh, when properly, understood does not suggest that obesity is causal in overstep but rather confines the operation of that factor as being associated with an inability to recover once a slip has occurred from an overstep.

14. [314]

    Overall, I find that Dr McIntosh’s failure to make appropriate concessions and engagements in periods of advocacy as identified above impacted his credibility as a witness.

Mr Dohrmann

1. [315]

   In concurrent evidence Mr Dohrmann conceded that he had discussed the matter with Mr Dimopoulos, however, had not identified any such consultation in his report:

2. [316]

   Mr Dohrmann was also asked whether he considered the comment to Dr McIntosh that “he would be wise to be cautious with criticism” was appropriate, his response is extracted below (T328.47):

3. [317]

   It was then put to Mr Dohrmann that he had copied the report of Mr Dimopoulos, a proposition which he denied (T332.16):

4. [318]

   I consider there is some substance to the defendant’s criticism of Mr Dohrmann report. He plainly used Mr Dimopoulos report as the fulcrum for his report and as I have noted, he engaged in a criticism of Dr McIntosh’s report which strayed beyond the bounds of an expert complying with the Code of Conduct. Those observations affected the weight to be to his evidence. However, I did find that his evidence given in concurrent evidence was measured and derived from his considerable experience, which does not warrant, overall, that his evidence is to be given little weight.

Mr Dimopoulos

1. [319]

   Lastly, I turn to the evidence of Mr Dimopoulos. I agree with the defendant that Mr Dimopoulos did base his report of an incorrect assumption that the incident occurred on the third step. Although, it is important to note that this assumption was based was based off the information provided to him before preparing his report as well as his expertise (T323.38):

2. [320]

   Although, Mr Dimopoulos based his assumptions on the plaintiff falling when descending from step 2 to step 3, which I will later find to be incorrect, it does not ultimately impact his credibility for two reasons. Firstly, this assumption was based on the information that was provided to him, whereby he was asked to look at the second and third stair, it is not completely out of conformity what the ultimate conclusion of the plaintiff’s evidence. Secondly, his opinion as to where she fell was based off his expertise and experience upon which I have found to be extensive. As such, I do not consider that his credibility is negatively impacted and therefore, for the reasons which I have earlier discussed and outlined, I find that Mr Dimopoulos was a witness of credit.

3. [321]

   I agree with the plaintiff that Mr Dimopoulos did his best to assist the Court and was candid to admit where he may have made an error, an example of this is extracted below (T325.19):

4. [322]

   Mr Dimopoulos accepted that there were other possible scenarios for the plaintiffs fall other than it being an overstep:

5. [323]

   However, Mr Dimopoulos maintained throughout his evidence, that based on his experience including accidents on stairs, his involvement in the development and application of the BCA and through his research, that the main reasons for falls are short and inconsistent goings (T348.12):

6. [324]

   Mr Dimopoulos was also asked questions about nosings and whether the nosing would have had an impact on the plaintiff’s fall and readily agreed to the lack of significance of that precaution (T351.19):

7. [325]

   Mr Dimopoulos identified that a contributing factor to the fall was the undersized going dimensions which accorded with the studies which stands in contradiction to the evidence of Dr McIntosh on the same issue (T364.44).

8. [326]

   I find Mr Dimopoulos to be an informative witness who provided considered reasons for his responses which was evident in both the Ergonomic Conclave Report and in concurrent evidence. I agree with the submission of the plaintiff that Mr Dimopoulos has experience and expertise which are appropriate to the issues at hand. He had no difficulties commenting on the standards required under the BCA and his answers aligned with why the standards were in place, namely, to keep people safe and protect people from risk.

9. [327]

   Coinciding with his expertise and knowledge in the field, I also find Mr Dimopoulos made appropriate concessions during his evidence and was candid and willing to admit when he had made an error. Mr Dimopoulos was engaged even when he found it difficult to relate to what was going on or to the BCA or to his own experience, he did his best to assist, and he did so in a measured fashion without flourish.

10. [328]

    Overall, I prefer the evidence of Mr Dimopoulos over Dr McIntosh

Conclusion- Ergonomic Conclave Report

1. [329]

   After reviewing the expert’s evidence in the Ergonomic Conclave Report the following conclusions can be made.

2. [330]

   In relation to possible mechanisms by which the plaintiff fell the experts agreed that overstep, slip and trip were possible mechanisms. However, Dr McIntosh listed an additional four possible mechanisms, namely, loss of neuromuscular control/balance, pain/impairment insufficient strength/knee giving way, and distraction, as equally possible causes of the plaintiff’s fall.

3. [331]

   As to the most likely cause of the fall Mr Dimopoulos and Mr Dohrmann opined in his evidence that on the balance of probabilities that the most likely cause of the plaintiff’s fall was an overstep, as a result of the undersized and inconsistent goings. Mr McIntosh was unable to say on the balance of probabilities if one of the possible mechanisms identified in his report was more likely to have been the cause of the plaintiff’s fall as “there is no scientific method available that can be applied [in] this particular case that can say one of those factors is more likely that not to have caused this particular fall”. However, Dr McIntosh did venture at one juncture that obesity was a probable cause.

4. [332]

   In relation to descending the stairs the experts agreed that in normal stair descent, most people will descend stairs with some part of their foot beyond the front of each step. That may be distinguished from an overstep as earlier defined.

5. [333]

   As to the risk posed by the stairs, both Mr Dimopoulos and Mr Dohrmann opined that the stairs posed a risk of harm on the basis that the undersized goings and the irregular risers and going as previously described increased the risk of an overstep. For his part, Dr McIntosh was only prepared to concede that the likelihood of overstepping was likely to be slightly elevated with the stairs where the fall occurred in comparison to BCA compliant stairs. I will return to the basis for that opinion momentarily.

6. [334]

   In relation to the action that could have been taken by the defendant in response to the risk of harm the experts agreed with Mr Dimopoulos opinion that the defendant ought to have ensured that the steps were compliant with BCA, as well as preventing the access to the stairs.

7. [335]

   Dr McIntosh was of the view that one response the defendant could have taken in general would be complying with the BCA. He expressed, however, the view that a more reasonable action the defendant could have taken would have been to provide some sort of warning signs or advisory signs and a contrast strip on the tread edge. He did not explain why compliance with the law was not a reasonable expectation.

8. [336]

   As earlier identified, there are there are two central features of the disagreement between Dr McIntosh and the opinions of Mr Dimopoulos and Mr Dohrmann. They are as follows, whether there was a higher probability that the cause of the fall was by overstep and whether the other five possible mechanisms are of equal probability, thereby, making it impossible to identify whether one mechanism was more likely than the other.

9. [337]

   The resolution of those questions will be affected by my findings as to credit, however, in any event, I do not accept the opinions of Dr McIntosh in those respects for two further reasons.

10. [338]

    In the first place, I favour the opinion of Mr Dimopoulos where he expressed the view that the undersized going and its smaller depth than the preceding going were, on the balance of probabilities, the most likely cause of the plaintiff's fall. I will discuss that conclusion further below.

11. [339]

    As to the second consideration and accepting that it does not fall to the defendant to establish each of the alternative mechanisms as a matter of proof, I do not consider, on the evidence in these proceedings, that those other mechanisms are of equal probability with an overstep as constituting a basis for the fall. The basis for that conclusion will be developed later in this judgment.

12. [340]

    My approach to the first issue does not only rest on the credit findings made above There are a number of additional reasons why I prefer the opinion of Mr Dimopoulos.

13. [341]

    Mr Dimopoulos in concurrent evidence opined that short and irregular goings are the main reason for falls on stairs. Mr Dimopoulos observations about the probabilities of the possible mechanisms which caused the plaintiff’s fall derived from the application of his specialised knowledge in engineering, his personal training, study and experience, including, but not limited to being a member of Australian Standards Committee and his preparation of reports in over a hundred litigated matters involving slips, trips and falls, as well as have providing advice on the same to many organisations as an engaged safety consultant. He also placed reliance on the BCA and the Stairway Falls Paper, which was referenced in Dr McIntosh’s Report, which was tendered to the Court.

14. [342]

    Mr Dimopoulos opined that the BCA is designed to promote safety in stair movement. This is consistent with the objective of the relevant section of the BCA, namely, Section D, which is extracted below:

15. [343]

    Dr McIntosh criticised the use of the paper in the way that was proposed by Mr Dimopoulos, because it does not conclude that the plaintiffs fall was most likely caused by short and irregular goings. He submitted that the paper adopted his model whereby in order to determine a cause of the fall on stairs, it was necessary to consider a number of factors which are important in stairway falls from gender, age, footwear, where the stairway is, whether there are debris, daylight, after dark lighting and riser and treat variations.

16. [344]

    However, I do not consider that evidence truly reflects the emphasis in the paper, on how architectural and ergonomics of stairs cause falls.

17. [345]

    The Stairway Falls Paper was conducted in the US whereby the authors analysed 80 stairway fall incidents that occurred during a 15 year period. The objective of the report was threefold: First to identify common causal factors, secondly, to validate present stairway design criteria as set out in the International Building Code and, thirdly, to provide practical scientific data to promote greater agreement as to what constitute a safe stairway. Within the report it outlined the “User Stairway-Environment Model”, which was summarised as follows:

18. [346]

    Under the heading “Ascent & Descent” it outlined that Falls during descent typically involve overstepping. That is extracted below:

19. [347]

    Further, the Stairways Fall paper emphasised the importance of stairs complying with the relevant building codes in ensuring safety and preventing injuries on stairs.

20. [348]

    As earlier mentioned, Dr McIntosh during his oral evidence opined that in relation to stair descent, an expectation of regularity was not as important as when walking on a flat surface. However, Mr Dimopoulos in contradiction of this view opined that user expectations and perceptions are especially important in stair usage. Further, he opined that “stairway accidents are often caused by single errors triggered by some irregularity or non-uniformity in the design or the construction of the stairs. People learn to expect and to demand upon a uniform stair construction”. The view of Dr McIntosh was not corroborated by other evidence before the Court. However, the view of Mr Dimopoulos was consistent with the findings in the Stairway Falls Paper whereby it was identified that:

21. [349]

    As earlier identified, even though there are issues with Mr Dohrmann’s credit due to periods of advocacy and discrediting of other witnesses, I accept that he still had the relevant qualifications and expertise about the stairs, which ultimately results in his evidence not being dismissed.

22. [350]

    It is plain on the evidence that all of the relevant steps on the stairs have the features of disconformity with the BCA standards. Even though the extent of conformity may vary, I accept the evidence of Mr Dimopoulos that, even slight variations outside conformity represents a real risk. There is no evidence to the contrary.

23. [351]

    As earlier identified the experts considered whether a different going would have prevented the accident on the basis that the fall was as a result of an overstep slip. The defendant placed reliance of the factors which were identified by Mr Dohrmann in this respect and Mr Dimopoulos agreeance. However, this does not properly represent the evidence as it was given and emphasis needs to be placed on the entirety of his response rather than viewing his evidence in isolation.

24. [352]

    Mr Dimopoulos was asked whether he agreed with the principles that were identified by Mr Dohrmann as relevant to the assessment of whether a different sized going would prevent a fall. He agreed, however, his overall evidence in this respect is discussed below:

    1. (1)

       Mr Dimopoulos agreed in a general sense, that in order to assess whether the length of the going would have prevented the fall, the following factors will need to be assessed

    2. (2)

       Mr Dimopoulos noted that stepping off a longer going onto a shorter going increases the risk of an overstep. However, he also agreed that stepping off a shorter going onto a longer going decreases the risk of an overstep.

    3. (3)

       Mr Dimopoulos agreed that it is possible to make an adjustment from “just a visual point of view”, however, noted that it is difficult for an individual to determine the step length exactly from just a visual point and that how well an individual interprets the next step is based on a number of factors. In supporting this opinion, he emphasised the specific requirements of the BCA and the facts that it is not as easy as “I can clearly see the step” because it is also about what an individual perceives (T345.46).

    4. (4)

       When he was pressed about his evidence, in this respect, he concluded that, in this case, he did not need more information about whether different sized going would have prevented the fall. In supporting this conclusion, he identified that, in this case, and the state of the stairs, whereby, the goings were well below the minimum requirement combined with variation which was described as “excessive”, resulted him being about to answer the question without having to consider further analysis based upon the factors identified by Mr Dohrmann.

25. [353]

    The defendant submitted that the irregularities in the area which the plaintiff is likely to have fallen, namely, between steps 4 and 6, are far less than the 20mm that existed at the third step where Mr Dimopoulos assumed that plaintiff fell. It was submitted, that there was no analysis in the evidence of the effect of different and less differences upon the risks involved in descent, save that Mr Dimopoulos accepted that a smaller difference reduced the risk of injury. The defendant referenced the example on Mr Dimopoulos stating that a difference of 1mm would have no role. However, I do not find that this submission accurately represents the evidence of Mr Dimopoulos. Mr Dimopoulos was instead illustrating that where an individual positions their foot on a step is based on what they have seen and encountered beforehand and therefore, supporting his proposition that there is an increased risk of overstep when going from a longer going onto a shorter going. His evidence was that it was necessary to consider the stairs overall.

26. [354]

    Mr Dimopoulos maintained throughout his evidence the importance of non-adherence to the maximum variation allowable increasing the risk of a fall. This was particular so in the case where the variation was “25 millimetres” over the maximum variation allowable under the standards with respect to step 3. I will return to steps 4 to 6, but note for the present purposes, step 4 has a going which is 34mm less than the required going under the BCA. Whilst there is a 1mm difference between each of those steps 5 and 6 has goings which are well over 10% less than the minimum going requirement under the BCA.

27. [355]

    There were five issues in relation to findings of fact in these proceedings, they are as follows:

    1. (1)

       Whether the party room was set up

    2. (2)

       Where the fall occurred on the stairs

    3. (3)

       Whether the light was on

    4. (4)

       Whether the plaintiff was holding the handrail

    5. (5)

       Did the plaintiff satisfy her pleaded case on the balance of probabilities?

28. [356]

    I will address these issues in turn below.

29. [357]

    An issue at the hearing was whether the party room was set up on the day of the incident and whether the room was used as a party room prior to the incident.

30. [358]

    The defendant submitted that the party room was used and used regularly, relying, in this respect, on the evidence of Mr Jewell, whereby he submitted that “50,000” patrons would have used the stairs at last once. It was submitted that even though witnesses sought to say, it was not set up, and that it had a damp and musty smell was a musty smelling room, does not result in the conclusion that the room was not used.

31. [359]

    In Mr Doeut’s evidentiary statement he described the room in the following terms "not aired out and had a very stale and musty smell ... it looked and smelled like a storage room".

32. [360]

    In the development application before the Court there was no plans for the second level of the premises.

33. [361]

    I do not accept the evidence of Mr Jewell that at least about 50,000 had used the stairs whilst the defendant had leased the premises prior to the plaintiff's fall. Mr Jewell’s basis for this estimate was that there were 10-15 parties per week at the premises and then assumed only five of those parties utilised the upstairs party room, with 15-20 children and an equal number of adults. As it was conceded by Mr Jewell in cross examination, he was unable to locate any records as to the bookings that they made at any particular point in time (T258.33):

34. [362]

    Further, when it was suggested to Mr Jewell that on 2 July 2016, when the Douet family arrived for the party, all the tables and chairs in that upstairs room were stacked in the corner his response was (T267.35):

35. [363]

    Mr Jewell conceded that a stale, musty, unventilated room with no furniture set up but rather furniture stacked and stored in the corner was not the picture of a party room (T268.45). Further, Mr Jewell conceded that if a party room had been booked and the people arrived on time for the party and that it was not set up, the defendant's system, such as it was, had failed (T269.09).

36. [364]

    Overall, I find that the party room was not set up on the day of the party, other than some tables and chairs set up but with furniture stacked and stored in the corner. This view is consistent with the evidence of Mr Douet and Ms Douet that the upstairs room was not set up as a party room at the time of the arrival and the Douet family had to set up the room themselves.

37. [365]

    Further, I find that as to the upstairs room, the preponderance of the evidence does not establish that the room was regularly used (as a party room).

38. [366]

    The only evidence before the Court to the contrary to this view was the evidence from Mr Jewell, which, in my view, should not be accepted unless corroborated by other evidence.

39. [367]

    Although, I agree with the submission put forward by the defendant that the absence of records or deficiencies, in Mr Jewell’s evidence, cannot prove that, in fact, nobody had ever gone up the stairs there is no evidence of the stairs being used by persons other than an inference that employees may have used the stairs.

40. [368]

    There is evidence to the contrary. This conclusion is supported by the Development Application, which did not, as earlier identified, include plans for an upstairs area on the premises. The state of the room at the time of the party supports a conclusion as to a lack of regular use of the room.

41. [369]

    The direct evidence before the Court on this issue was from the plaintiff herself and the evidence of Ms Douet.

42. [370]

    The plaintiff’s evidence was that she was holding onto the handrail at the stairs at the time of incident. This was also supported by the evidence of Ms Douet who stated that “I recall [the plaintiff] was holding onto the handrail and moving slowly down the stairs with her daughter Bethany”.

43. [371]

    No other evidence was before the Court in relation to this issue. I have not found that plaintiff to be an unreliable witness.

44. [372]

    As such, I accept that the plaintiff was holding onto the handrail when descending the stairs. I will turn then to the issue of lighting.

45. [373]

    As earlier identified, an issue in these proceedings was whether the lights were on at the time of the incident. The plaintiff submitted that at the time of the incident the light above the relevant staircase was not activated and that, in the circumstances there was simply no available evidence to find that the lights above the relevant staircase were on at the time of the incident.

46. [374]

    The defendant submitted that the Court should find the two floodlights hanging from the ceiling of the premises were on at the time of the incident and that the two roller doors at the front and the two roller doors at the back of the centre were open at the time of the incident; and that the lights situated at the top of the stairs were on.

47. [375]

    Further, the defendant submitted that the plaintiff cannot prove that inadequate lighting was the cause of the plaintiff’s fall. It was submitted that the plaintiff did not, in her evidence, raise an issue with the lighting. Reference was made to the plaintiff turning to those behind her to warn them was indicative of the plaintiff seeing what was going on and making a note to herself.

48. [376]

    I will turn to the evidence on this issue.

49. [377]

    The plaintiff in her evidentiary statement stated that “there was no light on the stairs”. Mr Pietrobelli described the stairs in his evidentiary statement “I had to be careful on the stairs because they were narrow and the lighting was very poor. The area was very dimly lit”.

50. [378]

    Mr Douet described the premises as “quite dull/dark” and “I cannot recall whether there were lights there that were not turned on or if there was no lights there at all (on the stairs) but in any event the stairwell was quite dark”.

51. [379]

    Rhiannon Douet in her evidentiary statement “the stairs were quite dark and I do not recall there was any light illuminating the pathway of the stairs. The premises were generally dark”.

52. [380]

    Mr Jewell agreed with the proposition that, if the lights over the stairs were on, it would not be a reasonable description that the area of the stairs was dark. Further, Mr Jewell conceded that if the lights over the stairs were not on when party guests arrived to go to the upstairs room, that the defendant's system in relation to the lighting, such as it was, had failed.

53. [381]

    As earlier identified, Mr Jewell was not at the premises at the time of the incident and the defendant chose not to call staff who were present on the day of the incident. Given the evidence was, therefore, directly that the light over the stairs were off or confirmatory of the same, I find that on the balance of probabilities, that the lights above the stairs were not on at the time of the incident.

54. [382]

    As such, and in accordance with the conclusions of the lighting experts with the lights off, the illuminance at the time of the incident is unknown as such. However, as to whether it complied with the respective standards, as was concluded by Professor Dain and Mr Dimopoulos, it is debatable whether the lighting complied with AS/NZS 1680.0 and most unlikely that it complied with AS/NZS 1680.2.1. All witnesses, other than Mr Jewell, stated that the top of the stairway was dark or poorly lit.

55. [383]

    I will return to the significance of this finding to the question of liability,

56. [384]

    The plaintiff submitted that the incident occurred between steps 2 and 4 on the stairs. This submission was advanced based on the plaintiff’s recollection of the incident, whereby, she stated she went down a “few” steps before turning around to warn others and then went down another “step or two” before falling.

57. [385]

    However, the plaintiff in closing submissions stated that there was common ground the fall was between steps 4 and 6. That submission was as follows:

58. [386]

    The defendant submitted that the Court was not able to assess at what point on the stairs the plaintiff fell, other than it was at least 4 to 6 steps down from the top and on the top half of the stairs. In closing submissions, the defendant mentioned that possibility, but suggested steps five or six was the area that looks most likely where the fall occurred.

59. [387]

    The defendant submitted that in assessing the irregularity of a particular step there is still a need to assess the irregularity in the steps as a whole that is extracted below (T391.1):

60. [388]

    The defendant was asked whether the risk created by the stairs was different depending on the place the plaintiff was on the stairs:

61. [389]

    The direct evidence of the plaintiff was that she fell near the top of the stairs (T172.32-39) and that she accepted a proposition advanced in cross-examination that she had taken a “few” steps before turning to friends then one to two more steps before falling.

62. [390]

    It is not clear what the plaintiff understood when she responded affirmatively to have taken a “few steps” but in ordinary usage the plaintiff may be expected to have understood the expression as meaning more than one, a small number or not many.

63. [391]

    This would seem to place the plaintiff greater than two steps. If a few were taken to mean “3” and she took the greater of the 1 to 2 steps after she paused, she would have reached 5 at the time of the fall.

64. [392]

    Ms Doeut’s gave evidence that she had seen the plaintiff fall down the stairs and stated in relation to where the fall occurred “I cannot recall precisely which tread of the stairs that she was on when she fell but she had gone down perhaps one third of the way when she fell to the bottom”. That would place the plaintiff at about step 5. In cross examination Ms Doeut stated that the plaintiff was a “couple of stairs” into the staircase when she saw the plaintiff fall. Ms Doeut described the plaintiff’s daughter Bethany, being a step or two behind the plaintiff and then she was a couple of stairs behind her. That is extracted below:

65. [393]

    In the expert reports tendered to the Court, Mr Dimopoulos assumed based on the plaintiff’s evidence and dimensions and slope of each of the steps in the stairway, that the plaintiff fell on the third step of the stairs. That is extracted below:

66. [394]

    Dr McIntosh did not give evidence in relation to this issue.

67. [395]

    There were also contemporaneous records (which will be dealt with in greater detail later in the judgment) which stated that the plaintiff had “fallen” or “slipped” down approximately 10 stairs.

68. [396]

    On the basis that Ms Doeut was one or two steps into her descent of the stairs and Bethany was one or two steps in front of her, the range of steps where Bethany was standing was steps 2 to 4 at the time of the fall. Given Bethany’s disability it may be expected she was close to her mother and, hence, one step behind. This would place the plaintiff at the time of the fall at step 5.

69. [397]

    On the aforementioned analysis, the parties estimate of the plaintiff stepping somewhere between steps 4 and 6 at the time of the fall would seem appropriate with the most likely being step 5. I will consider liability on that basis.

Did the plaintiff make out her pleaded case as to slipping off the stair tread on the balance of probabilities?

1. [398]

   In relation to this issue, the plaintiff approached the issue of the cause of the plaintiff’s fall through the prism of causation. The defendant focussed their attention to answering whether there was proof of a slip by overstep and dealt with the issue of causation separately. I propose to deal with this question in the manner adopted by the defendant, that is to examine where the Court may conclude on the balance of probabilities there was a step in the nature of an overstep at the time of the fall before examining the question of breach of duty and causation.

2. [399]

   The relevant pleading was set out earlier but for convenience I repeat it below:

3. [400]

   Given the submissions of the parties on this question it is first necessary to address the question, is there direct evidence of an overstep?

4. [401]

   The plaintiff submitted that there was direct evidence as to how the plaintiff fell coming from the plaintiff herself and that the cause was an overstep, whereby, the plaintiff's foot landed past the nosing, causing her foot to slide down the front of the step.

5. [402]

   The defendant submitted that the Court should find that the plaintiff has failed to establish on the balance of probabilities her pleaded case, namely, that she slipped off the stair tread. It was submitted that the only direct evidence on how the plaintiff fell was from the plaintiff herself, which, the defendant submitted was “silent on the actual mechanism of the accident” and her other accounts referring to knowing how she fell and that it was a slip off a stair should be given no weight in the circumstances of her evidence.

6. [403]

   Putting aside contemporaneous medical records to which I will turn next, the submissions of the defendant in this respect must be accepted.

7. [404]

   The plaintiff’s evidentiary statement is silent as to the mechanism of her fall.

8. [405]

   There is direct evidence of the plaintiff descending the stairs and pausing to identify that the stairs at the top of the stairs were too small for her to fit her foot, causing her to turn her foot side ways.

9. [406]

   There is little doubt that the plaintiff intended to convey she thought that steps with similar goings (1 or 2 steps beyond the step at which she paused) were responsible for her fall but, as I have previously mentioned, she candidly stated her memory was not clear at the point she had fallen. However, she remembered what had occurred immediately preceding her fall.

10. [407]

    I note at this juncture, that the fact that the plaintiff could not provide a precise account of the circumstances of about the fall was common place on the evidence and was described by Mr Dohrmann as “it’s the nature of the beast” (T365.18).

11. [408]

    Thus, whilst the plaintiff remained emphatic, that her foot did not fit on the step at which she paused (which I accept), that is not strictly proof of her pleading, even though it is relevant to the question as to whether an inference may be drawn as to the mechanism of the fall of the stairs (one or two onwards) where that step had similar characteristics.

12. [409]

    Before turning to the alternative contention of the plaintiff that the Court should draw an inference as to an overstep causing her to step and fall, the further question was posed by the plaintiff as to whether the direct evidence of the fall may be found in the contemporaneous records taken after the incident. The plaintiff submitted that there is direct evidence from the plaintiff as to how she fell and that the plaintiff’s evidence is corroborated by the histories noted in the contemporaneous records before the Court.

13. [410]

    The contemporaneous records in this matter were Ambulance and Hospital Records.

14. [411]

    The contemporaneous records relied upon by the plaintiff were as follows:

    1. (1)

       Shellharbour Hospital Records, was the ambulance report dated 2 July 2016 (“the Ambulance Report”), had a case description in the following terms:

    2. (2)

       In the clinical notes of the Shellharbour Hospital Records, it noted the history under Triage Presenting Information, in the following terms:

    3. (3)

       In the Shellharbour Hospital Records, the Emergency Nursing Assessment (“Emergency Nursing Assessment”) of the hospital clinical notes noted the history of complaint in the following terms (Court Book; volume 1, page 267):

    4. (4)

       Further, in the Shellharbour Hospital Records was the Progress Notes of 2 July 2016 (“Progress Notes”), the following history was noted (Court Book, volume 1, page 270):

    5. (5)

       Also in the Shellharbour Hospital Records was the hospital discharge referral, under the heading "Summary of Care", the following was noted (Court Book, volume 1, page 261):

15. [412]

    The contemporaneous records were admitted subject to the limitation pursuant to s 136 of the Evidence Act 1995, such that the histories taken by the plaintiff in relation to the fall be limited to evidence of the fact that the histories were given, and not as evidence of the truth of what is asserted in those histories.

16. [413]

    I will firstly turn to the principles in relation to the use of contemporaneous records to support the oral evidence of the plaintiff in the manner proposed by senior counsel for the plaintiff.

17. [414]

    In Watson v Foxman (1995) 49 NSWLR 315, McLelland CJ at 318-319:

18. [415]

    Further, in Foxman, McLelland CJ observed that in the absence of some reliable contemporaneous record or other satisfactory corroboration a party relying upon spoken words as the foundation of a cause of action based on misleading or deceptive conduct is faced with serious difficulties of proof (at 319)

19. [416]

    In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 the High Court of Australia emphasised the importance of contemporaneous records in judicial reasoning. The Court at [31] stated that the reasoning should be “as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.”. That is extracted below:

20. [417]

    This decision was applied by Campbell J in this Court in Winter v Nemeth [2018] NSWSC 644, however, in circumstances where the contemporaneous records were taken some time after the event. His Honour at [51]:

21. [418]

    Justice Basten in Container Terminal Australia v Huseyin [2008] NSWCA 320 (“Container Terminal Australia”), in support of the contention that caution should be taken when dealing with medical records. That is extracted below (at [8]):

22. [419]

    Further, the observations of Basten JA in Mason v Demasi [2009] NSWCA 227 (“Mason”) at [2]. That is extracted below:

23. [420]

    The plaintiff submitted that the contemporaneous records supported the evidence given by the plaintiff in both her evidentiary statement and oral evidence, namely, that the cause of the fall was by an overstep, thereby, satisfying the pleading. It was submitted that in this case going to those contemporaneous histories, particularly the one that was taken by the ambulance officers at the bottom of the stairs, was uncontaminated by the passage of time or process and therefore best reflects what happened on the day. Ultimately, it was submitted that the contemporaneous records are reliable and tested piece of history and that is the account that best reflects the facts as they unfolded on the day; Foxman at [318].

24. [421]

    The defendant submitted that contemporaneous records should be given no weight and should be dealt with, with considerable caution. This submission was advanced for the following reasons:

    1. (1)

       Medical records by their nature should be approached with caution; Mason at [2] and Container Terminal Australia at [8]. Further, the language used in the records is open to a number of different interpretations such that, without the author/s being called to give evidence, the Court should not prefer one construction to another.

    2. (2)

       On the plaintiff’s own case, there are errors and/or inaccuracies in the records. Reference was made to the Progress Notes and Emergency Nursing Assessment, whereby, it was recorded that the plaintiff was on 4 types of medication at the time of the fall, which the plaintiff denied in oral evidence (T156.32-35)

    3. (3)

       The plaintiff did not adopt the histories in the documents as her own. Reference was made to the plaintiff’s oral evidence at T177:34-47, T178:31-49 and T179:1-9.

25. [422]

    I agree that caution should be taken when dealing with the contemporaneous records before the Court in the present matter, allowing for the limited basis for their admission, for the following reasons.

26. [423]

    Whilst some of the records seem to contain an account consistent with the plaintiff’s case theory, on closer analysis, the records offer a very slender basis for corroboration because they are vague. Thus, the language that was used in the records as to the mechanisms for the fall is open to a number of different interpretations, such that, without the author or authors being called to give to evidence, one construction cannot be preferred over another. There is no evidence before the Court on the records that identify the questions which may have elucidated the replies.

27. [424]

    Even the record taken by ambulance officers at the scene of the incident only states “slipped down approx 10 narrow carpeted stairs”, which may also be consistent with either a slip off a stair or the notion of slipping (generally) down a significant portion of the stairs.

28. [425]

    Further, it was not clear from the records who provided the history to the person or persons recording the information in the documents. It is plausible, as was submitted by the defendant, that the information originated from someone else other than the plaintiff, such as the plaintiff’s daughter or husband and that the records was a summary which was prepared by the health professional, rather than a verbatim recording. This is further supported by the evidence of the plaintiff in cross examination whereby the plaintiff conceded that there was the possibility that the daughter was having the conversation with the nurse.

29. [426]

    The contemporaneous records cannot be employed to substitute for a shortfall in evidence that the plaintiff gave herself as to the reason for her fall. As such, I find that, even with the contemporaneous evidence as well as the direct evidence of the plaintiff, that it is insufficient in and of itself to make out the pleading.

30. [427]

    Before turning to whether an inference may be drawn of an overstep at the point of the fall by the plaintiff on the stairs, I note that the contemporaneous records are relevant to the plaintiff’s health at the time of the fall as they record contemporaneously the account given by the plaintiff to health professionals as to her health upon the receipt of medical treatment and there being no proper basis to conclude, particularly given my subsequent finding as to pre injury medical conditions, she was embellishing her account.

31. [428]

    The issue of competing inferences, when dealing with the issue associated with causation, was considered in the decision of the Court of Appeal in Perisher Blue Pty Ltd v Nair-Smith 90 NSWLR 1; [2015] NSWCA 90 (“Nair-Smith”) (per Barrett and Gleeson JJA and Tobias AJA) at [153]-[154]:

32. [429]

    Further in Nair-Smith, the Court considered various competing inferences and found (at [163]):

33. [430]

    The High Court in Fuller-Lyons v New South Wales [2015] HCA 31; 89 ALJR 824 at [46] referred to the need for an inference of fact to involve “a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts”. That is extracted below:

34. [431]

    Most recently, in DIF Ill - Global Co-Investment Fund L.P v DIF Capital Partners Limited [2020] NSWCA 124, the Court of Appeal said at [145]-[146]:

35. [432]

    The plaintiff submitted that, if the Court found it necessary to look at competing inferences, the Court should infer the cause of the fall was an overstep, for the following reasons:

    1. (1)

       Reference was made to the evidence of Dr Mcintosh, whereby, he identified the six possible mechanisms. In response to these possibilities the plaintiff submitted that out of the six possible mechanisms identified by Dr McIntosh that an overstep must have been the cause of her fall. In support of this submission, reference was made to the plaintiff’s evidence in cross-examination when questioned by ambulance and hospital personnel shortly after the incident, suffering from any dizziness, limb weakness or loss of sensation at the time of her fall.

    2. (2)

       There was no evidence in the medical records that the plaintiff was suffering from any loss of neuromuscular control or balance issues, pain or other impairment, strength issues in her knee, or episodes of her knee giving way leading up to the time of the incident.

    3. (3)

       In relation to possible mechanism of distraction the plaintiff submitted that this could not be the cause of the fall due to the plaintiff having warned people behind her of the dangerous nature of the stairs before taking another couple of steps before falling.

    4. (4)

       In response to the possibility of the plaintiff tripping on descending limb it was submitted that this proposition was not put to the plaintiff and therefore, the plaintiff’s evidence rules out that as a possibility.

    5. (5)

       Hence, the plaintiff’s evidence does not suffer from the deficiently identified in the Nair-Smith.

36. [433]

    Overall, the plaintiff submitted that based on the factors outlined above, the probable, if not only, available inference is that her fall was caused by an overstep on a staircase with inconsistent risings and goings, and undersized goings which did not comply with cl D2.13 of the BCA, as identified by the experts.

37. [434]

    The defendant, in this respect, submitted that there are a number of other reasons why the plaintiff fell, which were unrelated to the conditions of the stairs. Those submissions are summarised below:

    1. (1)

       Reliance was placed on the evidence of Dr McIntosh as to the possible explanations for the plaintiff’s fall (they have been discussed above) as well as Mr Dimolpoulos who agreed that were other potential mechanisms for falling other than an overstep on stairs.

    2. (2)

       The defendant submitted that the evidence of Dr Watson and Dr Ting should be given significant weight as to assessing the plaintiff’s health in the five to six months before the accident, including but not limited to, the evidence that the plaintiff suffering from spontaneous dizziness, nausea and migraines and unexplained falls as far as two weeks prior to the incident.

    3. (3)

       It was submitted that when taking the evidence of the experts and the plaintiff’s medical records, namely, a history of dizziness and falls that the alternative explanations are more than hypothetical in this case and are real possibilities.

    4. (4)

       The defendant submitted based on the Architectural Conclave Report that the handrail complied with cl D2.17, BCA 2010 and that the carpet provided the treads with a non-slip finish per cl D2.13(a)(v), BCA 2010.

    5. (5)

       The defendant conceded that the stairs did not comply with cll D2.13(a)(ii) and D2.13(a)(iii).

38. [435]

    The defendant ultimately submitted:

39. [436]

    The question arises then whether upon the balance of probabilities, it may be a definite and reasonable inference that there is a greater degree of likelihood that the plaintiff fell as a result of a slip occasioned by an overstep.

40. [437]

    A logical starting point to identify whether such an inference can be drawn is to examine the contention of the defendant, founded as it is in large part on the evidence of Dr McIntosh, that there are conflicting inferences of at least equal degrees of probability such that no conclusion may be reached as to the mechanism of the fall down the stairs by the plaintiff and that any finding that there was an overstep was mere conjecture.

41. [438]

    As mentioned, Dr McIntosh divided his attention between five categories of mechanism with respect to his first proposition that there could have been loss of a stable support basis for the “stance leg”, as well as dealing with a second proposition that there was a trip on descending limb. As to the second of those propositions, it was not put to the plaintiff as a result of tripping on her descending leg. Nowhere in the plaintiff’s evidence does it say that she tripped whilst descending the stairs. The contemporaneous medical records do in part refer to trips but they may be given little weight, in this respect, for the reasons I have earlier given above.

42. [439]

    Returning to the first proposition (or group of mechanisms) identified by Dr McIntosh, the first mechanism after overstep, is loss of neuromuscular control/balance, reliance in that respect was placed on the reports of Dr Watson and Dr Ting, and, in particular, references to spontaneous dizziness, nausea and migraines and unexplained falls in the two weeks prior to the incident. It was submitted that the plaintiff had a history of dizziness and falls.

43. [440]

    I will deal with this mechanism, loss of neuromuscular control/balance, in detail in the section of the judgment following liability, dealing with pre-injury medical conditions. However, the probability of a fall based on these factors is in my view significantly diminished by the conclusion that I later make, that the headaches, nausea, migraines and dizziness experienced by the plaintiff in the days and weeks leading up to the accident and, most relevantly, on the day of the incident were not of the nature that it would have affected her either at all or in a significant way. I agree with the plaintiff that the ambulance and hospital records taken shortly after the incident are relevant in this respect. They record that the plaintiff was not suffering from dizziness, weakness, or loss of sensation or consciousness.

44. [441]

    Dr McIntosh also focussed on the question of obesity.

45. [442]

    Part of his analysis focussed the plaintiff’s obesity was a risk factor for falling which may have initiated her fall or prevented her from recovering once her stability was perturbed. Dr McIntosh in oral evidence stated that, contrary to other parts of his evidence, based on likelihoods, the more likely reason for someone falling “would be obesity and if they had a history of falls”. Whilst this evidence, if accepted, may potentially cast a light on the propensity to fall once there was a slip (vis-à-vis, recovery) it did not itself, for reasons earlier discussed, cast a light whether there was an overstep. Dr McIntosh also opined that obesity may be a factor which reduced the mobility of the plaintiff and impacted the stair descent strategy that was available to the plaintiff to reduce the likelihood of the fall. In his report he concluded, in consideration of the plaintiff’s obesity, “the Plaintiff had the opportunity to adapt to the stairway dimensions and descend safely using a specific gait strategy, e.g. “step-by-step and the handrail”. However, once again this consideration does not relate to whether there was an overstep and ultimately does not assist in answering whether the plaintiff has satisfied the pleading.

46. [443]

    The third mechanism after, overstep was pain/impairment. Dr McIntosh opined that, on balance, the plaintiff’s pain/impairment were risk factors for the plaintiff falling while descending the stairs. The plaintiff was cross-examined at length about a number her pre-existing injuries including but not limited to back pain and stiffness and swelling in the legs. However, as I will later find and will discuss on greater detail, I am satisfied, on the balance of probabilities, on the evidence that although the plaintiff had experienced back pain and swelling in the legs in the months leading up to the accident, however, at the time of the incident she was not experiencing pain or impairment or it had been substantially mitigated so it did not affect her at the time of the incident. As a result, I do not find on the balance of probabilities that this was the cause of the plaintiff’s fall or more particularly for present purposes that it was of equal probability to overstep.

47. [444]

    The fourth mechanism after overstep was “insufficient strength/knee giving way”. Dr McIntosh opined that that the fall could have occurred entirely because “the plaintiff’s knee gave way unrelated at all to the stair dimensions” (T363.31). This does seem to be occasioned by speculation.

48. [445]

    Neither party advanced submissions or referenced direct evidence which would support the probability that this was a cause of the plaintiffs fall. On 6 January 2001, the plaintiff attended hospital for investigation of a painful right knee in circumstances where it was stated “she thinks she bumped it and then it started to give way on her'' (T51.7-40). Due to the length of time that has elapsed since that report, I find that it should be given little weight. The plaintiff in her evidence denied any limb weakness at the time of the fall. This was supported by the Progress notes taken at Shellharbour Hospital taken shortly after the incident.

49. [446]

    Overall, I find that there was no evidence in the years leading up to the incident that was before the Court that the plaintiff was suffering “strength” issues in her knee, or episodes of her knee giving way other than the limited and inconclusive evidence to which I have referred relating to a frank injury.

50. [447]

    Mr Dohrmann was later asked whether he had anything to add upon which he responded that even if it was true that the plaintiff was the subject of impairments from obesity to an injured knee, that this was more of a reason to ensure that the goings were complaint and regular to enable the safe descent of the stairs (T365.24).

51. [448]

    As a result, this possible mechanism must be dismissed.

52. [449]

    As to the fourth mechanism after overstep, the proposition advanced by Dr McIntosh was that the plaintiff may have been distracted by turning around to talk to someone. However, that suggestion does not fit with the evidence.

53. [450]

    The evidence was that the plaintiff paused her descent in order to alert other members at the party. That fact illustrates two matters. The first is that a fall could not have been occasioned by turning around and alerting other persons because the descent had been stopped and did not proceed until after the communication had been made. This was evidenced by the plaintiff’s evidence where she turned to warn he other patrons and “after that, I went to go down one or two more stairs, and that’s when I fell”.

54. [451]

    The second consideration is that she was not engaged in idle discussion with those remaining at the party located higher up the stairs but had issued a specific warning as to the danger of the stairs, thereby illustrating a consciousness and alertness of mind to the risks. The fact that she may have succumbed to a fall arising from the very danger in a subsequent step does not detract from a conclusion that she was alert and thereby not distracted by the giving of the warning. If anything, the subsequent fall illustrates that, even the conscious of the problem the plaintiff still fell foul of the risks that she had identified no doubt exacerbated by poor lighting. This was consistent with the plaintiff’s evidence in cross examination (at T170.9):

55. [452]

    The further question concerns the probability itself, in the absence of the direct evidence, of the plaintiff falling as a result of an overstep.

56. [453]

    I consider the following factors illustrate that the mechanism of overstep had a significant probability of causing the slip and fall:

    1. (1)

       The relevant staircase had inconsistent riser and going dimensions as recorded by Mr Dimopoulos (page 1115 of volume 3 of the Court Book).

    2. (2)

       The goings of the relevant staircase were undersized.

    3. (3)

       The relevant staircase did not comply with clause D2.13 of the Building Code of Australia on the basis that the goings were below the minimum dimension of 250mm as required by clause D2.13(a)(ii) and also on the basis that the goings and risers were not consistent throughout the flight as required by clause D2.13(a)(iii).

    4. (4)

       I accept Mr Dimopolous’s evidence, for the reasons earlier given, that the probability from overstep was greater (and not slightly so) in the above circumstances. I will discuss this further in relation to the question of causation.

    5. (5)

       At the time of the plaintiff's accident the light above the relevant staircase was not activated.

    6. (6)

       At the time of the plaintiff's fall the lighting in the relevant area did not comply with AS/NZS 1680.2.1:2008.

    7. (7)

       There is no evidence the upstairs room was regularly used as a party room, and the evidence does not, therefore, warrant the conclusion of a low incident rate of falls in the context of a high level of usage.

    8. (8)

       After taking a “few steps” the plaintiff turned to the people behind her to warn them of the dangerous nature of the stairs and her difficulty in navigating the steps and having to resort to a less optimal (on Dr McIntosh’s evidence) strategy for descent. This illustrates the danger posed by the stairs in the instance circumstances which correlated with the risk of overstep.

    9. (9)

       The plaintiff took one or two further steps before falling.

    10. (10)

        The plaintiff was consistently holding onto the handrail as she descended the staircase.

57. [454]

    I will return to other issues raised by the defendant in the context of discussion of causation (which factors also contributes to the conclusion I have reached here as to the plaintiff’s pleading) but, in my view, the plaintiff has established her pleading that she slipped on the stairs as a result of the taking of an overstep, in consequence of the architectural and ergonomic settings of the stairs and/or inadequate lighting. I reach that conclusion by drawing an inference from the evidence discussed as discussed above.

DUTY OF CARE

1. [455]

   The Civil Liability Act 2002 (NSW) (“the Act”) governs questions of breach of duty and causation, leaving the question of the identification and scope of the duty a matter to be determined according to common law principles: Mamo v Surace (2014) 86 NSWLR 275; [2014] NSWCA 58 at [48] per McColl JA (Ward JA and Tobias AJA agreeing).

2. [456]

   It was not in dispute that the defendant, as the occupier of the premises, owed a duty under the general law to take reasonable care to avoid a foreseeable risk of injury to the plaintiff: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 at 487.

3. [457]

   The obligation was to exercise reasonable care to prevent injury to an entrant who used reasonable care for her own safety, as will be discussed further in relation to breach of duty below: Roads and Traffic Authority of New South Wales v Dederer 234 CLR 330; [2007] HCA 42 (“Dederer”) at [45], per Gummow J; Laresu Pty Ltd v Clark [2010] NSWCA 180 at [38], (per Macfarlan JA with whom Tobias JA and Handley AJA agreed).

4. [458]

   The response required to satisfy any duty to take reasonable care does not become more onerous if it is known or ought to be known that what is reasonably required may not be sufficient to prevent all foreseeable occurrences which may cause injury. That is because the duty is to exercise reasonable care, not "to prevent potential harm": Dederer at [18], [43], [51] to [56].

5. [459]

   What constitutes the exercise of reasonable care will depend on the circumstances of the particular case: Wilkinson v Law Courts Ltd [2011] NSWCA 196 (“Wilkinson”) at [32], (per Heydon JA with whom Meagher JA and Rolfe AJA agreed).

6. [460]

   The defendant submitted that:

   1. (1)

      any person using stairs may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety: Stannus v Graham (1994) Aust Torts Rpts 82-293 at 61,566 col a.2; Wilkinson at [32].

   2. (2)

      If the plaintiff's evidence that she was unable to place her feet on the stairs is accepted, the Court should find that she failed to take reasonable care for her own safety. Dr McIntosh described a number of available primary stair descent strategies that were available to the plaintiff (but that she did not use) to reduce the likelihood of a fall, noting her obesity (Ex 1 p1698). Those available strategies become even more relevant in circumstances where the plaintiff was plainly aware of the issues, she was having using the stairs (to the extent that she warned others) and was able to turn her feet sideways to remain on the stairs. On that basis the Court should find that the defendant did not owe the plaintiff a duty of care in the circumstances and her claim should fail.

7. [461]

   The plaintiff contended that a reasonable person in the defendant’s position ought to have taken the following precautions:

   1. (1)

      Ensured the staircase was compliant with the BCA by rebuilding the staircase, or requiring the landlord to do so.

   2. (2)

      Ensured that the lighting in the relevant area was sufficient and complied with the relevant Standards.

   3. (3)

      Provided warning signs or advisory signs as to the hazardous nature of the stairs.

   4. (4)

      Provided a contrast strip on the tread edge of each of the stairs.

   5. (5)

      Alternatively, access to the staircase could have been prevented; or the upstairs room not used for commercial gain.

8. [462]

   I do not accept the defendant’s submissions, in this respect, for two reasons.

9. [463]

   First, the reliance by the defendant upon Dr McIntosh in support of his contentions in this respect cannot be accepted for three reasons:

   1. (1)

      I have not accepted Dr McIntosh as a witness of credit for the reasons earlier given in this judgment

   2. (2)

      In particular, Dr McIntosh’s reliance upon obesity as a risk in initiating a fall in the Ergonomic Conclave Report is inconsistent with the passages in his own report that he relies upon to support the proposition he advanced in the Ergonomic Conclave Report. In his report, he stated that it is unclear whether obesity itself is primary risk in a slip or trip resulting in a fall and that the research on that question tends to focus on an older age group than the plaintiff. Further, his analysis, in this respect, was to be confined to the assessment of obesity as a risk factor in “effective recovery strategies” to prevent a slip or trip becoming a fall as opposed to an initiating factor per se.

   3. (3)

      It is true that the plaintiff did not appear to use the “two primary stair descent strategies” referred in Dr McIntosh’s report but the defendant’s submission, in that respect, omitted reference to the acceptance by Dr McIntosh of a third available stair descent option which the defendant did, in fact take, at least at the point she paused to give a warning to the remainder of her group.

10. [464]

    There was a second aspect to the defendants’ submissions, namely, that the Court should find that the plaintiff had failed to take reasonable care for her own safety. In this submission, it was put that the plaintiff was “plainly aware” of the issues she was having using the stairs and was thereby forced to turn her feet sideways.

11. [465]

    There are two difficulties with that submission. It is true that the plaintiff had recognised a difficulty descending the stairs. However, it is another matter altogether to conclude, as a result, that the plaintiff had, as is implicit in the defendant’s contention, a complete or sound knowledge (or warning) of the extent of the dangers posed by the stairs by that momentary realisation of her position during the actual course of descending the stairs for the first time.

12. [466]

    The circumstances actually encountered by the plaintiff were those described in the plaintiff submissions on duty of care summarised above.

13. [467]

    Dr McIntosh identified that the second of the primary stair descent strategies has particular advantages, but this omitted consideration that the plaintiff was navigating for the first time a steep, poorly lit and non-compliant set of stairs, with respect to which as Mr Dimopolous emphasised, adjustments based on visual analysis, would likely be inaccurate because of the irregular patterns of the steps.

14. [468]

    Further, and I will discuss below, a person in the defendant’s position ought to have taken precautions in the light of the risks posed by the stairs.

15. [469]

    I find that the defendant as the occupier of the premises owed a duty to the plaintiff at the time of the incident.

Section 5B and 5C

1. [470]

   Although they appear under the heading “Duty of Care” ss 5B and 5C of the Act are "evidently directed to questions of breach of duty": Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [13]; see also Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 (“Grills”) at [93] (per Beazley P and Gleeson JA).

2. [471]

   The question of breach is governed by s 5B of the Act. The relevant sections of the Act are set out in Pt 1A Div 2 and extracted below:

3. [472]

   It has been repeatedly stated that identification of the relevant risk of harm is critical for a proper evaluation of breach of duty under the Act, because it enables assessment as to whether that risk was “foreseeable”, for the purposes of s 5B(1)(a) of the Act, whether it was “not insignificant” for the purposes of s 5B(1)(b), and whether the defendant failed to take reasonable precautions in response for the purposes of s 5B(1)(c): see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151; Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 at [35]; United Church of Australia Property Trust (NSW) v Miller [2015] NSWCA 320 at [106]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 (“Mooney”)at [52] - [54] citing Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; Dederer.

4. [473]

   However, foreseeability of risk of injury is not determinative of breach of duty of care: Francis v Lewis [2003] NSWCA 152 at [40] (per Mason P with Tobias JA agreeing).

5. [474]

   In Talbot-Price v Jacobs [2008] NSWCA 189, lpp JA said (at [55]):

6. [475]

   Particularity in identifying the risk is required: Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 at [116]; Mooney at [67]. That particularity requires some articulation of the general causal mechanism of the injury sustained: McKenna v Hunter & New England Local Health District [2013] NSWCA 476 at [266] per Garling J (in dissent, but not on this point).

7. [476]

   The relevant risk of harm in this matter should be, in my view, defined as being that a person exercising reasonable care might sustain physical injury as a result of slipping due to overstepping whilst descending the stairway leading from the party room.

8. [477]

   I will address each of the subsections of s 5B in turn.

Section 5B(1)(a)

1. [478]

   The requirement that a risk of harm be foreseeable is generally regarded as undemanding: Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44; [2005] HCA 15 at [33] and [54].

2. [479]

   The defendant does not dispute that the risk of harm of injury was foreseeable for the purposes of s 5B(1)(a).

3. [480]

   I find the requirements of s 5B(1)(a) are satisfied.

Section 5B(1)(b)

1. [481]

   Section 5B(1)(b), of the Act requires that the risk must be "not insignificant".

2. [482]

   The inquiry required by that provision primarily involves an assessment of the probability of the occurrence of the risk. This must also be judged from the perspective of a reasonable person in the defendant's position, and in prospect not retrospect: Benic v State of New South Wales [2010] NSWSC 1039 per Garling J at [93] and [101] citing Stojan (No 9) Pty Ltd v Kenway (2009) 210 LGERA 90; [2009] NSWCA 364 at [136] per McColl JA.

3. [483]

   In South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 (“South Sydney Junior Rugby League Club”) at [89], the Court of Appeal (per Basten JA with Macfarlan JA and Simpson JA agreeing) confirmed that obviousness of the risk, its likelihood of occurrence, and the seriousness of its consequences are factors relevant to the assessment: citing with approval in Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140] (per Beazley ACJ with McColl JA and Meagher JA agreeing).

4. [484]

   The defendant submitted that Mr Jewell's evidence was that approximately 50,000 people would have used the subject stairs, including adults and children of various ages over the period that he conducted the business from the premises. In that time, there were no incidents involving the stairs, apart from the plaintiff's fall (Ex 1 p96 at [21]). He explained how he arrived at that calculation during his evidence (T253:24-32). Although he was challenged on how he calculated that figure, it was never put to him that the figure was inaccurate or exaggerated (rather the focus of the cross-examination was the plaintiff's proposition that the upstairs room was rarely used for parties -see T258:46-49) and his evidence in terms of the number of patrons who had used the stairs without incident prior to the plaintiff's fall should be accepted.

5. [485]

   The defendant further submitted that even if that figure was an overestimation, the fact that the upstairs area had been used for a considerable length of time, possibly the entire 10 years during the duration of the lease of the premises without incident, is a highly determinative factor.

6. [486]

   The plaintiff submitted that the risk of harm falling down a stairway with inconsistent risings and goings and undersized goings, must, by its very nature, be significant, notwithstanding the absence of any produced record of previous incidents.

7. [487]

   The plaintiff further submitted that the irregularity in the risings and goings means there was an increased risk of “overstep”, where one steps beyond the point of balance on the going or one slips forward off the nosing which is the front edge of the going and loses ones footing, just as in this case.

8. [488]

   As earlier considered, there was an absence of evidence in the form of records as to incidents or bookings in the 10 years prior to the incident. The only evidence to support this submission was the evidence of Mr Jewell, which as I have earlier found may not be accepted, unless corroborated by other evidence before the Court. I agree with the submission advanced by the defendant that the absence of records or deficiencies, in Mr Jewell’s evidence, cannot prove that, in fact, nobody had ever gone up the stairs. However, there must be doubt as to whether the absence of such records gives a reliable indicator of a lack of incidents associated with the stairs, as a relative notion to the number of people that have used the stairs. There is an absence of evidence as to the actual use of the stairs, other than an inference employees may have used the stairs.

9. [489]

   I agree with the submission advanced by the plaintiff that the risk of harm of falling down a stairway with inconsistent risings and goings and undersized goings, must, by its nature, be significant, notwithstanding the absence of any availability record of previous incidents. Further, having regard to the photographic evidence in this matter, common experience and evidence as to the architectural features of the steps, Mr Jewell must have known or ought to have known that the steps represented risks of a fall. It is of note that the other patrons who attended the defendant's premises for the party also described the stairs as "narrow", "dimly lit", "awkward to walk down as they were narrow", having to turn their feet sideways at an angle to go down the stairs, "difficult to use" and having to walk in a" crab like fashion" to descend the stairs. In that light, a finding of significance also derives from the factors identified in the South Sydney Junior Rugby League Club where regard may be had to the obviousness risk and likelihood of its occurrence. The seriousness of the consequences are, in my view, obvious.

10. [490]

    In my view, the risk was not insignificant.

Section 5B(1)(c) (and ss 5B(2) and 5C)

1. [491]

   To establish breach of duty under s 5B(1)(c) of the Act, the plaintiff has the onus of demonstrating that a reasonable person in the defendant’s position would have taken those particular precautions in response to the risk of harm.

2. [492]

   Prior to reaching a conclusion as to s 5B(1)(c), as part of that evaluative process, the Court must evaluate each specified precaution against the mandatory considerations in s 5B(2) and s 5C of the Act: Bunnings Group Ltd v Giudice [2018] NSWCA 144 at [38] (Leeming JA, White JA and Emmett AJA agreeing). The Court must also assess the cumulative effect of the various precautions deemed reasonable: Weber v Greater Hume Shire Council [2019] NSWCA 74 at [197] (per Basten JA with Gleeson JA and Sackville AJA agreeing).

3. [493]

   The Court must turn to the second part of the enquiry posed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, 47-48 now enacted under s 5B(1)(c)), namely, what a reasonable person in the position of the defendant would do by way of response to the risk. As Ipp JA said in Waverley Council v Ferreira [2005] NSWCA 418 at [47] (per Ipp JA with Spigelman CJ and Tobias JA agreeing), s 5B(1) was adopted to emphasise to trial courts the distinct nature of these steps.

4. [494]

   In Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103, Meagher JA observed at [54]:

5. [495]

   In Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75 Gleeson CJ observed (at [8]):

6. [496]

   It is also apt to recall what Gleeson CJ said in Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [23]-[24]. The comments were directed to dwellings, but apply equally to outdoor amenities:

7. [497]

   Bryson J (Meagher and Heydon JJA agreeing) warned in Waverley Council v Lodge [2001] NSWCA 439 at [29] about the difference between foresight of risk and an obligation to act on the risk:

8. [498]

   Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome: Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 (at [92]) per McColl JA (Macfarlan JA agreeing); see also Marien v Gardiner [2013] NSWCA 396; 66 MVR 1 (at [13]) per Meagher JA (Macfarlan and Emmett JJA agreeing). The test for negligence is always "whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care": Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 (at [13]).

9. [499]

   The defendant made reference to Hilas v Todburn Pty Limited (Trading as Hurstville Supercentre) [2007] NSWCA 315, in which Hislop J said (with McColl JA and Handley AJA agreeing) at [10]:

10. [500]

    As to the precautions, the defendant’s submission as to the rebuilding of the stairs is as follows:

    1. (1)

       The terms of the defendant's lease have a direct bearing on whether a reasonable person in the defendant's position would have rebuilt the stairs: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [101] per Sackville JA (with whom McColl JA agreed).

    2. (2)

       Under the lease, the landlord was required to fix structural defects (Ex 1 p109 at clause 7.1.1) and the tenant could not make any structural alterations to the property without the landlord's consent in writing (Ex 1 p110 at clause 7.6; Ex 1 p116 at clause 16, Annexure C) However, the lessee could apply for the lessor's consent if the alteration was to render the leased premises suitable for the lessee, in order to comply with the requirements of the authorities (Ex 1 p116 at clause 17, Annexure C).

    3. (3)

       The Court would not find that a reasonable person in the defendant's position would have rebuilt the stairs because:

11. [501]

    As to preventing access to the stairs, the defendant submitted as follows:

12. [502]

    As to installing a proprietary nosing product the defendant submitted:

13. [503]

    At the outset of considering this issue, it is necessary to revisit some of aspects of the Ergonomic Conclave Report. In considering what actions the defendant could have taken in response to risks posed by the stairs to person descending the stairs, all experts considered that an available action was to ensure was to ensure compliance with the BCA. Both Mr Dimopoulos and Mr Dohrmann considered that a particular option was preventing or restricting access to the staircase. Dr McIntosh considered that a more reasonable action to restrict compliance was to erect warnings signs, advisory signs or contrast strip on the tread edge (to which Mr Dohrmann agreed to).

14. [504]

    Further, and having regard to their opinions as to the dangers posed by the stairs, both Mr Dimopoulous and Mr Dohrmann agreed that two of the steps referred to in question 5 in the Ergonomic Conclave Report were open and could have been taken by the defendant, namely, rebuilding the staircase and preventing access to the staircase. Mr Dimopoulos referred to these steps as the preferred methods. He also noted that reducing the irregularity in the step going dimensions would also reduce the risk. He opined that the installing proprietary nosing would reduce the risk of an overstep by increasing visibility.

15. [505]

    As I previously mentioned, Dr McIntosh disagreed that the steps referred to in question 5, namely, rebuilding the staircase, preventing access to the staircase and installing proprietary nosing product, should be taken unless there was an increase in stair usage, seemingly contradictory to the defendant’s contention as to relatively high levels of the use of the stairs. I have earlier dealt with the deficiencies in his evidence, however, in this respect I note that in answering question 5 he drew attention to his response to question 6. Question 6 primarily went to the question of any elevated risk arising from stairs which were not compliant with the BCA, to which he conceded that the risk of an overstep was slightly elevated with the stairs at the premises, in comparison with stairs compliant with the BCA. This once again highlights the inconsistency of his evidence and as I have earlier found his evidence was unreliable.

16. [506]

    A further preliminary consideration is the plaintiff’s submissions, as to the application of s 5B(2) in this case, which I consider have considerable force are summarised below.

17. [507]

    As to the general requirements of s 5B(2), the plaintiff submitted:

    1. (1)

       The plaintiff noted the matters set out in s 5B(2) of the Act that are to be considered in determining whether a reasonable person would have taken precautions against a risk of harm. Dealing first with the probability that the harm would occur if care were not taken, the plaintiff submitted that the estimate provided by Mr Jewell of numbers of patrons utilising staircase without incident cannot be relied upon, especially having regard to his unsatisfactory evidence concerning the existence and use of the business' diaries, and the defendant's evident failure to comply with the subpoena issued at the request of the plaintiff. Mr Jewell described a very rudimentary system of recording incidents, yet failed to produce any documentation in response to the plaintiff's subpoena for production. Any such records would, in any event, only record instances of injuries, rather than incidents in which patrons may have stumbled or fallen on the stairs without sustaining injury.

    2. (2)

       The plaintiff also noted the measurements recorded by Mr Dimopoulos regarding the inconsistent rising and goings of the staircase. It was submitted that not one of the steps complied with the BCA in terms of the minimal length of the goings. As noted by Mr Dimopolous, the discrepancies were not minor. Further, the majority of the steps failed to be appropriately consistent in terms of the risings and goings.

18. [508]

    As to the particular requirements of s 5B(2), the plaintiff submitted:

    1. (1)

       As to s 5B(2)(a), the aforementioned general considerations relevant to s 5B(2) meant that the risk of harm if care was not taken would amply satisfy this provision.

    2. (2)

       As to s 5B(2)(b), it was submitted that as a matter of common sense, serious harm would be occasioned by falling down a set of stairs.

    3. (3)

       As to s 5B(2)(c), the plaintiff submitted that the burden of taking precautions to avoid the risk of harm is, in the plaintiff's submission, minimal having regard to the following:

    4. (4)

       Further, the plaintiff submitted that the Court should reject the submission that that it would be unreasonable for the defendant to rebuild the staircase because of the requirement for landlord consent and because the defendant was unaware that the stairs did not comply with the BCA, should not be accepted. The submissions advanced in this respect were as follows:

    5. (5)

       As to s 5(2)(d) the plaintiff submitted the social utility of the activity that created the risk of harm is not relevant to these proceedings and accordingly s 5B(2)(d) need not be considered, particularly when the social utility concerned is limited to the generation of additional profit from the use of the upstairs storage room

19. [509]

    Mr Dimopoulos and Mr Dohrmann considered as I have noted above, that an appropriate step to be taken with respect to the noncompliance of the stairs with the BCA and the risk of harm posed by the stairs, would be the rebuilding of the stairs. Dr McIntosh’s rejection of that approach is based a flawed premise that the likelihood of overstepping only slightly elevated the risk of the fall. In any event, the opinion he expressed in his answer to question 7 would seem to indicate that he considered an available step for the defendant is the rebuilding of the stairs, albeit that a more reasonable action in his view involves other measures he identified in that answer.

20. [510]

    In addition to the foregoing discussion, in my view, the bases for the defendant’s contention that the taking of this precaution is not reasonable (as opposed to not available) must fail for the following reasons:

    1. (1)

       While the Court may have regard to the terms of the defendant’s lease, I do not consider that, when properly understood the lease provides real assistance to the defendant’s case.

    2. (2)

       It is clear that the defendant required the landlord’s consent to make structural alterations (cl 7.6 and Annexure C, cl 16(a)). However, the tenant may apply for such consent where it is required to comply with the requirements of authorities which, in my view, must include compliance with the standards imposed by the BCA. No such application was made by the defendant.

    3. (3)

       Further, the lease required the landlord to fix “structural defects”. That term is not defined in the lease and neither party addressed its meaning. However, there would seem to be a reasonable basis for concluding that the obligation in cl 7.1.1 to fix structural defects may extend to defective staircases. As was stated in WD Duncan and Christensen, Commercial Leases in Australia (Thomas Reuters, 8th ed, 2017), at 288:

    4. (4)

       As to the proposition that there was no evidence that Mr Jewell was aware of non-compliance or that he should have been the defendant is confronted with two real difficulties As I have observed, even casual patrons attending on the day of the incident were quickly able to make observations as to deficiencies in the stairs. Their observations in that respect were unchallenged and accordingly there can be no doubt that the defendant ought to be aware of a risk of harm. Further, I agree with the submission of the plaintiff it is not necessary for the defendant to be aware that the stairs did not comply with the BCA; its obligation was to protect entrants to the premises it occupied for profit from risks of harm arising from the scope and content of its duty.

    5. (5)

       I have earlier adversely dealt with Mr Jewell’s evidence as to the absence of complaints with respect to the stairs.

    6. (6)

       The Court was asked to take judicial notice that the rebuilding of the stairs would be a not insignificant cost, including demolition and construction work. Mr Dimopoulos was asked questions as to this consideration in his concurrent evidence. He stated that it would not be difficult to build a stair that complies. However, he accepted that his expertise did not extend to the cost of doing so. As to the burden of this precaution, I do not consider it is appropriate to take judicial notice of the costs of rebuilding the stairs, as a steel or other structure, although I will proceed on the basis that the costs in not minor. The evidence as to the financial position of the defendant at the time is not sufficient to make further observations. Further that assessment needs to be balance against the significant danger posed by the stairs.

21. [511]

    I have earlier dealt with the preponderance of expert opinion that I have accepted as to restricting access to the stairs. I would note additionally that Dr McIntosh’s rejection of this step contained a caveat that his view may change if different circumstance arose such as the expansion of the business, with consequential increase in stair usage. That opinion does sit entirely comfortably with the submissions advanced by the defendant to the effect that the probability of harm is low because of the high incidence of use and absence of complaints or issues. In any event, Dr McIntosh stated in question 8 that the plaintiff’s fall could have been prevented by limiting access to the stairs because all risk of falling would have been eliminated.

22. [512]

    As to the defendant’s submission, that there was no evidence that Mr Jewell was aware of the non-compliance with the BCA or that he should have been, I note that the same conclusion must be reached here, as with respect to the measure of rebuilding the stairs. The same applies with respect to an absence of complaints or issues in relation to the stairs.

23. [513]

    Senior Counsel for the defendant submitted that theoretically, if the stairs were “unsafe” then access ought to have been prevented, such that the failure to do so may represent a breach. However, he added a further contention in two parts. The first was the absence of evidence of harm over extended use. That contention has a factual premise dependent upon Mr Jewell’s evidence which I have rejected, absent corroborative evidence, of which there is none, in this respect. Rather, there is contradictory evidence which included the condition which the Douet family found the party room upon attending the party room on the day of the incident. The second submission made by senior counsel does not sit entirely comfortably with the first as he described the use of the upstairs party room as being for use as an “overflow”. He suggested that there was some potential financial loss occasioned by the closing of the access of that room, but there is no evidence to that fact.

24. [514]

    I accept the submission of the defendant that the plaintiff has not established a breach with respect to proprietary nosing for two reasons. First, the architectural experts agreed that there was compliance with the applicable codes of proprietary nosing given that there was carpet on the treads of the stairs which provided a non-slip surface. Secondly, Mr Dimopoulos expressed the view that the proprietary nosing was unnecessary. Even though it may have improved safety in his view, it would not have been an adequate measure in itself to address the risks, having regard to the undersized goings and irregularity in the risers and goings.

25. [515]

    In the circumstances, I consider that the plaintiff has to the requisite standard has established a breach of duty for the purposes of s 5B(1)(c) by establishing the defendant had failed to take the precautions of either rebuilding the stairs or preventing or restricting access to the stairs. In the circumstances, I have concluded that a reasonable person in the defendant’s position would have taken those two precautions.

Section 5D

1. [516]

   The question of causation is governed by s 5D of the Act. The relevant sections of that Act are set out in Pt 1A Div 3 and extracted below:

2. [517]

   The application of the Act requires the plaintiff to establish factual causation and scope of liability. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E of the of the Act.

3. [518]

   The traditional approach to the question of causation requires a determination of a question of fact, namely, what was the cause of a particular occurrence: Fitzgerald v Penn (1954) 91 CLR 268; Stapley v Gypsum Mines Ltd [1953] AC 663; [1953] 2 All ER 478 (at 681). This factual determination is generally described as the “but for” test or “causa sine qua non”.

4. [519]

   The common law approach to the issue of causation has since developed by reference to two distinct considerations, succinctly set out by Mason CJ in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 (“Stramare”) (at 430) and summarised as follows:

5. [520]

   The application of the “but for” test (as well as the further question of whether a defendant is contributory negligent for damage if his or her negligence has played some part in producing); and

6. [521]

   The applicability of value judgments and considerations of policy.

7. [522]

   In Stramare, the High Court ruled that the “but for” test should not be treated as the definitive test of causation where negligence is alleged. Rather, in certain circumstances, causation is to be determined by policy and/or a value judgment involving ordinary notions of language and common sense.

8. [523]

   This development addressed the oft-cited difficulty in application of the “but for” test in circumstances where there were two or more acts or events which would each be sufficient to bring about the plaintiff’s injury. The limitations of the test, particularly where there are two or more acts or events, each of which would be sufficient to bring about the plaintiff's injury, or where a defendant seeks to rely upon a “supervening cause” or “novus actus interveniens”, are well established: Stramare at 430; Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 (“Chapman”) at 124-125. This difficulty was summarised by Mason CJ (Stramare at 431-432) and extracted below:

9. [524]

   Deane J also relevantly observed (Stramare at 435–436):

10. [525]

    Further relevant developments by the High Court, cited in Stramare, included the following:

    1. (1)

       In Chapman, the High Court rejected reasonable foresight as a test of causation (at 124-5). Rather, “it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act” (at 122).

    2. (2)

       In Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 1 59 ALR 722; [1985] HCA 37, the High Court observed (at 725):

11. [526]

    The two-fold common law approach in Stramare, is now reflected in s 5D of the Act. A determination that the defendant’s negligence caused particular harm requires satisfaction of the following:

    1. (1)

       whether the negligence was a necessary condition of the occurrence of the harm (“factual causation”), and

    2. (2)

       whether it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“scope of liability”).

12. [527]

    Causation will be established if the evidence justifies, in light of the statutory test, a finding or inference of “probable causal connection between the breach of duty and the harm suffered”: C Sappideen and P Vines (eds), Fleming’s The Law on Torts (10th ed, 2011, Thomson Reuters) at 226-227. If the probable causal connection is established, the law treats as certain that to which there may be no conclusive answer: Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 at [70].

13. [528]

    Causation in tort is not established because a tortious act or omission increases the risk of injury, even though the relationship between risk and causation must be assessed. The mere existence of an association between one occurrence and another does not, of itself, establish factual causation for the purposes of s 5D(1)(a).

14. [529]

    In Carangelo v State of New South Wales [2016] NSWCA 126 (“Carangelo”) at [71], Emmett AJA (with whom Macfarlan and Gleeson JJA agreed) stated, in this respect:

15. [530]

    In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Leeming JA (with whom McColl and Basten JJA agreed) stated as follows:

16. [531]

    In Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 (“Strong”), the appellant suffered serious spinal injury when she slipped and fell while at a shopping centre. At the time she was in the sidewalk sales area outside the entrance to a Big W store. That area was under the care and control of the first respondent, Woolworths Limited.

17. [532]

    The appellant was disabled, being an amputee, who walked with the aid of crutches. The tip of her right crutch came into contact with a greasy chip that was lying on the floor of the sidewalk sales area. The crutch slipped from under her and she fell heavily.

18. [533]

    Woolworths did not have any system in place for the periodic inspection and cleaning of the sidewalk sales area. The issue in the matter concerned the familiar difficulty in slipping cases of establishing a causal connection between the absence of an adequate system of cleaning and the plaintiff’s injury when it was not known, such as in this case, when circumstances producing the risk of harm arose (in Strong this concerned the deposit of the slippery substance).

19. [534]

    The scope of liability issue arising under s 5D(1) of the Act did not represent a particular difficulty in Strong, attention being focussed upon the question of factual causation. Under s 5D, factual causation required proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm: Strong at [20].

20. [535]

    The nature of the issue to which the Court directed attention is found at [32] of the judgment of the majority of the Court as follows:

21. [536]

    The resolution of that issue commenced with the following passage of the judgment which was central to the submissions of the defendants in this matter (at [34] and overall):

22. [537]

    As to the determination of the matter was predicated upon that process of reasoning. The High Court found at [37]-[38]:

23. [538]

    The defendant’s submissions proceeded upon the assumption that, without admissions, the plaintiff fell as a result of “slipping off the stair tread.”

24. [539]

    From the starting point, the defendant submitted:

    1. (1)

       Common sense dictates (and the defendant accepts) that, if access had been prevented to the stairs, the plaintiff's fall would not have occurred. However, there is no basis upon which the Court could find that a reasonable person in the defendant's position would have prevented access to the stairs.

    2. (2)

       The question of causation should be addressed in terms of the precautions.

    3. (3)

       At the outset it should be noted that Mr Dimopoulos' opinion in respect of causation was based on an incorrect assumption that the plaintiff fell on the third step (T323:18-36).

    4. (4)

       As to rebuilding the stairs, the defendant made the following submissions:

    5. (5)

       As to the installing of proprietary nosing product, the defendant submitted:

    6. (6)

       As to ss 5F, 5H and 5I of Act, the plaintiff submitted in response to the defendant’s pleadings as follows:

Conclusion

1. [540]

   The causation issue in this matter, may be described as the question of whether the negligence of the defendant, vis-à-vis, the breaches of duty were a necessary condition of the occurrence of the harm. That issue requires a wholly retrospective analysis and concerns a question of fact. Causation will be established if the evidence justifies, in the light of the requirements of s 5D, a finding or inference of probable causal connection between the breach of duty and the harm suffered.

2. [541]

   Causation is not established merely because a tortious act increased the risk of injury. However, the relationship between the risk and causation must necessarily be considered; the risk in that sense referring relevantly a danger or the chance of loss. A statistical correlation between the occurrence of one event and the subsequent occurrence of another does not establish factual causation for the purposes of s 5D, even where the first event increases the probability of the second.

3. [542]

   However, if the association between the two events is shown to have a causal explanation, then a conclusion to factual causation may be open if the first event has at least been a contributing cause to the second. An inference of causal connection may be reached, on the balance of probabilities, after the event, even if a statistical correlational between the two events rises no more than a mere possibility.

4. [543]

   The Court may have regard to the probabilities in all the circumstances of the one event having a causal connection to the other: Seltsam at [143].

5. [544]

   In the present matter, and having regard to these aforementioned principles, I consider that the requisite causal connection has been established based upon the following considerations (which are cumulative upon those earlier provided with respect to the question of whether the plaintiff had established her pleading as to an overstep):

   1. (1)

      For the reasons earlier given the plaintiff has established, on the balance of probabilities, that the plaintiff slipped on a step within the range of steps 4 to 6. It should be noted, in that respect, that, whilst the plaintiff did not give direct evidence of the plaintiff slipping off the step, her evidence does establish, directly, the difficulties occasioned with her descent occasioned by, the narrowness of the goings.

   2. (2)

      Mr Dimopoulos opined that based on the undersize of the going at step 3, namely, 205mm and that the going was irregular/smaller than the previous step then on the balance of probabilities it is more likely that the mechanism operating in relation to the plaintiff’s fall was overstep/slip. He opined that the overstep was likely triggered primarily by the deficiencies in step 3. Mr Dohrmann agreed with Mr Dimopoulos. I have earlier rejected Dr McIntosh’s evidence, in this respect, and in particular his five other mechanisms being of equal probability of causing the fall.

   3. (3)

      The experts were asked whether if the actions referred to in question 7 were taken would such actions have, more likely than not, prevented the plaintiff’s fall. The experts were asked to consider that question on the balance of probabilities. The actions in question included the stairs being required to be compliant with the BCA, by rebuilding the stairs or preventing access to the stairs. Mr Dohrmann and Mr Dimopoulos gave any affirmative answer to that question. No contrary view was expressed by Dr McIntosh.

   4. (4)

      The defendant advanced a submission that Mr Dohrmann, with Mr Dimopoulos concurring had agreed that in order to determine whether a different sized going would have prevented the plaintiff’s accident on the basis that it was an overstep, it was necessary to consider various biomechanics of the position and movement of the plaintiff’s foot and her footwear in order to opine upon causation. It was necessary, it was suggested, to analyse the tipping point. However, as I have previously discussed, this was a misstatement of the evidence Mr Dohrmann and Mr Dimopolos whose evidence remained steadfastly consistent with the evidence that they gave in the aforementioned answers to questions. Whilst conceding that the methodology as to the assessment of the likelihood of an overstep proffered by Mr Dohrmann may be used in applicable cases in the assessment of the existence or otherwise of an overstep, Dr Dimopoulos and Mr Dohrmann did not alter their view as to causation in this case and eschewed that scientific or mathematical precision were required to make an assessment of causation having regard to the architectural and ergonomic features of the stairs, and their experience and studies to the likelihood of an overstep. To those factors may be added evidence of the circumstances of the fall itself (including the apparent difficulties presented by the stairs) and common human experience. I have found them to be witnesses of credit with the relevant expertise and qualifications to pass upon those issues.

   5. (5)

      Whilst the factor of undersized goings and the factor of irregular risers and goings are often jointly discussed in the expert reports, it was not suggested in that expert evidence that non-compliance in both of those areas was necessarily required to be approached cumulatively, in order for the abovementioned conclusions of Mr Dimopolous and Mr Dohrmann to be reached. Certainly, the BCA was framed in that way. The parties in their submissions were consistent with that approach.

   6. (6)

      Mr Dimopoulos approached his conclusions upon the basis of the plaintiff stepping onto step 3. The Court has, however, accepted the submissions of the parties that the plaintiff fell in the range of 4 to 6 and most likely step 5. However, it was not suggested by the defendant that the Court could not draw an inference as to causation by applying the logic of Mr Dimopoulos’ analysis (and Mr Dohrmann’s) as to step 3 to steps 4, 5 and 6.

   7. (7)

      It may be readily concluded, so far as the undersized goings are concerned, that steps 4, 5 and 6 exhibited that same characteristics as discussed by Mr Dimopoulos with respect to step 3. That is so for two reasons. The first is that each step is less than the minimum 250mm required under the BCA. The second is that the dimensions of those stairs represent a significantly greater departure from the standard than step 3. In that case, there was a 25mm departure from the minimum about which Mr Dimopoulos stated was significant because it was five times the maximum allowable variation. Step 4 is about six times the maximum allowable variation. Step 5 and step 6 are over 8 times the maximum allowable variation. Those, the goings are nearly 20% less than the minimum going requirement under the BCA. Mr Dimopoulos observed that variation of level was very significant and that for step 3 a variation of 25mm as it was five times the maximum allowable variation and was accordingly significant. That variation could not, according to Mr Dimopoulos, be described by the word “only”, as there was only a variation of 25mm. This is an important observation, as it concerned both an irregularity and also non-compliance with BCA.

   8. (8)

      With respect to irregular risers and goings the defendant advanced number of propositions. The first was that irregularity was much more common at the top of the stairs and become a lot less irregular as the stairs descended. The second was that the plaintiff had stepped off a shorter onto a longer step which, Mr Dimopoulos agreed reduced the risk of an overstep. Thirdly, some of the variations in steps were miniscule such as between steps 5 and 6.

   9. (9)

      It is true that Mr Dimopoulos concession would apply to a step from step 3 to step 4, so far as the variation in the size of the goings were concerned because there is a step from a smaller to a larger going. However, what was overlooked in the defendant’s contention and not raised with Mr Dimopoulos in concurrent evidence was that the movement between step 3 and step 4 involved a in the descent of the stairs involved irregular patterns both with risers and goings across the top 6 steps of the stairs. That irregularity is no less than the irregularity which senior counsel for the defendant accepted existed with respect to steps 1 to 3 and described in the following way (T387.17):

   10. (10)

       Step 5 also represents an irregular stair pattern which has the plaintiff moving from a larger going at step 4 to a smaller step (step 5). Step 6 departs from the pattern of the variation beyond the 5mm maximum allowable variation and indeed, as the defendant submitted represents only a 1mm variation. However, as Mr Hooke SC properly pointed out, Mr Dimopoulos’ evidence was that the irregular pattern needed to be understood more broadly as creating the confusion across the range of stairs under consideration. People descended stairs with an expectation of regularity and not the irregularity which is found in steps 1 to 6.

   11. (11)

       Whilst the plaintiff also relied upon the light being turned off as a basis for negligence that position seemed to evaporate as the matter proceeded. However, in my view, lighting is a factor relevant to causation because it contributes to an understanding as to the likelihood of the plaintiff mis stepping as opposed to some other cause. The experts in the Ergonomic Conclave Report, touched on the issue of lighting through the prism of proprietary nosing. Mr Dimopoulos opined that, whilst the installation of proprietary nosing is not a requirement under the BCA, he noted that “it just helps improve safety” as proprietary nosing may increase the visibility for an individual to be able to position their foot. However, when pressed in concurrent evidence about whether the installation of proprietary nosing would have prevented the plaintiff’s fall, he opined that due to the undersized goings and inconsistent risings and goings, the nosing would not be an adequate measure in and of itself. Mr Dohrmann was also asked in concurrent evidence about proprietary nosing, where he agreed with the view of Mr Dimopoulos. However, he added that the nosing of the stairs generally has two functions: first limitation on friction and slipping and secondly, with visibility. He stated that proprietary nosing becomes more useful as the going become irregular “for the reason of the extra vision it gives the descending person”.

6. [545]

   In my view, the plaintiff has established causation for the purpose s 5D of the Act.

Overall Conclusion

1. [546]

   It follows that the defendant is liable in negligence for any injuries, loss or damage occasioned to the plaintiff arising out of the incident.

2. [547]

   Section 5R of the Act provides that the principles applicable in determining whether a person has been negligent are also applicable in determining contributory negligence. The standard of care required is that of a reasonable person in the plaintiff's position and is also to be determined on the basis of what the plaintiff knew or ought to have known at the time. As the terms of s 5R(2)(b) make clear, actual knowledge has a part to play in the assessment of contributory negligence.

3. [548]

   In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529, another case of contributory negligence, the High Court said (at 532-533):

4. [549]

   In McNeilly v Imbree [2007] NSWCA 156; (2007) 47 MVR 536 at [106], Basten JA said of the “just and equitable” test, where used in assessing contributory negligence:

5. [550]

   As Basten JA observed in Council of the City of Greater Taree v Wells [2010] NSWCA 147:

6. [551]

   The test is an objective one, notwithstanding that it differs from the test for negligence in that it focuses on conduct of the plaintiff which exposes him or her to the risk of injury without necessarily exposing others to such a risk: see Commissioner of Railways v Ruprecht (1979) 142 CLR 563; [1979] HCA 37 at 570 (per Mason J); Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34.

7. [552]

   The "principles" referred to in s 5R(1) as applicable in determining whether a person has been negligent are those in s SB: see Gordon v Truong; Truong v Gordon [2014] NSWCA 97 at [14] - [16] (“Gordon”); Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393 [2014] NSWCA 139 at [59], [94]; T and X Company Pty Ltd v Chivas [2014] NSWCA 235 at [12], [51]; and Grills at [173] cited in Verryt v Schaupp [2015] NSWCA 128 at [27].

8. [553]

   The defendant submitted that the fact that the combination of the factors relied upon by the plaintiff, namely, that the plaintiff was holding the handrail, that she was aware at the start of her descent that the stairs were narrow, therefore warned those behind her, was suggestive of two possibilities. The first is that there was a different mechanism for the fall other than an overstep or secondly, the plaintiff fell because she overstepped as she was not being careful enough when descending the stairs.

9. [554]

   The defendant submitted if the Court does not accept that the plaintiff's evidence should result in a finding that she did not exercise reasonable care for herself and therefore no duty of care is owed, that evidence must be relevant to a finding of contributory negligence.

10. [555]

    In the circumstances, the defendant submitted that the deduction should be no less than 50%.

11. [556]

    The plaintiff submitted:

    1. (1)

       The defendant has also alleged contributory negligence on the basis that the plaintiff allegedly failed to keep a proper lookout, failed to look where she was walking, and failed to reasonable care for her own safety.

    2. (2)

       There is simply no evidence to support a submission that the plaintiff was not keeping a proper lookout, failed to look where she was walking, or failed to take (unspecified) reasonable care for her own safety. Her evidence was that she was, holding the handrail, that she was aware at the start of her descent that the stairs were narrow, therefore warned those behind her. There was no suggestion that the plaintiff was in a hurry. Indeed, all of the evidence establishes that the plaintiff was taking particular care for her safety, and was urging others to do likewise.

    3. (3)

       The plaintiffs overstep occurred as a result of the inconsistent rising and going dimensions and the shorter goings. As noted by Mr Dimopoulos (T340.50) “to some degree we adapt our gait to the steps that are there, so we’re adapting our position of our foot based on that reencounter”. Given the inconsistencies confronting the plaintiff, she was not in a position to further adapt her gait to ensure that she was able to safely descend the stairs.

    4. (4)

       The plaintiff submitted there was no further precaution the plaintiff could reasonable have taken to avoid her fall. The plaintiff submitted that the test for contributory negligence is not a council of perfection and the fact that the plaintiff might have done something differently is not negligent. Accordingly, there should be no finding of contributory negligence.

Conclusion: Liability

1. [557]

   As I have earlier found, the mechanism of the plaintiff’s fall was by an overstep which was caused by the inconsistencies in the stairs confronting the plaintiff as she was descending the stairs, namely, the irregular rising and going dimensions. An equivalent factor was the shorter goings of the stairs than provided for by the BCA. As a result, I do not find that the plaintiff contributed to the cause of fall and I agree with the submission of advanced by the plaintiff that the plaintiff was not in a position to be able to adapt her gait to ensure that she was able to safely descend the stairs. The sideways movement was not the optimal means of descending, but it was identified by Mr McIntosh as an option. Overall, I find accept the submission advanced by senior counsel for the plaintiff as summarised above.

2. [558]

   I did consider, in this context, the proposition advanced by Dr McIntosh that the plaintiff’s obesity was a risk factor in preventing her from recovering once she slipped. However, I do not consider that if this conclusion were accepted, it would follow that a finding of contributory negligence should be made. Further, I do not find that her immobility or obesity caused her to take a sideways movement down the stairs.

3. [559]

   In the circumstances, I do not consider there should be a deduction for contributory negligence.

General

1. [560]

   The submissions of the parties in relation to the issue of damages fell into three broad categories. The first is the plaintiff’s pre-existing physical and psychological conditions. The second is the injuries that the plaintiff suffered as a result of the fall. The third are damages concerning future matters.

2. [561]

   Separating the issues in this way is helpful in assessing damages. As Deane, Gaudron and McHugh JJ explained in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642–3; [1990] HCA 20 (“Malec”):

3. [562]

   The defendant made submissions, drawn from medical records leading up to the accident, that the defendant was suffering from headaches, nausea, migraines and dizziness before the accident. A number of reports were relied upon in further support of this submission which I will discuss below.

4. [563]

   First, the report of endocrinologist, Dr Carol Ting, dated 17 February 2016, (Ex 1 at pp 3902 – 3905) made the following notes:

5. [564]

   The report of Dr Ting noted that one of the main symptoms that was observed of the plaintiff was that she had “Severe Headaches started Nov 2015. No previous headaches[.] Frontal and like tight band. Continuous [sic]. Four weeks ago needed to start Endone for this, which she continues now” (emphasis in original). Her report recommended, amongst other things, that the plaintiff stop Metformin and Broimocriptine.

6. [565]

   Secondly, the patient summary at the Illawarra Aboriginal Medical Service records that the plaintiff had a consultation with general medical practitioner, Dr John Watson, on 15 March 2016. The notes recorded (Ex 1 at p 3427):

7. [566]

   Thirdly, Dr Ting produced another report, dated 18 March 2016, (Ex 1 at pp 3906 - 3907) that noted the following:

8. [567]

   Under the “recommendations” part of Dr Ting’s report, it stated “She has severe and debilitating headaches and nausea. The priority is for her to see a Neurologist ASAP. This is the Specialist most likely to be able to hep [sic] her with her headaches and nausea” (emphasis in original).

9. [568]

   Fourthly, Dr Ting produced a further report, dated 28 April 2016, (Ex 1 at pp 3908 - 3901) that noted that the plaintiff was admitted to Shellharbour Hospital “seven days ago with numbness [in] left forehead”. As part of the recommendations, Dr Ting organised a referral to neurologist Dr Rob McGrath of Southern Neurology requesting “urgent appointment (& she be placed on Cancellation List) for severe and debilitating headaches & nausea (Started Nov / Dec 2015), such she she [sic] has not been able to fucntion [sic] of work since Jan 2016 (had to close her small business)”.

10. [569]

    Fifthly, Dr William Huynh of Southern Neurology recorded, in correspondence to Dr H Leung dated 11 May 2016, (Ex 1 at p 3519) that the plaintiff “presents with new onset chronic daily headaches since late 2014.”

11. [570]

    Sixthly, on the same day, Dr Huynh reported to Dr Ting (Ex 1 at pp 3520 – 3521) with the following:

12. [571]

    Dr Huynh stated in his letter that he suggested the plaintiff commence using B2 magnesium supplements for supplemental migraine prevention.

13. [572]

    Seventhly, on 2 June 2016, the plaintiff attended Dr Mutti Khan who recorded (Ex 1 at p 3598) that the plaintiff “[a]lso had some nausea and headaches for [the] past few months” and had “[s]een a Neurologist who has diagnosed with Migraines (as per patient). On few medications”.

14. [573]

    The plaintiff submitted that an understanding of these medical entries requires context. In that regard, the evidence of the plaintiff, Mr Pietrobelli and their daughter, Karina, were that they observed the plaintiff had made a large recovery in the preceding few months by the time of the accident. Mr Petrobelli stated in his evidentiary statement at paragraph 10:

15. [574]

    Ms Karina Pietrobelli stated in her Evidentiary Statement at [11]:

16. [575]

    The plaintiff submitted that she was free from headaches at least one month prior to the accident (Plaintiff’s Outline of Submissions, 29 January 2021, at p 39 [215]). In support of this submission, she submitted that the medical and clinical notes after the 2 June 2016 entry made no reference to headaches, nausea, migraines and dizziness. This was evidenced by the medical notes between 2 June 2016 and the day of the accident (2 July 2016) when the plaintiff saw Dr Khan on three occasions on 17, 20 and 23 June 2016 (Ex 1 at pp 3597 – 3598). Those notes referred to ongoing pain in the CMP joint and wrist, X-ray of the left hand and breast symptoms but not to headaches, nausea, migraines and dizziness.

17. [576]

    The plaintiff gave evidence that she applied to work as a full-time disability support worker with the Ribbonwood Centre shortly before her fall (Ex 1 at p 46). The plaintiff submits that she would not be applying for such a position if she was still suffering any symptoms of significance.

18. [577]

    In the plaintiff’s cross-examination, she indicated that she was feeling “[t]he wellest I’ve been” for the five or six months leading up to the accident. When asked to explain what she meant, she stated “I’d describe it as not going to the doctors much and things were good, going good at home and I was doing the best I could” (T116).

19. [578]

    The defendant also drew on medical evidence about the plaintiff’s back pain which is discussed below in nine parts.

20. [579]

    First, the records of Wollongong Hospital recorded that, on 12 and 13 October 1998 (Ex 1 at p 2560–2561.), the plaintiff had “generalised aches and pains, particularly low back pain”. That pain was described by the plaintiff as “persistent back pain”.

21. [580]

    Secondly, Dr M Tut noted, on 11 June 2010 (Ex 1 at p 687), that the plaintiff had “[r]ecent back pain. Had previous back injury with disc disease”. The reason for that contact was described as “Low back pain – Mechanical”. Dr Tut noted a “Fit certificate [was] issued”.

22. [581]

    Thirdly, the Patient Medical History of Dapto Medical & Dental Centre record that on 2 April 2012 that the plaintiff “[s]lipped and fell down and hurt her lower back[.] Sore stiff[.] … PH [Patient history] of low back pain” (Ex 1 at p 3851).

23. [582]

    Fourthly, the plaintiff visited Dr N Khosa on 19 February 2013 (Ex 1 at p 683) for “Low back pain – Mechanical”. The record stated “HAS HAD LOWER BACK PAIN- NOT ABLE TO SLEEP AT NIGHT, KNOWN TO HAVE LOW BACK PROBLEKS [sic]”. The record indicated that the plaintiff was issued with analgesia and non-steroidal anti-inflammatory drugs (NSAID).

24. [583]

    Fifthly, the plaintiff visited Dr Muhammad Arif on 27 June 2013. The records indicated that the plaintiff “[w]as lifting chess of draws and sprained lower back. p/h [Patient history] of lbp [lower back pain] over 4 years” (Ex 1 at p 680). When asked about this in cross-examination, the plaintiff explained that this back pain was associated with her pregnancy and moving furniture (T93:12-22).

25. [584]

    Sixthly, the plaintiff sought dietary advice regarding her weight from clinical dietician Aida Haghi. Ms Haghi created a Nutrition Care Plan for the plaintiff on 13 May 2014 (Ex 1 at p765). Under the title “Assessment”, Ms Haghi notes that the plaintiff’s “[c]urrent physical activity is very minimal outside ADLs due [to] sore back”.

26. [585]

    Seventhly, the plaintiff visited Dr Nimalka Selvarajah on 20 January 2015 (Ex 1 at p 3838). The reason for contact was “back pain”. It was recorded, under the heading “History”, that the plaintiff had “intermittent lower back pain few mnths [sic] – previous injury”. Under the heading “Examination”, it was recorded that the plaintiff had a “tender lower back – tender movements”.

27. [586]

    Eighthly, the plaintiff visited Dr Naresh Parajuli on 6 October 2015 (Ex 1 at p3837). The records stated “C/O back pain[.] Lifted her disabled daughter[.] Has tingling and numbness in the thighs and legs[.] O/E: movements all restricted[.] Spasm lower back++”. When asked about this entry in cross-examination, the plaintiff accepted that her back can become sore when lifting Bethany (T103:48-104:6).

28. [587]

    Ninthly, the plaintiff was seen by Dr Salman Ahmad on 14 February 2016 (Ex 1 at pp 3835-3836). The record indicated “Left sided upper back pain under scapula”.

29. [588]

    When this was put to the plaintiff in cross-examination, she stated (T113:24-35, 45-49):

30. [589]

    The defendant also drew on medical evidence about the stiffness and swelling in the plaintiff’s legs and feet before the accident in five parts.

31. [590]

    First, the plaintiff visited Dr Solomon Nwanze on 22 November 2015 (Ex 1 at p 3836). The record of this visit states that the plaintiff [h]as left leg pain and swelling”.

32. [591]

    Secondly, the plaintiff had a consultation with general medical practitioner Rowena Ivers on 23 November 2015. The record of the consultation stated “Leg was swollen last night, has form for scan today”. In cross-examination, the plaintiff accepted that in November 2015, she was suffering from swelling in her limbs (T110:5-8).

33. [592]

    Thirdly, in the letter from Dr Ting to Dr John Watson, dated 17 February 2016 (Ex 1 at p 3902), she stated that the plaintiff’s “[l]egs also keep getting stiff. Swelling left leg.”

34. [593]

    Fourthly, the plaintiff visited Dr John Watson on 11 March 2016 in which he recorded “aching legs” and “stiff legs”.

35. [594]

    Fifthly, in a letter from Dr Watson to Dr Ting, dated 15 March 2016 (Ex 1 at pp 3455 – 3456), it stated “I have asked her [the plaintiff] to start iron tablets for her lowish iron level (normal Haemoglobin) and i [sic] have ordered Magnesium level and ESR, CRP, ANA for aching stiff legs”.

36. [595]

    The defendant’s attack on the plaintiff’s pre-accident medical condition was two-fold. The first attack went to the plaintiff’s credit insofar that she had claimed in her oral testimony (extracted above) that she had been feeling “very well” in the five or six months leading up to the accident. The second attack went to damages in the sense that there is a possibility that the plaintiff would have suffered the same injuries independently of the tortious conduct at some future time (see Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 and also Civil Liability Act 2002 (NSW) s 13).

37. [596]

    Overall, the submissions of the parties relating to the plaintiff experiencing headaches, migraines, dizziness and nausea were detailed, comprehensive and helpful. It is clear, however, that the plaintiff’s testimony that she had been feeling “very well” in the five or six months leading up to the accident, in the sense that she was healthy and there were very few visits to medical professionals, cannot be accepted. The medical evidence elaborated above shows, at least two to six months before the accident, she was suffering from chronic headaches, migraines, dizziness and nausea. The report of Dr Ting, in particular, stated that the plaintiff, at certain times, was “unable to function” and was referred to a neurologist as a matter of priority. The plaintiff, in her written submissions, appears to accept, properly in my view, that the likelihood is that “she had not been free of headaches for the five or six months she believed” (Plaintiff’s Outline of Submissions, dated and filed 29 January 2021, at p 39 [215]).

38. [597]

    The task becomes more difficult when one needs to turn to whether the headaches, migraines, dizziness and nausea continued, and were active, in the month leading to the accident and on the day of the accident.

39. [598]

    It can be readily observed that the lack of reference to headaches, migraines, dizziness and nausea in medical and clinical notes after 2 June 2016, and the plaintiff’s application for full-time work, are consistent with the notion that she had a fast recovery and the impact of the sickness had been reduced or had disappeared. This may be more readily explained by the plaintiff’s use of medication directed at these illnesses. The evidence of the plaintiff, her husband and their daughter are consistent generally with the notion that she had at least some recovery, especially about the plaintiff’s ability to carry out her usual domestic tasks.

40. [599]

    This conclusion is fortified by another letter sent by Dr Ting to Dr Khan, dated 25 April 2019 (Ex 1 at pp 3927 - 3929). Dr Ting writes that “I saw her [the plaintiff in] April 2016, by the time she had the fall June or July 2016 no longer dizzy or having headaches, was feeling much better. The day she fell down the stairs was a sunny day and having nice day. After fall [the] headaches and dizziness all came back and got worse”.

41. [600]

    Although, the defendant did proffer a large volume of references to the plaintiff experiencing headaches, nausea, migraines and dizziness across multiple reports and letters, the references were generally scant in nature. They lacked any great detail as to the extent and ongoing effect on the plaintiff’s life and, importantly, there were very few records as to whether, and to what extent, she recovered. In this respect, the references in the notes of the various doctors should be approached with caution (Defendant’s Outline of Closing Submissions, [21]). As Basten JA explained in Mason v Demasi [2009] NSWCA 227 at [2], of which some of the factors identified are relevant to the present case:

42. [601]

    The plaintiff was cross-examined at great length about her medical conditions and was taken through various parts of the medical records. Overall, I found the plaintiff was a witness of truth. She demonstrated a willingness to assist the Court and made appropriate concessions about her lack of ability to recall dates and the specificity of certain events. Whilst I found her evidence that she was very well for five to six months leading up to the accident cannot be accepted, this can be explained, at least partly, by the fact she was under strong medication and seemed to encounter some confusion in dealing with some medical records for the parts in question. I do not believe she was evasive or deliberately stating mistruths. Further, there were attacks on her credibility, those attacks were narrowly confined to certain points. It could not be properly concluded that substantial parts of her evidence were not credible on that basis. I also note that the observations by Basten J in Mason at [2], sub paragraphs (a) and (b) are applicable in this case. I note that I do not consider that the circumstances of the plaintiff seeking work at the University of Wollongong in and of itself demonstrated pre-existing psychological issues. Between approximately 2010 and 2013, the plaintiff worked as an Indigenous Community Engagement Officer at the Graduate School of Medicine at the University of Wollongong. She ceased work at the University in August 2013 as she suffered from anxiety having been bullied in the workplace. Her employer arranged counselling and she attended on, according to her evidence, four occasions. She made good recovery and resumed work in a different role.

43. [602]

    The defendant submitted that the plaintiff had difficulties with her mobility for some time. In supporting this submission, the defendant referenced the plaintiff’s medical history whereby it was recorded in the entries of Dr Khan in February and 17 June 2016, that the plaintiff had fallen. However, as the plaintiff correctly submitted, those falls need to be analysed in context. In, the February entry, it was stated that the plaintiff “had near falls, son caught her, no blackouts”. In cross examination, the plaintiff denied having near fallen but instead insisted that she had “just lent on my son”. The defendant submitted that this was not plausible. I do not accept the submission that the plaintiff’s evidence in this respect was not plausible. I have earlier found she was a witness of credit and, in any event, this entry did not indicate that the plaintiff had in fact fallen.

44. [603]

    The 17 June 2016 note, referenced that the plaintiff had experienced a “few falls in last month”. The defendant submitted that this represented that there had been a number of unexplained falls. The plaintiff was cross examined on this note. However, she did not agree that she had had a few falls in the month preceding 17 June 2016. The plaintiff specifically did not accept that she had other falls around that time and that those falls occurred without any identifiable cause. She stated that she remembered tripping over the wheel of furniture in the course of moving house. There was no evidence to the contrary and my observation was that the plaintiff was endeavouring to provide an accurate and honest account. I accept the evidence of the plaintiff in this respect and therefore conclude that the reference to a “few falls in last month” referred back to a singular fall on the 23 May 2016, when the plaintiff tripped over the wheel of moving furniture. I do not consider that these medical entries are proof of dizziness or immobility in the periods of prior to the incident or adversely affect the plaintiff’s credit.

45. [604]

    On balance, I am satisfied that the plaintiff experienced headaches, nausea, migraines and dizziness of a very serious nature in the time period from February and possibly earlier, to early June 2016 (that is, from one to five months leading up to the accident). However, when considering all the strands of evidence as a whole, and I am affirmatively satisfied that the plaintiff did make some considerable recovery such that these illnesses were affecting her daily life to a substantially lesser degree. That is not to say that they disappeared and the plaintiff was perfectly well but I am satisfied that the headaches, nausea, migraines and dizziness in about the month perioid leading up to the accident and, most relevantly, on the day of the accident were not of the nature that it would have affected her in a significant way. The is in part, confounded by contemporaneous medical records. To the extent that the defendant relied on the plaintiff’s headaches, nausea, migraines and dizziness to attack the claim in relation to the issue of liability or with respect to damages, this must fail.

46. [605]

    In relation to the evidence concerning the plaintiff’s back pain and the stiffness and swelling in her legs, the medical records were even more scant. The records allude to the location of the pain at the lower back but they do not elaborate on the extent of the pain, stiffness and swelling, how long it was experienced and the impact on the plaintiff’s activities. Similarly, very little information was provided about the stiffness, swelling and ache in the plaintiff’s legs.

47. [606]

    It has been difficult to draw from these scant references in medical records about when the pain had ceased and whether it had affected the plaintiff on the day of the accident. In relation to the back pain, counsel for the defendant did not press the plaintiff beyond the extracted cross-examination in relation to the 14 February 2016 visit before Dr Ahmad, in which the plaintiff denied back pain. Although there is some doubt, I am satisfied on the balance of probabilities from the evidence of the plaintiff that she was not experiencing back pain and stiffness and swelling in her legs at the time of the accident.

48. [607]

    After the accident, the plaintiff was admitted to Shellharbour Hospital on 2 and 3 July 2016. She was admitted to Wollongong Hospital on 4 July 2016 and remained there until 13 July 2016. Upon discharge, she was admitted to the Port Kembla rehabilitation clinic.

49. [608]

    Neurologists, Associate Prof Paul Darveniza and Dr Grant Walker, took part in a conclave on 19 October 2020 (Ex 1 at p1065ff). The joint conclave report states:

    1. (1)

       The plaintiff suffered a mechanical injury to the spine and developed a subsequent DVT in the right leg that was ‘probably related to the accident’;

    2. (2)

       The duration of those injuries ‘should have been days to weeks’. Her treatment ‘should be rest and analgesia with subsequent recuperation and possibly a course of anti-coagulants’;

    3. (3)

       The injuries gave rise to a need for attendant care services, but this has to be determined by an appropriate psychiatrist and rehabilitation physician;

    4. (4)

       The injuries had not resulted in a reduction in the plaintiff’s capacity to perform pre-accident employment duties. There had been no reduction in the plaintiff’s future capacity for work;

    5. (5)

       There were no neurological injuries sustained in the accident; and

    6. (6)

       The plaintiff was not suffering from ongoing disabilities arising from the injuries.

50. [609]

    Dr Stephen Buckley and Dr Phillipa Harvey-Sutton took part in a conclave on 21 October 2020 (Ex 1 at pp 1053ff). The joint conclave report states:

    1. (1)

       The plaintiff sustained, as a result of the accident, a continuing somatic symptom disorder, which used to be known as a pain disorder. This injury has continued ever since the accident;

    2. (2)

       A continuing somatic symptom disorder manifests as mobility disabilities;

    3. (3)

       In relation to attendant care services, Dr Buckley identified a need for one hour per day, seven days per week of a personal care assistant in relation to the plaintiff’s impaired mobility. Dr Harvey-Sutton stated that the plaintiff may require podiatry assistance, a bath board and a handheld shower but does not believe that the plaintiff has needed attendant care services since at most 2020;

    4. (4)

       The doctors had no reason to disagree with the treatment recommended by psychiatrist Associate Professor Phillips and deferred to the psychiatric opinion in that regard;

    5. (5)

       The plaintiff will require accommodation with flat access including to the bathroom and shower;

    6. (6)

       In relation to the reduction in the plaintiff’s capacity to perform pre-accident employment duties, it was noted that the plaintiff’s work history was intermittent and variable and, therefore, it was difficult to assess whether her capacity had been reduced;

    7. (7)

       In relation to future capacity, Dr Buckley was of the view that the plaintiff was unemployable on the open employment market unless her psychiatric treatment is successful. Dr Harvey-Sutton noted that the plaintiff has returned to work for three days per week as a community support worker, Aboriginal health worker and disability service officer, and expressed the opinion that, after about 12 months, could graduate to four days per week and subsequently five days per week.

    8. (8)

       In relation to the reduction in the plaintiff’s capacity to perform her pre-accident employment duties, Dr Buckley believed that the combination of the plaintiff’s psychological impairment, mobility impairment, somatic syndrome together with dependencies on narcotic and other analgesics makes her unemployable on the open employment market. Dr Buckley noted that the plaintiff may be able to return to work if the psychiatric treatment is successful, but the likelihood of success is low. Dr Harvey-Sutton noted that the plaintiff had not worked for some six months immediately before the time of the accident.

    9. (9)

       The plaintiff would require gratuitous assistance in the future. Dr Buckley advises an additional requirement of three hours per week of handyman assistance and five hours per week of housekeeping assistance. Dr Harvey-Sutton considered that the plaintiff would require three hours per week of cleaning and an additional 0.62 hours per week for spring cleaning. Dr Harvey-Sutton also considered that the plaintiff would be able to do her own meal preparation and laundry with the aids advised by the occupational therapists.

51. [610]

    The occupational therapists, Ms Jacqueline Scott and Ms Sanja Zeman, took part in a conclave on 8 October 2020 (Ex 1 at pp 1071ff) and again on 11 November 2020 (Ex 1 at pp 1100ff). The joint conclave report stated:

    1. (1)

       There is a need for gratuitous attendant care services and/or gratuitous domestic services arising from the injuries sustained at the accident. The gratuitous assistance relates to the loss of mobility on functional task performance for tasks requiring sustaining weight bearing, unsupported postures in task performance, low reach and high reach; chronic pain presentation; mental health issues whereby the plaintiff presents with an overriding and strong belief in her inability to engage in functional tasks due to her perception of high levels of pain; and fluctuating fatigue levels impacting on endurance to tasks;

    2. (2)

       In relation to period 1 (2 July 2016 to 26 August 2016), the plaintiff received in-patient hospital-based care;

    3. (3)

       In relation to period 2 (27 August 2016 to 23 March 2017), the plaintiff presented with variable mobility. While she had made some improvements to ambulatory capacity, there were ongoing mobility constraints impacting on her function. She was unlicensed to drive and had not returned to work. In this period, she reasonably required services for meal preparation and kitchen maintenance (10.5 hours per week); domestic duties (3 hours per week); shopping (1 hour per week); laundry (2.25 hours per week); bedroom maintenance (0.13 hours per week) and transport (2 hours per week). Ms Scott would also additionally allow monthly lawn mowing (0.25 hours per week); weekly rubbish removal (0.08 hours per week) and car cleaning every six weeks (0.13 hours per week), which was completed by the plaintiff’s son;

    4. (4)

       In relation to period 3 (24 March 2017 to 16 October 2017), the plaintiff continued to present with mobility impairment but was medically cleared to resume driving after she had undergone an occupational therapy driver assessment and made vehicle modifications. The plaintiff continued to be certified unfit to work.

    5. (5)

       In relation to period 4 (17 October 2017 to 31 January 2020), the plaintiff continued to present with mobility constraints impacting on function. She had resumed driving and returned to work during this period.

    6. (6)

       In periods 3 and 4, the plaintiff had an ongoing requirement for care provided gratuitously on a reasonable and necessary basis for domestic assistance (3 hours per week); laundry (2.25 hours per week); bedroom maintenance (0.13 hours per week); and shopping (1 hour per week).

    7. (7)

       In periods 3 and 4, Ms Zeman believed that the plaintiff had the capacity to transport herself independently with no requirement for specific assistance after she was certified fit to drive and provided with vehicle modifications. This was because the plaintiff had at all times the capacity to adopt pacing strategies to manage fatigue; there was no requirement to utilise the affected right lower limb in driving (after a left foot accelerator was installed); she did not have any issues with prolonged sitting, and a prolonged seated positioning would not have affected driving capacity. Mr Scott believed that the plaintiff had limited capacity to drive due to poor confidence, ongoing pain and the side effects of medication, drowsiness, and blurred vision. Mr Scott noted that the plaintiff did manage driving to and from work in period 4 but this exacerbated her “unbearable” pain.

    8. (8)

       In period 3, Ms Zeman assessed the plaintiff’s requirement for assistance relating to meal preparation and kitchen maintenance to 7 hours per week. This is a reduction from 10.5 hours per week because the plaintiff had gained the capacity to access simple meals independently and contribute to meal preparation. Ms Scott agreed that the plaintiff’s ability to contribute to meal preparation increased during period 3 but noted that some preparation was pain dependent and predominantly managed by family members. Ms Scott assessed the need to be 7.55 hours per week (composed of 5.25 hours per week for meal preparation and 2.3 hours per week per week for kitchen cleaning).

    9. (9)

       In period 4, Ms Zeman was of the opinion that the plaintiff’s capacity to engage in meal preparation and kitchen maintenance improved and reduced her assistance to 3.5 hours per week. This was because the plaintiff could access and prepare simple meals independently; that she may sit at the dining table to pre-prepare meals and chop up ingredients; she demonstrated an ability to reach into various parts of the kitchen; and she commenced the bulk preparation of meals and freezing them for later use. Ms Scott disagreed that the plaintiff had been able to significantly increase her contribution to meal preparation in period 4. This was because the plaintiff had returned to full-time work and reported increased pain and fatigue in the evenings, and thus relied on family members for the majority of domestic tasks. Ms Scott assessed the need to be 7.58 hours per week of assistance (composed of 5.25 hours per week for meal preparation and 2.33 hours per week per week for kitchen cleaning).

    10. (10)

        The experts disagreed on the need for hospital-based care in period 1. Ms Scott was of the opinion that the plaintiff had a reasonable requirement for hospital-based care with her family providing personal care on a daily basis, including assisting with transfers, toileting, showering and dressing, liaising with medical staff, bringing in personal items from home and providing emotional support. Ms Scott considered 21 hours per week to be reasonable. Ms Zeman did not dispute that the family provided a level of personal care during the plaintiff’s hospitalisation but such services were provided by hospital staff as part of an inpatient admission and there was no specific need for services to be provided gratuitously.

    11. (11)

        Following the plaintiff’s discharge from hospital, the plaintiff had not had a reasonable requirement for personal care and both experts disagree with Dr Buckley in this regard.

    12. (12)

        Ms Scott believed that the plaintiff had a reasonable requirement for 10 minutes daily (1.17 hours per week) for incidental assistance with dispensing of medication when her pain levels were high. This was observed from the plaintiff’s dependence on family members during her assessment where she was reluctant to move from her chair. Ms Zeman does not agree on the basis that the plaintiff had maintained the cognitive capacity to job seek at all times and that it is imperative that the plaintiff maintain independent function as much as possible.

    13. (13)

        The plaintiff had a reasonable requirement for future care arising for injuries sustained in the accident in relation to the loss of mobility impacting of functional task performance for those tasks requiring sustained weight bearing, unsupported postures in task performance, low reach and high reach; chronic pain presentation; mental health issues; and fluctuating fatigue levels impacting on endurance. Given the period of time and the extensive rehabilitation that the plaintiff had had to date, her assessed requirements for future care will persist indefinitely in the future.

    14. (14)

        Ms Zeman was of the opinion that the plaintiff’s current requirements for future care can be reasonably reduced with improvements to adaptation. Specifically, the plaintiff had the capacity to regain independence with laundry and meal preparation tasks. This may require further occupational therapy functional education and intervention including the prescription of aids and appliances, education on pacing strategies, the introduction of energy conservation techniques etc. Ms Scott was of the opinion that the significant psychological overlay would impact the plaintiff’s ability to return to consistent independent performance in meal preparation and laundry tasks. She should participate in aspects of bulk meal preparation and laundry with the encouragement and assistance of the care provider and the use of assistive technology.

    15. (15)

        The future care requirements that the plaintiff is likely to reasonably need according to the respective experts may be summarised as follows:

    16. (16)

        Ms Zeman made no allowance for transport on the basis of the plaintiff’s demonstrated capacity to transport herself in her local and extended community. Ms Scott made an allowance for 2 hours per week for transport assistance, likely to be provided on a gratuitous basis. This is because the plaintiff has recorded a decreased tolerance for driving distances longer than 30 minutes, experienced fluctuating levels of widespread pain and continued to take medication that affected her vision and level of alertness.

    17. (17)

        Ms Zeman made no allowance for shopping given that the plaintiff had demonstrated an ability to complete shopping based on surveillance footage and utilised internet shopping. Ms Scott agreed that the client has a reported and demonstrated ability to complete incidental shopping and would utilise internet shopping. It appears that there would be a delivery fee of $11 per week. Ms Scott makes an allowance for monthly car cleaning at $10.75 per week.

    18. (18)

        Ms Zeman made no allowance for care for others given that the plaintiff’s children are young adults and are all independent with personal care. Ms Zeman believed that the care relating to supervision and prompting of the plaintiff’s daughter Bethany was not outside the plaintiff’s functional capacity and that she had maintained the capacity to be able to support her daughter’s needs in this regard. Ms Scott assessed the care of the plaintiff’s daughter Bethany at 7.5 hours per week to be considered in the instance that NDIS funding ceased. Bethany is diagnosed with Autism Spectrum Disorder, Oppositional Defiance Disorder and Sensory Processing Disorder. Ms Scott noted that Bethany continued to require supervision and prompting to complete personal ADLs and contribute to some domestic tasks. Ms Scott explained that Bethany may require physical assistance to wash thoroughly, manage menstruation and be physically guided and redirected when she was oppositional and her behaviours are elevated. The plaintiff was not able to provide this level of assistance because it may involve prolonged periods of standing, unsupported postures and low reach. Ms Scott explained that one hour of daily assistance (0.5 hours in the morning and 0.5 hours in the evening) was required to assist Bethany with preparing for the day, completing personal care tasks and getting ready for bed. She recommended a further 0.5 hours to ensure that Bethany can contribute to domestic tasks such as making her bed daily, putting away laundry and cleaning her room.

    19. (19)

        The commercial services should be based on NDIS gazetted rates at $50.20 per hour for house cleaning and household activities and $49.30 per hour for house and yard maintenance.

    20. (20)

        The plaintiff did have a reasonable need for occupational therapy or/and occupational aids in the future arising from the injuries sustained in the accident.

    21. (21)

        The plaintiff did have a reasonable requirement for a period of intensive occupational therapy intervention to facilitate her adaptation. This was necessary over 12 hours at a rate of $193.99 per hour, which was the NDIS gazetted rate.

    22. (22)

        The plaintiff required aids listed in the table on pages 1096 and 1097 of Exhibit 1.

52. [611]

    The psychiatrists, Associate Professor Jonathan AM Phillips and Dr Adam Martin, took part in a conclave on 29 October 2020 (Ex 1 at pp 1036ff). The joint conclave report resulted in the following:

    1. (1)

       Dr Martin opined that he was not persuaded that the accident has resulted in a significant psychiatric disability but that her ongoing depressive symptoms and experience of pain are representative of pre-existing and underlying psychological vulnerability. Dr Martin opined that it was unlikely that the fall can be seen as the major factor for subsequent psychological problems. Associate Prof Phillips, whilst accepting pre-existing psychological vulnerabilities and episodic pre-existing psychological symptoms, was of the firm view that the accident became a ‘material cause’ for the plaintiff’s psychological decompensation with the development of a complex group of symptoms.

    2. (2)

       Dr Martin expressed the view that any psychiatric or psychological impairment was not significantly attributable to the accident but rather her psychological impairment had been an enduring issue which pre-existed the fall. Associate Prof Phillips noted that the plaintiff made a reasonable recovery prior to the accident in July 2016. In his opinion, the accident became a key matter in terms of the development of further physical and psychological problems.

    3. (3)

       Dr Martin found that the plaintiff’s ongoing psychological impairment arose from chronic and underlying vulnerabilities and could not be attributed to the injury. Associate Prof Phillips expressed the view that the plaintiff developed a persistent depressive disorder and a somatic symptom disorder following the accident and that the plaintiff’s disabilities should be attributed principally to the trauma of the accident.

    4. (4)

       Dr Martin expressed the opinion that the plaintiff’s prognosis was relatively poor given the chronic history of underlying psychological problems. Associate Prof Phillips accepted that the plaintiff had a longstanding psychological vulnerability before the accident, but the symptoms were relatively mild compared to those that existed from the time of the accident. Associate Prof Phillips stated that the plaintiff’s psychiatric/psychological prognoses was likely to be relatively poor.

    5. (5)

       Dr Martin accepted that the plaintiff required ongoing psychiatric treatment involving prescription of psychiatric medications and might benefit from undertaking psychological counselling and management in a multidisciplinary pain management clinic. Dr Martin estimated the region of costs as follows for the foreseeable future: $50-100 per month for psychotropic medication; $400 per session at four sessions a year for psychiatry treatment; $250 a session on a monthly basis for psychological treatment; and a cost of a multi-disciplinary pain management clinic. Associate Prof Phillips considered that a comprehensive treatment program was required to best treat the plaintiff’s persistent depressive disorder and her somatic symptom disorder. He accepted the program suggested by Dr Martin but believed that a psychotherapeutic approach was the best way. Associate Prof Phillips proposed a program which involved 40-50 sessions of traumatic-based practical cognitive behavioural psychotherapy as an appropriate method of management. Associate Prof Phillips accepted that the plaintiff could be treated in a multidisciplinary pain program.

    6. (6)

       The requirement for attendant care services should be determined by the occupational physicians and occupational therapists.

    7. (7)

       Dr Martin expressed the view that any reduction in the plaintiff’s capacity to perform pre-accident employment duties reflected physical impairment as opposed to a psychiatric morbidity. Associate Prof Phillips believed that the plaintiff’s capacity to undertake future work will be affected both by the symptoms of her persistent depressive disorder and her somatic symptom disorder. Associate Prof Phillips was optimistic that the plaintiff may be able to return to some form of useful employment in the future.

    8. (8)

       Dr Martin stated that he did not take the view that persistent depressive disorder will be a rate-limiting (check) barrier preventing the plaintiff working in the future whilst noting the difficulties in differentiating between physical and psychological conditions. Associate Prof Phillips found it difficult to differentiate the problems caused by the plaintiff’s persistent depressive disorder and her somatic symptom disorder. Associate Prof Phillips stated that the presence of ongoing symptoms may interfere with the plaintiff’s future employability and did not believe that the plaintiff could cope in a highly stressful job in the future.

    9. (9)

       Dr Martin was of the view that the plaintiff’s pre-existing psychological problems, as a result of her adverse child experience, exposure to major stressors and maladaptive coping abilities all represented an overwhelming pre-existing vulnerability. Dr Martin was of the view that the accident was relatively insignificant when compared to the plaintiff’s prior history. Associate Prof Phillips acknowledged that the plaintiff had had a difficult life but has worked hard to minimise the presence of her symptoms prior to the accident and was relatively well prior to the accident. Associate Prof Phillips considered that the plaintiff had been rendered vulnerable and was likely to react badly to any future adverse traumatic event, as a result of her past. Associate Prof Phillips was strongly of the view that that the accident had become a ‘trigger’ for the plaintiff’s psychological decompensation.

    10. (10)

        Dr Martin opined that it is highly likely that the plaintiff would have suffered similar symptoms and impairments regardless of the accident. This is because the plaintiff was a relatively young woman at the time of the accident but had a very complicated developmental history and very significant physical morbidity. Associate Prof Philips could not say that the plaintiff would not have reacted similarly to some other form of future psychological stressor of moderately high level given she was a psychologically vulnerable person and was at risk to at future major life stressor.

    11. (11)

        Dr Martin took the view that the plaintiff would likely have had a depressive disorder and pain problems, and required appropriate intervention, regardless of the accident. Associate Prof Phillips opined that the plaintiff developed a persistent depressive disorder and a somatic symptom disorder due to the accident and may, in the future, face some completely unrelated serious stressor that would require treatment.

    12. (12)

        Dr Martin believed that any requirement for attendant care services probably does not represent psychiatric impairment and noted that it is a matter for an occupational physician or occupational therapist. But Dr Martin noted that believed any requirement for such services would generally be related to pre-existing problems. Associate Prof Phillips noted that the plaintiff would not at most times have needed attendant care services before the accident and believed that the plaintiff’s need for such services increased significantly following the accident. However, Associate Prof Phillips stated that the estimation of attendant care services was not directly within the expertise of a psychiatrist.

    13. (13)

        Dr Martin expressed the view that reduction in the plaintiff’s capacity to perform pre-accident employment duties was more significantly related to pre-existing physical and psychological problems. Dr Martin stated he did not take the view that the accident resulted in significant psychological injury impacting on the plaintiff’s capacity to perform pre-accident employment duties. Associate Prof Phillips stated that the plaintiff had coped moderately well with employment prior to the accident. Associate Prof Phillips stated it is not possible to determine whether the plaintiff’s capacity for employment has deteriorated after the accident.

    14. (14)

        Dr Martin noted that it is difficult to predict the plaintiff’s future capacity for work but stated that any limitation to capacity would have represented pre-existing and unrelated problems, rather than being attributed to the accident. Associate Prof Phillips stated that the plaintiff had at most times coped reasonably well in terms of important domains of her life before the accident. Associate Prof Phillips believed that, absent any future major stressor, the plaintiff would have continued to have managed at a reasonable level.

Surveillance Evidence

1. [612]

   The defendant submitted that the plaintiff’s pain was focused and that the plaintiff had overstated the effect and extent of her injuries during her evidence. The defendant placed reliance on the plaintiff’s description of her “foot drop” after being shown surveillance footage. I will turn to the plaintiff’s evidence in that respect.

2. [613]

   The plaintiff was questioned by the defendant as to surveillance footage which the defendant submitted showed the plaintiff being able to walk lifting her leg off the ground. The plaintiff in her evidence conceded that there has been “a couple of little times” where the plaintiff has lifted her leg but followed that concession with identifying she had “foot drop”. The plaintiff described “foot drop” in the following terms “with foot drop, you can actually lift your leg and drag as well”, which she stated she had. When pressed about being able to lift her leg off the ground, the plaintiff responded, “it’s very rare that I can get my foot up at all”. The plaintiff denied the suggestion advanced by the defendant that based on the surveillance footage she was able to walk lifting her leg off the ground.

3. [614]

   Having reviewed the surveillance footage I do not accept that it establishes that the plaintiff overstated the effect and extent of her injuries in her evidence. Whilst there are only minimal signs of the plaintiff dragging her foot in the surveillance footage, I accept her evidence that the incidence of that condition varies and that the surveillance footage may not be a reliable means of demonstrating the veracity of her account.

4. [615]

   It should also be noted that my overall view of the evidence during the course of the giving of her evidence was that she genuinely suffered some real impairment.

5. [616]

   It follows that I reject the submissions of the defendant with respect to the surveillance footage. My counterpart finding is that the surveillance footage is not such that would warrant adverse credit findings as to the plaintiff.

6. [617]

   From the totality of the evidence, including the numerous matters put by counsel for the defendant to the plaintiff in cross-examination, it is clear that the plaintiff had, before the accident, a history of medical complications of both a physical and psychiatric nature. These medical issues became so prevalent approximately six months before the accident that she ceased her University employment.

7. [618]

   As I discussed above, the evidence demonstrates that the plaintiff sought the assistance of various medical professionals and received care. As Dr Martin accepted in his oral testimony, the plaintiff had insight when experiencing psychological distress to seek out help and treatment, which was a positive prognosticator (T303.06). From this help, her conditions had improved substantially in the month before the accident. This is most clearly indicated by the evidence of her family members in her ability to perform more domestic duties; in her self-confidence to apply for employment again; and in the reports of Associate Prof Phillips that the plaintiff had worked hard to minimise the presence and impact of her symptoms and had been relatively well (see also T293.05ff). In particular, Dr Martin acknowledged that the fact that the plaintiff got herself off heroin within approximately one year was a significant positive prognosticator (T303.04).

8. [619]

   In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, Mason P explained the defendant’s onus in relation to pre-existing conditions as follows:

9. [620]

   I am satisfied, on the balance of probabilities, that the accident had a significant impact on the plaintiff whilst she was on a path to, and had made some progress in, recovering. This is because the plaintiff was, prior to the accident, in a vulnerable position both physically and psychologically to a major stressor. As Associate Prof Phillips explained, the plaintiff’s vulnerability meant that she was likely to react adversely to any future adverse traumatic event or stressor.

10. [621]

    In these circumstances, the “eggshell skull” principle must be borne in mind. This description derives from Owens v Liverpool Corporation [1939] 1 KB 394, where MacKinnon LJ said at 400-401:

11. [622]

    Most relevantly in these circumstances is the “crumbling skull” principle. This was explained by Basten JA in State of New South Wales v Burton [2006] NSWCA 12 (Burton) at [72] as follows:

12. [623]

    The defendant submitted that the plaintiff “would, in the absence of the fall, likely have continued to suffer symptoms of fluctuating severity similar to those that she suffered prior to the fall; and, if she had suffered a similar incident to the fall, it would have triggered the same reaction as she now suffers; and on the defendant’s evidence, the effects of the fall are now spent and she is in the same position as she otherwise would have been” (Defendant’s Outline of Closing Submission at [144]). The defendant has the evidentiary onus of disentangling the accident from other potential causes of the plaintiff’s condition: Nominal Defendant v Clancy [2007] NSWCA at [8], [15] and [23].

13. [624]

    Upon reviewing the evidence of the conclaves, which is summarised above, the reports of the experts and the oral evidence given at the hearing, I am not satisfied that the defendant has excluded altogether the operation of the accident as a contributory cause.

14. [625]

    I am satisfied that plaintiff suffered damage of both a physical and psychological nature that is attributable to the accident.

15. [626]

    On the issue of physical injuries, I am satisfied, on the balance of probabilities, that the plaintiff suffered a mechanical injury to the spine, soreness and pain in her neck and developed chronic conversion disorder and deep vein thrombosis on her right leg as a result of the accident. Her ongoing injuries include leg weakness and spinal pain.

16. [627]

    As Dr Walker, whose medico-legal report has been very helpful and commendable, explained (Ex 1 at p 932):

17. [628]

    Dr Walker agreed with A/Prof Darvenia’s assessment, which was as follows (Ex 1 at p 177):

18. [629]

    Dr Walker explains that the treatment for chronic conversion disorder affecting the plaintiff’s right leg is “very difficult”. Dr Walker stated that “[i]t is likely she will continue to undergo rehabilitation until she decides that she can in fact move her leg, or at such time all treatment is withdrawn” (Ex 1 at p 935). Dr Walker also stated:

19. [630]

    The defendant employed the use of surveillance video depicting the plaintiff to submit that she was overstating the effect and extent of her injuries. I am unable to agree with that submission. As I stated above, I found that the plaintiff was a witness of truth. I do not consider that she was exaggerating her injuries and there is nothing in the surveillance video that would draw me to a different conclusion.

20. [631]

    On the issue of psychological injuries, I generally prefer the view of Associate Prof Phillips over Dr Martin. This is for various reasons. First, Associate Prof Phillips’ conclusion on the plaintiff’s improvements leading up to the accident are consistent with my earlier findings and the other evidence in the record, as I have explained above. Secondly, Dr Martin accepted in his oral evidence that the plaintiff had a “catastrophic reaction” after the fall, of which the plaintiff’s pre-existing vulnerability was the precipitating cause (T298.8-12). Thus, Dr Martin does appear to concede that the accident did have some impact, albeit it appears he insists a small one, on the plaintiff’s psychiatric conditions. This concession does appear to undermine Dr Martin’s statement in the conclave that the plaintiff would have suffered similar symptoms and impairments regardless of the accident.

21. [632]

    The defendant submitted that Dr Martin’s opinion should be preferred over Associate Prof Phillip’s because Dr Martin had the benefit of the entirety of the plaintiff’s pre-injury records while Associate Prof Phillips only had the clinical notes from a single medical centre (T276:12-15) (Defendant’s Outline of Closing Submissions at [121]). That fact alone may be significant but, when considering all the evidence in context, the defendant’s submission must be rejected. The oral evidence given by Associate Prof Phillips as well as his two medico-legal reports, dated 21 August 2019 and 30 September 2020 (Ex 1 at pp 197-225), demonstrates that Associate Prof Phillips did have a clear understanding of the plaintiff’s pre-injury conditions and psychological vulnerability. In oral evidence, Associate Prof Phillips gave detailed answers and his understanding and awareness of the plaintiff’s pre-injury conditions was evident. Although it may have been the case that Associate Prof Phillips may have benefited with more records, the defendant’s submission is very weak when understood in the context.

22. [633]

    I am satisfied from the ample medical evidence that the plaintiff developed persistent depressive disorder and somatic symptom disorder as a result of the accident. However, as both Dr Martin and Associate Prof Phillips explains, the psychological decompensation following the accident was exacerbated by the residue of her pre-injury vulnerability and underlying psychological problems. As Associate Prof Phillips stated (T289:31-39; T293:10-18)

23. [634]

    In Burton, Basten JA stated at [76]-[77]:

24. [635]

    Having considered all of the evidence, I am satisfied that the incident and the plaintiff’s pre-injury psychological vulnerability were both causes of the plaintiff’s persistent depressive disorder and somatic symptom disorder. In these circumstances, there must be an apportionment to reflect this. In my view, the appropriate apportionment is that damages for the treatment of the plaintiff’s psychological injuries should be reduced by 40%. For heads of damage where it is not possible to separate the physical and psychological symptoms, I am satisfied that those heads of damage should be reduced by 15%. This is because I am satisfied that the physical injuries on the plaintiff’s spine and legs, which was described to involve her “dragging [her] right leg” as she walked and the difficulty of treating her chronic conversion disorder, would have a considerably greater impact on the plaintiff.

25. [636]

    Exhibit 13 is a schedule of the plaintiff’s out-of-pocket expenses for medical expenses that shows (in summary):

26. [637]

    The plaintiff submitted that past out of pocket expenses should be awarded in the sum of $15,264 plus interest (Plaintiff’s Outline of Submissions at [281], [283]). However, the plaintiff noted, in the Amended Statement of Particulars, that part of her medical expenses have been claimed/paid by Medicare.

27. [638]

    In addition, the Amended Statement of Particulars recorded that it was necessary to carry out modifications to the plaintiff’s home prior to her discharge from hospital. Those modifications included a ramp leading to the back door and some grab rails in the home for her security. The cost of these modifications was approximately $500.

28. [639]

    The onus lies on the defendant to set out why each of these sums should not be included, as it is not for the Court to try to disentangle them: Dybka v McKenzie [2002] NSWCA 171 at [13(b)].

29. [640]

    The defendant submitted that some reduction should be made for past medical expenses to reflect the likelihood that at least some of them would have been required in any event given the pre-existing and ongoing issues unrelated to the accident (Defendant’s Outline of Closing Submissions at [151]). As I have noted above, the plaintiff’s condition was improving before the accident and I consider that the likelihood that the plaintiff would need regular medical treatment to be low. Furthermore, Dr Buckley, Dr Harvey Sutton, Associate Prof Darvenia and Dr Walker (at Exhibit 1 on pages 1055 and 1066) commented on the reasonableness and appropriateness on the treatment to date.

30. [641]

    In my view, the plaintiff should be entitled to the out of pocket expenses for the doctor’s visits and 15% for the likelihood that she would have continued to have doctor’s visits had the accident not occurred. This would come to an amount of $348.59.

31. [642]

    I am satisfied that the plaintiff should receive the amount in full for medication that relates to her physical injuries. I am also satisfied that the plaintiff should also receive the amount less 40% for medication that relates to her psychological condition.

32. [643]

    I am satisfied that the plaintiff should receive the sums for equipment and adjustments and house modifications in full because they relate to her physical injuries. This would come to $6729.89.

33. [644]

    Interest should also be added to the above amounts. I note the defendant has not objected to the method of calculating interest suggested by the plaintiff in her Outline of Submissions at [282].

34. [645]

    In the Plaintiff’s Outline of Submissions, it appears that the plaintiff abandoned the claim for general treatment expenses.

35. [646]

    In relation to future treatment, there was some agreement between Dr Martin and Associate Prof Phillips regarding the ongoing psychiatric treatment. The closing submissions of the plaintiff and defendant had placed the allowance at $26,720 (Plaintiff’s Outline of Submissions at [288]) and $24,819.16 (Defendant’s outline of Closing Submissions at [158]), respectively.

36. [647]

    To the extent that there is any dispute as to the amounts claimed, I consider that the plaintiff should be given 12 hours of occupational therapy intervention for the reasons given by Ms Scott and Ms Zeman. As I have preferred Associate Prof Phillips’ views as to the plaintiff’s psychological condition, to the extent of any conflict, I would favour the psychotherapeutic approach favoured by Associate Professor Phillips. As noted above, the total amount should be reduced by 40% for pre-existing and ongoing symptoms.

37. [648]

    In relation to the home modifications, the plaintiff sought $100,000 in the Amended Statement of Particulars. It appears that the plaintiff no longer presses that amount. The plaintiff appears, in MFI 5, to now advance claims for flooring, kitchen and a dish drawer with a total cost of $47,306. To the extent that these claims reflect the view of Dr Buckley and Dr Harvey Sutton regarding the need for flat access to accommodation, including bathroom and a shower, they should be accepted and paid in full.

38. [649]

    I also gratefully adopt the recommendations of the Ms Scott and Ms Zeman on pages 1096 and 1097 of Exhibit 1. I am satisfied they are reasonable aids and the amount should be paid in full. The plaintiff submitted that this amount equates to $10,062.36. It does not appear that this is contested and it thus should be accepted.

39. [650]

    In the Plaintiff’s Outline of Submissions, it appears that the plaintiff abandons the buffer claim of $30,000 for further home and vehicle modifications.

40. [651]

    In the weeks leading up to the accident, the plaintiff made an application for a full-time disability support worker role at Ribbonwood Centre. The plaintiff claims the position was for a contract between 1 August 2016 and 1 September 2017 and claims that she would have earned $820 per week net.

41. [652]

    I am not satisfied on the evidence before me that she had been actually offered the role. The highest she expressed was that she was the “main candidate” and they needed “someone to start soon” (T108:32-44). I am also required to take into account her pre-existing medical conditions (Amond v Al Batat (2009) 54 MVR 167 at [22]-[28]) and note my findings that she was on a path to recovery. Although it does appear that the plaintiff was willing to do full-time work, I consider that there is a possibility that she may have sought flexible working by way of a reduction or adjustment as to her working hours while she was still recovering. In my view, I am satisfied that this job being offered to the plaintiff and her accepting it was the most likely future circumstances but for the injury. However, I assess the likelihood that at 60%. Therefore, this amount comes to $27,552. As discussed above, I also reduce the amount by 15% to account for the plaintiff’s pre-existing psychological injuries, which comes to $23,419.20.

42. [653]

    In October 2018, the plaintiff claims she was offered a full-time role with the Aboriginal Medical Service but was unable to accept that position knowing she could not cope with full-time employment. She instead accepted a three-day role at Waminda. Here, she received a salary of $604 net per week plus salary. She claims the loss of 2 days of work for 17 weeks, which comes to $427 per week.

43. [654]

    The plaintiff’s evidence was that she did not have a copy of her application form, did not recall the rate of pay and the telephone call that she received may have been asking her back for a second interview (T160:19-49; T161:1-6). In these circumstances, I am not satisfied that the plaintiff’s work in a full-time role at the Aboriginal Medical Centre was the most likely future circumstances but for the injury.

44. [655]

    From 15 March 2019 to 5 October 2020, the plaintiff was unable to work in any capacity and claims a loss of $1031 net per week. It appears to me that the plaintiff is claiming the loss of capacity for the equivalent of a full-time role over the 81 weeks at the rate of pay at Waminda.

45. [656]

    This period fell towards the end of “period 4” in the joint conclave report of Ms Scott and Ms Zeman. The experts described the plaintiff as presenting with mobility constraints but had resumed driving and had been doing some work.

46. [657]

    I am satisfied that the plaintiff having a full-time role in this period, but for the accident, was likely. Given the pre-accident trajectory, it would have been likely that she had made a significant recovery by March 2019 and the pain would not have impacted her ability to work and perform day-to-day activities in any significant way. There must be consideration for the possibility that she may not have found work or that any work found was not full-time. I assess the likelihood that she would have found full-time work at 75%. I am also satisfied that using the rate of pay at Waminda is appropriate because I consider it likely that the plaintiff would have been able to work at that rate or higher but for the accident. As discussed above, I also reduce the amount by 15% to account for the plaintiff’s pre-existing psychological injuries.

47. [658]

    From 5 October 2020 and 30 November 2020, the plaintiff accepted a three-day role at NSW Health, earning $785 per week. She claims for the rate of pay for two days. For the reasons given in the preceding paragraph, I consider the likelihood that full-time work is the most likely future circumstance but for the injury but at the possibility of 75%. This amount should also be reduced by 15% to account for the plaintiff’s pre-existing psychological injuries.

48. [659]

    Superannuation should be paid in addition to these amounts. The plaintiff submitted that this amount should be 11.5%. The defendant did not make any submissions on this point. I have some doubts whether this percentage is appropriate given that s 15C of the Act states:

49. [660]

    As the defendant did not contradict the plaintiff, I have no occasion to decide. The appropriate amount of superannuation shall be approved will respect to the above mentioned findings of past economic loss.

50. [661]

    As noted above, the plaintiff commenced work with NSW Health for three days per week. She claims that but for her injuries and disabilities she could work full time and claims the loss of $400 per week until age 70.

51. [662]

    Section 13 of the Act states:

52. [663]

    As noted above, some experts favoured the view that the plaintiff could recover and return to full-time work. To avoid repetition, I summarise, at a high-level view, the various expert opinions as follows. Dr Harvey-Sutton noted that the plaintiff could graduate to four days per week and then to five days per week in the near future. Dr Buckley believed that the plaintiff was unemployable on the open unemployment market unless her psychiatric treatment is successful. However, Dr Martin believed that the plaintiff’s reduction in capacity to perform pre-accident employment duties reflects physical impairment as opposed to psychiatric morbidity. Associate Prof Phillips believed that the plaintiff’s capacity to undertake future work will be affected by persistent depressive disorder and a somatic symptom disorder but was optimistic that she could return to some form of useful employment in the future.

53. [664]

    As Associate Prof Phillips noted, that the plaintiff appeared to be highly motivated to return to the workforce. The plaintiff has been able to successfully return to the workforce in part-time work for three days per week. I accept the evidence of Associate Prof Phillips:

54. [665]

    I am satisfied that the combination of both the physical and psychological injuries sustained by the plaintiff would make her only be able to take on employment for three days per week for the rest of her life. It is clear that, despite her best efforts, the plaintiff will experience the very difficult treatment for chronic conversion disorder (as explained by Dr Walker), high levels of pain in performing functional tasks (as explained by Ms Scott and Ms Zeman), impact of medication that affects her vision and level of alertness (as explained by Ms Zeman) and the ongoing impact of the physical injuries to her leg and spine.

55. [666]

    I am satisfied, consistent with the view of Associate Prof Phillips, that the plaintiff will have great difficulty working in highly stressful roles or jobs that require extensive physical movement. I have considered the prospect that her conditions will improve over time with more treatment. Although I consider the impact of her psychological injuries would diminish, I am not satisfied from the evidence of Dr Martin or Associate Prof Phillips that they would disappear. Rather, it is more likely that it would not dissipate and would continue to affect her life although perhaps at a lesser degree. I am not satisfied that she is likely to graduate to four-days or full-time work in the future, especially as the impact of her physical injuries will continue.

56. [667]

    Had the injury not occurred, I assess her likelihood of obtaining full-time work as very likely and at 80%. I would adjust the award of damages here accordingly. This is because, by this time, I am satisfied that her recovery would have made strong progress given the pre-accident trajectory.

57. [668]

    As discussed above, I also reduce the amount by 15% to account for the plaintiff’s pre-existing psychological injuries.

58. [669]

    Superannuation should also be paid at the appropriate percentage provided in s 15C of the Act.

59. [670]

    In conclusion, I note that no allowance has been made for a buffer. The plaintiff’s claim in that respect was in two parts. As to the first part I have essentially adopted the proposal by senior counsel for the plaintiff which was expressed thus:

60. [671]

    As to the second part, the plaintiff claimed a “buffer on top of that” to recognise that applicant may not be able to continue in work. I have not applied such a buffer, having regard to my findings as to the plaintiff’s present capacity for work and the expert’s opinion as to the likely continuance of that work even to the point of approaching full-time work.

61. [672]

    In relation to hospital-based care, the Ms Zeman and Ms Scott agreed that members of the plaintiff’s family kindly provided her with support. I consider that the hospital-based care provided by the plaintiff’s family, except when they brought in personal items from home and personal support, are the kind of services that can be provided by hospital staff. However, as Ms Scott alluded, hospitals do have limited staffing and are not always being able to provide timely assistance but the provision such services in this case is quite unclear. I accept the defendant’s submissions as to the initial review.

62. [673]

    Previously, it has been said that visits by a person to a hospitalised relative are compensable if the visits are reasonably necessary to meet the plaintiffs physical and/or emotional needs: Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54. However, in Wormleaton v Thomas & Coffey Limited (No 4) [2015] NSWSC 260 (“Wormleaton”), it was conceded by the plaintiff that no such services were recoverable during the plaintiff's hospitalisation, having regard to the decision in Nicholson v Nicholson (1994) 35 NSWLR 308 (“Nicholson”) at [322]. In Nicholson, the Court of Appeal affirmed the trial judge's decision which had held that the plaintiff's sister in providing comfort to the plaintiff whilst he was in hospital was not providing "services" within the meaning of s 72, Motor Accidents Act and was therefore not compensable. In Wormleaton, the defendants also challenged a claim for emotional support relying on CSR Limited v Eddy; 226 CLR 1; [2005] HCA 64, a case concerning the common law rather than the statutory modifications of the Griffiths v Kerkemeyer principle. Campbell J said:

63. [674]

    As was submitted for the defendant, on the basis of the plaintiff’s husband’s evidence that whilst she was in hospital, the plaintiff required assistance with cleaning herself after going to the bathroom and showering (T197:14-19), the Court was satisfied that the “care” provided to the plaintiff was not for emotional support, no allowance for this period should be made.

64. [675]

    For period 2, I agree with the views of Ms Scott and Ms Zeman that the plaintiff reasonably required 19.34 hours per week over the 30 weeks. This is composed of meal preparation and kitchen maintenance (10.5 hours per week); domestic duties (3 hours per week); shopping (1 hour per week); laundry (2.25 hours per week); bedroom maintenance (0.13 hours per week) and transport (2 hours per week). Ms Scott would also additionally allow monthly lawn mowing (0.25 hours per week); weekly rubbish removal (0.08 hours per week) and car cleaning every six weeks (0.13 hours per week).

65. [676]

    For periods 3 and 4, I also agree with the views of Ms Scott and Ms Zeman that the plaintiff has had an ongoing requirement for care provided gratuitously on a reasonable and necessary basis for domestic assistance (3 hours per week); laundry (2.25 hours per week); bedroom maintenance (0.13 hours per week); and shopping (1 hour per week). I now turn to address the points in contention.

66. [677]

    In relation to the need for assistance for transport, I prefer the view of Ms Scott over Ms Zeman. It is evident from the oral evidence given in the proceedings that the plaintiff has been labouring under serious side effects of medication and has had ongoing pain from the day of the accident to the day of the hearing and likely beyond. In the report from the conclave, Ms Zeman did not allude to these difficulties. Whilst I accept Ms Zeman’s evidence that the plaintiff has been able to manage fatigue and does not need to use her right foot, the evidence demonstrates that she suffers from ongoing side effects and pain that make driving a more onerous task. This is consistent with the reports of the plaintiff to Ms Scott that she only drove short distances, relied on weekly transport assistance from family members and that she required rest breaks on long journeys due to widespread pain. Even with the medical clearance to drive and the modifications to her vehicle, I am satisfied that the plaintiff was in need on transport assistance in periods 3 and 4, and will need some assistance in the future (albeit to a lesser extent given her recovery).

67. [678]

    In relation to assistance for meal preparation and kitchen maintenance in period 3, both Ms Scott and Ms Zeman agree that there had been an improvement in the plaintiff’s ability to prepare meals during this stage, especially when she adopts seated positioning. Ms Scott noted that she was able to prepare her own breakfast, lunch and snacks but this was with the ongoing assistance due to the plaintiff’s ongoing pain and limited functional mobility. She had difficulty with aspects of meal preparation that required high and low reach, carrying heavy items such as pots and pans and prolonged periods of standing. Therefore, I am satisfied that, whilst the plaintiff’s ability to prepare meals increased progressively, the evidence of both experts was that she required ongoing assistance to perform cooking tasks and thus 7.5 hours per week of assistance is appropriate.

68. [679]

    In relation to assistance for meal preparation and kitchen maintenance in period 4, I prefer the view that the plaintiff required 5 hours per week of assistance. It is evident by the fact that the plaintiff resumed full-time work that she had made some recovery. It is clear from Ms Zeman’s evidence that the range of functions that the plaintiff could independently perform have increased. I am satisfied that from the evidence that the plaintiff self-reported to Ms Zeman, that she has commenced bulk preparation of meals and freezing them for later use, when combined with her ability to reach into various parts of the kitchen including low drawers, the dishwasher and to access utensils, would likely mean that she could independently prepare and access simple meals. However, I balance this evidence with the fact that the plaintiff still required assistance from family members, especially for evening meal preparation, where she needs to be seated. I am satisfied that 5 hours per week of assistance for meal preparation and kitchen cleaning is appropriate for period 4.

69. [680]

    In relation to incidental assistance with dispensing of medication following her discharge from hospital, I prefer the view of Ms Scott given she had observed the plaintiff’s difficulty and the need for family assistance. However, I agree with Ms Zeman that the need for this assistance likely became unnecessary when the plaintiff could resume driving and perform employment-related activities. For these reasons, I assess 1.17 hours per week of incidental assistance for periods 2 and 3 only.

70. [681]

    The above care was provided predominantly by members of the plaintiff’s family at no cost to the plaintiff and are thus “gratuitous attendant care services” as defined in s 15(1) of the Act. I am satisfied, under s 15(2) of that Act, that there was a reasonable need for the services to be provided; the need arose solely because of the injury to which the damages relate; and the services would not have been provided to the claimant but for the injury. This was made clear by the evidence of Mr Petrobelli and Ms Karina Petrobelli (as quoted earlier) about the plaintiff’s ability to perform household tasks before the injury.

71. [682]

    I am satisfied, under s 15(3) of that Act, that the gratuitous attendant care services unless the services were provided for at least 6 hours per week and for a period of at least 6 consecutive months.

72. [683]

    Accordingly, the amount should be calculated according to ss 15(4)-(5) of the Act.

73. [684]

    Both Ms Zeman and Ms Scott agree that the plaintiff has a reasonable requirement for future care arising from her injuries. Consistent with the views of Ms Zeman and Ms Scott, I am satisfied that it is reasonable, having regard to the period of time and existing rehabilitation efforts, that the plaintiff will require future care indefinitely in the future.

74. [685]

    Having regard to the very detailed and helpful reports of Ms Zeman and Ms Scott, I believe it is reasonable for there to be assistance for meal preparation (2.5 hours per week), internal residential maintenance (2 hours per week), heavy internal residential maintenance (2 hours per week), laundry (2 hours per week), bedroom maintenance (0.13 hours per week), lawn and garden maintenance (0.75 hours per week) and transport (1.5 hours per week).

75. [686]

    Ms Scott and Ms Zeman agreed at the NDIS gazetted rates of $50.20 per hour for house cleaning and household activities and $49.30 per hour for house and yard maintenance. These are also the rates sought by the plaintiff. However, it appears to me that at least some of the services, including meal preparation, have been provided by members of the plaintiff’s family to date and will continue in the future. Of course, there is the possibility, given the age of the plaintiff’s children, that they may, over time, move out of home and no longer provide services to the plaintiff. It falls on the plaintiff to establish that there is a need for commercial care and that gratuitous care was not available: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [21]. The willingness and ability of others is a relevant consideration: Miller v Galderisi [2009] NSWCA 353 (“Galderisi “) at [21]. The plaintiff has not met its evidential onus of satisfying the Court that commercial services would be required. It can be assumed that the plaintiff’s children may, given the plaintiff’s health, be more willing to provide assistance and services, even if they move out of home. For these reasons, this amount should be calculated at the rate for gratuitous attendant care services according to ss 15(4)-(5) of the Act. For completeness, I am satisfied of the requirements in ss 15(2)-(3) of that Act to award damages of this nature.

76. [687]

    As found earlier in this judgment, the incident had a major negative impact on the plaintiff including on her family, personal relationships, ability to work, ability to carry out pre-accident domestic tasks and recreational activities and created the need for ongoing treatment. I am satisfied, on the balance of probabilities, that the plaintiff will have to live with the impact of the injuries for the remainder of her natural life. As the experts noted, her prognosis was poor although she had some recovery and been able to work part-time, albeit with varying degrees of difficulty.

77. [688]

    The defendant submitted that the plaintiff overstated the effect and extent of her post-accident injuries and downplayed the effect of the pre-existing and continuing headaches (at [146] and [149]). For the reasons stated above, I do not accept the defendant’s submission in that respect. In particular, I refer to my findings as to the plaintiff’s credit and her suffering headaches.

78. [689]

    The plaintiff submitted that an appropriate award of damages for non-economic loss would be 50% of the most extreme case. The defendant submitted that the appropriate award of damages for non-economic loss, having regard to the exaggeration of pain, capacity to travel for vacations, ability to drive to work and pre-existing psychological issues, would be 25%. I have also found that there were some pre-existing issues but not to the degree asserted by the defendant. My rejection of the submission partly reflected in the above reasons.

79. [690]

    In the above circumstances, and having regard, in particular, to the plaintiff’s recovery to date and her ability to work and perform some domestic duties, I am of the view that the appropriate assessment of non-economic loss in relation to the effect of the incident is 35% of the most extreme case. Pursuant to s 16(3) of the Act, the damages for non-economic loss, as a proportion of the maximum amount that may be awarded for non-economic loss (see Civil Liability (Non-economic Loss) Order 2010), is 35%.

80. [691]

    The plaintiff claimed that she was entitled to damages for her loss of capacity to provide domestic services to others pursuant to section 15B of the Act.

81. [692]

    The plaintiff premised this argument upon medical evidence in relation to Bethany. It was correctly submitted that Bethany suffered a number of serious medical conditions including autistic spectrum disorder, epilepsy, global development delay, generalised anxiety disorder and oppositional defiance disorder. It was submitted that Bethany required day-to-day care, supervision and support in her activities of daily life.

82. [693]

    The plaintiff contended that Bethany had received care from a commercial carer which was funded through NDIS, but that the support was no longer received by Bethany because of difficult experiences that Bethany had with support workers in the past.

83. [694]

    The plaintiff made a very substantial claim in this respect, predicated upon a need for seven and a half hours a week for care in conformity with Ms Scott’s opinion. On that basis, total past domestic care was calculated at $55,369 and future care was calculated at the gratuitous rate of $33.31 per hour by 931.7 giving a total of $232,762. Accordingly, the total claim for past and future care under section 15B was $288,131.

84. [695]

    The provisions of section 15B have been the subject of recent discussion in Piatti v ACN 000 246 542 Pty Ltd [2020] NSWCA 368. At [42] – [46] of the judgment of McCallum JA (with whom Simpson AJA agreed); the following description of the provision was provided:

85. [696]

    Further, at [54] – [56] McCallum JA provided the history of the provision.

86. [697]

    I will below discuss the principles in Gordon. In my view they are also applicable to the determination of this part of the claim.

87. [698]

    In my view, there are two three bases upon which this aspect of the claim must fail, as follows:

    1. (1)

       There is an absence of expert evidence precisely dealing with the impact of Bethany’s medical condition upon what she is able to do and the precise nature of the assistance she will require on an ongoing basis. I note, in that respect, that an issue as to the admission of part of the report of Dr Mutti Khan had been held over for determination as referred to in MFI 6. The defendant objected to that part of Dr Khan’s report of 21 August 2019 which states “the care arrangement will continue.” I accept the defendant’s submission that the Doctor is not qualified to comment upon the issues associated with Bethany’s medical condition on an ongoing basis and that the opinion is vague. Whilst the report may be admitted as a business record, it cannot be admitted to prove what requirements exist for Bethany medically on an ongoing basis. I reject the tender.

    2. (2)

       I accept the submission by the defendant that the Court should accept the opinion of Ms Zeman who makes no allowance for the care of others. Specifically, Ms Zeman noted that the care for Bethany will substantially involve supervision and prompting which is not outside the plaintiff’s functional capacity and that the plaintiff had maintained the capacity to be able to support her daughters needs.

    3. (3)

       I also agree with the submission of the defendant that the balance of the expert opinions was that this head of loss is only relevant if and insofar as NDIS funding ceases. The plaintiff submitted that there is evidence that the NDIS has ceased or is no longer available. This was based upon a carer that had left and showed no indication of returning. It was submitted there is a mechanism to payment for agencies but that did not benefit the family because there had been a poor connection between Bethany and providers and therefore NDIS support only goes “so far.” However, the evidence revealed that NDIS funding has not ceased and that it had provided for past carers. The plaintiff’s evidence discussed the problem with carers and the prospect of her providing the care even though she is reluctant to do so. However, the plaintiff also indicated that obtaining a carer might be something she had to do and will depend upon what is happening in the house and whether it will help Bethany. The plaintiff also indicated that any carer obtained would preferably be there for “the long haul” and that any carer would be funded by NDIS on that basis.

88. [699]

    The defendant submitted that I should have regard to the fact that one of the plaintiff’s daughters currently receives a carers allowance for looking after the plaintiff (T91:35-36).

89. [700]

    The Court of Appeal stated in Gordon at [130] (referring to Galderisi) that “to award damages to enable the plaintiff to pay for assistance at commercial rates, which his wife continued to receive a pension for that very purpose, would amount to unjust enrichment, and be contrary to principle”. The Court of Appeal also stated (at [131]) that, even if the pension was received before the plaintiff’s injury and had nothing to do with the plaintiff’s injury, this was not a basis that the carer will continue to render the services gratuitously once the plaintiff has funds.

90. [701]

    In Campton v Centennial Newstan Pty Ltd (No 2) [2014] NSWSC 1799 (“Campton v Centennial Newstan”) at [773], Hall J deducted the carer’s pension from the plaintiff’s award for past personal care in accordance with the principles in Gordon.

91. [702]

    I will respectfully apply the approach in Gordon and Campton v Centennial Newstan. If the allowance was paid because of the plaintiff’s injury, the support of the allowance means that at least some of the services were not rendered gratuitously and were being paid for, although not by the plaintiff. I agree that the amount of the carers allowance should be deducted in accordance with the principles stated in Gordon and Campton v Centennial Newstan. It is unclear on the evidence presently before me the precise amount of the allowance and duration of which it has been paid. This much will be addressed in the orders made below for full disposition of this matter.

CONCLUSION

1. [703]

   In all the circumstances, there should be judgment for the plaintiff. I will make orders to that effect.

2. [704]

   I conclude that the defendant is liable for injuries, loss or damage occasioned to the plaintiff arising out of the incident. I have found that there should be no deduction for contributory negligence.

3. [705]

   Further, I have determined the damages should be awarded to the plaintiff in accordance with the detailed findings as to damages contained in the section of my judgment dealing with that topic.

4. [706]

   The plaintiff shall be required to bring in Short Minutes of Order reflecting the judgment of the Court. The question of interest and costs will be reserved.

ORDERS

1. [707]

   For these reasons, I make the following orders:

   1. (1)

      Judgment for the plaintiff.

   2. (2)

      The plaintiff shall file and serve Short Minutes of Order reflecting this judgment within 14 days of the delivery of the judgment. If the parties are unable to agree on the Short Minutes of Order, they shall each file submissions, limited to five pages, on the issues in contention with my Associate by email within a further 14 days. If an oral hearing is sought, in addition to their written submissions, they may approach my Associate to schedule such a hearing.

   3. (3)

      Costs and interest are reserved.