Marshbaum v Loose Fit Pty Ltd and Anor

HIS HONOUR: Nature of Claim The plaintiff alleges that at approximately 11am on 10 November 2006 she was descending a flight of stairs in premises occupied by the defendant, Loose Fit Pty Ltd, (hereafter referred to as Loose Fit), when she fell and suffered injuries to her left shoulder. She alleges that she fell and suffered injury as a result of negligence on the part of Loose Fit.

The relevant particulars of negligence were that there was no handrail installed on the staircase, the steps were constructed of pale coloured polished timber without visually contrasting nosings, the steps were constructed with differing riser heights and the steps were constructed with a varying tread depth.

At the time of the fall Loose Fit was operating the business of a gymnasium and fitness centre on the first floor of a building in a shopping centre at Mosman (the premises). It occupied the premises pursuant to a lease between it as lessee and the cross-defendants Mr Kocx and Ms Hickie as lessors. Mr Kocx and Ms Hickie were the owners of the premises.

In addition to the claim in negligence the plaintiff alleges that her injuries were caused by a breach of contract by Loose Fit in that it failed to exercise reasonable care in providing premises which could be safely used by persons such as her, in particular that it failed to provide a staircase which was safe for use by her.

In a cross-claim Loose Fit claims contribution and/or indemnity from Mr Kocx and Ms Hickie on the basis that they knew or ought to have known about the imperfections in the staircase. Additionally or alternatively it asserts that the plaintiff’s injuries were caused by a breach of the lease by them.

There is a fourth cross-claim brought by Ms Hickie. The cross-defendants are Mr Kocx and Simon Gates, a solicitor who acted on behalf of Ms Hickie in preparing the lease of the premises which commenced on 1 September 2006. That fourth cross-claim was not ready to proceed when this matter was listed for hearing and is not presently before the Court. Factual Background

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

The plaintiff was born in 1946. Accordingly, she was aged 60 at the time when she fell and is now aged 64. She is married with two sons aged 26 and 29. She has not worked since 1979. She is left-handed.

For a number of years the plaintiff had participated in regular exercise with a personal trainer. When that arrangement ceased the plaintiff sought a new means of keeping fit. One of her sons had attended a presentation by Vision Personal Training (Vision) and suggested that its mode of operation (i.e. the provision of an individual training program with a designated personal trainer) might be helpful for her. Harold Marshbaum, her husband, agreed to accompany her by way of support and to improve his own fitness.

The plaintiff and her husband attended the Loose Fit premises at Mosman (which were part of the Vision franchise) on 1 November 2006. They were each assessed on that occasion and given personal training programs. The plaintiff’s assessment was conducted by Chris Jessop, the manager of the fitness centre. Both the plaintiff and her husband signed up for a course of fitness sessions intending to train twice weekly on Mondays and Fridays. A personal particulars form entitled “Lifestyle Screen” was signed by the plaintiff and became exhibit 1.

The following week the plaintiff and her husband attended the Loose Fit premises and participated in a full training session. This involved training by a personal trainer for half an hour and then exercising on machines for another half an hour.

On 10 November 2006 the plaintiff’s husband was unable to attend the fitness centre and so she attended on her own. She arrived at about 10am and completed a training session with the personal trainer. The session was relatively light and she was not unduly tired afterwards. After the personal training session, she spent some time on a treadmill at a moderate speed of about 5.6 kms per hour.

Since the plaintiff was going to the hairdresser, she then changed out of her gym clothing into street clothing including changing her shoes from training shoes to street shoes. These were black, low-heeled sandals. Nothing turns on the plaintiff’s footwear.

At this stage I should say something about the plaintiff’s physique and her state of fitness. In her oral evidence the plaintiff said that at the time of the accident she was able to jog 10 kms, used to walk every day for 4 kms and swam regularly at the Lane Cove swimming pool. The plaintiff’s husband’s description of her state of fitness at the time was somewhat different. His evidence was: “Q. How would you describe your wife’s state of health generally before this injury? A. Her state of health was, her state of health was good. She, she lacked physical fitness but her state of health was good. She had no real particular problems. Q. Did you walk with her on a regular basis? A. Yes, yes. We used to go walking in the mornings and when we were on trips together. Q. And you can assume she has given evidence about a trip that you had where you walked around Ayers Rock and the rim of Kings Canyon. They are trips that you can remember? A. Yes, that was for her birthday. It was a trip we did on her 60 th birthday in March ’06.” (T.101.19)

The plaintiff was a person of short stature being 147cms (4 foot 10 inches) in height. Her build could best be described as solid. The plaintiff said that her weight had increased by approximately 2 kgs between the date of the accident and the date of trial. Accordingly, her appearance at trial would have been similar to how she looked in November 2006. Exhibit 1 referred to some health issues such as low blood pressure and arthritis.

On that material, I cannot accept that the plaintiff was jogging a distance of 10 kms once per week at about the time when she first attended Loose Fit’s fitness centre. She may well have done so some years before. In making that observation I do not wish it to appear that I do not accept the plaintiff, or that she was deliberately seeking to deceive the Court. I am of the opinion that the plaintiff was simply mistaken when giving that evidence. I do accept, however, that the plaintiff was an active person in November 2006 before her fall although her level of fitness was not as high as she described.

It is also necessary to say something about the staircase at the time that the plaintiff had her fall. The staircase was inspected by Mr Cowling, engineer, on 23 April 2009 on behalf of the plaintiff and by Dr Cooke, architect, on 9 July 2009 on behalf of Loose Fit. Both those experts prepared a joint statement, dated 6 September 2010. It would be fair to say that both experts were in complete agreement, not only as to the various dimensions of the staircase, but as to its deficiencies.

It was a timber staircase which connected the first floor of the fitness centre to an internal entrance area at ground floor level. The staircase comprised hardwood timber treads and risers with a clear polyurethane surface coating. The staircase had two parallel flights with an intermediate landing. The staircase was the sole means of access to and egress from the fitness centre.

At the time of the plaintiff’s accident, the lower flight of stairs had a timber handrail fixed to the side wall but the upper flight did not have any handrail. The upper flight of stairs was made up of 12 risers. Those upper risers were constructed of pale coloured polished timber without visually contrasting nosing. Measured from the top in the direction of descent, the height in millimetres of the risers on the upper flight of stairs was as follows: 143, 183, 167, 170, 176, 170, 174, 167, 172, 163, 167 and 157. Measuring from the top in the direction of descent, the dimensions in millimetres of the tread depth of the upper flight of stairs was: 273, 263, 257, 271, 258, 268, 270, 265, 272, 263 and 265.

For a person descending the upper flight of stairs the wall on the right side was described as a stub wall. Its surface had a painted white matte finish and its height was somewhere between 120 to 130 centimetres (4 feet to 4 feet 4 inches) (T.178.35, 230.49, 231.4). The width of the stub wall at its top was between 10 and 15 centimetres (4 and 6 inches) (T.178.48, 231.9).

The plaintiff said that as she left the fitness centre, she was carrying her handbag and a plastic bag which contained her sneakers and gym clothing in her left hand. She said that as she approached the top of the upper flight of stairs, she put her right hand against the stub wall to steady herself. She demonstrated by holding her palm and fingers outstretched flat against a wall.

The plaintiff described what happened as follows: “Q. Where were you looking? A. Where I was going. Q. Meaning what? A. I was looking down the staircase ahead of me. Q. How would you describe the lighting? A. Adequate. Q. What happened as you started stepping down the stairs? A. Yes. Q. What happened? A. I did the first step, I did the second step and I lost my footing on the third step. Q. When you say you lost your footing, can you tell us exactly what happened? A. I went to go down the third step and didn't reach it. Q. What happened? A. I then fell down the flight of stairs. Q. Where did you finish up? A. At the landing at the bottom of the staircase. “ (T.13.1)

The plaintiff was unable to remember with what leg she moved onto the first step. She was unable to explain what caused her to fall.

In her evidentiary statement of May 2009 (exhibit B(2)) she described what happened as follows: “As I started going down the stairs, I placed my right hand on the wall to steady myself and I stepped down to the first tread and then on the second tread while still touching the wall with my hand. On the third step, I lost my footing. The wall was shiny and slippery and I was unable to hold onto it. I was not able to prevent myself from falling and I tumbled down the stairs sustaining multiple impacts until I hit the landing at the bottom of the first staircase.”

The managing director of Loose Fit was Ben Lucas. He described seeing the plaintiff walking towards the stairs immediately before the fall. He described the plaintiff as holding the bag with her gym clothes in one hand and her handbag in the other with her arms by her side. He described what then happened as follows: “Q. And what can you tell us about the way she progressed towards the stairs? A. She just was heading, walking towards the stairs, turning towards her left. I said "Goodbye, I hope you have a nice day" and then I looked back down. I did not see her head towards the stairs. And then the next thing I knew I heard a moan of some description. I ran down and she was on the landing. “ (T.150.34) “Q. Fair to say that as Mrs Marshbaum walked passed you looked up at her, exchanged pleasantries? A. Yes, something we pride ourselves on. Saying hello, goodbye, yes. Q. You resumed your attention on the computer? A. Yes. Q. She walked off towards the staircase? A. Yes. Q. And your evidence is, is it not, you did not see or hear from her again until you heard a noise and found she had fallen on the stairs? A. Yes. HIS HONOUR: Q. Do I gather from that you did not actually see her step off and start going down the stairs? A. No, I did not. “ (T.172.15)

Mr Jessop also saw the plaintiff just before she fell. His evidence was: “Q. Did you notice her either leaving the gym after you had that conversation? A. I noticed her walking towards the stairs of the gym. Q. Did she have anything in her hands? A. I believe she had a bag or bags in her hand. Q. What did you notice next? A. The next I noticed I've turned around and Ben looked like he was going for the stairs and then after that obviously Ben came up the stairs and said she had fallen down them. Q. You didn't actually see her fall? A. I didn't physically see her fall down the stairs, I saw her at the top of the stairs.” (T.228.1)

Loose Fit submitted that the Court should find that the plaintiff did not have her right hand resting on the stub wall but had a bag in each hand as she was descending the upper flight of stairs.

I am not prepared to so find. On this as in most matters, I found the plaintiff to be a generally reliable witness. On this issue her evidence is corroborated by that of Mr Jessop. His evidence clearly placed both the handbag and the plastic bag in one hand as she approached the top of the stairs. Not only is that consistent with the plaintiff’s evidence, it is consistent with the fact that her left hand was her dominant hand.

In any event, the plaintiff’s evidence is not necessarily inconsistent with that of Mr Lucas. Mr Lucas observed the plaintiff as she was walking towards the stairs but did not actually see her at the top of the stairs or as she commenced to descend them. The plaintiff may well have moved any bag she was holding in her right hand into her left hand preparatory to descending the stairs after she walked past Mr Lucas.

I find that the plaintiff commenced to descend the upper flight of stairs while holding her handbag and the plastic bag in her left hand and while steadying herself against the stub wall with her right hand.

After the fall Mr Lucas rendered assistance to the plaintiff, took her to his office and offered to ring an ambulance. The plaintiff who was experiencing pain in her left shoulder and arm did not want to be taken to a hospital but thought that she would get better treatment from her general practitioner. She telephoned her husband and told him what had happened. Mr Lucas then drove the plaintiff to her home from where her husband took her to her general practitioner who ordered x-rays and prescribed painkillers. The x-rays showed a fracture of the left humeral head with partial dislocation. In due course the plaintiff came under the care of professor Sonnabend, orthopaedic and trauma surgeon. The premises

At the hearing of this matter, Ms Hickie was legally represented but Mr Kocx represented himself. Ms Hickie and Mr Kocx were no longer married and had been divorced in very acrimonious circumstances. That ill feeling continued as of the date of trial. It was the evidence of Mr Kocx that he and Ms Hickie had not spoken to each other for almost two years. In the past there had been litigation between them and he had been the subject of AVO’s obtained by her.

Ms Hickie did not give evidence in the proceedings. Medical reports dated 13 and 21 September 2010 from Dr Bruce Walker, cardiologist, were tendered (exhibit XD(2)) on her behalf. I am satisfied from those reports that at the time of trial Ms Hickie was seriously disabled by a heart condition and was not fit to give evidence. Accordingly, the evidence as to the acquisition of the premises and the modifications which were carried out came solely from Mr Kocx. Mr Kocx advised the Court that he was representing himself because he did not have money to pay for legal representation. Mr Kocx was called to give evidence by counsel appearing for Ms Hickie.

Mr Kocx and Ms Hickie purchased the premises on 17 June 2003. The premises comprised the first floor of the property in Military Road, Mosman. The purchase did not include the two shops which were on the ground level and which had separate and direct access at street level. At the time of the acquisition of the premises, Ms Hickie was practising as a solicitor and Mr Kocx, who had a commerce degree from the University of New South Wales, was practising as an accountant.

Mr Kocx described the premises as being in a very poor state of repair in June 2003. They had apparently been used as a traditional type of gym for a number of years without much maintenance being carried out. He described torn carpets, broken floorboards, considerable water damage from ceiling leaks and the need to upgrade facilities such as the bathroom and kitchen. Mr Kocx said that initially he approached a builder, Mr Shaun Mowbray, to repair the floor of the premises. Eventually Mr Mowbray carried out significant renovations to the premises at a cost of approximately $200,000. Exhibit XD(1) contained invoices received from Mr Mowbray for some of that work.

Mr Mowbray was not a licensed builder and no council approval was sought or obtained for the renovation of the premises. Mr Kocx said that he believed Mr Mowbray when he said that he was licensed and that he accepted Mr Mowbray’s assurance that because the work was internal, council approval was not necessary. This renovation work included the construction of the staircase on which the plaintiff fell. Mr Kocx said that he remembered that when he and Ms Hickie acquired the premises there were existing stairs made of concrete, but he could not say whether there was a metal tubular rail along each flight of stairs. The renovation work carried out in relation to the staircase was to cover the concrete steps with Blackbutt timber and to construct the stub wall along one side of the upper flight of stairs.

The renovations to the premises were completed in early 2004. Thereafter Mr Kocx and Ms Hickie conducted a health and wellbeing centre there. The centre offered natural therapies, yoga, Pilates and meditation classes. Mr Kocx described the business as follows: “Q. And did you yourself have any financial interest in any of those businesses? A. My wife and I were running a health and well-being centre. Part of that business was conducting classes on the floor which we were responsible for. Part of that business also sub-let rooms to therapists who paid rent and conducted their own businesses. So in that sense my wife at the time and I were operating our own business and part of the business was collecting rents from other businesses of comparable or sympathetic nature. “ (T.273.6)

In April Mr Kocx was approached by Mr Lucas concerning the leasing of part of the premises as a fitness centre. Negotiations to that effect took place in April and May 2005. Mr Lucas, whose background was that of a rugby league player and fitness instructor, had little experience in such business dealing. He was assisted by a friend, Mr Halaby, and by Mr Simmons, who was the principal of Vision.

Eventually a lease was entered into between Loose Fit as lessee and Ms Hickie and Mr Kocx as lessors for part of the premises. The lease was for three years and was to commence on 1 June 2005. The lease covered approximately 125 square metres of the premises. Exhibit 2 was a copy of the lease and some introductory documents.

The lease did not extend to common property such as the entrance, staircase, the foyer and waiting area, the kitchen, change room and toilet although Loose Fit was to have access to those common areas. The lessors were to be responsible for soundproofing and modifications to existing walls, doorways and flooring for which Loose Fit made a contribution of $5000.

It was common ground that before Loose Fit became involved with the premises there were no railings on either the upper or lower flight of stairs. Mr Lucas produced a photograph of the staircase taken in May 2005 (exhibit 3) which confirmed that fact. When Loose Fit commenced occupation of its part of the premises under the lease in June 2005 it is clear that a railing had been installed on the wall of the lower flight of stairs. Mr Lucas and Mr Kocx disagreed as to how that railing came to be installed.

Mr Kocx’s evidence on this issue was as follows: “Q. Yes, around about the time of signing the lease, which his Honour now knows was 1 June 2005? A. I don't know that, I couldn't say that certain things were conditional prior to signing a lease. I know there was an issue with the handrail, that Vision or Mr Lucas had requested -- … Q. Is that a conversation that took place between you and who? A. Mr Lucas and myself. Q. Doing the best you can, can you recall what the conversation was, doing it in the-- A. Mr Lucas said words to the effect that, "Johnny, we really need to get the handrail up". Q. What was that referring to? A. That was referring to the handrail on the lower level of the flight of stairs. Q. And what reply did you make to that? A. I said "sure, certainly". I further asked him whether there was any requirement for the top flight. And his response to that was, "No, we checked it out, we don't need anything". (T.257.8)

It was common ground that either just before the commencement of the lease or just after, Mr Kocx installed the handrail on the lower flight of stairs. When asked why he had not previously installed such a handrail, either on the lower flight of stairs or on the upper flight of stairs, Mr Kocx responded that he was never asked to do so (T.259.10) and that no-one had ever told him that there was a requirement to do so (T.280.18, 280.45). In answer to a question from the bench, Mr Kocx said that insofar as the upper flight of stairs was concerned he had never turned his mind to whether or not there should be a handrail along it (T.281.16).

It was suggested to Mr Kocx that he had installed the handrail on the lower flight of stairs of his own volition without it being suggested by anyone else. He denied this and said: “A. The reason I installed a handrail was because Mr Lucas was pursuing me to install it.” (T.279.48)

The evidence of Mr Lucas was somewhat different. He denied any recollection of a conversation with Mr Kocx about the erection of a handrail on the staircase (T.157). He gave the following evidence in cross-examination: “Q. What I was putting to you was that Mr Kocx said to you “Certainly, what about the top of the stairs?” You said you didn’t recall that and I want to ask you then whether or not you said to Mr Kocx “We don’t need one”? A. Yeah, again, I don’t recall but I doubt I would have said that sincerely.” (T.159.39) “Q. And you raised with Mr Kocx that this handrail on the lower level needed to be installed, is that right? A. I? Q. Did you raise with Mr Kocx that the handrail on the lower level needed to be installed, didn't you? A. No, I don't believe so. Q. You don't have any recollection of that at all? A. No. Q. Notwithstanding you have had an hour or so to think about it? A. No, yeah, I don't recall. Q. Are you prepared to deny that you had such a conversation with him, in other words I am suggesting to you it might have been possible that you have forgotten having the conversation with him about the handrail? A. It's possible I had the lower level one but not about the upper level. Q. You have no recollection at all of saying you did not require a handrail on the upper level? A. I definitely would not have said that. He wouldn't have asked to put it in either because he would have looked to save a buck any way he can, knowing John, and he wouldn't have looked for more ways to spend money, if he didn't have to, that's for sure. “ (T.162.49) “Q. I want to suggest to you that you did have a discussion about the handrail and that once the handrail was mentioned Mr Kocx installed it soon after you requested the handrail, do you agree or disagree with that? A. I agree, the bottom one. Q. And that at the time that the lower handrail was being discussed you specifically said you did not require one for the upper flight of stairs? A. I disagree.” (T.164.21) Q. And you never made a request to Mr Kocx to put a handrail on the upper flight of stairs, did you? A. No I did not. “ (T.165.31) “Q. You didn't raise any difficulty with Mr Kocx about needing a handrail, did you, to the upper flight of stairs? A. No, I did not. Q. You never had any incidents with your employees going up and down those stairs, did you? A. No, I have not. “HIS HONOUR: Q. Whose idea was it to put a rail on the bottom flight of stairs? A. Yeah, I can't recall sir. Q. You don't know whether it was Mr Kocx or your own? A. Yeah, I don't know, sir. COUNSEL: Q. Could it have been Mr Simmons? A. Yes.”(T.167.5)

I have concluded that the erection of a handrail on the lower flight of stairs was raised in the lease negotiations and that it was raised by, or on behalf of, Loose Fit. I found Mr Lucas to be a genuine type of person and to be trying to assist the Court. I formed the opinion that even now his business expertise is not particularly great. I suspect that the impetus for a handrail on the lower flight of stairs probably came from Mr Simmons who appears to have been a very astute businessman. I accept that Mr Lucas genuinely had no specific recollection of any discussion concerning the handrail on the lower flight of stairs.

I do not accept the evidence of Mr Kocx to the effect that he suggested a handrail on the upper flight of stairs but that this was refused by Mr Lucas. There is considerable force in Mr Lucas’ evidence that Mr Kocx was only prepared to spend the bare minimum on any modification to the premises and that he was doing much of the work himself (T.163.29).

Moreover, I was not particularly impressed with Mr Kocx as a witness. Unlike Mr Lucas he was clearly an experienced businessman and was well aware of the case which was sought to be made against him. His evidence as to not being aware of the need for council approval when carrying out $200,000 worth of renovations to the premises after their acquisition, was at best disingenuous.

I do, however, find that to the extent that Mr Lucas turned his mind to the upper flight of stairs, he concluded that there was no need for a handrail. “Q. Prior to the plaintiff, that's this lady here (indicated), having her fall you hadn't perceived a need for a handrail on the upper level, is that right? A. No I hadn't. Q. And-- A. Just because it had functioned as a yoga and Pilates centre with many clients and had not needed one and it had functioned as a gym before and not had one. Q. Wasn't it because you used the staircase in the way that I indicated to you before lunch by using your hands like that (indicated) if you needed to when you were going down the stairs? A. No sir, it was more so because it had used the, functioned as a fitness centre before and not required.” (T.165.48)

By way of explanation of the above question, Mr Lucas had previously agreed that when he used the upper flight of stairs before the plaintiff’s accident he had been able to obtain support by gripping the top of the stub wall with his right hand. Mr Lucas was 180 centimetres (5’ 11”) in height, was very fit and had large hands.

The marriage between Ms Hickie and Mr Kocx broke up in September 2005 and from that date he ceased to have any further contact with the premises. Ms Hickie took control of all relevant bank accounts and books of account in November 2005.

On 1 September 2006 Loose Fit entered into a new lease for the whole of the premises. The lessors named on the lease were Mr Kocx and Ms Hickie. The lease was for a period of five years. It seems that the persons providing the other therapies had moved out and Mr Lucas took the opportunity of gaining access to the whole of the premises (T.147.2). A copy of the September 2006 lease formed part of exhibit 4. It is apparent that the last two pages of the document are missing. There was no evidence as to how that lease came to be negotiated or with whom. I am satisfied, however, that Mr Kocx had nothing to do with those negotiations. It is clear from the description of the property in the document that the whole of the first floor premises, together with the staircase, was included in the lease. The only part of the premises not included was a garage at the rear of the premises.

Within a short time after the plaintiff’s fall, Mr Lucas contacted a building contractor employed by Vision and asked him to make recommendations to prevent further accidents of that kind. As a result of the assessment carried out by that person, two bollards were installed at the top of the upper flight of stairs and a handrail was fixed to the stub wall just slightly below its top. Loose Fit paid for and arranged for their installation.

Since Mr Kocx arranged for the stairs to be renovated in 2003, those renovations were governed by the Building Code of Australia (BCA).

In their joint report of 6 September 2010 (exhibit B(6)) Mr Cowling and Dr Cooke expressed the following opinions in respect of the upper flight of stairs: 1. We agree that the difference in the heights of the risers exceeds the tolerance of ± 5 mm specified in AS 1657-1992 Clause 4.3.1 at various points on the upper flight, in particular in the first three risers from the top. 2. We agree that the difference in the depths of the goings exceeds the tolerance of ± 5 mm specified in AS 1657-1992 Clause 4.3.1 at various points on the upper flight, in particular in the first six goings from the top. 4. Upon the occasion of each of the inspections conducted by Mr Cowling on 23 April 2009 and Dr Cooke on 9 July 2009, did the staircase have dimensional inconsistencies which were capable of disrupting gait? Answer: We agree that the answer to this question is “yes”. 5. Upon the occasions of each of the inspections conducted by Mr Cowling on 23 April 2009 and Dr Cooke on 9 July 2009 were the nosings of the stair not painted or fitted with strips or devices to visually differentiate the nose of one step from the goings of the steps immediately above and below? Answer: We agree that the nosings were not painted or fitted with such strips or devices. 9. We agree that if the Building Code of Australia applied, Part D2 applied, relevantly Clauses D2.13,D2.14 and D2.17 and Table D2.13. We agree that AS 1657 had no statutory force in relation to the staircase. However, we agree that, in the absence of any definition of “constant” in Building Code of Australia Clause D2.13(b)(iii), AS 1657 specifies a construction tolerance of ± 5 mm for risers and goings that is regarded as establishing good building practice for staircase construction generally. 11. We agree that the risers and goings were not constant. We agree that, whilst all of the individual riser and goings and all of the riser and going combinations agree with Building Code of Australia Table D2.13, the lack of constancy in the riser and going dimensions is in breach of Building Code of Australia Clause D2.13(b)(iii). We agree that the upper flight of the staircase was not fitted with a continuous handrail as required by Building Code of Australia Clause D2.17.

In his report (exhibit B(7)) Mr Cowling said: “Not one of the treads achieved a going of 276 mm. Instead the goings ranged from a minimum of 255 mm to a maximum of 272 mm thereby resulting in a stair that was steeper than the design. What is not generally realised is that the need for the ± 5 mm construction tolerance is due to the narrow clearance during ascent and particularly during descent beneath the underside of the user’s shoes and the nosing surface. Where there are irregularities and a significant lack of constancy in the stair dimensions as in this matter, then such defective conditions lead to a greater likelihood that a user could suffer a misstep through confusion. In the said stair flight these dimensional variations are considerable. Nevertheless, observations have shown that such discrepancies are unlikely to be sufficiently apparent to be visually obvious to the user, particularly in descent. This is why poorly constructed stairs such as the said stair are dangerous and feature more prominently in injury reports … The greatest discrepancy in the said stair occurs within the first three steps and this coincides with the place where the plaintiff lost her balance with the resulting fall from about the third step. In the preceding parts of this report I reviewed the values recorded for the first three treads at the top of the said stair upon which the plaintiff fell. These reveal a discrepancy of 40 mm in the rise and 17 mm in the going. In addition, the results obtained from the formula reveal an even greater discrepancy of up to 80mm. These values far exceed any reasonable dimensional tolerance limits of ± 5 mm … On the balance of probabilities, it seems reasonable to suggest that the presence of a readily graspable handrail could have prevented the alleged fall. In the event that the plaintiff lost her balance while holding onto a suitable handrail this should have enabled her to recover her balance and thus prevent her falling all the way to the half-landing. It is also possible that through the benefit of grasping the handrail the plaintiff may not have lost her balance at all during descent and thus prevented any fall from occurring as a result of her loss of equilibrium.”

Dr Cooke expressed himself to similar effect in his report. “When the BCA commenced in NSW on 1 January 1992 Clause D2.17(a) was as follows: “Suitable handrails must be provided where necessary to assist and provide stability to persons using a … stairway” (Appendix C). The stair is 1210 mm wide (measured between side walls). Clause D2.17(b) relevantly specified that handrails satisfied Clause D2.17(a) if they were located along at least one side of a flight of stairs. However, the provision of a handrail was not explicitly required until a later amendment to clause D2.17 (in 1996) required a handrail on one side of a flight such as the upper flight of the stair. Given the length of the flight (twelve risers) and the nature of their use (by members of the public who could be expected to have been exerting themselves in the gymnasium), my opinion is that good practice required the provision of a handrail for both flights (not just the lower flight). The provision of a handrail was also indicated by the BCA, although not explicitly required until Clause D2.17 was amended in 1996. … The research showing strong evidence regarding the importance of handrails in preventing falls is referred to by Ozanne-Smith et al, “The Relationship Between Slips, Trips and Falls and the Design and Construction of Buildings” (2008) p 25. … Jackson and Cohen (1995) hypothesised that “the greatest problems with accident stairways is not the individual (i.e. user) or external variables, but dimensional; inconsistency inherent in some stairways” (Ozanne-Smith (2008) p 24). The stair has dimensional inconsistencies at the top that are capable of disrupting gait (in theory, and on the basis of my subjective assessment on descent). In the direction of descent the individual differences between the top three risers are 40 mm (increase) followed by a reduction of 16 mm (not allowing a tolerance of ± 5 mm).”

The relevant parts of the Building Code of Australia and extracts from the research articles referred to in the reports were annexed to them and my reading of that material confirms that both experts accurately recorded their content in their reports and that these regulations and research articles supported their conclusions.

In July 2007 Mr and Mrs Marshbaum returned to the fitness centre. Mr Marshbaum took a number of photographs. Those photographs reveal that as of that date the bollards had been placed in position at the top of the upper flight of stairs, as had the handrail on that upper flight. I am satisfied that the main reason for this visit was to refresh their recollection as to the layout of the premises for the purpose of subsequent litigation.

While there they met with the manager of the fitness centre, Chris Jessop. In her evidentiary statement the plaintiff said: “On about 6 July 2007, Chris Jessop, whom I understood to be the Manger of Vision, said to me and Harold words to the following effect: “When the gym premises were set up, we were advised that the handrail was only necessary on the lower flight of stairs, but not the upper as there was a wall to hold onto. After the accident, we reviewed the safety of the premises and we decided to put in a handrail on the upper flight of stairs.””

In her oral evidence, the plaintiff said: “Q. Was it Mr Jessop? A. Yes. Q. What did he say? A. I pointed to the handrail which had not been there previously and he said at the time that they had taken-- OBJECTION HIS HONOUR: Q. As best you can, madam, can you use the words he used? You will find it is easier, when you are giving the evidence not to use the word "that". Once you say "He said that" it immediately goes into a different form of speech. Imagine you are in a play and actually give the words he used? A. Okay. "We considered putting in the handrail before taking on the lease but were told that it was only necessary on the bottom level of the staircase and not the top".” (T.35.4)

Harold Marshbaum’s evidentiary statement was prepared shortly before the trial. In that statement he said: “Ben Lucas was not present, but we spoke to Chris Jessop. We observed that there was a handrail on the upper level of the staircase and metal bollards at the top of the stairs which had not been there previously. Jessop explained that, following the accident, the insurers had assessed the safety of the premises and requested certain modifications such as these. He also stated that, at the time they were fitting out the premises, they considered whether to put in a handrail on both levels, but concluded that it was only necessary at the lower level as there was a wall to hold on to at the upper level.”

In his evidence Mr Marshbaum said: “Q. Try to use the exact words? A. I would have said, "Hello Christopher, we have just come to have a look because we haven't heard anything from the insurance company, we wondered what was happening. I see there's now the handrail here." And he said, "Oh yes, after the accident the insurance company came in here, they spent about three days in here. They reviewed the safety of the premises and they told us to make some alterations, including putting in the handrail and putting in the metal bollards at the top of the stairs". And I said, I can't remember whether it was me or him asking the questions, and I said wasn't a handrail there. So, I would have said, "I don't believe there was a handrail there before." And he said, "No. When we fitted out the gym we put one on the lower level but we didn't put one on the upper level because we thought there was a wall to hold on to and that would be okay but after the insurance company reviewed it, they told us to put in the handrail." “ (T.107.22)

Mr Jessop gave evidence. He commenced employment with Loose Fit in late November 2005 as a fitness instructor and after twelve months became manager. At the time of trial he was no longer employed by Loose Fit but was the owner of two fitness businesses which were part of the Vision franchise system. Mr Jessop agreed that he had had a conversation with Mr and Mrs Marshbaum in about July 2007 but denied that he had said some of the words which had been attributed to him. “Q. He suggests that he approached you and said, Hello Christopher, we have just come to have a look because we haven't heard anything from the insurance company. We wondered what was happening". Did he say those words to you when he visited in July 2007? A. I believe that was the conversation. Q. "I see there is a handrail there now". Do you recall him saying that? A. Yes. Q. And he says that you said to him in response to that, "Oh, yes, after the accident the insurance company came in here and they spent about three days in here". Did you ever say those things to him? A. No, because the insurance company hadn't been out. Q. Did you ever say those words? A. No, no, I didn't. Q. He says that you there said, "They reviewed the safety of the premises and they told us to make some alterations including putting in the handrail and putting in the metal bollards at the stop of the stairs". Did you ever say those words to him? A. No, I didn't. Q. He then goes on to say that he says that he said to you, "I don't believe there was a handrail there before". Do you recall him saying those words to you? A. Yeah, yep. Q. And he says that you said in response to that, "No. When we fitted out the gym we put one on the lower level but we didn't put one on the upper level because we thought there was a wall to hold on to and that would be okay. But after the insurance company reviewed it they told us to put in the handrail". Did you ever say those words to him? A. No. … Q. I want you to assume that Mrs Marshbaum has given similar evidence about you having a conversation with her in relation to the gym being set up. Did you ever have a conversation with her on the occasion she visited with her husband in July 2007? A. I believe the conversation was to both of them. Q. So when I put to you about what Mr Marshbaum says that you said I take it your denial is that you never said that in her presence either? A. That's correct.” (T.229.20; T.230.16)

Under cross-examination by counsel for Ms Hickie, those same matters were put to Mr Jessop and he maintained his denial that he said those same words which had been attributed to him by Mr and Mrs Marshbaum.

Objection was taken by counsel for Loose Fit to that evidence concerning Mr Jessop being given by the plaintiff and her husband. The basis for the objection was that Mr Jessop did not have authority to make admissions of that kind. I provisionally allowed the evidence but deferred ruling upon it.

It is clear that a conversation did take place between the plaintiff and her husband on the one hand and Mr Jessop in July 2007. I am not satisfied, however, that all of the evidence is admissible or that the plaintiff and her husband have accurately recalled the conversation.

Mr Jessop was not employed by Loose Fit when the lease was entered and the fit out took place. Accordingly, he could not have been privy to any conversations with Mr Lucas or anyone else concerning handrails at that time. Any information which he conveyed to the plaintiff or her husband in July 2007 could only have been in the nature of hearsay. The source of that hearsay evidence was not identified although it was probably Mr Lucas. It was never put to Mr Lucas that he had had such a conversation with Mr Jessop concerning handrails.

The other difficulty with the conversation is that part of it is clearly incorrect. There was no visit by a representative of the insurance company after the plaintiff’s accident for the purpose of assessing the premises and providing guidance as to what should be done to improve safety. This was something done at the instigation of Mr Lucas and it involved advice from a builder employed by Vision. I cannot think of any reason why Mr Jessop would have made statements to the plaintiff and her husband about the attendance of the insurance company if that were not correct.

Even if the evidence about the handrail is admissible, I propose to disregard it. I regard that part of the conversation as essentially unreliable and it does not substantially advance the plaintiff’s case. Liability

Loose Fit accepted that it owed the plaintiff a duty of care. It did not otherwise identify the content of that duty. It disputed that it breached the duty of care which it owed. It made no submissions in relation to the plaintiff’s claim in contract.

I accept that the duty owed by Loose Fit to the plaintiff in her negligence claim involved an obligation to exercise reasonable care for her safety when she came onto its premises ( Thompson v Woolworths (Q’land) Pty Limited [2005] HCA 19, (2005) 221 CLR 234 at [27]). In relation to her claim in contract, I accept that MacLenan v Segar (1917) 2 KB 235 at 332/3 accurately states the law where McCardie J said: “Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them.”

That statement of principle was unanimously approved by the Court of Appeal in Morawski v State Rail Authority of NSW (1988) 14 NSWLR 374 at 377D, 379D and 381F.

In relation to breach of duty and negligence, the test is that provided by ss 5B and 5C of the Civil Liability Act 2002 (CLA). Those sections relevantly provide: 5B(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

The plaintiff submitted that the risk of her suffering injury in the way in which she did was readily foreseeable in that Loose Fit knew, or ought to have known, in respect of the upper flight of stairs, that there were discrepancies in the height and size of the risers and goings, that there was a lack of constancy in those dimensions, that there was an absence of a continuous handrail, that these issues involved breaches of the BCA and that the failure to address these issues rendered the flight of stairs dangerous to those using them.

I do not accept that Loose Fit had actual knowledge of these problems with the upper flight of stairs. There is no evidence to that effect. This is particularly so given the lack of business experience on the part of Mr Lucas. In relation to whether Loose Fit should have had such knowledge, I have reached the same conclusion in relation to the discrepancy in the risers and going of the stairs. These matters would only have been obvious to an expert who carried out measurements. No basis or occasion was identified which would have required Loose Fit to carry out such an investigation.

The situation in relation to the handrail is different. It should have been obvious to Mr Lucas and therefore to Loose Fit that there was a need for a handrail on the upper flight of stairs. This is particularly so when such a handrail had been fixed to the lower flight of stairs. At the very least this should have led to a line of reasoning or enquiry on the part of Mr Lucas as to whether or not such a handrail was required elsewhere and in particular on the upper flight of stairs. If he were in any doubt on that issue, he should have sought advice and if he had done so, he would almost certainly have been told that such a handrail was required by BCA 2.17.

Even without such expert advice, a reasonable person operating a fitness centre when considering the differing physiques, ages and stature of persons likely to be using the centre, should have concluded that there was a risk of injury to such persons if a handrail were not provided. It was obvious that a person of small stature would not be able to grip the top of the stub wall as a means of support.

If it were the opinion of Mr Lucas that the stub wall provided an adequate support or handhold, that was an unreasonable conclusion when one took into account the likelihood that females of short stature may be using the upper flight of stairs. Since the top of the stub wall was between 10 and 15 cms in width, this would be difficult for a person with small hands to grip even if that person were able to conveniently reach it in order to grab hold of it.

Looking at the question prospectively, and putting oneself in the position of Mr Lucas, I find that a reasonable person in his position, would have concluded that there was a foreseeable risk of injury to females of short stature, particularly if that person had small hands when descending the upper flight of stairs. Applying the other provisions of ss 5B and 5C, it is clear that a breach of duty has been established by reason of Loose Fit’s failure to install a handrail on the upper flight of stairs. The risk of a fall was not insignificant in that there was a real likelihood of it occurring. If such a fall did occur, the consequences were likely to be serious and perhaps even life threatening. The burden of taking precautions to avoid the risk was small, both by way of inconvenience and expense.

Loose Fit submitted that even if a fall on the stairs were foreseeable the response of a reasonable person was to do nothing but to rely upon the existence of the stub wall. This was because there had been no previous accidents on the stairs and there was no evidence of any previous complaints about the stairs. In addition, Loose Fit submitted that the plaintiff could not explain what caused her to fall.

The absence of any previous falls on the upper flight of stairs is not decisive. The history of the premises is only known since early 2004 after Mr Kocx carried out his renovations and the health and wellbeing centre was opened. The state of the stairs and their history before those renovations is not known. What is known is that the specifications approved by the council in respect of the stairs in their pre 2003 state made provision for a handrail on both the upper and lower flights of stairs. Accordingly, the amount of time over which there was an absence of any accidents is relatively brief. In any event, that is merely one factor to be taken into account when determining foreseeability and reasonable response as prescribed by s 5B. In my opinion the likelihood of a fall occurring on these stairs, in the absence of a handrail, had such a strong likelihood as to outweigh the fact that there was no history of any previous falls.

That the plaintiff could not explain what caused her to fall is largely irrelevant. We can surmise that the cause was the significant difference in riser heights and going dimensions which existed in respect of the top three steps. Leaving that aside, however, the likelihood of a fall down any flight of stairs, particularly one involving twelve risers, is always high. The annexures to the report of Dr Cooke are replete with statistics which indicate how frequent is the occurrence of falls on stairs. That being so, some response was necessary and the most appropriate was the installation of a handrail.

While no submissions were directed towards s 5G CLA, I should for completeness deal with whether that section applies. That section limits liability where the risk is obvious. One answer is to rely upon the dicta of McClellan CJ at CL in Carey v Lake Macquarie City Council [2007] NSWCA 4 at [34] and that of Beazley and Tobias JJA in Angel v Hawkesbury City Council [2008] NSWCA 130 which restricted the operation of s 5G to situations where a defence of voluntary assumption of risk might arise. This was not such a situation.

Even if s 5G were to be given a wider interpretation it would not assist the defendant in this case. Whereas a fall down the flight of stairs may have been “obvious” what was not obvious in the sense required by the section was that if a fall did occur, the stub wall would provide no assistance to a person of small stature or for a person with a small hand or someone having both attributes. Looked at in that way, the risk of the plaintiff falling in this case was not an obvious one as defined by s 5F.

In relation to the plaintiff’s contractual count and the implied warranty, it is clear from the above analysis that the premises were not as safe for use by the plaintiff as reasonable care and skill on the part of Loose Fit could make them.

I am satisfied that the plaintiff has established breach of duty in her negligence claim and breach of the implied warranty in her contractual claim.

No submissions were made by the defendant in respect of causation and the application of s 5D CLA. This is understandable in that the evidence was all one way. As Clause D2.17 of the BCA makes clear, the purpose of a handrail is to assist and provide stability to persons using a stairway. As Mr Cowling made clear in his report, the absence of a handrail meant that the plaintiff had nothing with which to stabilise herself once she had lost her balance and had commenced to move forward. To put the matter in “but for” terminology, the plaintiff would not have fallen but for the absence of a handrail ( Adeel’s Palace Pty Limited v Moubarak [2009] HCA 48, (2009) 239 CLR 420 at [41 – 45]).

It follows that I am satisfied that the plaintiff has established liability, both in negligence and for breach of contract, against Loose Fit.

Loose Fit did not make any submissions in relation to contributory negligence. It was, however, raised in its amended defence and needs to be dealt with. The particulars relied upon were: (i) Failed to take sufficient care and precaution for her own safety. (ii) Failed to negotiate the steps referred to in the said Statement of Claim with appropriate care and caution. (iii) Failed to observe where she was walking. (iv) Failed to utilise the support provided by the protective side barrier of the stairs as a guardrail while descending the stairs.

Contributory negligence has not been established by Loose Fit. I have found that when the plaintiff was descending the upper flight of stairs, she was carrying her handbag and gym gear in her left hand and was attempting to support herself with her right hand. Because of her height, and the dimensions of the stub wall, no more could have been expected of her. It would have been extremely difficult, if not impossible, for her to grip the top of the stub wall because of her height and the size of her hand.

There was no evidence that the plaintiff failed to observe where she was walking or that this caused her to fall. On the contrary, the strong inference from the expert material is that it was the deficiency in the risers at the top of the stairs which caused the plaintiff to fall.

For the above reasons, Loose Fit has failed to establish that the plaintiff failed to take reasonable care for her own safety and accordingly has failed to establish contributory negligence to the standard required by s 5R CLA.

That does not end the consideration of liability. It is necessary to decide whether and if so to what extent, Loose Fit has established liability against Mr Kocx and Ms Hickie in its cross-claim. In relation to negligence Loose Fit’s claim was that Mr Kocx and Ms Hickie were persons who if sued by the plaintiff would have been found liable (s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. In order to resolve that question it is necessary to consider the position as between the plaintiff on the one hand and Mr Kocx and Ms Hickie on the other.

A useful start point is the statement of principle by Gummow and Hayne JJ in Jones v Bartlett [2000] HCA 56, (2000) 205 CLR 166 at [195 – 197]. This is so even though their observations were made in respect of residential premises. “195 The general principle, consistently with Australian Safeway Stores Pty Ltd v Zaluzna , is that liability for injury suffered by an entrant upon residential premises primarily will rest with the occupier. A tenant in occupation, rather than the landlord, has possession and control with power to invite or to exclude, to welcome in or to expel. Those asserting a duty often will be the guests or invitees of the tenant or persons present on the tenant's business or for their business with the tenant. It will be the tenant who is best placed to inform such persons of any dangers or defects, and the tenant who "is more directly in touch with emerging repair needs than a landlord who has surrendered possession". 196 However, dangerous defects are unlikely to discriminate between tenants and those on the premises whether as an incident of a familial or other personal relationship, as in this case, Cavalier v Pope , and Northern Sandblasting , or some other social or business relationship or occasion. The landlord's duty to take reasonable care that the premises contained no dangerous defects, owed in the sense earlier described to the tenants, extends to those other entrants we have identified. 197 Nevertheless, the duty of the landlord owed to these third parties, in many cases, will be narrower than that owed to them by an occupier such as a tenant. An example of facts not involving the placing of a duty on the landlord is a slippery floor; an unsecured gate to a fenced swimming pool may be another. The duty of care of the landlord to the third party is only attracted by the presence of dangerous defects in the sense identified earlier in these reasons. These involve dangers arising not merely from occupation and possession of premises, but from the letting out of premises as safe for purposes for which they were not safe. What must be involved is a dangerous defect of which the landlord knew or ought to have known.”

The earlier discussion of dangerous defects to which their Honours referred is to be found at [176 – 182] of the judgment and in particular at [178] where their Honours said: “178 The thread running through these cases is that a dangerous defect will, or may, cause injury to persons using the premises in an ordinary way. They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use. Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries. However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used.”

On the facts of this case I am not satisfied that the absence of a handrail on the upper flight of stairs should be properly characterised as a “dangerous defect” so as to give rise to liability on the part of Mr Kocx and Ms Hickie. This is particularly so when the accident occurred in November 2006, more than 12 months after Mr Kocx had ceased to have any direct involvement with the premises and when there was no evidence as to either Ms Hickie’s state of knowledge or her involvement with the premises. In particular, there is virtually no information as to what if any discussions took place when the second lease, commencing 1 September 2006, was entered into.

In November 2006 Loose Fit had been in occupation of the whole of the premises for over two months. It had been operating its business from the premises for 18 months. It was in the best position to assess its clientele and the potential risk to persons using the upper flight of stairs, particularly females of short stature.

Applying the provisions of s 5B CLA to those facts, I am not satisfied that looking at the matter from a prospective point of view and placing oneself in the position of the cross-defendants, a reasonable landlord would have installed a handrail on the upper flight of stairs.

It follows that Loose Fit has not made out that part of its cross-claim based on negligence.

In its cross-claim Loose Fit also relies upon a breach of Clause 7 of the September 2006 lease. That clause requires a landlord to maintain the premises in a state of good condition and fix structural defects. The clause which Loose Fit appears to be relying upon is Clause 7.4 which reads: “7.4 If an authority requires work to be done on the property and it is structural work or work needed to make he property safe to use then the landlord must do the work unless it is required only because of the way the tenant uses the property. But if it is any other work or is required only because of the way the tenant uses the property then the tenant must do the work.”

There is no evidence that this clause was ever activated before the plaintiff had her accident. There is no evidence of any authority, either municipal or state, requiring work to be done on the premises. I am not persuaded that any breach of Clause 7.4 has been established. Accordingly, that part of Loose Fit’s cross-claim also fails. Damages

Following her fall, the plaintiff was in considerable pain. Not only did she have pain in the left shoulder and arm, her face was bruised and her left leg was painful. When there was no improvement the plaintiff was referred to Professor Sonnabend, whom she saw on 24 November 2006. X-rays taken at that time showed that the humeral head fracture was comminuted with inferior dislocation. The fracture line extended through the articular surface of the humeral head. A superior displacement of the greater tuberosity fragment was also noted on CT scans.

On 27 November 2006 Professor Sonnabend operated on the left shoulder. The intra articular component of the humeral head fracture was reduced and the humeral head and greater tuberosity then repaired to the shaft of the humerus with the aid of a locking plate. Professor Sonnabend noted that the comminution was more extensive than predicted on the plain x-rays. The plaintiff was an inpatient at the Royal North Shore Private Hospital for five days.

This procedure was not completely successful in resolving the partial dislocation of the humeral head. The plaintiff was experiencing considerable pain in her left shoulder which was controlled by powerful painkillers. She developed stiffness in the left elbow, wrist and hand. On 12 January 2007 Professor Sonnabend attempted to reduce the partial dislocation by passive means under fluoroscopy. This was unsuccessful. The procedure caused a significant increase in the plaintiff’s pain.

During this time the plaintiff was undergoing physiotherapy sessions with a Ms Williams, who concentrated on mobilising her hand and restoring movement to her wrist and shoulder.

On 13 February 2007 Professor Sonnabend undertook an open reduction of the dislocated left shoulder. In the course of that procedure considerable scar tissue was removed from the glenoid cavity allowing reduction of the humeral head into the shoulder joint. The successful outcome of the operation was confirmed by x-rays. Two of the original internal fixation screws, which might have been causing discomfort, were removed in the course of this operation. The plaintiff was an inpatient of North Shore Private Hospital for six days, being discharged on 20 February 2007.

Despite the success of the operation, the plaintiff continued to experience considerable pain and difficulties in moving her left shoulder, arm and hand. Intense physiotherapy was provided on a daily basis by Ms Williams up to 27 February 2007.

On 30 March 2007 Professor Sonnabend reported as follows: “Mrs Marshbaum was still unable to actively flex her left shoulder to the horizontal despite normal electrical function in the axillary nerve on repeat studies. The hand and wrist swelling remained of concern, and further opinions were sought from Dr Jeff Hughes (Shoulder and Elbow Surgeon) and Professor Michael Cousins (Pain Clinic, Royal North Shore Hospital). A diagnosis of “complex regional pain syndrome with partially frozen left shoulder” was made with Professor Cousin’s note suggesting “fear avoidance behaviour” as a contributory factor.

The plaintiff continued to undergo physiotherapy approximately twice per week. She also underwent hydrotherapy treatment at the Mater Hospital twice per week. In May 2007 she underwent a week of acupuncture and Chinese massage. Despite continuing pain there was a gradual improvement in the plaintiff’s capacity to move her wrist and hand. She was continuing with her physiotherapy one day per week.

Professor Sonnabend described the plaintiff’s condition as of 3 July 2007 as follows: “Following extensive physiotherapy, Mrs Marshbaum’s hand swelling had largely settled, and she was using the left hand for most activities of daily living. The elbow stiffness had resolved. The shoulder was not particularly painful, and radiographs showed the humeral head to be enlocated, with solid union of the fractures, but glenohumeral movement was only approximately one third normal.”

Professor Sonnabend thought that the internal fixation plate might be contributing to shoulder discomfort by impinging on the tip of the acromion in shoulder abduction. Nevertheless, he encouraged the plaintiff to postpone plate removal for as long as she reasonably could to avoid the risk of repeat surgery precipitating a further episode of her regional pain syndrome.

On 26 October 2007 Professor Sonnabend reported: “One year following initial surgery, the humeral head was clinically and radiologically enlocated, the fractures solidly united, and rotator cuff and deltoid musculature functioning well.”

On 4 February 2008 Professor Sonnabend removed the fixation plate and locking screws from the plaintiff’s left humerus. The plaintiff was in the North Shore Private Hospital for two days. When Professor Sonnabend examined the plaintiff on 18 April 2008 he found that her shoulder was pain free with 80 degrees of active and 110 degrees of passive forward flexion. He prescribed ongoing strengthening exercises.

In a report of 29 October 2008 addressed to the plaintiff’s solicitors Professor Sonnabend described the plaintiff’s condition as of 18 April 2008 as follows: “The union of Mrs Marshbaum’s humeral neck fracture was associated with slight loss of humeral length. While this would normally be of negligible significance, Mrs Marshbaum is of particularly short stature, and loss of limb length between origin and insertion of the deltoid muscle has effectively reduced the power (strength) of the left deltoid. That weakening of the left deltoid will be permanent. It cannot be measured quantitatively, but appeared to be contributing to Mrs Marshbaum’s ongoing left shoulder weakness. I assume that Mrs Marshbaum’s left shoulder condition has stabilised by now. I would not expect any further improvement at this stage. As the initial fracture did involve the joint line, there is a long term risk of progressive secondary osteoarthritis. Mrs Marshbaum will not regain full range or strength of left shoulder movement, and some ongoing discomfort is virtually inevitable. Given Mrs Marshbaum’s short stature, the inability to flex (raise) the arm overhead will be of greater significance than might otherwise have been the case. Mrs Marshbaum is clearly unable to undertake any sport requiring forward reaching or overhead activity with the left arm. That inability is permanent. At this stage, I believe it is unlikely that Mrs Marshbaum will require any further medical examinations, procedures or other treatment, other than possible left shoulder physiotherapy. As indicated above however, Mrs Marshbaum might develop secondary osteoarthritis in the left shoulder. If this were to be the case, significant surgical intervention, possibly even shoulder replacement, might ultimately be required. I am unable to quantify that risk. I am unable to accurately answer your 9 th and 10 th questions, regarding care required following hospitalisation and future needs for domestic assistance. In general terms, Mrs Marshbaum was effectively unable to use her left upper limb for any but the most basic of activities (using a knife and fork and little else) for the first three months following her injury. For the subsequent three months, she was certainly unable to use the left upper limb for any strenuous household activities such as cleaning or washing. Subsequent disabilities would be best described by Mrs Marshbaum.”

At trial the plaintiff said that her condition plateaued shortly after the surgery in February 2008. After that surgery the plaintiff said that it was no longer painful to lift her arm up to shoulder height. She demonstrated the ability to abduct her left arm to shoulder height in the witness box. She was unable to raise it beyond that level. She was able to drive for about 20-30 minutes before her left arm became uncomfortable. She was able to drive from Longueville to the Eastern Suburbs to visit her mother and back home again on a weekly basis. When it was necessary for her to drive for longer distances (e.g. to the Northern Beaches) her husband would drive or she would take a taxi. She said that she now took taxis only rarely.

She was able to use public transport without difficulty. Her left hand and wrist remained a little swollen, but she had no difficulty rotating the left hand and wrist and using the hand. I was able to observe that the plaintiff’s left wrist did appear to be a little swollen.

The house where the plaintiff and her husband reside comprises four bedrooms, a study, three bathrooms, a lounge room, dining room and large kitchen. Her two sons have now left home, although on occasions one of them might stay at the house. The house is on two levels. There are no plans to sell the house or to downsize.

Before she injured herself, the plaintiff employed a cleaner to attend the house one day per week for six hours. The plaintiff and her husband had considered reducing her attendance to six hours per fortnight but as a result of the plaintiff’s injuries, the cleaner has continued to provide cleaning services for six hours per week.

The plaintiff’s evidence was that she was unable to use a vacuum cleaner, nor was she able to clean the bathrooms and that these were jobs which the cleaner now performs. The plaintiff was able to wipe down surfaces in the kitchen, but the cleaner scrubbed and mopped the floor, wiped down all the higher cupboards and cleaned the oven and fridge. From time to time the cleaner would also assist in ironing.

In relation to the washing and drying of clothes, the plaintiff’s husband assists in bringing down the basket of laundry and with hanging washing on the line. The plaintiff said that she was able to do the shopping and prepare meals. She said that she was unable to iron. The heavy things were sent out to an ironing service at the cost of $25 per week and the smaller articles were ironed by either the cleaner or her husband.

The plaintiff’s husband is the President of the Cremorne Synagogue. He and the plaintiff are active participants in the Jewish religion. His position in the synagogue requires that he provide a meal for up to 20 people, approximately six times a year, when important Jewish holidays occurred. Whereas the plaintiff was able to cook for those meals before she was injured, she now requires some assistance particularly when lifting pots and in doing the washing up at the end of the meal. The plaintiff now needs to employ a helper for about six hours on the occasion of these large meals.

At the time of trial the plaintiff described her condition as follows: “Q. How do you find living with on a daily basis the shoulder injury? A. I do the best I can, but it’s uncomfortable, it’s restricting and it impedes me a lot from what I would like to be doing. Q. When you say it is uncomfortable what do you mean, is it painful? A. It's not painful as such but my arm feels heavy and wooden and leaden and hard to move.” (T.40.43)

The plaintiff’s husband has a background in banking and management. He and a partner manage companies which run shopping centres in Queensland and other parts of Australia. Mr Marshbaum is the finance director of the companies which run the various shopping centres. From about 1995 he has worked from home. This places him in a good position to provide assistance to the plaintiff.

The plaintiff’s husband has provided her with a considerable amount of care. She was extremely disabled in the first three months and required his constant attention on a daily basis. She was unable to drive herself until approximately October 2007. Until that time he had to do all the driving which included attending medical appointments, or the plaintiff had to use taxis.

Mr Marshbaum identified the following tasks which he still performs for the plaintiff despite her improvement following the February 2008 operation: (i) Assisting her dressing and undressing, particularly with her brassiere and swimsuits. (ii) Hanging washing on the line and taking it in. (iii) Getting shopping in from the car and putting it away. (iv) Washing up and clearing the kitchen and dining room. (v) Certain cooking activities such as stirring pots and putting heavy items into and out of the oven. (vi) Cleaning out cupboards and other areas which were difficult to reach. (vii) Ironing. (viii) Driving when long distances are involved such as to Homebush or the Northern Beaches.

When describing in detail the sort of assistance he now provides for the plaintiff, Mr Marshbaum said that he tried to “make things easier for her” and that he performed tasks because it was “more efficient for me to do them”. He said that it was necessary for him to perform some tasks because the plaintiff had lost her fitness and became tired very easily.

Evidence was given concurrently by two occupational therapists: Ms Middleton, who had assessed the plaintiff on behalf of her solicitors and Ms Mackenzie, who had assessed her on behalf of Loose Fit. The two occupational therapists prepared a joint report dated 17 September 2010 before they gave their evidence. As with the experts on liability, there was a large measure of agreement between the occupational therapists as to the plaintiff’s need for assistance since the accident.

They both agreed that from February 2008 the plaintiff’s need for gratuitous assistance was approximately five hours per week. In reaching that figure, both occupational therapists accepted that the plaintiff now had a need for the paid assistance of a cleaner for six hours a week. Their assessment of a need for five hours of gratuitous assistance per week assumed that six hours of paid cleaning assistance would continue to be provided.

They agreed that the plaintiff from February 2008 has been and would continue to be unable to use a vacuum cleaner, mop floors, clean shower recesses, bath tubs and toilets, wash windows, make beds, change linen, hang out washing, or take in washing from the clothes line, carry laundry, mow lawns and lift and carry shopping bags from the car into the house. They disagreed on the question of whether the plaintiff could iron clothes. Ms Middleton thought that the plaintiff could undertake small amounts of ironing for short periods of time if the ironing board were set up ready for use but would have difficulty with larger items which required the use of both arms to manoeuvre them on and off the ironing board. Ms Mackenzie thought that the plaintiff could perform a large amount of the ironing if she utilised an ironing press.

On this issue I am inclined towards the opinion of Ms Middleton. I accept that the plaintiff would find it difficult to iron for longer than 20-30 minutes, and even then would require some assistance. I accept that she would still have difficulty positioning clothing on an ironing press, even if one were available to her.

The occupational therapists disagreed as to whether the plaintiff was able to comb and style her hair. Ms Middleton accepted that the plaintiff was able to comb her hair, but did not think that she would be able to style it or dry her hair using a hairdryer, brush or other styling tools because of the need to raise her left arm above shoulder height. Ms Mackenzie thought that the plaintiff would be able to adequately brush and dry her hair with the provision of aids, including a long-handled brush and comb and a hairdryer stand. She thought that this would achieve styling to a satisfactory standard, although perhaps not to the standard previously attained by the plaintiff before her injury.

The plaintiff’s claim was that because of her inability to properly style her hair, it was necessary for her to attend a hairdresser on a weekly basis. On this issue I incline more towards the opinion of Ms Mackenzie. The plaintiff wore her hair short and I believe she could style it to a reasonably acceptable standard with one hand. I accept, however, that on occasions when she was required to attend social functions, she may need to utilise the services of a hairdresser and that consequently, as a result of the accident, it would be necessary for her attendances on a hairdresser to be more frequent.

The plaintiff said that before her accident she had a busy social life. She has been able to resume that social life without too many difficulties since the February 2008 operation.

The plaintiff attended Professor Sonnabend on 22 July 2010 to enable him to provide an updated report as to her condition. I have some difficulty with this report. It primarily comprises a list of complaints which the plaintiff made to Professor Sonnabend on that occasion. The only examination consisted of the plaintiff carrying out movements with her left arm. Significantly, the limitations of movement recorded by Professor Sonnabend were greater than those demonstrated by the plaintiff in the witness box, particularly adduction and extension. Nevertheless, the complaints made by the plaintiff were generally consistent with those which she made in her evidence. The plaintiff continued to have difficulty getting to sleep and staying asleep because when she turned onto her left side, this tended to produce pain and wake her up. Putting on tight garments, which needed to be pulled over her head, was difficult and it had been necessary for her to have some of her clothes modified so that she was able to put them on without assistance.

The complaint recorded by Professor Sonnabend that the plaintiff’s left arm was both stiff and painful was different to the evidence given by the plaintiff in Court which was to the effect that movements of her left arm below shoulder level were painless but that on occasions, particularly after use, the left arm felt heavy and wooden. Professor Sonnabend thought that the plaintiff’s condition had stabilised and that there was no realistic prospect of further improvement in left shoulder function. He once again warned about the possibility of her developing osteoarthritis in later years.

It is against that background that I have to assess the plaintiff’s damages. Non-economic Loss

Damages for non-economic loss have to be assessed in accordance with s16 CLA. It is therefore necessary for the Court to assess the severity of the plaintiff’s injuries by reference to a most extreme case.

While I am conscious that the plaintiff had very considerable difficulties with her left arm and shoulder in the 15 months following her fall until the final operation in February 2008, it seems to me that she has made a reasonable recovery. The regional pain syndrome affecting her left arm has substantially resolved and except for the interference with her sleep, the pain in her left arm and shoulder has also resolved. What she has been left with is the inconvenience and irritation of having to depend upon others to provide assistance for her where heavy or awkward use of the left arm and shoulder is involved. She will have to put up with that inconvenience and irritation for the rest of her life. Assessing those matters against a most extreme case, I have concluded that an appropriate award of damages to the plaintiff under this heading would be 32 percent of a most extreme case, i.e. $150,000. Paid Care

The evidence on this issue was all one way. The occupational therapists, the plaintiff and her husband gave evidence (which was not challenged) that whereas the employment of a cleaner for six hours per week before the accident was a matter of choice, it had now become a matter of necessity in that the plaintiff was simply unable to perform those heavy cleaning tasks following the accident. The relevant principle was best explained by Basten JA in Teuma & Anor v CP & PK Judd Pty Ltd [2007] NSWCA 166 at [94 – 95]: “94 There are only two issues raised by a claim for the value of domestic services. The first is whether the need for such services to be provided by another was created by the accident; the second is to establish the commercial value of those services. 95 In relation to the first question, the fact that such services were being provided, whether on a gratuitous or paid basis, prior to the accident, is beside the point. If the injured person requires assistance in carrying out the garbage and doing similar “heavy work” around the home, it does not matter whether she did that before the injury, whether if she did not it was done by a paid housekeeper, or was undertaken by her husband or other partner. This conclusion is to be derived from the joint judgment of Mason CJ, Toohey and McHugh JJ in Van Gervan v Fenton (1992) HCA 54, (1992) 175 CLR 327 at 338. … “

Because the claim is for paid care, s15(2)(c) CLA has no application.

At the time she was injured the plaintiff was paying $30 per hour to her cleaner. Accordingly, her entitlement to damages for that past paid assistance is ($180 per week for 202 weeks) - $36,360.

The plaintiff has a future life expectancy of approximately 24 years. Applying the 5 percent tables to the claim for future paid assistance of $180 per week, produces a figure of $132,800.

It was agreed between the parties that the plaintiff’s claim for taxis was $950 for the past. I accept that it was reasonable for the plaintiff to use taxis on occasions when her husband was unable to drive her and that in the circumstances, a figure of $950 is also reasonable. This is so despite the absence of receipts. I propose to allow that amount. The plaintiff did not make any claim for taxis for the future.

It was agreed between the parties that the plaintiff’s out-of-pocket expenses for the past, including medical expenses and the use of an ironing service amounted to $39,419.57. This figure is allowed.

The plaintiff made a claim for alterations to clothing necessitated by the accident in the amount of $4,670.00. Since those alterations would have reduced the amount of gratuitous assistance needed by the plaintiff, both for the past and future, that claim is reasonable and I allow it.

The plaintiff claimed an amount of $3,050 for property damage. The background was that the plaintiff apparently damaged a diamond ring in the fall. This claim is for the cost of repairs and also the reduction in value of the ring which she alleges resulted from the damage. There was no oral evidence led to support this claim. Exhibit F was tendered. It comprised a receipt for $800 dealing with repairs to a diamond ring and two valuations of a diamond ring, one dated 17 June 2003 for $19,000 and the other dated 18 September 2008 for $16,750. The Court was invited to draw the inference that as a result of the damage done to the ring, its value had reduced by approximately $2,250.

In the absence of any expert evidence to that effect, I am not prepared to draw that inference. While it is likely that the valuations refer to the same ring, there are a number of other explanations for why the later valuation might be less. I propose to allow the cost of the repair to the ring and nothing else, i.e. $800.00.

The plaintiff made a claim, pursuant to s15B CLA for her inability to visit her mother-in-law between the date of the accident and October 2007 when she resumed driving. Before the plaintiff’s accident a carer was employed for two hours per week to visit the plaintiff’s mother-in-law. In addition the plaintiff would visit her mother-in-law twice a week for one or two hours at a time. Following the plaintiff’s accident, a second carer was employed so that the plaintiff’s mother-in-law was still visited three times per week. The plaintiff claimed $4,950 to cover the cost of the two additional paid visits to her mother-in-law per week.

Section 15B(2) CLA sets out the preconditions which have to be satisfied before damages can be awarded under the section. It provides: “15B(2) Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that: (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of “dependants” in subsection (1) - the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants: (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.”

While preconditions 15B(2)(a) and (b) have been satisfied, preconditions 15B(2)(c) and (d) have not. I am not satisfied that there is a reasonable expectation that, but for the injury, the claimant would have provided services to her mother-in-law for at least six hours per week. Her evidence was that before she was injured, she was providing those services twice a week for between one and two hours at a time. Accordingly, the requirements of s15B(2) have not been made out.

As the High Court pointed out in CSR v Eddy [2005] HCA 64, (2005) 226 CLR 1 there is no common law entitlement to damages of this kind. Accordingly, unless the plaintiff comes within s15B CLA, she has no entitlement to those damages. She has failed to bring herself within s15B and that part of her claim fails.

The plaintiff claimed $25 per week for the next 24 years to take account of the costs of sending out heavy items to be ironed. There was no challenge to the cost of $25 per week and this was corroborated by the receipts in exhibit H. I have already accepted the reasonableness of the plaintiff’s claim for the cost of sending heavy items out to be ironed. I propose to allow the plaintiff’s claim for future paid ironing services at the rate of $25 per week for the next 24 years, i.e. $18,450.

The plaintiff made a general claim for future out-of-pocket expenses. It was clear that the plaintiff was not currently incurring any medical expenses in relation to her injuries and had not done so since early 2008. However, the Court was asked to take into account the possibility identified by professor Sonnabend, that the plaintiff might develop arthritis in the future which would involve the incurring of significant expense. The Court was asked to award a cushion to have regard to that possibility.

Professor Sonnabend was not able to quantify the chance that arthritis may develop. He made it clear that if arthritis did develop, it could involve significant medical expense. That evidence was not challenged. Accordingly, I have to give a value to the chance that arthritis might develop in the future and involve the incurring of further substantial medical expenses by the plaintiff. I propose to allow a figure of $10,000 for future out-of-pocket expenses.

There are two other items in the plaintiff’s claim in relation to which the evidence was rather unsatisfactory. The first is the claim for additional assistance when preparing special meals as a result of the position of the plaintiff’s husband in the Cremorne Synagogue. There was no evidence as to how long he was likely to occupy this position but there was evidence of additional paid assistance being required as a result of the plaintiff’s accident at the rate of six hours per meal, six times a year. No figures were put forward for the past or future. On the assumption that there would be a need to provide such meals for the next 10 years, I propose to allow damages of $10,000.00. That amount includes any claim for the past. It also has regard to the likelihood that with advancing age the plaintiff would require help of this kind in any event.

The other item of damage which was raised with the Court, somewhat belatedly after submissions had been completed, was the plaintiff’s claim for the additional cost of having to attend a hairdresser because of her inability to properly style her hair on occasions when she had to attend a social gathering. I have already found that the plaintiff is entitled to damages for that claim. The difficulty is that no evidence was placed before the Court as to the nature of the additional hairdressing required or its cost. Doing the best I can, I propose to make an allowance in favour of the plaintiff of $7,500. That figure includes any claim for the past. Gratuitous Care

It seems clear from the plaintiff’s evidence and that of her husband, supported by the analysis of the occupational therapists, that for approximately seven months following the accident, the plaintiff needed and was receiving gratuitous assistance of at least 40 hours per week. Accordingly, the plaintiff is entitled to damages under s15(3) CLA at the maximum rate for the first 28 weeks following the accident, i.e. an average of $902 per week. That produces a figure of $25,256.00.

The situation between June 2007 and February 2008 is not altogether clear. The occupational therapists were of the opinion that there was a need for gratuitous services of at least 6 hours per week during that period. Mr Marshbaum’s evidence was that he was providing approximately 14 hours per week of gratuitous assistance until October 2007 and thereafter 7 hours per week.

I accept that Mr Marshbaum did provide gratuitous assistance of that order between June 2007 and February 2008. As the occupational therapists appreciated, however, that is not the test. The test is the need of the plaintiff and the extent to which that need was met. Since Mr Marshbaum in his evidence did refer to the assistance which he gave being intended to make things easier for the plaintiff, and to circumstances where it was more efficient for him to do certain things, I am of the opinion that the plaintiff’s actual need during that period was not as extensive as the services provided by her husband and that it was closer to the assessment made by the occupational therapists. I propose to allow in the plaintiff’s favour 7 hours per week gratuitous assistance at $22 per hour for the period June 2007 until February 2008, i.e. 34 weeks at $154 per week, $5,236.00.

From the end of February 2008 to date and continuing, the occupational therapists assessed the need for gratuitous services of the plaintiff to be 5 hours per week. Mr Marshbaum assessed the level of gratuitous assistance, which he has been providing during that time at 7 hours per week. For the reasons I have already indicated, I regard the assessment of the occupational therapists as being more accurate. This then raises the question of whether 5 hours of gratuitous assistance per week from February 2008 satisfies the requirements of s15(3) CLA which provides: “15(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months.”

The plaintiff submitted that she was entitled to damages under s15(3) because on a proper reading of the section, it was necessary to combine the amount of paid services which she was receiving with the gratuitous services and if the aggregated result was greater than 6 hours per week, the requirements of the section were satisfied. I do not agree. The section clearly refers to gratuitous services only and the fact that a plaintiff may also be receiving paid assistance at the same time is irrelevant to the section’s operation. The word “services” as used for the second time in s15(3), clearly refers to “gratuitous attendant care services”.

In the alternative, the plaintiff submitted that once 6 hours of gratuitous services had been provided for at least 6 months, it did not matter if the number of hours of gratuitous services were reduced thereafter. This was because the precondition for the operation of the section had been satisfied and damages could then be awarded.

I do not agree. This was the very issue identified by the Court of Appeal in Harrison v Melhem [2008] NSWCA 67 when it considered s128 Motor Accidents Compensation Act 1999 as it was then worded. The Court contrasted the wording of s128(3) MAC Act in the form in which it then was with s15B CLA. The Court held that the wording of s15B still required that both thresholds be met (i.e. assistance for more than 6 hours per week for more than 6 months) whereas the then wording of s128(3) MAC Act only required that the two preconditions be regarded as alternatives.

It was in answer to the decision in Harrison v Melhem that the NSW Parliament passed the Civil Liability Legislation Amendment Bill 2008. That Bill amended not only s128(3) MAC Act, but also the gratuitous care provisions of the CLA. The amending Act provided that compensation was not to be awarded unless services were provided for at least 6 hours per week and for a period of at least 6 consecutive months. The amending Act restored the pre Harrison v Melhem situation where, as was held in Roads and Traffic Authority (NSW) v McGregor [2005] NSWCA 388, the entitlement to voluntary domestic assistance only continued so long as the services provided continued at or in excess of 6 hours per week. Hidden J followed the same approach in Allianz Australia Insurance Ltd v Roger Ward ([2010] NSWSC, Hidden J, unreported, 6 July 2010).

The amending act was assented to on 5 November 2008. The amendment to the CLA applied to claims already made but not to proceedings that had already been determined. The Court of Appeal considered the question of whether the amending Act could have retrospective effect in that way in Cai v Zheng [2009] NSWCA 13 at [65 79]. Although Cai v Zheng has in part been overruled by the High Court, leave to appeal on this issue was refused and this part of the decision in Cai has been followed in other cases. It follows that the amendments to s15(3) of the CLA apply to this case.

For those reasons I have concluded that, since the evidence only supports gratuitous services at a rate of 5 hours per week between February 2008 and the present time and for the future, the plaintiff’s claim under s15(3) CLA fails and she is not entitled to any damages under that section beyond the end of February 2008.

In summary, the plaintiff’s entitlement to damages is as follows: Non-economic loss $ 150,000.00 Past paid assistance by cleaner $ 36,360.00 Future paid assistance by cleaner $ 132,800.00 Past use of taxis $ 950.00 Past out-of-pocket expenses $ 39,419.57 Alterations to clothing $ 4,670.00 Repair to ring $ 800.00 Cost of future ironing $ 18,450.00 Future out-of-pocket expenses $ 10,000.00 Additional assistance for special meals $ 10,000.00 Additional hairdressing expenses $ 7,500.00 Past gratuitous assistance $ 30,492.00 Total $ 441,441.57 Orders

I make the following orders: (i) There will be judgment in favour of the plaintiff against the defendant for $441,441.57. (ii) The defendant is to pay the plaintiff’s costs of the proceedings. (iii) In the cross-claim by the defendant against Mr Kocx and Ms Hickie, there will be judgment for the cross-defendants. (iv) The defendant is to pay the cross-defendant’s costs. (v) I grant leave to the parties to approach the Court within seven days of the date hereof if any special costs orders are sought so that the Court can give appropriate directions for the hearing of that issue. 170 Following the handing down of judgment on Monday 11 October 2010, the Court was advised that an adjustment had been made to the schedule of damages to be awarded under the Civil Liability Act. As a result pursuant to Uniform Civil Procedure Rule 36.17 paragraphs [139], [168] and [169(1)] have been altered to reflect that change. In summary, $150,000 now replaces $142,000 in paragraphs [139] and [168] and $441,441.57 replaces the figure $433,411.57 where appearing in paragraphs [168] and [169(1)].