Moggridge v The Benevolent Society

1. [1]

   HER HONOUR: The plaintiff seeks damages for personal injuries sustained in a fall (“the fall”) that occurred on 29 April 2012 when he was in respite care at Rosemore Cottage (“the cottage”). Liability is strongly in issue.

2. [2]

   The plaintiff is Paul William Moggridge. The defendant is the Benevolent Society. It is the owner and occupier and had the care, control and management of the cottage at the time of the plaintiff’s injury.

3. [3]

   There are three main issues to be determined in this judgment. The first is liability, and the second and third relate to damages, namely whether the plaintiff is entitled to damages for non-economic loss and for past and future care.

Witnesses

1. [4]

   The plaintiff relied upon his evidentiary statement dated 8 December 2015 (Ex A, CB 26-30). Marilyn Moggridge (the plaintiff’s former wife) provided three statements dated 9 March 2018, 27 March 2018 and 28 March 2018 (Ex A, CB 34-39). Julia Larsen, a long-time friend of the plaintiff, provided two statements dated 10 January 2018 and 28 March 2018 (Ex A, CB 31-34). Janis Williams, the plaintiff’s carer at the cottage, provided a report dated 4 April 2018 (Ex 4). The plaintiff and all the witnesses gave evidence and were cross examined.

2. [5]

   Dr Brian Zeman, a consultant in rehabilitation medicine, provided a report dated 12 November 2014 and a supplementary report dated 20 January 2017 (Ex A, CB 334-345, 346-356).

3. [6]

   Dr Selwyn Smith, a psychiatrist, provided two reports dated 18 December 2015 and 19 December 2017 (Ex A, CB 262-267, 271-274) and a joint report with Dr Angelo Virgona, also a psychiatrist, dated 15 March 2018 (Ex A, CB 423-432). Dr Virgona provided two reports dated 26 May 2016 and 13 February 2017 (Ex A, CB 381-396, 397-404). Drs Smith and Virgona also gave conclave evidence.

4. [7]

   Dr James Bodel, an orthopaedic surgeon, provided two reports dated 9 November 2012 and 3 April 2014 (Ex A, CB 249-253, 256-259). Dr Roger Pillemer, also an orthopaedic surgeon, provided four reports dated 16 December 2014, 24 February 2015, 24 February 2015 (amended, p 2), and 12 January 2017 (Ex A, CB 362-375). Drs Bodel and Pillemer provided a joint report dated 9 February 2018 (Ex A, CB 414-422) and gave conclave evidence.

5. [8]

   The plaintiff relied upon the expert report on liability of Mr Timothy White dated 3 March 2018.

Background

1. [9]

   The plaintiff is currently 68 years of age. He married Marilyn Moggridge in 1978, and the two divorced in about 2015.

2. [10]

   The plaintiff and his former wife lived in Bega on a farm, “Wolumla”, prior to the accident. Before moving to Bega, the plaintiff and his wife ran a café at Cronulla. In 2012, after the plaintiff suffered a stroke which is discussed in further detail below, he and his wife moved back to Cronulla into a property that had been adapted to accommodate his disabilities.

Prior injuries

1. [11]

   Over the course of many years of surfing, the plaintiff suffered a number of injuries to his right shoulder. His shoulder injury was aggravated while building cattle yards on his farm.

Prior stroke and compensation

1. [12]

   On 1 July 2008, the plaintiff underwent an operation on his right shoulder to repair his rotator cuff. On 7 July 2008, while at home following his discharge from hospital, he suffered a stroke which resulted in left hemiplegia. He brought proceedings against the hospital in relation to his injuries and was awarded a settlement, the details of which are set out later in this judgment.

2. [13]

   The stroke left the plaintiff reliant upon the assistance of his wife, Ms Moggridge. He was able to feed himself, but required help to perform many other daily tasks. The plaintiff had been living with those injuries for over three and a half years when he was admitted to Rosemore Cottage in 2012.

3. [14]

   Prior to his fall which is the subject of these proceedings, the plaintiff mobilised by way of his wheelchair and on his feet with the aid of a three or four-pronged walking stick (“his stick”). He was able to walk several steps by himself with standby assistance. He was also able to transfer from his wheelchair to a recliner chair or other piece of equipment by steadying himself with his stick and right leg, and then pivoting on his left leg. He learned this technique for transfer while recovering from his stroke at the rehabilitation unit of the Royal Prince Alfred Hospital. Ms Moggridge and Julia Larsen, a family friend, gave evidence of the plaintiff’s abilities prior to the fall.

4. [15]

   Mrs Julia Larsen provided two witness statements dated 10 January 2018 and 28 March 2018, gave evidence and was cross examined. She had been a friend of the plaintiff and Ms Moggridge for around 18 years. Mrs Larsen stated that she was aware of the plaintiff’s stroke in 2008. When the plaintiff and his wife moved from Bega back to Cronulla, she saw them on a regular basis. She estimated that she saw the plaintiff once or twice per week, often at his house in a domestic environment. Mrs Larsen observed that Mrs Moggridge was providing most of the plaintiff’s care during that period, with the exception of some morning care provided commercially by Home Care. It was Mrs Larsen’s observation that Mrs Moggridge was able to manage the plaintiff on her own. Mrs Larsen also observed that the plaintiff could pivot on one leg, which was of considerable assistance to his wife in facilitating his transfers, since he was and remains a large person. I shall return to Mrs Larsen’s evidence later in this judgment, as her observations of the plaintiff after the fall are of further relevance.

Respite care at the cottage

1. [16]

   In 2012, the plaintiff and Ms Moggridge decided to book the plaintiff into a respite care facility for a fixed period of care from 23 April 2012. They chose Rosemore Cottage, a care facility in South-Eastern Sydney operated by the Benevolent Society. When booking the plaintiff into the cottage, Ms Moggridge had a conversation with an employee of the defendant, Ms Rupinder Sahota (T 181.7-20). Based upon their conversation, Ms Sahota prepared a carer profile for the plaintiff, which relevantly noted (Ex 5, p 5):

2. [17]

   The carer profile also records, “carer at risk: none known” (Defendant’s CB, p 4), whereas the recipient profile records “staff at risk: none known”; “recipient at risk (blank)” (Defendant’s CB, p 5). The accident/incident report and investigation form records the level of risk as being “extreme” (Defendant’s CB, p 22).

3. [18]

   On 25 April 2012 at 7:15 am, the progress notes record, “Very stiff and difficult to transfer…chair not to be operated as reliable” (Ex 5, Defendant’s CB, p 14). On 26 April 2012, the progress notes of the cottage record, “[The plaintiff] was very unsteady on his feet” (Ex 5, Defendant’s CB, p 13).

4. [19]

   Ms Marilyn Moggridge, the plaintiff’s former wife, provided three witness statements dated 9 March 2018, 27 March 2018 and 28 March 2018. She gave evidence and was cross examined at the hearing. Overall, I found her to be a truthful witness and I accept her evidence.

5. [20]

   It was Ms Moggridge who described the nature of the plaintiff’s condition to Ms Sahota at the cottage. At the time of the plaintiff’s admission, Ms Moggridge informed Ms Sahota that he had the following disabilities:

6. [21]

   Ms Sahota also prepared a care plan in relation to the plaintiff’s stay at the cottage. The care plan was similar to the carer profile. It relevantly noted (Ex 5, p 1):

7. [22]

   The care plan also noted that the plaintiff had slight brain damage, that he slept in his recliner, and that although he communicated well enough, he was not always cognisant in that he often forgot things and suffered from poor short-term memory. In relation to his propensity to fall, the plan noted that the plaintiff had to be careful in new surroundings. His mobility and movement were noted to be fine. He was described as continent and able to use a commode, but sometimes required assistance. The plan stated that it would be good to keep a night lamp on to help him. He was also noted to require assistance to dress and undress, and sometimes to shower and use the toilet.

8. [23]

   On 23 April 2012 as planned, Ms Moggridge drove the plaintiff to the cottage, where he was admitted at approximately 10:30 am. He and his wife had chosen the cottage because he did not want to be admitted to a hospital or an aged care facility. On arrival, the plaintiff was provided with information about the cottages and facilities at the Benevolent Society and then taken to his room. His evidence was that he was not aware of having undergone any formal assessment regarding his needs.

9. [24]

   At the cottage, the plaintiff was assigned a one-on-one carer. The plaintiff informed the staff that he preferred to sleep in a recliner chair, as it was easier for him to get in and out of it than a bed, and it assisted with transfers. During the first few days at the cottage, the plaintiff complained to staff about the recliner chair which they had provided for him. He recalled that on the first night, the recliner remote was not working and the foot rest would not go up or down. He required assistance from staff to move his leg back onto the recliner when it slipped off the chair. He also required assistance with positioning his body in the chair to relieve pressure. It is common ground that the staff were unable to manually adjust his positioning on the recliner chair, as they were concerned the recliner would tip.

10. [25]

    In an entry dated 29 April 2012 in the cottage’s event journal, Ms Sahota recorded the following (Ex 5, p 7):

11. [26]

    The plaintiff agreed that he told staff that he did not have a recliner at home. He said that as the recliner chair at the cottage was not working properly, he was told that he had to stay in bed.

12. [27]

    After the plaintiff suffered the stroke, he underwent extensive rehabilitation at Royal Prince Alfred Hospital. When he was discharged, he was able to pivot on his left leg (Ex 3).

13. [28]

    The plaintiff explained the process of pivoting as follows (T 35.39-50, 36.1-17):

14. [29]

    Mrs Moggridge gave evidence that even though the plaintiff was paralysed down his left-hand side, he was still able to transfer from one seat to another, be it a commode, recliner or wheelchair. To facilitate the transfer, the plaintiff would use his right (good) arm to stand with the benefit of his stick, and then pivot on his left (bad) foot into his new seat. He could perform this manoeuvre without direct physical assistance (Statement 28/3/2018 at [4]).

15. [30]

    Counsel for both parties canvassed the plaintiff’s ability to transfer prior to the accident. In cross examination, Mrs Moggridge gave the following evidence (T 192.35-50; T 194.19-43):

The fall

1. [31]

   In relation to the evidence surrounding the fall, Senior Counsel for the plaintiff reminded this Court of the decision of Dixon CJ in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371:

2. [32]

   This passage was approved in Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 at 8.

3. [33]

   The key issues of fact to be decided in relation to the fall are firstly, whether the recliner chair moved causing the plaintiff to fall, and secondly, whether the defendant failed to provide support to the plaintiff in the transfer.

4. [34]

   It was uncontroversial that the care worker who was assisting the plaintiff, Ms Williams, was employed by the defendant, and that the defendant was vicariously liable for any of her negligent acts or omissions in relation to the fall.

5. [35]

   Ms Williams gave conflicting accounts of how the accident occurred. In a matter such as this, where determination of critical issues of fact will involve an evaluation of oral evidence of disputed events, it is well established that the process of fact finding should be informed as far as possible “on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118; 197 ALR 201 at [31] per Gleeson CJ, Gummow and Kirby JJ.

6. [36]

   It is common ground that on the day of his fall, the plaintiff showered and was being transferred from the commode to the recliner chair. A photograph showing a similar recliner chair is shown in Ex D and reproduced here.

7. [37]

   Before I analyse the conflicting accounts as to how the accident occurred, it is appropriate that I record my findings on the credibility of the plaintiff and Ms Williams.

8. [38]

   The plaintiff has a mild neurocognitive disorder as a result of his 2008 stroke. I have approached my task in these proceedings by taking into account that the plaintiff suffers from short-term memory loss, and I have made some allowance for it. Nevertheless, I have reservations in accepting some of his evidence. I observed the plaintiff carefully when he gave evidence and was cross examined. Dr Angelo Virgona, psychiatrist, recorded that the plaintiff could be vague about details and at times would return to themes repeatedly (CB 388, report 26/5/2016, p 8). My observations accord with Dr Virgona’s findings. One of the themes to which the plaintiff frequently returned was his opinion that Australian care was unsatisfactory. I accept his evidence where it is undisputed or corroborated by Ms Moggridge, Ms Larsen and/or the contemporaneous documents.

9. [39]

   Ms Janis Williams was Mr Moggridge’s carer at the cottage and witnessed his fall. She no longer works for the defendant, and has not done so for a number of years. At the time of the fall, she completed a contemporaneous incident report and notes. Those documents were to a large extent consistent with her evidence in these proceedings. Her evidence was that she recalled the circumstances of the plaintiff’s fall clearly, as she was traumatised and felt she had “lost a client”. She had no reason to lie at the time of the event, and none at the time of these proceedings.

10. [40]

    I also carefully observed Ms Williams as she gave evidence and during cross examination. Ms Williams was the author of contemporaneous reports written shortly after the accident. She admitted to having recent problems with her memory, as she has noticed that she is becoming forgetful (T 347.43). I accept her evidence as being reliable where it is corroborated by earlier written documentation. So far as her latter statement of 4 April 2018 is concerned, I accept her evidence where it accords with her earlier reports, or where her explanation logically fits with what is recorded there. There is one exception, and is that where she recorded in her earlier statement that the plaintiff was using a walking frame. On that issue, I prefer the evidence of the plaintiff, Ms Moggridge and Ms Larsen that the plaintiff cannot use a walking frame. I will explore that finding in further detail later in this judgment. Finally, at times when giving evidence, such as on the topic as to whether or not the plaintiff hit the recliner chair, Ms Larsen was prepared to accept that her more recent evidence was incorrect.

11. [41]

    The plaintiff, in his statement dated 8 December 2015, briefly described the accident as follows (Ex 1):

12. [42]

    The plaintiff gave the following evidence in cross examination (T 70.40-45; T 72.10):

13. [43]

    The plaintiff was adamant that because he did not have his stick with him as an aid with which to balance himself, he placed his band on the back of the recliner chair, which slid away from him. The plaintiff said that he did not know where his stick was at the time. He denied that he had a walking frame with him at any point, as he cannot use one (T 34.38-50). The plaintiff later explained in cross examination that it would be impossible for him to use a walking frame because he “only has one arm”, and that he has never used a walking frame (T 66.15-20). At another point, he said that he had not had a walking frame with wheels in his home prior to late 2010 (T 84.10), because his gait swings from the hip and does not allow him to use a walking frame.

14. [44]

    Ms Moggridge provided the following evidence during cross examination (T 184.47-50, 185.1-15), which supports the plaintiff’s evidence that he did not use a walking frame:

15. [45]

    The defendant noted several inconsistencies with the plaintiff’s evidence concerning the wheeler. As part of the plaintiff’s case in relation to his stoke, he was visited by an occupational therapist, Ms Glynis Flanagan, who noted that there was a wheeler in his home. The plaintiff relied on Ms Flanagan’s report, dated 13 April 2010, as part of that case. The defendant argued that the occupational therapist was only one of many people who the plaintiff has claimed, for the purposes of these proceedings, to have wrongly recorded information about him. The defendant noted that in the plaintiff’s first case, he claimed for the cost of a wheeler and its replacement.

16. [46]

    On the available evidence, I accept the plaintiff and Ms Moggridge’s evidence on this point of fact. Their evidence was that the plaintiff was physically unable to use a walking frame at the time of his fall, and relied on his stick. Hence, I find that the plaintiff did not use a walking frame while he was at the cottage.

17. [47]

    The plaintiff’s evidence was that he could not be entirely sure whether the care worker was standing behind him or to his side, but he was sure she ended up on top of him in the fall. Once he was on the ground, he noticed pain in his knee, leg and up his left side. The plaintiff said that he was in too much pain to notice whether the care worker was injured (T 35.10).

18. [48]

    Ms Janis Williams was the nurse/care worker on duty during the plaintiff’s stay at the cottage. She was on duty caring for the plaintiff at the time of the accident. She relied upon her evidentiary statement dated 4 April 2018 (Ex 4), and was cross examined. She has been a carer since August 2008, and set out her qualifications in her affidavit at [16]. I need not reproduce them other than to say that she is a qualified and experienced carer. She has attended courses arranged by the defendant on a variety of different subject such as caring, manual handling and work, health and safety. She has kept her qualifications up to date.

19. [49]

    In her evidentiary statement, Ms Williams described the recliner chair and the accident (Ex 4, [81]-[105]). She says that she was with the plaintiff when he fell, and that she recalls the incident as follows:

20. [50]

    In her clinical notes, Ms Williams recorded that after finishing his shower at 11:45 am, the plaintiff insisted on sitting in his recliner chair even though she had advised him that it was not working. Ms Williams then wrote that in the process of transferring the plaintiff from the commode chair to his recliner chair, his leg began to shake. The shaking stopped for a moment and then started up again. Ms Williams wrote that the plaintiff was facing the chair, and was unable to turn his body around. She was unable to hold him. He was initially holding his walking frame, but could not steady himself with it once his leg began to shake. He then slipped downwards onto the floor and yelled out that he thought he had sustained damage. Ms Williams wrote that she put a pillow under the plaintiff’s head and covered him with two blankets before calling the ambulance and the centre. She recorded that she then left everything the way it was and put the sofa back in the right position, as the ambulance officers had moved it in order to get the stretcher in.

21. [51]

    Her notes record (Ex 4, p 45):

22. [52]

    The report then recorded at 2:30 pm that Ms Williams had a conversation with Ms Sahota and Ms Moggridge. Phone numbers were left with St George Hospital so that the hospital could ring when the plaintiff was ready to be picked up (Ex 4, p 46).

23. [53]

    After the accident occurred, Ms Williams prepared a contemporaneous report titled “Accident/Incident Report & Investigation Form” dated 29 April 2012. It reads (Ex 5, p 21):

24. [54]

    According to Ms Williams, the plaintiff fell while he was positioned in-between the recliner chair and the sofa. The recliner was to his left and the sofa to his right. There was only about a metre between them. He was using his walking frame to move from a commode chair to the recliner. During cross examination, Ms Williams gave the following evidence on the topic as to where Mr Moggridge was when he fell (T 397:1-25):

25. [55]

    Ms Williams said that she wheeled the plaintiff into the lounge room on the commode chair and then stopped just in front of the recliner so that he had enough room to get up from the commode chair and onto his feet, which he was capable of doing. Once he was on his feet, she moved the commode chair back from behind him and out of the way. She then got into position in front of him, so that she could support him as he twisted around to sit in the recliner. Ms Williams said that she tried to steady him with her hands on either side of his hips to help him twist at a slow and measured pace. It was while he was in this position that he suddenly seemed to suffer a spasm.

26. [56]

    Ms Williams said that she believed that the plaintiff’s spasm started in his right leg. It then moved to his whole body. His whole body seemed to be shaking and there was nothing she could do to steady him. He was unable to remain standing, and fell to the floor between the recliner and the sofa. Given the plaintiff’s size and weight, Ms Williams said there was nothing she could have done to stop him from falling. Ms Williams said that in the week preceding the fall, she had never seen him suffer any spasm or similar, and had no reason to suspect or anticipate that a spasm would occur on the morning of 29 April 2012. Ms Williams said that she did not fall of top of him. She was standing in front of the plaintiff when he fell, and he fell to the side.

27. [57]

    Ms Williams denied in her statement that the plaintiff fell because the recliner moved. She said he did not fall against the recliner chair, and that his weight did not push it along the floor. He fell directly onto the floor.

28. [58]

    However, Ms Williams provided inconsistent oral evidence as to whether the plaintiff hit the recliner chair during his fall. During examination in chief, Ms Williams provided the following evidence (T 287.5-25):

29. [59]

    During cross examination, Ms Williams then said (T 402.5-20):

30. [60]

    Ms Williams then gave the following evidence at the hearing during examination in chief (T 284.1-14):

31. [61]

    However, later in cross examination, Ms Williams said (T 391.29-39):

32. [62]

    The exchange with Ms Williams continued (T 394: 25-50):

33. [63]

    During cross examination, Ms Williams further conceded that on this occasion, the plaintiff may have used the recliner chair itself as support for his right arm in place of the support he would have ordinarily received from his stick (T 399.44-50; T 400.1-5). When she was initially asked whether the recliner chair had wheels, Ms Williams said that she did not recall. However, she was of the view that the chair never moved. When asked about whether she locked the wheels on the recliner chair, Ms Williams said that she did not (T 400.25-T 402.15-25):

34. [64]

    Ms Williams gave evidence that in addition to the plaintiff’s whole body shaking, he appeared to experience something “like a seizure” (T 398.1-5). Ms Williams qualified her statement by saying that she did not mean to assert that the plaintiff had in fact had a seizure (T 398.10). Ms Williams acknowledged that if the plaintiff had in fact been suffering a seizure, she would have been required to inform the ambulance officers that it had occurred (T 402.35).

35. [65]

    Ms Williams gave conflicting accounts in relation to the accident. In her written statement, she indicated that the plaintiff had not come into contact with the recliner chair during his fall. However in oral evidence, Ms Williams indicated that the plaintiff did come into contact with it. It is apparent that Ms Williams’ current memory of the accident is not altogether clear. Ms Williams also gave oral evidence that she did not recall whether or not the recliner chair moved during the accident. In cross examination, she stated that she could not recall whether the recliner chair had wheels.

36. [66]

    In the cottage’s event journal, Ms Sahota recorded (Ex 5, p 7):

37. [67]

    In the nursing notes, Ms William recorded (Ex 5, p 19):

38. [68]

    The ambulance report was unsurprisingly consistent with Ms Williams’ version of events, as it was Ms Williams who called the ambulance. The report is hard to decipher but identified the plaintiff’s chief complaint to be a left knee injury. Under the heading “Patient/Incident history”, the report reads (Ex 8):

39. [69]

    The ambulance report does not mention the plaintiff’s use of a walking frame or a stick. As a result of the fall, the plaintiff sustained a fracture of the left hip and of the medial femoral condyle of the left knee, and was transported to St George Hospital.

40. [70]

    The plaintiff relied upon a report of Mr Timothy White dated 31 March 2018. He reviewed photographs (Ex D) of a recliner chair that was mounted on four swivelling castors. Although there had been some doubts that the photographs were of the actual recliner chair, counsel for the plaintiff confirmed that the photographs do show the recliner chair involved in the fall (T 273.1).

41. [71]

    The chair was fitted with four castors. It was Mr White’s opinion that two of the four castors which were fitted to the rear of the chair were lockable, in that they were fitted with levers to actuate brakes that prevented rotation of the wheels.

42. [72]

    Mr White was unable to source an exemplar rear castor during preparation of his report. He therefore concluded at [14] that he could not provide particulars in relation to how actuation of the lever of the recliner chair’s rear castors would in fact brake or lock the rotation of the wheels. However, he was of the firm opinion that the photographs he had been provided showed evidence that the two rear casters on the recliner chair were fitted with a brake or lock. When applied, those locks (if performing more or less as they did when the castors were new) would likely prevent the wheels of the castors from rotating when the chair was subject to a sideways or rearward force.

43. [73]

    The photograph and the contents of Mr White’s report indicate that the recliner chair had wheels underneath it. However, as the expert did not physically inspect the recliner chair other than through the photographs, he was not in a position to express an opinion as to whether the wheels or their locks were in working condition, nor whether the recliner chair could be moved.

44. [74]

    Paragraph 8 of the statement of claim pleaded:

45. [75]

    It was the plaintiff’s case that as he was being assisted in transferring from a commode chair to the recliner chair, he placed his hand upon the back of the chair to help balance himself. He did not have the use of his stick. The recliner chair moved, unbalancing him and causing him to fall to the ground, where he sustained injuries. In the process, Ms Williams let go of him and fell on him.

46. [76]

    The plaintiff argued that the wheels on a commode or recliner chair needed to be locked for the purposes of safely transferring a person from equipment like a commode to a recliner chair. Both the photos (Ex D) and the expert report of Mr White (Ex C) showed that the recliner chair had wheels which could lock the chair into place and prevent it from moving. However, the plaintiff argued that the recliner chair’s wheels were either not locked or not able to be locked because it was defective. The recliner chair was faulty in a number of respects, many of which were noted in the cottage’s documents (Defendant’s CB, pp 7, 13-15). The chair’s defects were serious enough that the plaintiff had to be changed from sleeping in the chair to the bed. The plaintiff argued that Ms Williams ought to have at least locked the chair’s wheels, or in light of the chair’s condition, removed it from use entirely.

47. [77]

    The plaintiff submitted that the defendant had direct responsibility for providing proper equipment to the residents of the cottage, including the recliner chair. The plaintiff argued that the recliner chair moved and/or was defective, and must have been so for some time.

48. [78]

    Because the chair was in constant use, the plaintiff argued that the clear inference was that the defendant either knew about its condition and did nothing, or did not notice it. The defendant presented no evidence that there existed any system of inspection or maintenance of the chair. Ms Williams simply insisted that the chair could not and did not move. Presumably, Ms Williams represented the best evidence the defendant could put forward on the issue of the chair’s condition. The plaintiff argued that the defendant’s failure to provide any physical evidence about the chair supports the plaintiff’s case that no such evidence exists. The plaintiff argued that on the available evidence, the proper finding should be that the recliner chair was defective.

49. [79]

    Further, it was the plaintiff’s evidence that he usually relied on his stick. Ms Williams gave evidence that the plaintiff was using a walking frame on wheels. The plaintiff argued that her evidence made no sense, as the plaintiff unequivocally denied ever using a walking frame on wheels, and gave consistent evidence concerning the central role his stick played in his mobility. Ms Moggridge was also adamant that the plaintiff had never used a walking frame with wheels. The plaintiff asserted that if, in spite of the evidence to the contrary, the defendant still insisted that the plaintiff was using a walking frame on wheels during his admission to the cottage, its use was clearly inappropriate for the plaintiff’s needs, since he had a paralysed left arm.

50. [80]

    The defendant also asserted that the plaintiff fell because his body began to shake. However, the plaintiff argued that Ms Williams’ evidence on that issue was both inconsistent and exaggerated. The plaintiff denied that he suffered from any degree of shaking during his stay at the cottage. In any event, the plaintiff argued that if he had been prone to such bouts of shaking, his condition should have been re-assessed by the defendant.

51. [81]

    When explaining how he fell, the plaintiff described using the back of the recliner in place of the stick, after which the recliner “slid away” (T 34.5). The plaintiff argued that under circumstances where he did not have the support of his stick, it was all the more important to his safety that the recliner chair be stable.

52. [82]

    On the available evidence, the plaintiff concluded that the proper finding should be that the recliner chair moved during the plaintiff’s transfer to it, and that the defendant was liable for the plaintiff’s injuries caused by the chair’s movement.

53. [83]

    The defendant submitted that in order to find for the plaintiff, the Court would need to:

    1. (1)

       reject the evidence of Ms Williams completely, because on any view her version cannot stand with that of the plaintiff;

    2. (2)

       find that, contrary to the evidence of Ms Williams, the recliner chair moved;

    3. (3)

       find that the chair moved because of the negligence of the defendant, in circumstances in which there is no evidence, either from the plaintiff or the defendant, that the recliner chair moved at any earlier stage, or that there was any reason why the recliner chair would suddenly move at the time of the plaintiff’s fall;

    4. (4)

       find that the contemporaneous incident report is simply false;

    5. (5)

       find that the notes recorded by Ms Williams on the day of the incident were also simply false;

    6. (6)

       find that the information recorded in the NSW Ambulance report is false; and

    7. (7)

       find that the statement by Ms Williams in which she described what happened is also false.

54. [84]

    To a large extent, the plaintiff’s case on liability depends upon the Court rejecting the evidence of Ms Williams as well as rejecting as false, wrong or inaccurate all of the contemporaneous documents completed at the time of the incident, as well as almost all of the records of the care facilities which the plaintiff attended subsequent to the incident.

55. [85]

    The plaintiff gave evidence to the effect that he fell because the recliner chair moved. Ms Williams, who witnessed the fall and completed both an incident report on the day and an entry in the facility’s notebook as to how the incident occurred on the day, says that the chair did not move. She was there and gave evidence that she had a clear recollection of the incident. Her evidence was that the chair was so huge and heavy that staff had difficulties moving it to try to clean and get things out from behind it.

56. [86]

    Ms Williams was uncertain about some matters about the plaintiff’s stay at the defendant’s facility. Her uncertainty must be viewed not only as completely natural, but as a demonstration of her honesty. The questioning during cross examination about her statement took the same form as it generally does in common law cases when parties rely on extensive statements. Even then, there was no doubt of Ms Williams’ certainty that the chair did not move. She saw what happened. She says that the plaintiff did not fall as he alleged.

57. [87]

    Furthermore, there are two documents completed on the day of the fall which are inconsistent with the plaintiff’s case. Ms Williams was the person who called the ambulance and provided the ambulance with the information about what had happened, which is again consistent with what she has always maintained occurred.

58. [88]

    The plaintiff remained in the facility for six days prior to the incident, using the same chair on a daily basis and moving in and out of it a number of times a day. At no time did he ever suggest that the chair had moved. On his own evidence in this case, he agreed that he did not observe it move prior to the fall. Additionally, his description of how he was using it for support, leaning over and holding onto the back, would seem to be one of the less likely ways in which the chair might have started to roll. The chair was plainly very heavy. The plaintiff did not suggest that the chair in some way tilted when he placed his hand on its back. He suggested that it moved on its wheels. The defendant argued that even if the plaintiff’s description of how he was leaning on the chair were to be accepted, it is unlikely that it would have caused the chair to move from its base.

59. [89]

    Finally, the defendant noted the plaintiff’s references to the chair being “defective”, as if those defects had something to do with the chair’s capacity to slide or its likelihood of moving. In fact, the references in the cottage notes to the condition of the chair concerned only possible issues with its recliner operation. The defendant argued that those could have nothing at all to do with the incident which is the subject of these proceedings. Where the plaintiff used the terminology “defective” to describe the chair, it was clearly not in a manner which was causally relevant to his fall.

60. [90]

    Prior to the plaintiff’s fall, the defendant’s records noted a complaint on 23 April 2012 that the recliner remote was not working, the foot rest was not going up or down and the recliner chair would not recline. At 4:00 am that day, an employee of the defendant replaced the batteries for the recliner chair remote control, but it still did not work. The recliner chair remained upright. A coffee table was moved in front of the recliner chair so that the plaintiff could elevate his feet. In a follow-up conversation the next morning with the plaintiff, he was told the recliner chair was still not working. The plaintiff assured staff that it was fine and that he would make do.

61. [91]

    Nowhere in the records or the evidence, other than that of the plaintiff, is there a recorded complaint that the recliner chair moved. The plaintiff said that prior to the fall, he had been told that the recliner chair seemed to be working, which is why he began to use it again. That statement is not correct. The problem with the recliner chair remote control had not been repaired, and the foot rest still couldn’t go up or down. It was the plaintiff who insisted on sitting in the recliner chair even though Ms Williams advised him that it was not working.

62. [92]

    It is common ground that at about 11:45 am, Ms Williams was assisting the plaintiff to transfer from a commode chair to the recliner chair. What occurred during the transfer is in dispute. The plaintiff said that he placed his hand upon the back of the recliner chair to help balance himself. He did not have the use of his stick. He says that the recliner chair slid away, unbalancing him and causing him to fall to the ground.

63. [93]

    Ms Williams conceded that the plaintiff, with his right arm, used the recliner chair itself as support in place of the support he would have ordinarily received from his stick. Hence, it is my view that at the time of transfer, the plaintiff did not have the use of a walking frame or stick.

64. [94]

    It was Ms Williams’ evidence that she and the plaintiff were approaching the recliner chair “[o]n an angle, because it’s the chair and the sofa that’s there, it was up to him, we tried to move his, spun around and get him to lean, so get turn around, put his bum and walk in backwards” (T 392.31-33). Ms Williams was walking backwards as she sought to help the plaintiff to position himself into the recliner chair (T 393.7). She said she was steadying him with her hands on either side of his hips when he suddenly seemed to suffer a spasm that started in his right leg. The spasm stopped and then started again so that the plaintiff’s entire body began to shake. He could not turn, and she could not hold him due to his size and weight. He fell to the side while he was positioned in between the recliner chair and the sofa (T 393.42-48). As she said, “You are supposed to turn around and put his bum onto the thing and it did not happen” (T 397.15-21). She was helping him in the way he had required while in her care, and she did not leave the transfer up to him (T397.15-21).

65. [95]

    Mr White, by looking at the photograph, observed that the recliner chair had four wheels and castors. He was unable to inspect the recliner chair, so he could not proffer a view as to whether the wheels and castors were in working order nor whether the recliner chair could move in the way alleged to have occurred during the fall.

66. [96]

    The recliner chair was positioned on carpet. Ms Williams was adamant that the recliner chair did not move because it was huge and heavy. It was, she said, “a big fat thing” (T 400.35). Cottage staff had difficulty moving it to try to clean and remove things from behind it. According to Ms Williams, even if the recliner chair had wheels, it still did not move. She explained that it was not necessary to lock the wheels on the recliner chair because it did not move. Although the recliner chair had wheels, the expert was unable to proffer an opinion as to their function or the chair’s mobility. I prefer and accept Ms Williams’ evidence as to how the plaintiff fell, and I find that the recliner chair did not move.

67. [97]

    The plaintiff’s allegations of negligence, as set out in paragraph [72] of this judgment, have not been made out. The plaintiff insisted on sitting on the recliner chair even though the remote control did not work and he had been told not to use it. During the plaintiff’s transfer from the commode chair to the recliner chair, the recliner chair did not move and it was not unstable.

68. [98]

    The plaintiff relies on the following particulars of negligence.

69. [99]

    Senior counsel for the plaintiff explained that these particulars of negligence allege that the cottage had an ongoing obligation to continue to assess the plaintiff’s needs if they changed during the course of the time that he was at the cottage. The plaintiff does not complain that he should not have been at the cottage, or that he was not properly assessed upon admission (T 274.44-49).

70. [100]

    Alternatively, the plaintiff claims that based upon Ms Williams’ version of events, the defendant was negligent.

71. [101]

    The plaintiff argued that whatever may have been his condition when he and his wife arranged his stay at the cottage, once the plaintiff arrived, the defendant knew or ought to have known that there was a risk of him falling, particularly during transfers.

72. [102]

    According to Ms Williams, the recliner chair was some distance away from the commode chair and straight in front of it, when it should have been to the side at right angles. Ms Williams described facilitating the plaintiff’s transfer by pulling him up while standing in front of the recliner chair, then taking a number of steps forward with her hands over the plaintiff’s hands on the wheeled walker frame. The plaintiff said that Ms Williams described throwing the frame to the side when the plaintiff began to fall, thereby denying the plaintiff support and further causing the plaintiff to fall.

73. [103]

    The plaintiff argued that the fact that there was a risk of falling, and that the plaintiff fell while under the care of Ms Williams, is of itself grounds for finding that all proper or reasonable care was not taken in transferring him. Had Ms Williams taken proper or reasonable steps, the plaintiff would not have fallen.

74. [104]

    The plaintiff submitted that while the evidentiary maxim “res ipsa loquitur” may not strictly apply in the circumstances of this case, the only alternative explanation for the plaintiff’s fall other than Ms Williams’ negligent handling of his transfer was that the plaintiff was shaking so uncontrollably, his fall was unavoidable. The plaintiff argued that Ms Williams’ evidence in relation to the extreme nature of the plaintiff’s shaking should be rejected. However, even it were accepted, if Ms Williams had properly positioned the plaintiff in relation to the recliner chair so that he only had to be lowered into it, his shaking would not have affected the safety of the transfer.

75. [105]

    The plaintiff argued that on Ms Williams’ own evidence, the way in which she tried to transfer the plaintiff demonstrated a want of care and attention on her part. There was no reason to position him some distance from the recliner, which created a wholly unnecessary risk of harm which materialised.

76. [106]

    It is the plaintiff’s case that the plaintiff’s fall was caused by a combination of factors for which the defendant was either directly or vicariously liable. The defendant had direct and personal responsibility for the proper ongoing assessment of the plaintiff’s needs after his admission to its facility. Further, it was responsible for allocating the plaintiff’s care to Ms Williams, a person of limited training, skill and experience.

77. [107]

    The plaintiff and Mrs Moggridge were entirely dependent on the proffered skill and expertise in relation to the level of care and state of equipment while the plaintiff was in its care. The defendant controlled both the circumstances and the activities which took place in the cottage, and was solely responsible for the care and equipment it provided.

78. [108]

    When questioned, Ms Williams accepted that the information contained in the cottage’s care plan concerning the plaintiff was consistent his needs as he had described them. She was also questioned about what the plaintiff (or someone on his behalf) said to the care organisations in the second half of 2017. Specifically, she was asked in cross examination whether, prior to the fall, he was able to transfer independently, in the sense that he only needed one-on-one care. She agreed. She was asked whether the plaintiff was able to walk a few paces; she generally agreed, although with help in the form of his stick. She was asked whether she ever lifted him. She said she did not. She was asked whether they used a hoist. She said they did not. In other words, the sort of one-on-one care which the defendant was providing the plaintiff was the sort of one-on-one care which he (or someone on his behalf) must have told the care providers in the second half of 2017 that he needed.

79. [109]

    The defendant argued that the Court must prefer the consistent evidence of Ms Williams. Once it does, nothing remains of the plaintiff’s case except a general assertion that Ms Williams should be taken to be incompetent.

80. [110]

    Of course, the plaintiff may have been unsteady on his feet due to his stroke. However, he had been admitted on the basis of the information he and his wife provided to the cottage. Mrs Moggridge agreed that the information provided was consistent with her view of what was required in light of the plaintiff’s needs. Ms Williams was his carer on a daily basis. She was familiar with his abilities. There was no evidence of any earlier problem or incident.

81. [111]

    The plaintiff seeks to overcome the very great inconsistency between information provided in the admission documents and by Mrs Moggridge by asserting that the plaintiff’s situation was fluid, and that the defendant should have had more regard to the state of events occurring after the plaintiff arrived at the facility. The plaintiff referred to the cottage’s notation that he was unsteady on his feet. The defendant’s facility was one for respite care with one-on-one care. It should be emphasised that the purpose of respite care was to provide the same type of care that the plaintiff had been provided by his wife in a homelike environment. That is precisely the care that the defendant provided. There can be no criticism of the defendant in that regard. Ms Williams was standing right next to the plaintiff. It cannot be suggested that she was somehow required to physically hold him up. On this basis, the defendant submitted that Ms Williams did not fail to support the plaintiff as required in his transfer.

82. [112]

    Ms Williams was a qualified and experienced carer. The history provided to the cottage by the plaintiff’s wife was that he suffered seizures, but that he had not had one for 18 months. The cottage records noted that he had leg spasms. Ms William’s evidence was that as of six days prior to the fall, she had never seen the plaintiff suffer a spasm or similar, and had no reason to suspect or anticipate a spasm would occur on 29 April 2012. Until the time of the accident, the plaintiff was able to pivot on his left leg in order to position himself so he could sit in the recliner chair. At the time of the fall, Ms Williams conceded that the plaintiff, with his right arm, used the recliner chair itself as support in place of the support he would have ordinarily received from his stick. Ms Williams could not have anticipated that the plaintiff would have suffered a spasm that not only travelled down his right leg, but caused his entire body to shake.

83. [113]

    I have already made a finding that at the time of the transfer, the plaintiff did not have the use of a walking frame or stick. The plaintiff took about three or four steps before he fell. Ms Williams says that she tried to steady him with her hands on either side of his hips to help him twist at a slow and measured pace. It was while the plaintiff was in this position, prior to pivoting with his left leg, that he suddenly seemed to suffer a spasm that started in his right leg. The spasm stopped for a second before his entire body started shaking. He could not turn, and Ms Williams could not hold him due to his size and weight. He fell to the side while she was standing in front of him. She did not fall on top of him. Ms Williams was providing the same physical assistance in transferring the plaintiff between the commode chair and the recliner chair as had Mrs Moggridge when she was caring for him (T 134.27-28).

84. [114]

    It is my view that the plaintiff’s bout of shaking described above was not a condition which Ms Williams could steady, nor was it one which, considering the plaintiff’s mobility, he could steady with the use of his stick or a walking frame. Therefore even if I am wrong and the plaintiff did in fact have the use of his walking frame as Ms Williams stated, I still would not find that she failed to properly support him in his transfer.

85. [115]

    The balance of the allegations in paragraph 8 of the amended statement of claim have not been made out. It is my view that in these circumstances, the defendant did not fail to take any, or any proper, regard for the health and care requirements of the plaintiff. It is also my view that the defendant did not fail to provide support, or proper support, to the plaintiff in transfer, nor did it fail to, or to adequately, transfer the plaintiff from the commode to the wheelchair. This part of the plaintiff’s case fails.

86. [116]

    The result is that none of the allegations pleaded by the plaintiff that the defendant was negligent have been made out.

87. [117]

    However, I will shortly address the relevant provisions of the Civil Liability Act 2005 (NSW) which govern these proceedings.

The content of the duty (the standard of care)

1. [118]

   Section 5 of the Civil Liability Act defines negligence as meaning a “failure to exercise reasonable care and skill”. The question to be determined in all cases of negligence is whether the particular set of circumstances gives rise to a duty of care.

2. [119]

   It is not in dispute that the defendant owed the plaintiff a duty of care while he was under its care. The relevant issue is the content of that duty of care, and whether there were any breaches of that duty.

Breach of duty of care

1. [120]

   Section 5B of the Civil Liability Act sets out the necessary, but not sufficient, pre-requisites for civil liability to arise. Although headed “duty of care”, s 5B is directed toward questions of breach of duty: see Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 at [13] “Adeels Place”. Section 5B reads:

2. [121]

   The inquiry considers what a reasonable person would have done, looking forward prospectively from a point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: see Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 (“Vairy”) at [126]-[129].

3. [122]

   It has always been the position at common law that foreseeability cannot be judged with the benefit of hindsight. Section 5B of the Civil Liability Act requires the same approach: see Adeels Palace at [31]. The s 5B test is a restatement of the classic formulation of foreseeability articulated in Wyong Shire Council v Shirt (1980) 146 CLR 40, by Mason J (at 47- 48).

4. [123]

   The question of breach of duty has to be considered by reference to ss 5B, 5C and 5D of the Civil Liability Act: see Doherty v State of New South Wales [2010] NSWSC 450.

5. [124]

   The plaintiff submitted that in relation to the defendant’s failure to properly assess the plaintiff’s needs, liability must be addressed on the basis that it was an ongoing and developing failure. It cannot be considered on a “snapshot” basis at some point of time well before the fall. This approach may be understood in the context of s 5B of the Civil Liability Act. The requisite state of knowledge of “a risk of which the defendant knew or ought to have known” must be looked at over the length of time commencing from when the plaintiff was first admitted to the cottage up until the fall.

6. [125]

   The plaintiff submitted that it could not be argued that the risk of harm to the plaintiff was “insignificant”. On the evidence, the likelihood of the plaintiff falling, particularly during transfers, was far more than a bare possibility. Given the services and supervision which the defendant offered and purported to exercise, it could not have been a risk of which the defendant was unaware.

7. [126]

   The plaintiff argued that a proper assessment of the plaintiff should have indicated to the defendant that it would require staff that possessed the appropriate level of skill, experience and knowledge to safely care for the plaintiff. Ms Williams did not meet this standard of care. The competence of the staff provided by the defendant for the care of the plaintiff is to be judged at the time when he fell, and not simply at the time of his admission. The method which Ms Williams described in transferring the plaintiff provides a clear inference that she was not suitable for the tasks assigned to her by the defendant in relation to the plaintiff. She was an employee and working at all times under the defendant’s direct control and observation, and it is liable for her relevant acts and omissions.

8. [127]

   The plaintiff submitted that under s 5B(2), it could not be argued that the likely seriousness of the harm which would ensue if the plaintiff fell was minor. Additionally, the defendant failed to demonstrat that there was any particular burden it would have experienced if it had taken the appropriate cautions. Finally, the plaintiff argued that while the “social utility” of offering respite care is clear, the “activity that created the risk of harm” was not the care in a broad sense, but the particular way the respite care was provided in this case.

9. [128]

   The plaintiff did not accept any responsibility for the fall. The plaintiff claimed that he fell because the recliner chair moved. In further submissions, the plaintiff appeared to run a fall-back case along the lines that if the chair did not move, he fell instead because he did not have the use of his stick. However, until the fall-back case arose, the plaintiff never contemplated or suggested that he fell because he could not hold onto his stick. Regardless, the defendant argued that whether the plaintiff was using the stick or the wheeler during the fall was causally irrelevant, because he maintained and ran his case on the basis that he fell because the chair moved. In any event, there was no evidence that, if he had used a walking stick instead of a wheeler to get to the point of transfer, he would not have fallen. This was an assertion made without evidence.

10. [129]

    Further, the defendant argued that Ms Williams was the responsible carer on duty at the time of the fall. She was qualified and trained as a professional carer. At no stage was it suggested to her that she was incompetent or unqualified to care for the plaintiff. The question of what Ms Williams should have done differently, which in itself would of course not be determinative of the defendant’s liability, was never even explored or put to her during examination.

11. [130]

    In his submissions, the plaintiff made generalised statements about the risk of harm and the precautions the defendant should have taken. For the purposes of s 5B of the Civil Liability Act, it is necessary to identify the risk of harm and then make findings as to whether that risk was reasonably foreseeable and not insignificant, and whether there were reasonable precautions which the defendant should have taken. The plaintiff was required to establish all elements of s 5B. Firstly, it was required to identify the risk of harm. The risk of harm could be described generally or more specifically.

12. [131]

    The defendant submitted that the relevant risk of harm in this case was the risk of the plaintiff falling when transferring to the recliner chair. Unlike the question of breach, which must be viewed prospectively, the identification of the risk of harm may be undertaken with regard to what actually happened.

13. [132]

    The plaintiff asserted in general terms that the defendant failed to take precautions, but did not specify those precautions in any way. The defendant argued that if the Court finds as a matter of fact that the chair slid across the floor as the plaintiff was leaning on it, then for the plaintiff to succeed, he must establish that the defendant knew or ought to have known that it was likely to move. There is no evidence to support either proposition.

14. [133]

    If it were to be found that the chair did not move, the plaintiff seemingly reverted to his fall-back case, was not pleaded in any way and which seemed to relate to the competence of Ms Williams and her provision of a wheeler rather than the stick. Both of those propositions should fail as a matter of fact, as well as under the issue of causation under s 5D.

15. [134]

    The defendant noted that plaintiff abandoned his extreme assertions which he pursued right up until halfway through the hearing, including that the defendant should have provided some sort of hoist to lift the plaintiff everywhere. It was the plaintiff’s evidence that, prior to the fall, he was both capable of and partial to walking a few steps when transferring. The defendant’s fall-back case seemed to be based on the proposition that he was not capable of transferring in the manner used and that he should not have been allowed to try it. Again, the evidence did not support such a finding. The effect of the evidence of Mrs Moggridge was that the defendant’s fall-back case must also fail. The reality is that the plaintiff fell while transferring in the same way that he had done safely at home and at the defendant’s facility many times before.

16. [135]

    The defendant submitted that the fact that the plaintiff fell while transferring did not give rise to an inference of negligence. The fact that he could be unsteady on his feet similarly did not give rise to an inference of negligence. The plaintiff was severely disabled prior to admission to the defendant’s facility. He was admitted based on the information provided by him and his wife that he could transfer in the way he was attempting when he fell. The purpose of respite care at the defendant’s facility was to provide the same type of care that the plaintiff’s wife was providing at home. The carer was right next to him. He had transferred the same way many times during the week before the fall. There was no obligation on Ms Williams to hold his weight. For those reasons, the defendant argued that the Court should reject the proposition that the plaintiff breached its duty of care to the plaintiff.

17. [136]

    The evidence demonstrates that Ms William was a qualified and experienced carer. The evidence shows that while the plaintiff suffered seizures in the past, he had not had one for the 18 months preceding the fall. For the six days prior to the fall, the plaintiff had received one-on-one care of the same kind his wife had provided while he was home after his stroke. The plaintiff could take a couple of steps and support himself by putting his right hand on the stationary recliner chair. He was pivoting on his left leg when his right leg began to shake. Ms Williams was supporting him when the unexpected shaking began. She could not hold him upright due to his size and weight. In my view, the defendant neither knew nor ought to have known that this risk was foreseeable (Civil Liability Act, s 5B(1)(a)).

18. [137]

    The plaintiff’s submissions did not address s 5B in relation to the defendant’s failure to provide proper equipment. For reasons outlined earlier, I made a finding that the recliner chair did not move. It was not unstable. This means that the defendant did not fail to take precautions against the risk of harm (s 5B(1)(a)). I make the same finding as below in relation to s 5B(1)(b) and (c) and s 5B(2) of the Civil Liability Act.

19. [138]

    The risk of harm to the plaintiff, a man disabled from a stroke, was not insignificant (s 5B(1)(b)). As the defendant did not fail to take precautions against a risk of harm, s 5B(1)(c) does not apply. So far as s 5B(2)(a) is concerned in relation to the precautions which the defendant did take, there was a low probability that the harm would occur. If it had not undertaken those precautions, the harm may have been serious (s 5B(2)(b)). The plaintiff offered no real alternative as to what reasonable further precautions the defendant could or should have taken to avoid the risk of harm. I accept that the provision of respite care has some social utility (s 5B(2)(d)).

20. [139]

    Taking the general principles in s 5B into account, as set out above, it is my view that there has been no breach of duty of care by the defendant. In the event that I am wrong on the issues of breach of duty of care, I shall briefly consider the plaintiff’s post-accident life and medical reports, and then assess damages.

21. [140]

    The plaintiff remained at St George Hospital for one week. His wife arranged care for him for three months in an aged care facility due to his increased care needs during his recovery.

22. [141]

    After the fall, the plaintiff experienced a painful grinding sensation at the left knee when he put any pressure or weight on it. He has also experienced continuing pain at the left buttock in the region of the left sacroiliac joint and in the posterior aspect of the left hip.

23. [142]

    When the plaintiff returned home from the aged care facility, Mrs Moggridge cared for him on a full-time basis. The plaintiff argued that he required additional assistance because of the mobility restrictions caused by the incident at the cottage. Because he was no longer capable of assisting his own transfers, he began to require two carers to transfer. Prior to the incident at the cottage, he was able to assist in his transfers and only required one carer to transfer.

24. [143]

    The plaintiff said that as a consequence of his loss of independence and ongoing symptoms, his psychological condition has deteriorated. Mrs Moggridge provided the majority of the plaintiff’s care prior to the incident at the cottage. Since the fall, he has become more easily irritated and frustrated. He attributed the failure of his marriage to the additional assistance he required in relation to his physical care, and on the difficulties his new psychological outlook presented to his wife.

25. [144]

    The plaintiff said that in mid-2015, he began to pay for day carers. Mrs Moggridge continued to wash him and provide him with assistance at night. He paid two carers for assistance during the day. He required two carers to assist his transfers out of bed in the morning, to go to the bathroom during the day, to go outside, to get in and out of the car, to shower, and to be transported around his home. He said that on average, he was assisted with approximately 20 transfers per day.

26. [145]

    In September 2015, Ms Moggridge stopped caring for the plaintiff. Since that time, he has employed Laura Bodycoat as a full-time case worker to co-ordinate management of his care providers.

27. [146]

    The plaintiff said that after the separation from his wife, he began to require full-time paid care. He has required two carers to deal with his transfer and mobility issues following the fall. His care has included a carer who stayed overnight to provide him with assistance, as well as a carer throughout the day. He also has received daily care from Home Care in the morning to provide assistance with washing. He has arranged his transfers so that they take place at a time when two carers are available to help. Generally these times have occurred when Home Care provides assistance, and during the changeover of shifts of the day and night carers. In the event that he has required a transfer when only one carer is available, the plaintiff has arranged assistance from his gardener or a friend.

28. [147]

    Since he and Ms Moggridge separated, it has become necessary for the plaintiff to take over all household administrative tasks, including shopping and banking. Those tasks have required him to leave the house more often and have further increased his reliance on his carers.

29. [148]

    Ms Moggridge’s evidence was that after the plaintiff’s fall, one of the reasons for the need for additional care was that the plaintiff was no longer able to take weight or pivot on his left leg during transfers (T 183.6-10). However, the plaintiff can now pivot on his right leg (T 340), which is an ability he has developed since losing weight.

30. [149]

    Mrs Julia Larsen gave evidence that she became aware that the plaintiff suffered a fall in April 2012 while he was in respite care. Afterwards, Mrs Larsen visited him a number of times while he was recovering at St George Hospital. She observed on frequent occasions that after his fall, the plaintiff was no longer able to bear weight or swivel on his left leg, and that he required hands-on physical assistance from a carer to take his weight during transfers. She gave evidence that the plaintiff required a second carer to lock and keep control of the wheelchair or other device from which he was being transferred. She says that for this reason, two people were required at the time of any transfer. Mrs Larsen said that on occasion, when she was providing care to the plaintiff she had sought the assistance of another person to help with a transfer.

31. [150]

    Mrs Larsen has frequently heard the plaintiff complain of pain in his left knee and leg. She said he made these complaints from the date of the fall at the cottage, and has continued to make them to this day.

32. [151]

    Prior to the plaintiff’s fall, Mrs Larsen occasionally saw paid carers in the plaintiff’s home. Following the fall, she observed paid professional carers in his home on a daily basis. She said she was particularly aware of the plaintiff’s position because at various times after his fall, her daughter was involved in both providing care and arranged for carers.

33. [152]

    Mrs Larsen observed that the plaintiff became more depressed after his fall, as he had lost his last shred of independence. She observed that the plaintiff’s increasing demands caused strain on his relationship with Ms Moggridge, and Ms Larsen had no doubt that it played a part in their separation. Prior to the plaintiff’s fall, Mrs Moggridge provided most of his required care. Following his fall, he needed additional carers, and in many circumstances required two to safely manage his transfers. After the plaintiff and his wife separated, Mrs Larsen and her daughter assisted in providing care to the plaintiff and in arranging other carers from organisations such as Care One.

34. [153]

    Mrs Larsen said that the plaintiff moved to Thailand for financial reasons, as he could no longer afford full-time care in Australia. She said that he would prefer to live in Australia if he could afford to do so, as he could be with family and friends. It is likely that the source of this opinion was the plaintiff himself.

The medical evidence

1. [154]

   Dr Brian Zeman, rehabilitation specialist, conducted a physical examination of the plaintiff on 4 November 2014. Dr Zeman took a history of the accident, resulting medical symptoms, present symptomology and vocational history. Dr Zeman recorded that the plaintiff’s chief concerns related to a broken left hip and a problem with his left knee. He noted that Ms Moggridge was present and assisted with the history.

2. [155]

   Dr Zeman noted that while the plaintiff was in Sutherland Hospital after his fractured leg, he had an occupational therapy report prepared by Dr McAlpine. Before the fracture, he would transfer from recliner to commode with three pivot transfers per day. He held onto the rail or used his stick. He would fatigue, particularly by the end of the day. He would spend 16 hours per day in the recliner and slept in it, as he found that the arrangement reduced his pain. He was recommended to sleep in a bed to prevent knee and hip restrictions. Ms Moggridge used to mobilise the plaintiff in a commode to take him to the waste outlet and the shower.

3. [156]

   Under the heading “Clinical Examination”, Dr Zeman recorded that:

4. [157]

   Dr Zeman then proceeded to make further “Comments”, in which he noticed:

5. [158]

   Dr Zeman also provided a later supplementary report dated 20 January 2017 where he reviewed all of the relevant material including his own previous report. Under the heading “Comments”, Dr Zeman noted that:

6. [159]

   At the hearing, Dr Zeman was also asked a number of questions relating to the plaintiff’s ongoing pain as a result of the fall. Dr Zeman indicated that persistent pain is not consistent with the organic injuries and fractures that the plaintiff sustained (T 327:34-50).

7. [160]

   Drs James Bodel and Roger Pillemer provided a joint report dated 9 February 2018. They also gave conclave evidence. In their joint report, Drs Bodel and Pillemer were of the opinion that the plaintiff suffered minimal/undisplaced fractures of his femoral neck and tibial plateau as a result of the fall on 29 April 2012. Those fractures were treated conservatively with bed rest and went on to unite in a satisfactory position.

8. [161]

   Dr Pillemer stated that the plaintiff was severely disabled and that he expects the plaintiff’s prognosis to include progressive deterioration of his condition over time, noting his age and immobility. Dr Bodel was of the same view. There was also evidence of pre-existing degenerative change in the plaintiff’s left knee, which both doctors expected to steadily deteriorate over time.

9. [162]

   Both doctors were of the view that there would be no further treatment required for the hip fracture. With regard to the fracture of the knee, it was their opinion that no further surgical treatment was indicated, noting that the plaintiff was non-weight bearing and wheelchair bound.

10. [163]

    The doctors agreed that the plaintiff was likely to have been significantly disabled as a result of the six weeks of bed rest after his fall, and it seemed likely that there had been a need for additional domestic care and assistance for three to four months after the plaintiff’s fall.

11. [164]

    Nonetheless, the doctors indicated that they had difficulty in suggesting how the fall had contributed in a material way to the plaintiff’s ongoing disabilities, as they could not firmly establish the level of his disabilities prior to it. The doctors also indicated that both the plaintiff and Ms Moggridge had informed them that the plaintiff had lost the ability to bear weight on his left leg following his injuries from the fall, and those injuries caused increasing difficulty with bed-to-chair transfers. Both doctors noted that all previous information would seem to indicate that the plaintiff was wheelchair bound before the injury on 29 April 2012.

12. [165]

    Both doctors also agreed that the plaintiff was unlikely to need further specific medical treatment for either the healed fractures of the femoral neck and the tibial plateau which occurred in the fall. However, both doctors were of the view there was likely to have been a need for extra care and assistance as a result of those injuries, as they required the plaintiff to remain immobile for six weeks. The doctors’ estimated need for extra domestic assistance was in the order of three to four months. At the time of the joint report, the doctors were of the opinion that additional care into the future would be minimal.

13. [166]

    Drs Selwyn Smith and Angelo Virgona provided a joint conclave report dated 6 March 2018. They also gave conclave evidence at the hearing and were cross examined. In the joint conclave, Drs Smith and Virgona responded to a number of questions asked by the plaintiff and the defendant.

14. [167]

    Firstly, counsel for the plaintiff asked the doctors whether the plaintiff’s psychiatric condition had deteriorated since the fall. Dr Smith was of the view that the psychological symptoms arising from the fall were of sufficient severity to have brought him within the formal definition of an adjustment disorder with mixed depression and anxious mood. Dr Smith also considered that in all probability, the plaintiff had experienced an exacerbation of his pre-existing adjustment disorder with mixed depressed and anxious mood, which was related to the consequences of his previous stroke.

15. [168]

    Dr Virgona referred to a report he previously authored on 26 May 2016, in which he gave the opinion that the plaintiff had an organic personality disorder as a result of his stroke and that that disorder was the most dominant feature of his presentation that day.

16. [169]

    The diagnosed adjustment disorder arising from the fall did not result from any brain injury. Dr Smith believed that he and Dr Virgona agreed that a personality change did not occur as a result of the fall. Dr Virgona stated that he did not think that there was any specific diagnosis resulting from the fall. There may have been a temporary aggravation in the plaintiff’s pre-existing depressive disorder, but he found that there was no significant ongoing psychiatric disorder sustained as a result of the fall.

17. [170]

    Dr Virgona noted in his report that when the plaintiff saw Dr Smith, he may have been more depressed than when he saw Dr Virgona. He stated that the difference could be consistent with the fluctuating nature of the plaintiff’s condition since 2008. Dr Virgona did not think that the fall had materially contributed to the plaintiff’s condition.

18. [171]

    Counsel for the plaintiff also asked the doctors what their prognosis would be in respect of the additional psychiatric symptoms suffered by the plaintiff since the fall. Dr Smith anticipated that the plaintiff would remain in a chronically depressed mood and that he would be apprehensive about suffering further untoward events such as falls, recurrence of a stroke or the emergence of additional illnesses. As such, Dr Smith’s prognosis was guarded.

19. [172]

    Counsel for the plaintiff also asked whether the plaintiff would require treatment in respect of the additional psychiatric symptoms suffered by him since the fall, and if so, the nature of the treatment and its estimated cost. Dr Smith was of the view that the plaintiff would benefit from engaging with a psychologist to assist him in adapting to his disability and engaging better coping strategies. Dr Smith agreed with Dr Virgona that the plaintiff’s treatment had not changed because he had not attended a psychiatrist or a psychologist, despite the fact that occupational therapists who examined him after his fall recommended that he engage with a psychologist.

20. [173]

    The defendant’s counsel also asked a number of questions. Firstly in regard to the injuries, he asked the doctors to describe the nature and the diagnosis of the plaintiff’s psychiatric injuries as a result of the fall. Dr Virgona stated that there may have been a temporary aggravation in the plaintiff’s pre-existing depressive disorder as a result of the fall. However, he did not think that there had been any significant ongoing psychiatric disorder as a result of the fall. Dr Smith respectfully disagreed with this position.

21. [174]

    So far as treatment was concerned, the defendant asked whether the plaintiff would require any future psychiatric treatment as a result of the injuries sustained in the fall, and if so, the nature of that treatment and its costs. Dr Smith was of the view that the plaintiff would require minimal psychiatric treatment in the nature of 10 treatment sessions to begin with. Costs would follow the recommended schedule of fees of the Australian Medical Association, between $225 and $235 depending on the duration of the consultation. The cost of antidepressants would vary with dosage and duration utilised, but amount to approximately $40-$50 per month. Dr Smith recommended that if it were beneficial, the medication should be continued for at least 9 to 12 months.

22. [175]

    Dr Smith also stated that the cost of the psychologist would follow the recommended schedule of fees of the Australian Psychological Association, currently around $220 per visit. He supported the plan that the plaintiff should receive a minimum of 10 sessions with a psychologist.

23. [176]

    In summary, the psychiatrists agreed that a personality change did not occur as a result of the fall. Dr Virgona stated that there may have been a temporary aggravation in the plaintiff’s pre-existing depressive disorder. However, he did not think that there had been any significant ongoing psychiatric disorder as a result of the fall. Dr Smith also considered that in all probability, the plaintiff had experienced an exacerbation of his pre-existing adjustment disorder with mixed depressed and anxious mood, which were related to consequences of his previous stroke.

Assessment of damages

1. [177]

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

2. [178]

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

3. [179]

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

4. [180]

   Damages are not intended to insure the plaintiff against every possible eventuality, nor to compensate for every loss the plaintiff may possibly have sustained: see Pamment v Pawelski (1949) ALR 860; (1949) 79 CLR 406 at 408-9 per Dixon J; Sharman v Evans (1977) 13 ALR 57; (1977) 138 CLR 563 at 585 per Gibbs and Stephen JJ.

5. [181]

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

6. [182]

   The plaintiff has claimed damages totalling $747,288.37. The plaintiff restricted his case in relation to damages to two main areas. The first relates to his damages for non-economic loss. The second relates to the need for care and assistance, whether voluntary or paid.

7. [183]

   Senior counsel for the defendant submitted that to award any damages to the plaintiff, the Court would need to:

8. [184]

   The defendant submitted that even if the plaintiff is entitled to a judgment in his favour, he is not entitled to any damages. That might be viewed as a bold statement, but in the circumstances of this case the defendant submitted it is correct for these reasons:

   1. (1)

      According to the orthopaedic specialists, the plaintiff sustained undisplaced fractures from which he recovered within a short period. He did not need any additional care after the first few months. Following the fall, the plaintiff presented as a severely disabled man, but his condition had nothing to do with the defendant. He had already received in excess of $6 million arising out of that disability. Other than the plaintiff’s own suggestions in support of his case, there was simply no evidence which would allow the Court to award any damages for care. Indeed, it was notable that the plaintiff did not refer to any medical evidence as to the nature and extent of his alleged condition, but merely pointed to the lay evidence and the report of the plaintiff’s occupational therapist which was based on assumptions which have not been made out.

   2. (2)

      The plaintiff sustained the injury on his already weak left side, on which he generally did not bear weight. If the Court accepts that he used the left side to pivot, he actually did not really place weight on his left side, but only pivoted on his left toe. In any event, an inability to pivot on his left side did not create any additional need for care or even lead to any disability. That is because he said he now pivots on his right side. Dr Zeman has agreed with this assessment.

   3. (3)

      Contrary to the plaintiff’s evidence, there is no reference in the Royal Prince Alfred notes of him being trained to pivot on his left side. The notes in fact record that he should be using the right side. Once again, this is just another example of the plaintiff saying something which was completely contrary to the records, and then submitting that what he has said should be accepted. In any event, he did not give evidence that he needed extra training to pivot on the right side.

   4. (4)

      Accepting what the plaintiff said about his former mode of transfer, the reality is that he has transferred in exactly the same way after the fall, except that he has since favoured the right side.

   5. (5)

      In his case in respect of his stroke in 2008, the plaintiff asserted that his condition would deteriorate over a 5-year period. That is, as a result of the stroke, he would require additional care by the time of these proceedings. That 5-year period has long since passed.

9. [185]

   There is no claim for economic loss.

10. [186]

    Before I deal with the topic of non-economic loss and past and future care, it is appropriate that I refer to the plaintiff’s prior proceedings in this Court, which were settled.

11. [187]

    In 2009, the plaintiff commenced Supreme Court proceedings 2009/297895 against Ramsey Health Care Australia Pty Limited (Ex 5, tab B) in relation to the catastrophic injuries he suffered as a consequence of the stroke.

12. [188]

    As a result of those injuries, the plaintiff claimed full-time care on a 24-hour basis. This assistance had been provided to him gratuitously by his wife and for pay by carers under the Illawarra Disability Trust. The plaintiff required assistance with every aspect of his personal care, including showering, grooming, toileting, eating and drinking. He also required assistance with transferring himself in and around the home and in and out of a motor vehicle. He required assistance with every aspect of activities involved in daily life, including meal preparation, laundry, household cleaning, shopping, bill paying and yard and garden maintenance. The plaintiff alleged that his need for the that level of provided care was continuous and ongoing. He alleged that his condition would continue to deteriorate over the next five years, particularly as he became less mobile and his weight increased. He said that in the future, he would require the assistance of a further paid carer on a part-time basis.

13. [189]

    According to an amended schedule of damages prepared by his solicitors in his first case, only three months before the plaintiff’s fall, he claimed that in addition to 24 hours of commercial care at the rate of approximately $7,000 per week, he would also require an additional carer for 21 hours per week. That additional care was to be deferred for 5 years, when the medical evidence indicated that his care needs were expected to increase due to his disabilities as a result of the stroke.

14. [190]

    The plaintiff made a further claim for the gratuitous assistance of his wife at the statutory rate of 24 hours per day, 7 days per week for the duration of his life expectancy. The claim was made on the basis that his wife had a real therapeutic role to play in providing moral support, encouragement and liaison.

15. [191]

    After his stroke, the plaintiff received assistance from Home Care for one hour per day from Monday to Friday. The Home Care assistant would wash and dress the plaintiff. His wife provided him with this assistance on weekends.

16. [192]

    On 3 February 2012, the matter settled prior to the hearing for the sum of $6,400,000, inclusive of costs.

17. [193]

    In these proceedings, the plaintiff accepted that there are clearly circumstances in which a claim already made and met by a judgment or some other means will prevent a party from claiming for the same loss again. If a plaintiff obtains judgment against one party for the loss, for example, of a house burned down, then that person cannot claim for the same loss against another party. However, the plaintiff argued that that is not the nature of his present case. The plaintiff submitted that he was compensated in his previous case only once and for a finite loss, measurable in precisely-quantified terms. He argued that under these circumstances, his claim in the previous proceedings for a need created by that tortfeasor cannot operate to limit or preclude his claim for an additional need created by the tortfeasor in these proceedings.

18. [194]

    It has been accepted that the plaintiff claimed for 24 hours per day of care in his previous case. He received judgment in his favour. The defendant therefore argued that the plaintiff has been compensated for 24 hours per day of care. In effect, the defendant argued that it cannot be liable for a further 15 hours per week of care, and the plaintiff’s claim should be rejected.

19. [195]

    The plaintiff submitted that the previous proceedings, including the pleadings, the medical reports, terms of settlement and the judgment, should be relevant only as evidence in these current proceedings, if they were relevant at all. The plaintiff says that his evidence and the evidence of Mrs Moggeridge and Mrs Larsen provides a clear account of how he has deteriorated both physically and psychologically since the fall.

20. [196]

    The plaintiff claims $412,750 for non-economic loss, which is 65% of a “most extreme case”. The assessment of non-economic loss is governed by the provisions of the Civil Liability Act. The definition of a most extreme case pursuant to s 16 of the Civil Liability Act was discussed in Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037 at 68,014; Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427 at 440 and Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528 at 533. The plaintiff submitted that his injuries are sufficient to qualify for a determination of a most extreme case.

21. [197]

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

22. [198]

    Senior Counsel for the plaintiff submitted that damages for non-economic loss should be assessed at 65% of a most extreme case. The plaintiff’s evidence was that he was devastated by the further fall, and that his devastation was relevant to non-economic loss.

23. [199]

    The plaintiff argued that the assessment of his entitlement to damages for non-economic loss in these proceedings must be approached on the basis of the person he was at the time of the fall. He argued that it is entirely irrelevant that he may or may not have received compensation for the tortiously-caused injuries which he suffered before the fall.

24. [200]

    The plaintiff referred to Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 (“Haleluka”) per Allsop P, quoting from the reasons for judgment of the primary judge. In Haleluka, Allsop P stated at [27] that the depth of feeling expressed by the plaintiff about his condition emphasised the significance of the effect it had upon him. In these proceedings, the plaintiff argued that the medical opinions of Drs Pillemer and Bodel, and the evidence of Dr Selwyn Smith, supported the connection between the plaintiff’s fall and his subsequent physical and emotional deterioration. He argued that Dr Virgona’s evidence was of little if any assistance to the defendant in this regard. In essence, Dr Virgona undertook an analysis of various sets of medical reports and then based his opinion on those, and should therefore not to be considered to be helpful.

25. [201]

    The defendant noted that the plaintiff is not entitled to non-economic loss unless he overcomes the statutory 15% threshold of the “most extreme case” under s 16 of the Civil Liability Act.

26. [202]

    The plaintiff was substantially disabled before the fall. On his own case, he was essentially wheelchair-bound when he was admitted to the cottage. It was the defendant’s position that since the plaintiff’s recovery from the fall, he had been living in the same state of disability as he did before it occurred.

27. [203]

    The defendant argued that the legislative threshold exists to exclude minor injuries of the type suffered by the plaintiff in the fall. The orthopaedic surgeons suggested that his was not a substantial injury. The injuries he sustained did not make his left side any weaker. The defendant argued that there was no basis for the plaintiff’s claim that he suffers from ongoing permanent pain. The fact is that he has had no treatment for his condition since 2012. He has had no physiotherapy or rehabilitation. He admitted to having had no treatment. Nor did he require any additional documented care. If in fact his condition had deteriorated as he claimed, he might have sought additional treatment, but he did not. His failure to seek out any additional treatment confirms the opinions of the doctors who have seen him for the purpose of this case.

28. [204]

    There is no doubt that the plaintiff suffered a life-changing injury when he suffered a stroke in 2008, for which his has been compensated. As a result of the stroke, the plaintiff has experienced ongoing medical conditions that include dense left hemiplegia affecting his upper and lower limbs with increased tone affecting his left side, and cognitive damage. The plaintiff is wheelchair bound. Prior to the fall, could transfer from chair to chair by pivoting his left leg and could take a few steps.

29. [205]

    According to an amended schedule of damages prepared by his solicitors three months before this incident, he claimed that in addition to 24 hours of commercial care at the rate of approximately $7,000 per week, he was also in need of additional care for 21 hours per week, to be deferred for five years when the medical evidence indicated that his care needs would increase.

30. [206]

    The plaintiff made a further claim for the gratuitous assistance of his wife at the statutory rate of 24 hours per day, 7 days per week for the duration of his life expectancy. The claim was made on the basis that his wife had a real therapeutic role to play in providing moral support, encouragement and liaison.

31. [207]

    I accept that the plaintiff and Ramsey Health Care may have compromised in reaching their settlement in relation to the plaintiff’s claims. Nevertheless, the overall settlement of $6,400,000 was substantial.

32. [208]

    After his fall, the plaintiff was more than significantly disabled and required six weeks of bed rest. He experienced pain in his left leg and knee and needed additional domestic care when he was in respite care for three to four months.

33. [209]

    As a result of the fall, he suffered minimal undisplaced factures to the femoral neck and tibial plateau of his left leg. They have united satisfactorily. No further surgery has been foreshadowed. According to the orthopaedic surgeons, additional care is likely to be minimal. He continues to suffer pain in his left knee and leg. He has said that his left knee is constantly painful. He has lost confidence in using his left knee. He continues to experience a painful grinding sensation of the left knee when he places any pressure on it. He has pain in his left buttock in the region of the left sacroiliac joint in the posterior aspect of the left hip.

34. [210]

    Both psychiatrists agreed that the plaintiff’s personality disorder did not change as a result of the fall, but Dr Smith was of the view that the fall caused the plaintiff to suffer from an exacerbation of his pre-existing adjustment disorder with depressed mood (T 311.34-38). Dr Vergona was of the view that as a result of the fall, there may have been a temporary aggravation in the plaintiff’s depressive disorder. I accept the evidence of the plaintiff, Ms Moggridge and Mrs Larsen that after the fall, the plaintiff became more irritated and frustrated due to his perceived loss of independence.

35. [211]

    Although the plaintiff was overweight, to his credit he has since lost a significant amount of weight and experienced a corresponding improvement in his health. Dr Zeman observed that as of 2014, the plaintiff could still transfer using his right leg. He watched Mrs Moggridge and the plaintiff execute a transfer. After the brakes of the wheelchair were engaged, Mrs Moggridge stood on the plaintiff’s paralysed left side and assisted him to stand by either holding him under the left shoulder or using the back of his trousers.

36. [212]

    The overall difference to the plaintiff’s medical needs since the fall is that now he requires the active assistance of one carer to transfer, whereas prior to the fall, he required only supervision. According to Dr Zeman, there has been no major change in his care needs compared to those required under his situation before the fall. He still requires one person to transfer. As the plaintiff ages, he will be less able to manage his physical needs irrespective of the fall, but he has already been compensated for this expected decline in his earlier settlement.

37. [213]

    Taking these circumstances into account, had the plaintiff been successful on the issue of liability, I would have assessed the plaintiff’s non-economic loss at 15% of a most extreme case. A most extreme case is $635,000. 15% of a most extreme case equates to $6,500.

38. [214]

    If the defendant had been found liable, the parties agree that the out of pocket expenses would amount to $6,891.95

39. [215]

    The plaintiff makes a claim for damages for past care calculated from 24 July 2012 to 1 September 2015, for 28 hours per week, for 162 weeks at $25.00 per hour. That totals $113,400. The plaintiff also claims for care from 1 September 2015 to 21 August 2018 at 14 hours per week for 155 weeks at an average of $29.00 per hour. That totals $62,930.

40. [216]

    The plaintiff also claims for future care. This is calculated at 14 hours per week at $46.00 per hour multiplied by 345.6 weeks, which amounts to $222,566.40.

41. [217]

    The plaintiff argued that he is entitled to make a claim for additional past care. He said that his claim was supported by the medical evidence, and that of the lay witnesses. The plaintiff provided the Court with the detailed orthopaedic evidence about his added physical symptoms due to the fall, and the evidence of its psychological effect on his confidence and his ability to care for himself.

42. [218]

    The plaintiff noted that the quantification of damages for care in this case is complex. However, he argued that once the additional need is found to exist and to be the legal responsibility of the defendant, it must be compensated for. On the evidence, the plaintiff argued that it could not to be said to be de minimis, or to require only token damages. The plaintiff submitted that the assessment by Ms Miller-Ravagnani of 15 hours per week was modest and, based on her expertise, would be a sensible and appropriate estimation of the plaintiff’s need with respect to this period.

43. [219]

    The defendant submitted that no amount should be allowed for past and future care on two bases. The first reason was that the plaintiff had already been compensated for 24-hour care, and the second was that his care needs had not changed due to the injury to his left leg.

44. [220]

    On analysis of the accounts and receipts in the entire two year period immediately after the fall, there were only two hours where there was more than one carer present with the plaintiff at the same time, which might be attributed a time recording overlap. That is, despite the plaintiff’s claims that he has needed more than one carer present and will need more than one carer to be present, he has not ever engaged additional care over and above the one-on-one care that he was receiving prior to the fall. In any event, the defendant reminded the Court that the plaintiff had relied upon evidence in his earlier claim that he would need additional care after 5 years, as a result of his disabilities following the stroke.

45. [221]

    The defendant argued that on the whole, the plaintiff made his claim and give generalised evidence that was not supported by further inquiries.

46. [222]

    The plaintiff claims in respect of four of his five phases of care. The plaintiff does not make a care claim (wither gratuitous or paid) for the first phase, which was the immediate post-injury period when the plaintiff was in hospital and rehabilitation institutions.

47. [223]

    I shall deal with each of the second to fifth phases in turn (phase five is for future commercial care). I shall also deal with the second and third phases of past care together.

48. [224]

    The second phase was after the plaintiff’s discharge home and before he and his wife separated. For care provided during this phase, the plaintiff claims four hours per day as set out in the report of Ms Miller-Ravagnani (Ex A, CB p 236). Mrs Moggridge gave evidence that the extra care was eight hours per day for which she paid $25 per hour cash, but the plaintiff has confined his claim to four hours per day. Four hours per day, seven days per week, at $25 per hour amounts to $700 per week.

49. [225]

    The third phase was when the plaintiff and his wife were separated but living together under the same roof. During this time, Mrs Moggridge was not providing care and the plaintiff required a degree of professional care and some voluntary care. The plaintiff’s claim for this period is confined to voluntary rates of care at two hours per day (Ex A, CB p 235). The plaintiff submitted that with respect to this period, the evidence demonstrates that his previous settlement was not sufficient, as the additional factor of the breakdown of his marriage should be taken into account.

50. [226]

    In November 2012, Mrs Moggridge told Dr Bodel that she was engaging carers to come in three days a week while she had a break. In cross examination, Mrs Moggridge agreed that this was likely to be correct. In her statement, Ms Moggridge’s evidence that she had engaged eight hours of additional assistance was not correct, or at least not correct in the sense that this additional care was the result of the plaintiff’s fall. As it turned out, she really meant to say that she was engaging commercial carers as respite instead of providing all the care herself, although there are no receipts or accounts to verify her statement. The defendant submitted that even if this care was provided, the plaintiff received compensation for it in his earlier case. This is the same type of care that Mrs Moggridge was providing before the fall and, to the extent that she used commercial care, it was care the plaintiff claimed would be provided. The defendant submitted that there was simply no evidence that the plaintiff had paid for any additional care consequent upon his fall.

51. [227]

    The defendant submitted that for the period of 2015 to 2016, the plaintiff obtained commercial care from Care One. However, there is no evidence that he obtained more care from Care One than he ever would have obtained if not for the fall, bearing in mind that he had already been compensated on the basis of a claim for more than 24 hours per day of care.

52. [228]

    The plaintiff and Mrs Moggridge did not separate until three years after the fall. According to all the medical experts, by the time of the separation, the plaintiff would not have required any additional care as a result of the fall. Furthermore, according to both the plaintiff and Mrs Moggridge, Mrs Moggridge was not coping with caring for the plaintiff prior to his fall and was not planning to care for the plaintiff once he could afford commercial carers. The plaintiff’s situation prior to the fall had been placing significant stress on Mrs Moggridge. She claimed that she had a psychiatric illness as a consequence of the plaintiff’s stroke, and made a successful nervous shock claim in relation to her injury, for which she received $200,000. The defendant argued that the Court should therefore reject the idea that the fall led to the dramatic change alleged to have occurred in the plaintiff’s or Mrs Moggridge’s lives.

53. [229]

    The defendant submitted that under the circumstances, there was no evidence that supported any allowance for increased costs of care caused by the fall. The Court must apply the “but for” test of causation, which also applies to the proposition advanced by the plaintiff that the fall caused his divorce.

54. [230]

    In cross examination, Ms Moggridge agreed with the proposition put to her that she was the plaintiff’s primary carer during the period from 2012 through to 2014/2015. Most of the time, she was the only person there. However, she also indicated that from time to time she had carers in to provide her with a break (T 215.1-15). She gave evidence that the plaintiff’s initial care was provided for approximately eight hours a day, but during this period she remained his primary carer (T 220.30).

55. [231]

    In cross examination, Mrs Moggridge was asked (T 221.8-15):

56. [232]

    The expert evidence of the plaintiff’s care requirements during the second and third phases are set out in the joint report of occupational therapists Susan Borthwick and Suzanne Miller-Ravagnani dated 15 March 2018. They were not required for cross examination. The occupational therapists did not entirely agree about the needs of Mr Moggridge during these phases. Both experts agreed that the plaintiff’s need for domestic care and assistance, relating to housework, meal preparation and shopping had not altered since the accident (CB, Report 15/03/18, p 2). They also agreed that the plaintiff did require assistance with transfers. Ms Miller-Ravagnani stated that during the second and third phase, Mr Moggridge required four hours of hands-on carer assistance per day (CB, Report 15/03/18, p 10).

57. [233]

    Ms Borthwick determined that the plaintiff’s capacity to mobilise and transfer reduced after the accident. However, she attributed the change to the deterioration that would be expected following the plaintiff’s 2008 stroke, for which settlement allowance was already made (CB, Report 15/03/18, p 2). It was her assessment that during the second phase, the plaintiff did not require any care additional to the 24-hour care he already received before the accident (CB, Report 15/03/18, p 5).

58. [234]

    I prefer and accept Dr Zeman’s view that the only difference to the plaintiff’s care after his fall was that instead of the plaintiff being able to transfer on his left leg with the supervision of one carer, he had to transfer with his right leg, requiring one carer to actively assist him by holding him under the left shoulder or the back of his trousers: see Dr Zeman’s report November 2014 referred to earlier in this judgment. Dr Zeman’s view that there had been no increase in care after the fall accords with that of Ms Borthwick, but for different reasons.

59. [235]

    In his earlier settlement, the plaintiff was compensated for having one carer present for 24 hours per day, and after five years a second carer for 21 hours per week. Therefore, if the plaintiff had been successful I would not have made any additional allowance for the second and third phases of his past care.

60. [236]

    The plaintiff submitted that there were complexities in the evidence in relation to this period of time which make difficult a detailed mathematical assessment of the damages. The plaintiff submitted that determining the level of gratuitous care during this period is best approached on the same basis as with other periods, that is, on the basis of 15 hours per week.

61. [237]

    The defendant argued that it is difficult to evaluate the cost of the care being provided to the plaintiff in Thailand. The plaintiff submitted that the preferable approach is to treat the services provided in Thailand as “gratuitous attendant care services”, which are services “for which the claimant has not paid or is not liable to pay”. The inference to be drawn from the evidence is that the plaintiff does not have to pay for the services because he has made provision for housing for the family of his Thai carers. The plaintiff’s claim is made for two hours per day at voluntary rates. The plaintiff’s evidence supports this approach (T 27).

62. [238]

    The plaintiff meets the test set out in s 15(3) of the Civil Liability Act of care amounting to “6 hours per week” and “for a period of at least 6 consecutive months”. Section 15(4) of the Civil Liability Act provides a maximum for the amount of damages that may be awarded for gratuitous attendant care services. This is calculated by reference to the average weekly total earnings of all employees in New South Wales.

63. [239]

    The plaintiff submitted that this figure should be used in calculating damages in relation to his claim for 15 hours per week of care, as set out by the High Court in Van Girvan v Fenton [1992] HCA 154; 175 CLR 327 (“Van Girvan”). In relation to gratuitous services, damages are not to be assessed according to the rate the carers would be earning were it not for their provision of gratuitous care. The plaintiff submitted that this principle applies to his case.

64. [240]

    Senior counsel for the defendant submitted that the plaintiff was highly critical of all the care providers in Australia and refused to accept the content of their records, despite the fact that their contents must have originated with the plaintiff himself.

65. [241]

    The defendant argued that any cost of care during this period should be calculated according to the actual cost of the plaintiff’s Thai care. The plaintiff has spent lengthy periods in Thailand since 2015. He has been in more than one facility. In 2017 he sold his purpose-built home in Cronulla and purchased and arranged for a custom-built house in Thailand, where he has lived and received care since. The defendant argued that despite the absence of any evidence from the plaintiff as to the cost of his care in Thailand, it is clear that it has been cheaper than it would have been in Australia. The defendant argued that the significant omission of evidence from the plaintiff as to the cost was deliberate. For its part, the defendant adduced evidence that the cost of a 24-hour service in Thailand, including weekends and public holidays, is 32,000 baht per month, or approximately $1,319 AUD. This is approximately $304 per week, or $1.81 per hour (Ex 7). By contrast, in his earlier case with respect to his stroke, the plaintiff claimed the sum of $6,900 per week for care.

66. [242]

    Mr Moggridge’s oral evidence (T 27) was to the effect that he was “going broke” paying for the care he received after the settlement of his previous case. That care was being supplemented by assistance from his wife.

67. [243]

    When asked why he had moved to Thailand, the plaintiff gave the following evidence at (T 24.12-24):

68. [244]

    From 2015 to the present, the plaintiff has spent the great majority of his time in Thailand. In 2017, he sold his purpose-built home in Cronulla and purchased and arranged for a custom-built house in Thailand. Since moving into the home, the plaintiff has received full-time care organised by a woman who co-ordinates his requirements. It is plain that the costs of the plaintiff’s care in Thailand are much cheaper than in Australia. The defendant’s evidence that the cost in Thailand of 24-hour care amounts to approximately $1,319 per month may not exactly reflect the plaintiff’s costs, but illustrates the difference. In any event, for the reasons set out earlier in this judgment, namely the view of Dr Zeman and occupational therapist Ms Borthwick, there was no need for additional care during this period. Hence, I would not have made any allowance for care from 2015 to the present, during which the plaintiff resided in Thailand.

69. [245]

    The plaintiff’s stated that despite having moved to Thailand, he wished to return to Australia indefinitely to receive care into the future. He therefore based his claim for future commercial care upon the professional care that he received when he was living at Cronulla, to be calculated from the date of judgment until he is 75 years of age. The plaintiff calculated his claim on the basis that he will require professional paid care of 14 hours per week at a rate of $46 per hour. For this period, 14 hours per week at $46 per hour is $644 per week. With 52 weeks a year for 8 years, the total for this period amounts to $267,904.

70. [246]

    It was the defendant’s position that the plaintiff clearly did not intend to return to Australia to live. In 2016, he began to spend lengthy periods in Thailand in more than one facility. In 2017, he sold his purpose-built home at Cronulla, and then built and outfitted a custom-made house in Thailand, where he has since been living. On or around 6 September 2017, he told the care facility Australian Unity that he was only coming back to Sydney “to settle things up, sell the house and then go back overseas indefinitely”. In December 2017, he also told another care facility, Mildred Simmons House, that he had a farm in Thailand and that that he wanted to go back to Thailand at this time in his life because he had business interests back there. The plaintiff repeatedly stated that he found Australian care lacking in professionalism, and that he had moved to Thailand to seek a better quality of treatment.

71. [247]

    The defendant argued that the plaintiff’s claims about future plans should be viewed as completely false and transparent. Despite having sold his house in Australia and purchased one in Thailand, he insisted for the purposes of this case that plans to return to Australia after the case. He has opposed admission into evidence the cost of care in Thailand, and for obvious reasons wants to claim care into the future based on Australian rates.

72. [248]

    Furthermore, the defendant argued that in order for the plaintiff to recover any amount for future care, the Court needs to accept that as a result of the injury sustained in his fall, the plaintiff now needs two carers present at the same time on an ongoing basis. The defendant says that the plaintiff provided no evidence that he required this assistance. It has now been over six years since the fall, and there is no evidence to support that in that time, the plaintiff has required two carers to be present at the same time. The defendant noted that even if the plaintiff required two carers simultaneously, he provided no evidence that it would cost more money in Thailand to have two carers present at the same time for some periods.

73. [249]

    Finally, the defendant noted that in the stroke proceedings, the plaintiff claimed the cost of assistance when travelling. However, the plaintiff was consistently able to travel from Thailand by himself without the need of two carers to assist with transfers. The defendant argued that it would be absurd to suggest that the airline staff had been lifting him out of airline seats.

74. [250]

    Senior counsel for the plaintiff referred to the following evidence about his planned return to Australia set out at T27.20-31, T28.33-T29.2. I have reproduced this evidence here:

75. [251]

    The following exchanges also took place at T45.44-46, T91.13-T92.1, T92.26-T94.42, T95.17-T96.4, T96.48-T97.45, T121.1-4, T144.19-T145.20:

76. [252]

    To those exchanges, I would also add that the plaintiff gave evidence that if he were to return to Australia to live permanently, ownership of the house in Thailand would pass to the nurse who organised his care there. The plaintiff owns the house he built on the land, but not the land itself. His evidence was that he planned to simply walk away from the property if and when he returned to Australia to live.

77. [253]

    In cross examination, the plaintiff was asked (T 54.42-46):

78. [254]

    As outlined above, the plaintiff also gave evidence that his was paying for care in Thailand. He hired a nurse to run all of his affairs, including the organisation of the roster of other nurses. He claimed that his care and living arrangements cost around the $8,000 to $9,000 AUD per week that he had been paying in Australia (T 26.41-50; T 27.1-18). As previously noted, he failed to produce any evidence to support this claim.

79. [255]

    The plaintiff was asked how long he was going to stay in Thailand in the following exchange (T 29.31-50; T 30.1-4):

80. [256]

    The plaintiff made varied statements regarding his intentions to remain indefinitely in Thailand. I accept that he gave evidence that he has many reasons for wanting to return to Australia to live, including that he is Australian, he does not speak Thai, he wants to live nearer to his children and grandchildren and he always intended to return to Australia. However, those statements do not accord with the statements he made to care facilities in 2017. On or around 6 September 2017, he told the care facility Australian Unity that he was only coming back to Sydney “to settle things up, sell the house and then go back to overseas indefinitely”. Later that year in around December 2017, he told Mildred Simmons House that he had a farm in Thailand, and that at this time in his life he wanted to go back in Thailand because he had business interests back there. He stated in these proceedings that he flew to New South Wales from Thailand only for the purposes of this case, after which he would return.

81. [257]

    The fact that the plaintiff sold his purpose-built house in Cronulla in 2017 accords with the statement he made to Mildred Simmons House that he “wanted to settle things up, sell the house”. He lives in a customised house in Thailand. He thinks that he gets better care there. He has employed a proper carer who co-ordinates his requirements and who understands his needs. He prefers the fact that in Thailand, unlike in Australia, he has control over who comes into his house and who goes out. He stated emphatically that Australian carers and care facilities sadly lack in professionalism (T 144.20-38). In fact, he insisted that he “would be better off in an RSPCA dog pen” than in an Australian care facility (T 145.19-20).

82. [258]

    As to the nature of the future care the plaintiff will require, the joint report of Ms Miller-Ravagnani and Ms Borthwick provides expert evidence of his ongoing needs. Ms Miller-Ragagnani recommended that the plaintiff would require 15 additional hours of care per week, plus four weeks of 24-hour home-based respite care per year (CB, Report 15/03/18, p 5). She also recommended six hours per week of attendant care with an activity-leisure focus to address the plaintiff’s depression and weight gain, and one hour per week with a nurse to address pressure areas on the skin caused by immobility (CB, Report 15/03/18, p 4). Both experts agreed that the plaintiff should engage a dietician to address weight gain. Ms Miller-Ravagnani recommended eight hours with a dietician per year (CB, Report 15/03/18, p 7). I note as before that to the plaintiff’s credit, he has since lost weight and is unlikely now to require a dietician into the future.

83. [259]

    Ms Borthwick did not consider that the plaintiff suffered any ongoing disabilities related to his fall which required a functional change in need for care (CB, Report 15/03/18, p 9). She noted that the plaintiff did not require active night-time care or one-on-one daytime supervision. This provides for varied levels of care within the 24-hour period already provided for, including two-person attention at different periods within the 24-hour period (CB, Report 15/03/18, p 10). Ms Borthwick also noted that although it is likely that the plaintiff’s condition will continue to deteriorate in the future, settlement documents from the plaintiff’s 2008 stroke identified increased care requirements over time, in keeping with age-related change, and made provision for those needs. Those provisions include for physiotherapy and medical and other services which the plaintiff has not used. Ms Borthwick does not consider that there is a need for additional provisions of this kind. As I set out earlier, I accept and prefer the evidence of Dr Zeman that the plaintiff does not require additional care. His opinion accorded with that of Ms Borthwick, although their reasoning differed. Further, the plaintiff was already given an allowance in his settlement proceedings for increased care after five years to account for his increased needs as he aged.

84. [260]

    The defendant brought evidence that 24-hour care in Thailand costs approximately $1,319 per month, or $1.81 per hour. As I previously stated, this estimate does not need to reflect the plaintiff’s exact costs to illustrate the great difference in price between what the plaintiff would pay for care if he remained in Thailand, and the price he would need to pay if he returned to Australia.

85. [261]

    I do not accept the plaintiff’s evidence that he wants to return to live in Australia. The evidence he gave was inconsistent and illogical. For the reasons given above, in light of his future care requirements and their cost in Thailand, I do not make an allowance for future commercial care.

86. [262]

    The result is that the plaintiff’s case fails. I enter judgment for the defendant.

87. [263]

    The defendant is to file and serve written submissions in relation to costs by 17 June 2019. The plaintiff is to file and serve written submissions in reply by 14 June 2019.

88. [264]

    I make the following orders: