Furner v Jackson

1. [1]

   HER HONOUR: The plaintiff seeks damages for personal injury arising out of a slip and fall she sustained at an open house inspection.

2. [2]

   The plaintiff is Kellie Furner. The first defendant is Alan Jackson. The second defendant is Linda Kondouras. The first and second defendants are husband and wife, they were the owners of the property that was open for inspection. The third defendant was the licensee of the real estate agency, The Agency Sales NSW Pty Ltd. These proceedings have been discontinued as against the third defendant. The fourth defendant is CK1 Realty Pty Ltd.

3. [3]

   P. Khandar SC with E. Anderson of counsel appeared for the plaintiff. A. Ahmad of counsel appeared with M. Kheir for the defendants. The parties relied on the plaintiff’s Court Book marked Exhibit A (‘Ex A’).

Background

1. [4]

   On 18 January 2020, the plaintiff slipped and fell on 18 January 2020 (‘the accident’) on the driveway of a residential property located at XX Crescent, Garden Suburb, in the State of New South Wales (‘NSW) (‘the property’).

2. [5]

   The plaintiff seeks personal injury damages alleging negligence by the first and/or second and/or fourth defendants (‘the defendants’). The fourth defendant was the real estate agent engaged by the first and second defendants to sell the property.

3. [6]

   These proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW).

The evidence

1. [7]

   The plaintiff relied upon her evidentiary statement dated 22 March 2022 (Ex A 35) and further evidentiary statement dated 24 March 2022 (Ex A 52). She gave evidence and was subject to lengthy cross-examination.

2. [8]

   David Furner, the plaintiff’s husband, Isabella Furner and Kyle Furner, the plaintiff’s adult children relied upon their evidentiary statements. They were all cross-examined.

3. [9]

   The plaintiff relied upon an expert report prepared by Denis Cauduro (CB D091). He was not required for cross-examination.

4. [10]

   The second defendant provided statements dated 6 June 2022 and 16 September 2022 (‘Ex 9’). Ms Cveta Kolarovski, the principal of the fourth defendant, provided a statement dated 10 June 2022. They were cross-examined.

5. [11]

   Drs Shatwell and Peter Giblin, Orthopaedic Surgeons, provided a joint report and gave concurrent evidence (CB G277).

6. [12]

   Psychiatrist Dr Leonard Lee and psychologist Ms Kate Glancey provided a joint reports and gave concurrent evidence (CB G286).

The pleading framework

1. [13]

   By Amended statement of claim dated 10 September 2021 the plaintiff relevantly pleads that on a date prior to 18 January 2020 the first and second defendants performed or caused to be performed remedial works including painting the sloping driveway at the front of the property. These works rendered the driveway dangerously slippery.

2. [14]

   On or about 18 January 2020 the plaintiff was lawfully present at the property for the purposes of inspecting it for purchase when she slipped on the driveway and fell heavily to the ground suffering injury, disability, loss and damage.

3. [15]

   The foregoing circumstances gave rise to a risk that a person might slip and fall and suffer injury if reasonable measures were not taken to prevent that risk of harm. The risk of harm was foreseeable and was not insignificant. A reasonable person in the position of the first, second and fourth defendants and each of them would have taken reasonable measures to avoid the risk of harm which materialised. The first, second and fourth defendants and each of them owed the plaintiff a duty of care and were in breach thereof and were negligent.

4. [16]

   The particulars of negligence against first and second defendants were pleaded as follows: placing the plaintiff in a position of peril in the circumstances; Failing to warn, or adequately warn, the plaintiff of the risk of slipping on the driveway; Failing to conduct any adequate, risk assessment as to the slipperiness of the driveway particularly when wet; Failing to place non-slip mats or similar non-slip control measures over the driveway prior to the sales inspection; Applying or causing to be applied a glossy paint which rendered the driveway dangerously slippery particularly when wet; Failing to add a non-slip additive to the paint prior to its application; Failing to coat the painted driveway with a non-slip sealant and failing to take any or, any adequate measures to increase the slip resistance of the painted driveway surface when they knew, or ought to have known, it was dangerously slippery particularly when wet.

5. [17]

   The particulars of negligence against the fourth defendant are as follows: Placing the plaintiff in a position of peril in the circumstances; Failing to conduct any, or any adequate risk assessment of the slipperiness of the driveway surface particularly when wet; Failing to warn, or adequately warn, the plaintiff of the slipperiness of the driveway surface notwithstanding it was known the driveway was dangerously slippery particularly when wet; Failing to place non-slip mats or similar non-slip control measures over the driveway prior to the sales inspection by reason of the defendants negligence the plaintiff suffered injury, disability, loss and damage.

6. [18]

   The plaintiff’s particulars of injuries included injury to her neck, injury to her shoulders, an injury to her right elbow, an injury to her right wrist, an injury to her right hip, an injury to her right knee and shock and sequelae. Her most serious injury was the injury to her neck.

7. [19]

   Prior to the accident, the first and second defendants retained ‘The Agency Sales NSW Pty Ltd’ for three days for the sale of the property. ‘The Agency Sales NSW Pty Ltd’, the third defendant, engaged the fourth defendant to perform estate agency work with respect to the sale of the property. As previously stated, the third defendant is no longer a party to the proceedings.

The defendants’ defence

1. [20]

   On 15 September 2021, the defendants filed a defence to the further amended statement of claim (‘defence’). In their defence, the defendants’ pleaded:

2. [21]

   The defence, on behalf of the first, second and fourth defendants, do not deny that the plaintiff “having slipped and fallen heavily”. They plead blanket denials of negligence (see para 4 at CB A012) and deny that the plaintiff sustained the injuries and disabilities as alleged or at all. However, at the hearing the defendants, while still denying liability, admitted that the plaintiff suffered injuries from the fall, but the cause of the plaintiff’s neck injury is in dispute. The issue of contributory negligence is not pressed (T350.24).

Background

1. [22]

   The plaintiff was born on XXX 1969 in Canberra, Australia. She grew up in her parent’s home.

2. [23]

   She describes her childhood as unpleasant. Both she and her brother were sexually assaulted by a close family member during their childhood years.

3. [24]

   The plaintiff met her husband, David Furner, when she was 15 years of age. The plaintiff completed her primary and secondary education at Weston primary school and Holder high school (from years 7-10). In 1987, she attended Stirling College for years 11 and 12, completing her HSC.

4. [25]

   Between 1987 and 1990, the plaintiff was employed in some part time jobs, as she was still in the early stages of adult life. She was unsure of the career path she wanted to follow.

5. [26]

   In 1990, the plaintiff commenced employment with the Chief Minister's Office in Canberra. She was employed there for two years as an executive assistant.

6. [27]

   In 1993, the plaintiff commenced employment with the office of Births, Deaths and Marriages. She was employed there for 12 months.

7. [28]

   Between 1990-1994, the plaintiff also ran a dance studio in Canberra.

8. [29]

   In December 1994, she and David Furner married. She was the head choreographer and cheerleader of the Canberra Raiders. The cheer squad was known as the 'Raiderettes'. In 1989 she was promoted to running the Raiderettes. In 1995, she finished with the Raiderettes. During this time, her husband was a professional rugby league player with the Canberra Raiders. He represented both NSW and Australia in rugby league.

9. [30]

   The plaintiff and her husband have three adult children from their marriage, being: Maddison, Kyle and Isabella.

10. [31]

    In 2001, the plaintiff and her family moved to the United Kingdom for period a of four years, while her husband was employed as a professional rugby league player for the Wigan Warriors and subsequently with the Leeds Rhinos. While at the Leeds Rhinos, Mr Furner played in the position of lock in the 2004 Super League Grand Final.

11. [32]

    In 2004, the plaintiff’s husband retired from being a professional rugby league player. They returned to Canberra to live. Upon their return to Australia, the plaintiff commenced a beauty therapy business, 'Mabella Beauty’, which she ran from their home. The business mainly involved nails, waxing and spray tanning. From 2005 to 2009, she operated that business on a part time basis. The plaintiff recalls that she was earning approximately $500-$600 net per week at that time.

12. [33]

    In 2006, the plaintiff’s husband took on a role as assistant coach for the Canberra raiders. In 2009, the plaintiff’s husband was appointed as the head coach of the Canberra Raiders. During that time, he was rarely home due to the demands of his job. As a result, the plaintiff was required to close her business to look after their three children on a full-time basis. Until the end of 2009 the season, the plaintiff’s husband remained as the head coach of the Canberra Raiders.

13. [34]

    In 2012, the plaintiff was diagnosed with breast cancer. She had bilateral breast reduction, bilateral mastectomy and reconstructive surgery, all performed during the one operation. After surgery there were problems. Eight weeks from the reconstructive surgery, the plaintiff had a complication with her right breast reconstruction. As a result, she had her right reconstructed breast removed. Later that same year, she had further reconstructive surgery performed on her right breast.

14. [35]

    In 2013, the plaintiff’s husband obtained employment with North Queensland Cowboys as an assistant coach in Townsville, Queensland. As a result, the family moved to Townsville where they lived for 3 years.

15. [36]

    In 2014, the plaintiff and her husband purchased and opened a ‘Crust Pizza’ franchise in Townsville. She recalls working 17-18-hour days, 7 days a week. Her husband was not involved in the running of that business. She was responsible for managing the shop, which included, but was not limited to, cooking, ordering stock and managing staff. In 2017, due to a general downturn in business in the Townsville area at that time, they decided to close the Crust Pizza franchise.

16. [37]

    In 2015, the plaintiff underwent an MRI to her left breast and it was thought that there was a cancer tumor. However, fortunately as it turned out, she had a large abscess and not a tumor. The abscess was removed. She had both the left and right breast reconstructions removed due to complications that had arisen.

17. [38]

    In 2016, the plaintiff was diagnosed with post-traumatic stress disorder (‘PTSD’) and complex trauma, arising from a close family member sexually assaulting her as a child. As a result, she spent five weeks in a mental health facility, where she was medicated for both depression and anxiety. Upon discharge, she underwent counselling for a period of time, that she felt was of benefit to her. By late 2018, she ceased her counselling sessions. She felt that she had recovered from the PTSD and was able to move on with her life and she did so.

18. [39]

    It is the plaintiff’s evidence that for the 12 months prior to her accident, she did not suffer from any psychological complaints. This evidence is in dispute. I shall refer to it in more detail later in this judgment.

19. [40]

    The plaintiff was involved in a legal claim in relation to her mother's estate where her father was attempting to acquire the estate with the intention of passing it to his second wife.

20. [41]

    In late 2016, the plaintiff and her family moved back to Sydney to live, as her husband was now employed as the assistant coach of the South Sydney Rabbitohs.

21. [42]

    In May 2017, she commenced employment with the 'Men of League' foundation as the 'National Administration Manager' and 'Executive Assistant' to the CEO of that foundation. In 2019, she finished her employment with the 'Men of League' foundation. She recalls during her time employed with the 'Men in League' foundation, she was earning approximately $70,000 gross per annum. She was also provided with a company car that she was free to use as she wished.

22. [43]

    In October 2019, she obtained employment with the Newcastle Knights as the 'Community Relationships Coordinator'. That role involved a lot of community work, setting up relationships in the community, as well as game day operations. In addition, her role involved organising the Newcastle Knights' charitable status. This was her dream job, as it allowed her to work in and about the community, while assisting those persons in the community who were not as advantaged as some others.

23. [44]

    Her role with the Newcastle Knights was on a full-time basis. She was required to work a 38-hour week. If it was not for the accident, she says that it was her intention to continue in this role and/or a similar role until least the age of 70.

24. [45]

    On 30 September 2020, she resigned from her job at the Newcastle Knights due to the injuries she sustained in the accident. Prior to her resignation, she had been placed on JobKeeper payments, due to the COVID-19 pandemic, as was the case with the remainder of the staff at the club.

25. [46]

    On 18 January 2020, the plaintiff attended an open for inspection at XX Cupania Crescent, Garden Suburb (‘the property’). Mr Furner witnessed the accident and corroborated the plaintiff’s evidence. As there is no real factual dispute as to how the plaintiff came to slip and fall, I accept their evidence.

26. [47]

    On the morning prior to the accident the plaintiff worked, as the Newcastle Knights had a community launch. After that, the plaintiff and her husband drove to the property together. Her husband parked on the opposite side of the road and a little bit further up the street from the property.

27. [48]

    Once Mr Furner had parked their car on the opposite side of the road, the plaintiff and her husband walked from their car across Cupania Crescent ('the road') towards the driveway of the property. Mr Furner was in front of the plaintiff, as they walked from the car towards the property. The plaintiff was not carrying a hand bag. It is common ground that the plaintiff was wearing flat sandals, which had wrapped around the back of her ankle to secure them. These sandals were produced at trial. The parties agreed that they were leather sandals with a rubber sole. They were not slip-on sandals. In other words, the sandals were appropriate footwear.

28. [49]

    While it had rained in the morning on the day of the accident, it was not raining at the time the accident occurred. The plaintiff observed the road and the driveway to the property were both wet from the morning's rainfall.

29. [50]

    As the plaintiff stepped onto the driveway, her right foot slipped underneath her and to her left. As a result, her body fell to her right and she subsequently landed on her right elbow and right hip. She says that she immediately felt significant pain and discomfort in her right elbow and right hip. She lost some skin on her right elbow and her right hip was very sore.

30. [51]

    The plaintiff’s husband immediately came to her assistance and picked her up off the ground. Once she was back on her feet, she observed the driveway looked very shiny/glossy.

31. [52]

    It is the plaintiff’s and her husband’s evidence that another couple who had just pulled up outside the property came running over to the plaintiff to make sure she was okay.

32. [53]

    Once the plaintiff’s husband had assisted the plaintiff to her feet on the driveway, she took a couple of steps towards the front door of the property and slipped again on the driveway. As the plaintiff’s husband was already holding onto her arm, and he was able to support her and prevent her from the falling to the ground a second time.

33. [54]

    Once she and her husband arrived at the front door of the property, a lady who she believed worked for the real estate agents was located at the front door. This lady was later identified as Ms Brittany Johnson (‘Ms Johnson’). The plaintiff had a conversation with Ms Johnson using words to the following effect: “I have slipped over on the driveway, it is very slippery.”

34. [55]

    The plaintiff recalls that she felt deeply embarrassed, as a number of people had observed her accident. She just wanted to go inside the property. Later during the open house inspection, Ms Johnson came up to her and said words to the following effect: “Are you ok? Because you fell quite hard on the driveway.”

35. [56]

    In response, the plaintiff said that Ms Johnson then went out to inspect the driveway. The plaintiff recalls that she spoke to Ms Johnson a short time later, and Ms Johnson said words to the following effect: “I went to check the driveway out, and I slipped on it as well, it is very slippery.”

36. [57]

    The fourth defendant, Ms Kolarovski, (the director of CK Realty) gave evidence. The plaintiff submitted that the Court should deal with her as a singularly unimpressive witness. She was reluctant to attend Court to give evidence in person. As she was a defendant and her credibility was seriously in dispute.

37. [58]

    Ms Kolarovski provided a statement dated 10 June 2022, it was important that I could assess her demeanour. She did attend Court and she was cross-examined.

38. [59]

    It is common ground that during Ms Kolarovski’s partnership with the Agency, she entered into a sales agreement with Mr Jackson and Ms Kondouras, the first and second defendants, the owners of the property for the sale.

39. [60]

    Ms Kolarovski agreed that on 18 January 2020, another agent, Ms Johnson conducted an open inspection at the property. Ms Kolarovski was not present at the open for inspection.

40. [61]

    Her evidence was that she was informed by Ms Johnson that a woman approached her [Ms Johnson] saying “the driveway is slippery and I slipped or stumbled.” Ms Johnson asked her “are you okay?” The plaintiff replied, “I am fine.” It is common ground that the plaintiff continued to inspect the property. As Ms Kondouras was not at the property when the plaintiff fell, it follows that she was not an eyewitness to the plaintiff’s fall on the driveway. Ms Kondouras arrived at the property after the plaintiff had already left. It was at this time Ms Johnson relayed the above conversation to her.

41. [62]

    After that open for inspection, following the usual procedure, Ms Johnson contacted all the potential buyers the next week to confirm their interest in the property. However, the plaintiff did not answer nor return her call.

42. [63]

    Ms Kolarovski describes the driveway as steep and that one can view the whole driveway from the front door of the property.

43. [64]

    She also says that she had not been informed of any prior similar incidents relating to the driveway and during her time at the property, she says she did not experience the driveway being slippery, even when she was wearing high heeled shoes (T314.10-15).

Text Messages

1. [65]

   A log of text messages sent between Ms Kolarovski (sometimes referred to as Cveta) and the first defendant (referred to as Alan) were adduced as evidence during the hearing (‘Ex F’), but the log was missing some entries. On the last day of the hearing, a more complete copy was produced [Added to Ex F].

2. [66]

   The texts messages are those between 16 October 2019 and 25 September 2020. They relevantly read as follows:

3. [67]

   It should be observed that the reference on 25 January 2020 to “driveway is drying” is after the accident occurred on 18 January 2020, as are the latter two messages, but I shall refer to the admissions made later in this judgment as to when the painting on the driveway took place.

4. [68]

   Ms Johnson, at the time of the accident, was the employee of the fourth defendant. It is common ground that she was conducting the open house on the day of the accident on behalf of the fourth defendant. As such, she was in a position to give a first-hand account on the accident, the state of the driveway on the day of the accident and her version of the conversation with the plaintiff.

5. [69]

   She was not called upon to give evidence by the defendants. During cross examination, Ms Kolarovski stated that while Ms Johnson is no longer employed by the fourth defendant, she had her contact details and they were provided to the solicitors representing the defendants (T239.36-44).

6. [70]

   Hence, the defendants are aware of Ms Johnson’s address. No reason has been proffered to explain why she was not called to give evidence. Ms Johnson could provide important evidence as to whether or not the driveway was slippery, her observations of the plaintiff’s fall and her conversation with the plaintiff on the day of the accident. Therefore, in the exercise of my discretion, I draw a Jones v Dunkel (1959) 101 CLR 298 inference that her evidence would not have assisted the defendants’ case.

7. [71]

   The plaintiff’s statements that concerned Ms Johnson were admitted on the basis that the representations were made but not as to the truth to them. Ms Johnson was the fourth defendant’s employee, as I set out under the next heading “credibility”. As I have already set out earlier in my judgment, I accept the plaintiff’s and her husband’s evidence in relation to the accident. I also accept the plaintiff gave truthful evidence recounting what Ms Johnson said.

Credibility of parties

1. [72]

   At the hearing, I drew to the plaintiff’s counsel’s attention to my concerns with the plaintiff’s manner of giving evidence. After carefully observing this manner of giving evidence, it appeared that the plaintiff had some entrenched views as she would not answer some questions, nor would she give direct answers to other questions. Overall, I accept that she gave truthful evidence. Except for topics I identify throughout this judgment relating to causation and damages, I have accepted her evidence as to liability.

2. [73]

   Counsel for the plaintiff submitted that this should not turn into a significant finding or adverse finding in respect to her credit on the basis that she came before the Court having suffered a terrible event and has had ongoing problems. While it's by no means unusual that when confronted by questions from the cross‑examiner that the plaintiff might not have wanted to answer or had some difficulty or stoutly refused, such as "I'm not giving you my journal", that is not an uncommon feature in litigation.

3. [74]

   The plaintiff’s counsel submitted any issues in respect of her credibility does not affect liability. I agree. Her reluctance or her stout refusal to answer certain questions is not sufficient to militate across all aspects of her medical case and impact her credibility (T349.42-350.34). Plaintiffs do their best when they come to Court to give their evidence, but also one shouldn’t separate out from that presentation the medical reality (T353.14-16). As to the submission about the plaintiff's dishonesty and her credit, it would have more force, if we were talking about a plaintiff who comes to this Court having not had any surgery, having no active treatment. This plaintiff has gone under the knife not once but twice and is still looking for ways to deal with her pain (T372.5-19).

4. [75]

   The plaintiff was not an impressive witness, who took every opportunity to bolster her claim and denied every opportunity to make reasonable concessions. The Court has every reason to lack confidence in the evidence of the plaintiff.

5. [76]

   In assessing the strength of the plaintiff’s evidence, the Court is guided by Mouin Junior Dalati v Shereen Rifat Brown [2020] NSWSC 783 (‘Dalati’), where Kunc J explored the concept of actual persuasion in the context of fact-finding at [45]:

6. [77]

   In Dalati, Kunc J echoed Basten JA at [50] (with whom Handley AJA agreed) by quoting Sangha v Baxter [2009] NSWCA 78:

7. [78]

   As to making assessments on credibility, Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]–[74] provided some guidance as follows:

8. [79]

   Overall, the defendants’ counsel submitted that the Court cannot be satisfied that the plaintiff’s evidence is credible. Throughout her cross examination, the plaintiff:

   1. (1)

      demonstrated selective memory recollection;

   2. (2)

      gave answers that were not consistent with what was said on other occasions;

   3. (3)

      when asked innocuous questions, evaded giving truthful, frank and reliable answers; and

   4. (4)

      demonstrated to have behaved dishonestly in respect of matters not germane to the litigation, but significant enough to treat her motivations with skepticism.

9. [80]

   In particular, counsel for the defendants’ counsel submitted that the plaintiff’s evidence should be rejected where she says that she drafted her evidentiary statement without the participation of her legal advisors and that not one word was changed and that she did not have a conference with them as to what would be included. See an exchange for example at p 40 of the transcript, which reads as follows:

10. [81]

    Then he referred to his questioning as to household chores and her pain levels:

11. [82]

    I interpose here, surprisingly, I accept the plaintiff’s evidence on the topic of her preparation of her statement. She was a personal assistant in a government department in Canberra. In my view she had experience and was competent to write her own statement. As I recorded in the transcript that I only found a few typographical errors in her statement.

12. [83]

    Counsel for the defendants then directed an attack on the plaintiff’s credit, mainly focussing upon the issues of causation and damages. As previously stated, I accept that the plaintiff gave truthful and unembellished evidence in relation to the circumstances of the accident, (liability).

13. [84]

    In the counsel for the defendants submissions, the Court was invited to reject the following evidence given by the plaintiff. Her evidence given is inconsistent with the records of her psychologist regarding her level of her pain and the amount of housework she would perform, the exaggerations about the state of her marital relationship. These criticisms will be dealt with when they arise later in this judgment.

14. [85]

    The defendant counsel also turned his particular attention to the plaintiff’s bike riding:

15. [86]

    The plaintiff’s husband gave evidence that he bought the bicycle as a gift for the plaintiff to encourage her to go bike riding together. However, he says she only managed to ride the bicycle twice. I accept their evidence as being truthful. Therefore, I make no unfavourable findings on this topic.

Use of medication

1. [87]

   The defendants say that so far as the plaintiff’s use of medication is concerned (Ex 1), it demonstrates that she has been using Venlafaxine (an anti-depressant) consistently before and after the subject accident. Her evidence that she only took them before to help with sleep, is to be rejected when at the same time she said she did not suffer from sleep disturbance prior to the subject accident. The following exchange is illustrative (T.54):

2. [88]

   In fact, I accept the plaintiff’s evidence on these topics. She may well have had prescriptions dispensed and her husband attended the pharmacy to get the prescriptions filled, but she did not actually take them. As to her reporting of her marital relationship to Vanessa Allen, I will deal with this topic later in this judgment.

The reliability of Mr Furner

1. [89]

   So far as the credibility of Mr Furner is concerned, the plaintiff’s counsel submitted at the hearing that the defendants' liberal use of the word "dishonest", so far as these witnesses are concerned in the submissions should be put to one side.

2. [90]

   For example, "Mr Furner had no hesitation in being dishonest with this Court." Those are very serious matters, and they should have been put to Mr Furner, and they weren’t (T353.31-38).

3. [91]

   Otherwise, Mr Furner accepted that the plaintiff did have good days and did do vacuuming and participated in the washing. Otherwise, she can put the “Hello Fresh” semi-prepared meals together.

4. [92]

   Mr Furner also accepted prior to the accident he would put the washing on the line, clean the house, make dinner, mow the lawns, take out the garbage.

5. [93]

   The defendants’ attack on Mr Furner’s credibility is also to be questioned. Specifically, his denial of marital problems.

6. [94]

   The plaintiff’s evidence is that towards the end of that year the plaintiff travelled to the UK to visit her husband and there was a time of marital disharmony. The plaintiff corresponded with her treating psychologist about this. The plaintiff and her husband worked through their issues and in his opinion their marriage is as strong as it has ever been. The Court should reject any submission that the Furner’s otherwise healthy and happy nearly 30-year marriage has been indelibly marred by this unhappy time.

7. [95]

   Counsel for the plaintiff also submitted that the Court should not accept any submission that the credit of this decent, hard-working plaintiff in this case, is remotely tainted by her decision to conceal the time of marital disharmony and her subsequent correspondence with her psychologist about it.

8. [96]

   I accept on the topic of marital disharmony, the plaintiff’s evidence was corroborated by her husband. The plaintiff’s evidence was that prior to the accident, she enjoyed a very good relationship with her husband. I accept that the plaintiff and her husband had some short periods of marital disharmony, but I do take into account that, as the plaintiff’s counsel submitted, most marriages encounter problems from time to time. Mr Furner initially denied marital problems in 2018, but was prepared to admit that the plaintiff had been stressed and that was caused by him moving around for work.

9. [97]

   I accept that Mr Furner gave truthful evidence, save for at first he did try to minimize the period of marital disharmony, but then admitted that it was more serious. It is my view that he viewed that period of their married life through his lens, as not being as serious as the plaintiff viewed it. I accept both the plaintiff and Mr Furner’s evidence that they have moved on from the problems that occurred when they were living in different countries, he in the United Kingdom and when he first returned to Australia.

Credibility of the second defendant – Ms Kondouras

1. [98]

   In Ms Kondouras’ first evidentiary statement dated 6 June 2022 at [3] she stated at her husband resurfaced the driveway every 2 years. In her supplementary evidentiary statement dated 16 September 2022, (Ex 9) she stated at paragraph [1] that she corrected her evidence to be that it was not every two years but very often her husband would gurney the driveway.

2. [99]

   Counsel for the plaintiff submitted that Linda Kondouras, the first defendant’s wife was unreliable and nothing can be gained from her evidence (T370.12-17). It was submitted that her evidence was unimpressive and the Court should take a very dim view about the text message on 25 January (Ex F). While it is after the fact, he submitted that the Court would be left wondering what that agent did know and further that there is absolutely no prospect that anyone would simply send someone a text message saying, “the driveway is drying, I'll leave it to you.” That had to be a response to something Ms Kolarovski either called to discuss or a text message balloon has been deleted (T371.38-50).

3. [100]

   Counsel for the plaintiff emphasised that the second defendant was not released from liability, simply because she didn’t paint the driveway herself (T371.25). Rather, it was suggested that “Ms Kondouras wasn't the hapless witness that one might have thought or she's portrayed to be’. She knew that there's a problem with that driveway” (T371.27-29).

4. [101]

   While the plaintiff’s counsel accepts that the second defendant was doing her best, but submitted that her memory was terribly unreliable. The evidence contained inconsistencies the greatest of which was that her husband had never repainted the driveway, only ever gurneyed or brushed it [my emphasis].

5. [102]

   The second defendant took no active part in any driveway maintenance her husband performed and, with great respect to her, if she cannot now even recall the driveway had been repainted by her husband a week before the accident, she cannot give any reliable evidence about the product he used.

6. [103]

   Relevantly, however, the Court should take from the second defendant’s evidence the following: the absence of any incidents on the driveway in the previous 20 years is irrelevant, as it had been painted by her husband a week before the plaintiff’s fall. She acknowledged the driveway was steep and she acknowledged her hope that many people would be attending the property on foot and walking up the driveway.

7. [104]

   The second defendant understood it was important for her to be accurate in her statement; she was concerned to ensure her evidence was accurate therefore she made her second statement to correct some matters in the earlier statement (“yes, at the time, yes I thought what I said was correct, but then in revisiting it and rethinking it, I did change a few of the wording is, yes I did” (T323.45); in answer to the question “did you read your second statement in the last two weeks and were you satisfied that its content was precisely correct? She responded, “it was, it was correct for me, yes…” and I interpose here that to say she changed a few of the wording, is somewhat of an understatement.

8. [105]

   One of the corrections made in the second statement was the removal of the word “anti-slip” (for reasons advanced above, however, no representation made by the second defendant as to her knowledge about paint or painting of the driveway can be accepted as the second defendant had no recollection of her husband ever painting it).

9. [106]

   The second defendant admitted in cross-examination that her memory had faded with age (T324.5-9). Counsel for the plaintiff pointed out that the second defendant’s memory was prone to error (T325.20-42). The second defendant confirmed that her recollection of the first defendant resurfacing the driveway was incorrect and had to be amended later in her second statement (T326.0-18).

10. [107]

    Overall, I found Ms Kondouras’ evidence to be unconvincing and contradictory. The change in her evidence is very significant. In her supplementary witness statement, she changed her evidence at paragraphs [1] and [2] as follows:

11. [108]

    She changed her evidence from “her husband resurfaced the driveway every 2 years” to “it was not every two years, but very often” her husband “would gurney the driveway”. From her husband resurfacing the driveway every two years to he would gurney the driveway, but it was not every two years and further she did not recollect that six-months prior to the accident her husband painted the driveway: see [6] of the latter statement.

12. [109]

    In cross-examination, Ms Kondouras’s evidence is that she does not remember her husband painting the driveway in the week prior to the accident (T337.44-46). She later stated that she was not involved at all with the maintenance of the driveway, and this was her husband’s role around the house (T339).

13. [110]

    I accept and prefer the earlier email between the solicitors dated 7 October 2020, which was somewhat closer in time to the accident where it was admitted that the first and second defendant’s husband that her husband had painted the driveway a week prior to the accident. This also accords with the admission made in the defence. Hence, I make a finding that the driveway was painted by the first defendant a week prior to the accident.

Credibility of the first defendant, Mr Alan Jackson

1. [111]

   So far as Mr Jackson’s evidence is concerned, in his wife’s first statement, she sets out her husband’s current medical conditions. At [7] she deposes that her husband suffers from epilepsy, memory loss, Parkinson’s disease, skeletal myopathy and is assessed by Aged Care as a level 3 in home care. Attached to her affidavit at annexure A is a report of Dr Patricia Caruana, a general neurologist and neuroimmunologist of Lake Macquarie Private Hospital dated 1 July 2022. Dr Caruana has been the first defendant’s treating neurologist since 20 May 2022 (over 2 years after the accident). Her report relevantly reads:

2. [112]

   Importantly this report does not address what the first defendant’s cognition was like at 18 January 2020, the date of the accident.

3. [113]

   I accept the evidence of Mr Jackson’s treating psychologist, Dr Patricia Caruana, that Mr Jackson is cognitively impaired and unable to give evidence. Therefore, the court can only rely on the evidence provided by his wife, Ms Kondouras, which I found earlier to be contradictory and unreliable. AS to the first defendant’s cognition at the time of the accident is concerned, it is my opinion that the text messages sent by him to the fourth defendant prior to and after the plaintiff’s fall are perfectly lucid.

The plaintiff’s expert evidence on liability

1. [114]

   Denis Cauduro, safety management, ergonomics and building Consultant, provided an expert liability report dated 15 February 2021 on behalf of the plaintiff. The defendants did not rely on any expert report on liability. Mr Cauduro was not required for cross-examination. The factual assumptions that Mr Cauduro set out in his report have been proved at trial.

2. [115]

   Mr Cauduro accepts that such an incident could have occurred as a result of an inadequate level of slip resistance being available in wet conditions on the driveway surface at the defendants’ premises on which she the plaintiff was walking. He added that there was a failure by the defendants to carry out a risk assessment of the wet floor area, prior to allowing persons to walk upon it.

3. [116]

   He considered the various forces that would have been associated with the loss of balance and fall that the plaintiff experienced following her slip and fall on the external driveway as the primary or proximal causes of the physical injuries that she apparently sustained. Among the more antecedent or distal causes he would place most emphasis on the apparent failure of the owner/occupier/defendant to have implemented systems for the identification of risks and control of potential hazards to safe pedestrian movement at all locations within the defendants’ external driveway to which workers/persons could, and were apparently routinely permitted, to gain access to in the immediate vicinity of the dwelling. He would also include as distal causes the associated failure of the owner/occupier/defendant to have ensured that safer (i.e. more slip resistant pedestrian surfaces) were available at the residence, especially on the external driveway at all times, or that appropriate actions were effectively implemented.

4. [117]

   Regarding probability and foreseeability, Mr Cauduro opined that there is a distinct probability that a person might experience a slip and fall injury, when walking within the steep external entrance driveway of a residence when they step on a section of the surface which has been contaminated by water. There is a substantial probability that a slip of this type will result in a loss of balance and fall.

5. [118]

   Conversely, it is very unlikely that a slip can occur in circumstances in which the pedestrian surface in combination with the pedestrian's footwear provides adequate frictional contact. If the surface had met long-standing recommendations in relation to the slip resistance of pedestrian surfaces generally and in relation to Table 1 of HB 197:1999 highlighting that any surface with a coefficient of friction lower than 0.35 is marginally unsafe and Table 2 categorising at a very high contribution of the floor surface to the risk of slipping when wet, it is unlikely that the plaintiff would have slipped and fallen at the subject location and in the manner she described.

6. [119]

   It is Mr Cauduro’s opinion that it was foreseeable and should have been foreseeable to the defendants prior to the accident, that the combination of pedestrian surfaces that were slippery when wet or otherwise contaminated with the predictable presence of water, due to inclement weather would impose on pedestrians at the premises a significant and predictable risk of slipping and falling. There is an empirically established and quite high probability that a person who suffers a slip and fall while walking within the built environment might suffer injury.

7. [120]

   In forming his opinion, Mr Cauduro had regard to:

   1. (1)

      the amount of publicly available information about the high incidence of slips or trips and falls as causes of injury in the built environment generally;

   2. (2)

      the large numbers of individual pedestrian movements that could be expected to take place upon the external driveway;

   3. (3)

      the fact that external driveway will obviously be wet, during inclement weather;

   4. (4)

      the fact the driveway had been painted by the first and second defendants;

   5. (5)

      the fact the driveway is steep at 10 degrees;

   6. (6)

      the recommendations provided in HB 197:1999 in relation to a surface that achieves less than average SRV of 25 will have a very high risk of being slippery when wet;

   7. (7)

      the requirement of the (now superseded) AS 3661.1 for a level pedestrian surface to be capable of producing under standard measurement conditions a mininum coefficient of friction of 0.40 in order for it to be regarded as slip resistant; and

   8. (8)

      the measurements that he made on the driveway on which the incident occurred.

8. [121]

   In conclusion, it is Mr Cauduro’s opinion that it should have been foreseeable to the defendants, that eventually a person walking on the very steep driveway, when it has been contaminated with water or other potential lubricants, would experience a slip, loss of balance, fall and injury, unless appropriate preventative measures were effectively and unfailingly implemented.

9. [122]

   He also noted that the painted concrete surface and the measurements he achieved highlighted that the driveway fails the Australian Standards when wet. He opined that the first and second defendants have not provided safe access and egress to the property for the workers and visitors. They should have known the steep driveway was a hazard when wet.

10. [123]

    There was no real dispute as to how the accident occurred. I accepted both the plaintiff and her husband’s evidence on this issue. The plaintiff slipped once and then after a few steps when she starting to slip on the slippery surface for the second time, her husband had hold of her and was able to steady her, so she avoided falling for a second time. This is the factual evidence that Mr Cauduro relied upon to reach his opinion. I accept his evidence as his opinion accords with mine. The proceedings are governed by the Civil Liability Act.

Liability Principles

1. [124]

   Section 5B and 5C of the Civil Liability Act read:

2. [125]

   The inquiry in s 5B of the Civil Liability Act asks what a reasonable person would have done, looking forward from a point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: See Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12.

3. [126]

   In normal circumstances the expectation that the plaintiff would exercise reasonable care goes not merely to the assessment of breach of duty, but is “a specific element contained, as a matter of law, in the scope of the duty of care”: See Roads and Traffic Authority v Dederer (2007) 234 CLR 330; [2004] HCA 42 (‘Dederer’) at [45] per Gummow J.

4. [127]

   The effect of s 5C(b) of the Civil Liability Act is that determining whether reasonable care has been exercised cannot merely involve asking if different conduct could have produced a different outcome: Mobbs v Kain (2009) 54 MVR 179; [2009] NSWCA 301.

5. [128]

   The test is always whether the plaintiff, has proved that the defendant, who is owed a duty of care, has not acted in accordance with reasonable care: Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48. The fact that there were measures which could have been taken to avert or diminish the risk that materialised do not establish breach of duty: See Thornton v Sweeney [2011] NSWCA 244.

6. [129]

   A plaintiff must fail in an action for negligence framed in terms of a failure to take precautions, unless the plaintiff shows that a reasonable person in the defendant's position would have taken those precautions: Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [50].

7. [130]

   The plaintiff, as a first-time visitor to the property, was obliged to accept that wet surfaces are more slippery than dry surfaces then so must the defendant who repainted his inclined driveway with an unspecified product only a week before the incident.

8. [131]

   Mr Furner was not challenged as to his visual observation of the driveway being shiny or his tactile observations of the slipperiness of the driveway on the day of the plaintiff’s fall (CB68, para 21).

9. [132]

   From a lay perspective just how slippery the painted driveway was when wet is evident from the plaintiff’s unchallenged evidence that after her fall she observed Ms Johnson slipped on the driveway, as she subsequently remarked to the plaintiff “I went to check the driveway out, and I slipped on it as well. It is very slippery”.

10. [133]

    It was not put to the plaintiff that Ms Johnson’s statement that she also slipped was wrong or unreliable. It was not put to the plaintiff she was mistaken about the remark Ms Johnson then made to the plaintiff about the slipperiness of the driveway.

11. [134]

    The Court should find that all defendants knew, or ought to have known, it was likely that many people would visit the property after the driveway was painted for the purposes of inspecting it during ‘open homes’.

12. [135]

    The Court should find that all defendants knew, or ought to have known, visitors to the property for ‘open home’ inspections would walk up the driveway and take the stairs up to the front door of the house.

13. [136]

    The Court should find that all defendants knew, or ought to have known, some of the ‘open homes’ would take place during rain and that the driveway would be wet.

14. [137]

    While there is no evidence that at any time prior to the driveway being painted any occupant or visitor to the home slipped on the driveway, the only unchallenged evidence is that within a week of the driveway having been painted by the first defendant, the plaintiff slipped (twice) and thereafter the employee of the fourth defendant, Ms Johnson, slipped when walking on the wet driveway.

15. [138]

    The plaintiff has tended expert opinion following scientific testing confirming that even 12 months after the accident the painted driveway surface was dangerously slippery when wet.

16. [139]

    On the contested liability issue in this case, Ms Johnson can fairly be said to be in the defendants’ camp and she was not called to give evidence to contradict the assertion that (i) she herself slipped on the wet driveway or (ii) the remark the plaintiff heard her make about it being ‘very slippery’. I interpose I have already agreed with this proposition.

17. [140]

    The Court discovered during the cross-examination of Ms Kolarovski that not only is Ms Johnson available but that those representing the defendants were provided with her contact details. However, I have already made a Jones v Dunkel inference that Ms Johnson’s evidence would not assist the defendants’ case.

18. [141]

    There is evidence the first defendant corresponded with the fourth defendant by text message about the driveway on 25 January 2020 (CB129) and again on 13 March 2020 (D130). Self-evidently, the topic of conversation in the first text message from the first defendant pertained to the wetness of the driveway and it is tolerably clear there was an understanding of a safety issue with the driveway is evidenced in the second text message.

19. [142]

    As to Mr Kolarovski’s evidence, the plaintiff submitted that the entirety of her evidence about when she first knew there was a slipperiness issue with the driveway is unreliable. For the reasons set out earlier in this judgment, I agree.

20. [143]

    It is completely implausible that the first defendant would send the real estate agent the text message “driveway is drying. will leave it up too (sic) you” without it being in response to a question asked by the agent. Ms Kolarovski’s stoutly declined to accept the text message was in response to something she had asked (T255.22) then retreated to saying she could not recall whether she had asked her client a question (T255.26) then argued that the text message could be read as a standalone message (T255.34) then retreated again into not being able to recall (T255.47).

21. [144]

    No greater demonstration of the unreliability of this witness’s evidence was her robust rejection that the driveway had been repainted a week before the accident (T256.29) which is admitted by the first and second defendants. The witness may have been forgiven for answering “I don’t recall” to that question; Instead, she chose instead to categorically reject the proposition. The Court can repose no confidence in the witness’s memory of dates, as to when she knew of a problem with the driveway. The Court is entitled to find the agent was aware of the problem prior to the plaintiff’s fall.

22. [145]

    The plaintiff’s case is that on a date prior to 18 January 2020, the first and second defendant performed or caused to be performed remedial works including painting on the sloping driveway. This allegation is admitted.

23. [146]

    More significantly an admission was made that the driveway was painted approximately a week prior to the date of the incident. The admission was, that it was painted by “our client.”

24. [147]

    The first defendant, Alan Jackson, ought to be attributed with the selection and paint of the driveway. However, he cannot give evidence as he suffers from memory loss.

25. [148]

    The second defendant’s evidence as to whether the driveway was painted or not is unreliable, unless her evidence was corroborated, the court should not accept it.

26. [149]

    It is not challenged that the charcoal paint that was used was recommenced to the first defendant by professionals. I interpose that the second defendant was not able to give evidence to this effect and this topic was not mentioned in evidence. As there is no evidence to this effect, it is not known whether the first defendant used charcoal paint, nor whether it fulfills the description of non-slip.

27. [150]

    The plaintiff’s case is then that the said works rendered the driveway dangerously slippery. The plaintiff’s case is that these circumstances gave rise to a risk that a person might slip and fall and suffer injury if reasonable measures were not taken to prevent that risk of harm.

28. [151]

    Viewed through this lens, if the case is about using inappropriate paint, then two conclusions are fundamental to establishing liability that use of the product itself manifested a risk and that the first and second defendants knew (or ought to have known) that it was slippery when wet before the accident.

29. [152]

    The insurmountable problem for the plaintiff is that, first, it has not undertaken a test of the appropriateness of the product used on the driveway as distinct from the driveway itself or secondly, and more significantly there is no evidence to impugn foreseeability of risk.

30. [153]

    It would place an unreasonable burden on a defendant to know positively that the “anti-slip paint” that’s been applied to the driveway was of a kind that could create a risk of injury, especially in the location where the plaintiff slipped.

31. [154]

    The reasonable consumer is entitled to rely on a product achieving its intended purpose, specifically a slip resistant pain reducing the risk of slipping. The test is a reasonable person in the position of the plaintiff.

32. [155]

    Mr Cauduro’s stated opinion is that “in summary, in my opinion, it is reasonable to accept that the pedestrian surface would have been adequately slip resistant when clean and dry, it was not dry at the material time and who gave evidence that testing took place one year after the event. The plaintiff adduced no evidence to confirm the driveways condition or changes in the condition since the event.

33. [156]

    For the plaintiff to succeed against the homeowners, given that the second defendant was not involved in the painting, it must specifically be able to satisfy to the Court that the first defendant knew or ought to have known in that week, that the paint he applied was going to create that risk of harm in the week prior to the accident and it is easy to draw an inference due to the marked changed in the second defendant’s evidence.

34. [157]

    That becomes even more difficult in circumstances when there is not a scintilla of evidence that in that week (save for the subject accident) there was a rain or any circumstance following the painting to give rise to knowledge or imputed knowledge of the risk to the first defendant (or any other defendant for that matter). The hindsight - join the dots approach – is not a proper basis to assess the risk and the reasonable response to that risk.

35. [158]

    The plaintiff adduced expert evidence from Mr Cauduro who inspected the premises one year after the subject accident. He opines that the surface when wet, combined with the gradient (in the absence of a handrail) is inadequately slip resistant when wet. His report in essence contends that at all material times, the occupiers ought to have taken precautions at large to any occupant that might walk past or enter the property. His report does not and cannot identify the foreseeability of the risk as a consequence of the paint that is applied.

36. [159]

    The liability report does contend the painted surface is slippery when wet, but to impute liability, it must identify the precautions to be taken to guard against the specific risk. In this case the only guard might have been the introduction of a slip resistant paint.

37. [160]

    The fourth defendant is in no better position, see for example questioning from T238-30 of the fourth defendant’s cross examination:

38. [161]

    Nothing was put to Ms Kolarovski that impugned her knowledge of the driveway or suitability of it. Most notably, nothing was put to her that might attribute liability to the fourth defendant.

39. [162]

    The first, second and fourth defendant’s owed duties of care to the plaintiff. The scope of their duties of care. From the first and second defendant’s evidence and the defendants’ admission, the first defendant had painted the driveway one week prior to the accident. The plaintiff observed that the driveway was wet from the morning’s rainfall. The plaintiff’s husband observed that the driveway looked very shiny/glossy. What sort of paint was used is only in the knowledge of the first defendant. As there was no evidence given by the first and second defendants, as to type of paint allegedly used on the driveway, but not pleaded nor established by the first defendant or an expert, I do not accept that it was a non-slip paint. In any event, the risk of a person slipping on the driveway was in any event foreseeable. The risk was not insignificant. The fact that the plaintiff cannot identify the paint used on the driveway is not to the point. As I have earlier set out, the type of paint is within the defendants’ knowledge, not that of the plaintiff. The first defendant removed the reference to “anti-slip” [paint] in her second statement.

40. [163]

    It is admitted that the fourth defendant was also an occupier of the property at the time of the plaintiff’s accident. She too was under a duty to exercise reasonable care to take reasonable measures to avoid foreseeable risks of injury. The evidence that I have accepted was that the driveway when wet was very slippery. The fourth defendant was obliged at the very least to warn prospective buyers about its slipperiness, such as a warning sign to that effect or blocking off the slippery areas of the driveway.

41. [164]

    The scope of the duty of care is to ensure that the people, such as the plaintiff, inspecting the open for inspection could safely enter and leave the property without slipping and falling on a very slippery driveway when wet. There was a high probability that a person such as the plaintiff would slip and fall on the driveway that became slippery when it was wet and appeared to be very shiny/glossy. There was no dispute that it had been raining in the morning before the plaintiff attended the “open for inspection” at the property. If a person slipped and fell; there was a very high risk that the harm would be serious. A reasonable step for the defendants to take would have been to warn the people attending the “open for inspection” with notices and/or blocking off the slippery areas of the driveway. A reasonable person ought to have known that the driveway was sloping and became slippery when wet (See Mr Cauduro’s report). Taking this precaution to avoid the risk of harm is not burdensome. While making a driveway on private property non-slippery is a good thing. I do not think that it impacts on the social utility. It is my view that the plaintiff has satisfied the requirements of s 5B and 5C of the Civil Liability Act.

42. [165]

    In these circumstances, it is my view that the first, second and fourth defendants failed to exercise reasonable care that constituted a breach of their duties owed to the plaintiff and that breach of duty of care caused the plaintiff to suffer injuries and disabilities. The plaintiff has satisfied sections 5B and C of the Civil Liability Act.

Causation – the law

1. [166]

   Section 5D of the Civil Liability Act relates to causation. It reads:

2. [167]

   To establish causation, the plaintiff is required to prove on the balance of probabilities that had the defendant taken the steps identified, the injury to the plaintiff would not have occurred or would have been avoided.

3. [168]

   In order to succeed, the plaintiff must show that it is more probable than not that, but for the breach, the “particular harm” which materialised would not have been suffered. This involves two elements: “factual causation” and “scope of liability”: see Adeels Palace at [42]; Wallace v Kam [2013] HCA 19, 250 CLR 375 at [12].

4. [169]

   Determination of factual causation under s 5D(1)(a) is a statutory restatement of the “but for” test of causation. That determination is “entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E”: Wallace v Kam at [14]. To prove that a change in circumstances might have made a difference does not alone prove factual causation: Adeels Palace at [50].

5. [170]

   The determination of “scope of liability” involves a value judgment (Wallace v Kam), as does the determination of “factual causation”: see Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [11].

6. [171]

   The requirement under s 5D(1) for the plaintiff to demonstrate “factual causation” and “scope of liability” do not include the common law concepts of material contribution or increase in risk: see Woolworths Ltd v Strong [2010] NSWCA 282 (“Woolworths”) at [47]-[48]. Rather, causation requires a determination that “the negligence was a necessary condition of the harm”.

Causation

1. [172]

   The medical expert evidence as to the plaintiff’s physical injuries was addressed in the conclave of Associate Professor Shatwell (‘Prof. Shatwell’) and Dr Giblin. They largely agreed that the soft tissue injuries sustained would have had a good prognosis of resolution “within a few days, or weeks or three months being the maximum.” This prognosis has turned out to be incorrect.

2. [173]

   They also agree that as at 22 January 2020 an MRI revealed a disc protrusion with likely compression of the exiting C6 and C7 nerve root.

Prior neck pain

1. [174]

   Several weeks before the accident the plaintiff experienced neck pain and stiffness after packing, moving and unpacking two houses and sleeping awkwardly (T48.45). On 31 December 2019, she attended upon her GP, Dr McGeoch. The doctor’s clinical note records: “Bilateral neck pain. Not swollen. Tender. No deformity. Movement restricted”.

2. [175]

   The clinical note indicates the doctor prescribed Endone and issued a referral for a cervical CT scan (the doctor’s concern in that regard is evident from his own note; he thought it was a cervical neck spasm on history of breast cancer in the past).

3. [176]

   The plaintiff thought that the pain in her neck was trivial and was due to her physical exertion by physically moving furniture etc. out of her house and unloading furniture into the new home, so she did not proceed with the scan and although Mr Furner filled the prescription, she did not take the Endone (T42.22-26).

4. [177]

   It should also be noted that in the Lake Macquarie Private Hospital Emergency Department records dated 19 January 2020 (Exhibit 8), Dr Eleanor Wright noted the following:

5. [178]

   It is the defendant’s case that consistent with its medical evidence is that the C6/C7 pathology is not causally related to the incident.

6. [179]

   The issues identified at the C6/C7 were not the result of acute injury and treated by Dr Hansen by way of cervical arthroplasty (replacement prosthetic disc surgery), following which there have been ongoing complaints.

7. [180]

   To the extent that there is contradictory opinion in Dr Giblin’s report or any other treater, their opinion would not be preferred in circumstances where the reasoning process is not exposed and his bare opinion is as follows. Without the benefit of a reasoned hypothesis the Court would have difficulty in rejecting the opinion of Prof. Shatwell.

8. [181]

   Otherwise, the opinions expressed by Prof. Shatwell is as follows:

9. [182]

   The defendant referred to the transcript where the plaintiff elected not to tell any treating doctor about her neck pain, as she personally did not consider it relevant (T-47):

10. [183]

    The defendants’ counsel then turned his attention to the topics of the plaintiff’s prior neck problems, use of medication, pain levels and psychological state prior to the accident. I have already provided my findings on the plaintiff’s use of medication and her prior psychological state, so now I will address the plaintiff’s prior neck problem.

11. [184]

    Counsel for the defendants submitted that the plaintiff minimised the episode with her neck prior to the accident in an attempt to bolster her claim. The following exchange between the plaintiff and defendants’ counsel took place:

12. [185]

    According to the defendants’ the Court would accept the following material facts being incontrovertible in relation to the plaintiff’s prior neck complaint:

    1. (1)

       On 31 December 2019, 19 days prior to the accident she has been physically packing and moving boxes out of the house and then moving and unpacking the boxes at the new premises. The plaintiff complained of neck pain to her GP. She was experiencing bilateral neck pain and her movement was restricted. She was prescribed Endone for the pain.

    2. (2)

       On 31 December a script was filled for Oxycodone. The plaintiff’s evidence is that she did not take it.

    3. (3)

       On 19 January 2020, a triage nurse recorded a twinge in the neck for a few weeks and recorded a previous medication as Endone.

    4. (4)

       As to the plaintiff’s prior neck injury, while I have taken the defendants submissions on this topic into account, that she had pain for a few weeks after she packed the contents of her old premises and in a matter of days unpacked them into the new premises.

    5. (5)

       The defendant also submitted that she did not disclose her injury in her evidentiary statement or to any of her treaters.

    6. (6)

       That the plaintiff has no difficulty moving her neck.

    7. (7)

       That the plaintiff has the capacity to sit down at a table and handwrite her statement and then type it up at a computer.

    8. (8)

       The plaintiff had no difficulty sitting in Court and the witness box.

13. [186]

    So far as causation is concerned in the joint conclave report of Dr Giblin and Professor Shatwell, both accepted that “…Ms Furner slipped and fell walking up a slippery drive, landing heavily on her right elbow and right hip region” and I accepted the plaintiff’s and her husband’s evidence on this topic. That evidence accords with Dr Giblin and Prof. Shatwell’s assumptions as to how the accident occurred.

14. [187]

    I prefer the evidence and the contemporaneous notes of Drs McGeogh, Wright and Giblin, as they corroborate the plaintiff’s evidence that she experienced neck pain and stiffness after packing, moving and unpacking two houses and sleeping awkwardly. After two massages, the plaintiff said that the pain in her neck abated. Even if Prof. Shatwell’s view is that the plaintiff had prior degenerative changes at least 4 levels of her cervical spine, that at that time of the accident the plaintiff’s cervical spine was symptom free.

15. [188]

    In my view, there is a factual causative link between Ms Furner’s injury to the C6/C7 vertebrae in her neck and the first and second defendant’s slippery driveway. In February 2020, the plaintiff underwent a C6/7 disc exclusion and an arthroplasty implant performed by Dr Hansen. On 28 January 2022, she underwent a nerve block procedure to her neck at Prince of Wales private hospital by Dr Yu at C4/5 and C6/7. Following the procedure, the plaintiff felt the pain in her neck increase and has lost further sensation in her left thumb.

16. [189]

    As a consequence of the fall, the plaintiff has undergone two operations. In the interim, when the matter was part heard between the first hearing date and the second hearing dates, the plaintiff underwent a more serious further operation that I will address in more detail under the heading of damages.

17. [190]

    As such, I am satisfied that the negligence was a necessary condition of the occurrence of harm (factual causation) and it is appropriate for the scope of the defendant’s liability to extend to the harm so caused (scope of liability), particularly in circumstances where the defendants admit that the plaintiff suffered injuries albeit denying the plaintiff’s neck injuries were caused prior to the accident, a proposition that I have rejected. Section 5D of Civil Liability Act in relation to causation is satisfied.

18. [191]

    The defendants breached their duties of care and caused the plaintiff’s injuries and disabilities primarily arising from injury to her neck and injuries to her left arm, left shoulder and left hand that have largely resolved. She has also suffered psychological issues and has been diagnosed with a major depressive disorder and adjustment disorder. Negligence has been established. The analysis of the plaintiff’s mental state after the accident is referred to later in this judgment.

Contributory negligence

1. [192]

   Contributory negligence has not been pressed (T.350.24). Therefore, it does not need to be dealt with further.

2. [193]

   As sections 5B and 5D are satisfied, the defendants have breached their duties of care and have caused the plaintiff to suffer injuries and disabilities to her cervical spine at C6 and C7.

3. [194]

   I will now address the plaintiff’s medical condition after the accident, followed by my assessment of damages.

After the accident

1. [195]

   Once the plaintiff and her husband finished at the open house inspection, they drove straight home, as the plaintiff could feel significant pain and discomfort in her right elbow and right hip. She recalls during their trip home that she said words to the following effect: “I am going to be sore tomorrow, I can already feel the bruising.” At that time, the plaintiff was not too concerned about her neck, as the pain she was experiencing in her right elbow and right hip was more significant.

2. [196]

   On the night of the accident, the plaintiff took some pain relief before bed, but she could not sleep due to the pain and discomfort she was experiencing. The plaintiff’s evidence is that she could barely move her right elbow and she found it difficult to move her hip, especially when she was walking. By this time her neck pain was starting to increase.

3. [197]

   During the course of the next day, the pain in the plaintiff’s neck was continuing to increase. It is the plaintiff’s evidence that she put the kettle on to make a cup of tea and stretched her arms up when she felt a “pop" in her neck which made her immediately double-over in pain. She did some stretching to try and ease the pain, however, this did not assist, and the pain continued to increase to the point where she was in agony. She had shooting pain radiating from neck, down into the left-hand side of her body.

4. [198]

   The plaintiff recalls that her husband was extremely concerned about her welfare, so he immediately drove her to Lake Macquarie Private Hospital. An X-ray and/or CT scan was performed on her neck, it did not reveal any damage.

5. [199]

   The plaintiff was prescribed some pain relief before the hospital discharged her home. She believes she was given some steroids and analgesics, but she cannot be certain.

6. [200]

   During that night, they plaintiff experienced significant pain and discomfort in her neck, right hip and right elbow. However, by that time, her neck was the most concerning complaint, as she was in excruciating pain and discomfort.

7. [201]

   The plaintiff then had the Monday and Tuesday off work that week, due to the pain in her neck, right arm and right hip. She was also suffering severe headaches.

8. [202]

   The plaintiff’s husband took her back to Lake Macquarie Private Hospital on the Wednesday. An MRI was performed during that admission and it was discovered she had a bulging disc in her neck. It was recommended that she have a cortisone injection. That injection was subsequently performed at Lake Macquarie Private Hospital on the Friday of that week. Upon receiving the cortisone injection, she subsequently lost feeling in two fingers on her left hand. That remains the case up until today.

9. [203]

   Notwithstanding the cortisone injection, she had a terrible night's sleep that night, due to the severe pain and discomfort she was experiencing in her neck, right hip and right elbow. The plaintiff’s main concern continued to be focused on her neck.

10. [204]

    It was then the Australia day long weekend. The plaintiff spent it at home in excruciating pain from her injuries and disabilities she says arising from the accident. Her main concerns were her neck, right hip and right elbow which she injured in the accident.

11. [205]

    On 27 January 2020, a friend of the plaintiff was meant to come over to her house and see her. The plaintiff had fallen asleep on the lounge that day and has no recollection of her friend attending her property. She later found out that her friend had come over and was knocking on her front door and ringing the doorbell, but she didn’t hear any of this. She believes she passed out. As a result, the plaintiff’s friend telephoned her husband and informed him that the plaintiff was not contactable.

12. [206]

    When the plaintiff’s husband returned home that afternoon the plaintiff was slurring her speech and felt lightheaded. The plaintiff believed she was having a stroke. The pain in her neck at this time was unbearable.

13. [207]

    The plaintiff’s husband immediately took her to Lake Macquarie Private Hospital where she was admitted and prescribed morphine every half an hour. However, the pain relief provided no assistance, as she was continuing to scream in agony. A short time later the doctors at Lake Macquarie Private Hospital were concerned about her welfare, so she was transferred to John Hunter Hospital in Newcastle. The plaintiff has been told that she had a seizure upon her arrival at John Hunter Hospital. It is the plaintiff’s evidence that she was in the most pain she has ever experienced in her life at that time and was genuinely concerned about her condition.

14. [208]

    The plaintiff was placed under the care of neurosurgeon, Dr Mitchel Hansen. He informed the plaintiff that she required a disc replacement, but she was initially reluctant to have the surgery due to her past experiences with her breast reconstructive surgery. However, due to the significant pain and discomfort she was in, she felt that she had no choice but to have the surgery, despite her reluctance. She has since gone under three bouts of surgery.

15. [209]

    In February 2020, Dr Hansen performed a C6/7 disc excision and arthroplasty implant on the plaintiff (the first operation). Following the surgery, she did not feel a huge level of improvement in relation to the pain in her neck. She was still concerned about her condition and was in a lot of pain at this time. However, she was discharged and prescribed pain relief medication, which she took in an effort to relieve the pain.

16. [210]

    Following her discharge from John Hunter Hospital, the plaintiff continued to have severe pain in her neck and left arm, which was aggravated by movement. The sensation of her two fingers in her left hand had not returned. She also continued to have negative thoughts about the accident, as well as flashbacks and insomnia. At this time, the plaintiff found it extremely difficult to sleep and spent endless nights lying awake in bed due to the excruciating pain and discomfort she was in due to the symptoms arising from the accident.

17. [211]

    Initially after the accident the plaintiff said her right elbow and right hip were extremely sore. She recalls that she lost some skin on her right elbow due to the impact with the driveway. To a lesser degree, the plaintiff’s right knee and right wrist were also sore after the accident, as she landed on her right side. These injuries have since abated.

18. [212]

    Since February 2020, the plaintiff has continued to undergo treatment. She has received various treatments, including but not limited to, physiotherapy, consultations with a psychologist and psychiatrist, consultations with Dr Hansen, attendances upon the Sydney Spine and Pain Clinic, along with regular attendances and check-ups with her treating general practitioner.

19. [213]

    After the plaintiff relocated back to Sydney in March 2020, she consulted interventional pain specialist, Dr James Yu. Dr Yu informed her that it will be a long process of trying different procedures to help reduce her pain and he could not promise that she would ever be pain free. He recommended the plaintiff continue attending the pain clinic for the foreseeable future in an effort to assist with her ongoing pain and discomfort. Her first consultation with Dr Yu was $400 and the nerve blocking procedure cost her $500. The plaintiff paid for these out-of-pocket expenses.

20. [214]

    So far as her psychological treatment is concerned, the plaintiff attended counselling sessions with psychologist, Ms Vanessa Allan, who has been referred to earlier in this judgment. The plaintiff saw her approximately once per month.

21. [215]

    Following the accident, the plaintiff says that she has developed sadness, a hopeless mood and suicidal thoughts and have been prescribed medications to control her psychological symptoms.

22. [216]

    The plaintiff understands that she has been diagnosed with Major Depressive Disorder and Adjustment Disorder. Her general practitioner is currently prescribing her, and she is taking anti­depressants. The plaintiff feels very upset about this situation, given the amount of work she had in the past has put in with respect to her mental health back in 2016, in order to recover from the issues she was suffering from at that time.

23. [217]

    Since the accident, the plaintiff has experienced various psychological symptoms, such as nightmares about the extreme pain she has been in and not having a normal life, the nightmares occur approximately three to four times a week. The plaintiff also suffers from flashbacks concerning the accident which are triggered randomly when she walks past properties. The plaintiff gets scared when she walks on her driveway and tries to avoid it, where possible. She has also developed extremely poor concentration; depressive moods; insomnia; feelings of anxiety and/or nervousness; panic attacks, which would randomly happen at least once a week. Despite continued treatment since the accident, the plaintiff’s symptoms have failed to subside and she continues to require medications to manage them.

24. [218]

    The plaintiff’s overall motivation has been very low, and she has lost interest in shopping for clothes which she used to enjoy. She no longer makes dresses for professional dance competitions. The plaintiff thoroughly enjoyed that activity in the past, and it makes her sad to think that she cannot longer enjoy this pastime. The plaintiff is limited to offering styling suggestions, which she believes the dance studio offers sympathetically in order to take her mind off her circumstances. She occasionally goes to the studio to have a cup of tea, but she is unable to contribute like she used to.

25. [219]

    The plaintiff’s overall concentration and memory has deteriorated since the accident. She will read things and/or have conversations with people and, shortly thereafter, will have no recollection of reading such material and/or being engaged in such a conversation.

26. [220]

    The plaintiff currently experiences random panic attacks and, when this occurs, experiences dizziness in her ears and nauseous. Because of this she avoids leaving her house. She only meets up with very close friends because she noticed that she experienced panic attacks less often when she is in comfortable settings, particularly at home. Sometimes she will be invited to a gathering or social outing, but she usually rejects the invitation as she does not feel confident leaving the house and she is concerned that she may have a panic attack. This is in stark contrast to before the accident, she used to enjoy hanging out with friends and family and she was not reluctant to meet new people. Due to her increased weight gain, she is even more reluctant to leave the household, as she does not feel comfortable in her own skin.

27. [221]

    Since the accident, the plaintiff has been taking various analgesics and psychotropic medications to manage her ongoing symptoms. They include pain killers and antidepressants. In the past, she has taken Lyrica but she had extremely bad side effects with that medication that included feeling extremely foggy and sluggish, as well experiencing bad diarrhoea and general discomfort. The plaintiff also takes Celebrex when the pain in her neck extremely bad, which provides some minimal relief, but it does not alleviate the pain altogether. She also regularly takes Panadol and/or paracetamol almost on a daily basis, which at time can take a slight edge off the pain. The plaintiff is also currently taking Gabapentin, which makes her feel unaware and extremely vague. She estimates that she would spend approximately $10 per week on medications.

28. [222]

    She continues to have pain in her neck, left arm, shoulder and left hand, along with general loss of sensation/numbness with two fingers in her left hand. She has electric shock sensations that run down to her arm constantly, travelling to her shoulder blade and collar bone on her left-hand side. Her neck pain is especially severe compared to her other injuries and is a constant reminder of the accident. Since the accident, she has had significant problems with sleeping because of the symptoms in her neck, left arm, shoulder, and hand. She says that she has great difficulty in moving her neck, and generally her body, as her arm is stiff in those areas. As a result, she says that she has lost much of the flexibility in her body.

29. [223]

    Her evidence is that she can only lift or carry light objects because heavier objects trigger pain down her arm. As a result, her strength and muscle mass has diminished on her left side in comparison to her right. Due to her ongoing symptoms, especially her neck pain, she says that she is unable to lift things above shoulder height and/or carry anything of any significant weight, which causes significant limitations on the range of physical activities she can perform domestically on a daily basis.

30. [224]

    Because of an ongoing loss of sensation/numbness in two fingers in her left hand, she cannot type and/or use a computer like she did in the past. After 10-15 minutes she become quite frustrated, not only due to her inability to properly use her left hand, but because of the pain in her neck and the difficulties she has with concentrating. For the same reasons, she finds it near impossible to make costumes for dance competitions, which is a task she thoroughly enjoyed in the past.

31. [225]

    The injuries and subsequent surgery of the plaintiff’s neck has left her with a significant and obvious scar. The plaintiff is restricted with walking, running and any other physical exercise due to the significant pain and discomfort she suffers from the accident. Due to the subject accident, she is no longer able to fully participate in dance activities which is a pastime that she thoroughly enjoyed, and it is something that her youngest daughter partakes in. She feels very sad and she cannot participate in those activities with her daughter, although she is still able to contribute by styling and designing costumes.

32. [226]

    The plaintiff is now unable to manage regular exercise programs or participate in walking and/or running for the purposes of exercise. This upsets her greatly, as she thoroughly enjoyed those activities prior to the subject accident.

33. [227]

    She feels depressed, as though there is nothing to enjoy in her life these days. She suffers from an increased amount of stress and moodiness since the subject accident. At times, she can physically lash out at her family members and she said she is not an enjoyable person to be around, which makes her feel sad, as it has affected her relationship with her husband and children.

34. [228]

    As a result of her injuries and disabilities suffered in the subject accident, the plaintiff moved back to Sydney in March 2020, when the first COVID-19 lockdown commenced. Up until that time, she had been residing in Newcastle with her husband during the week but returned to Sydney on the weekends (where our two youngest children were residing). Her husband remained in Newcastle at that time, because of his employment with the Newcastle Knights as an assistant coach.

35. [229]

    At the end of the 2020 rugby league season, her husband resigned from his employment with the Newcastle Knights, in order to return to live in Sydney with her, so he could assist her while she was recovering from her injuries and disabilities. Due to her ongoing symptoms, especially with respect to her neck injury, her ability to perform daily activities of living has been significantly limited. Since the subject accident, she has been in need of assistance with cooking, cleaning, shopping, dressing and washing, especially because of the limited capacity to use her upper limbs and fingers (with her left hand).

36. [230]

    The plaintiff finds it extremely difficult to use her upper limbs because of the pain that radiates down from her neck.

37. [231]

    She was informed by Dr Yu that she may need a few more nerve blocks procedures. At that time, she was very reluctant to undergo those procedures, because the pain that she has been experiencing since the initial nerve block procedure. The plaintiff described that her pain feels so bad to the point where she feels like slamming her head against the wall. She feels the pain has escalated since the initial nerve block procedure was performed.

38. [232]

    On 12 July 2022, when she attended Dr Yu’s pain clinic, she reported to him that she had experienced minimal pain relief from the cervical spinal cord stimulator. She presented with persistent left arm neuropathic pain and rated her pain at 8/10.

39. [233]

    The plaintiff had trialled a stimulator that was somewhat successful. During the cross-examination, she accepts that her neuropathic pain has reduced 30% - 40%.

40. [234]

    The latest update of the plaintiff’s neck conditions is that contained in a letter written by Dr Yu of the Sydney Spine and Pain Clinic on 1 September 2022 (Ex D), which is after the plaintiff had undergone a further operation. Dr Yu reported:

41. [235]

    When the plaintiff gave evidence on 26 September 2022 (25 days after the operation referred to above) she was experiencing extreme discomfort. I observed that she was in extreme discomfort when in the witness box when she was in the back of the Court. She had to be assisted to and from the witness box by her husband. However, I do take into account it was early days after this operation and was to be expected.

42. [236]

    The plaintiff’s husband’s evidence largely corroborates the plaintiff’s evidence. During the course of that and the next day, the plaintiff’s pain appeared to be getting worse and she was then complaining about her neck pain more than the right side of her body to the point where she appeared to be in agony and was doubled over in pain.

43. [237]

    Over the course of the next few days, which was the Australia day long weekend, the plaintiff remained at home. Her husband observed her to be in significant pain and discomfort stemming from her fall on the driveway. On the Monday of the Australia day long weekend, he received a telephone call from one of the plaintiff’s friends who was meant to go over to their place and visit the plaintiff. The friend reported that she had been unable to contact the plaintiff all day.

44. [238]

    Mr Furner then returned home to check up on the plaintiff, as he was concerned about her safety. Upon his return home, the plaintiff was passed out on the lounge. He had difficulty rousing her. She was virtually incoherent. He thought she was having a stroke, so he immediately took her to Lake Macquarie Private hospital where they gave her very strong pain relief. The doctors informed them they were unable to do anything more for the plaintiff’s pain and arranged for her to be transferred to John Hunter hospital.

45. [239]

    The plaintiff was transported to the emergency room where admission paperwork was completed. In the waiting area the plaintiff was in a hospital bed in tears and moaning in agony and her eyes then rolled back and she couldn't speak. Mr Furner thought she was having a seizure and he then pressed the emergency button for help. Nurses rushed to the plaintiff’s bed side, and he urgently called for a doctor. He believes she was given morphine.

46. [240]

    The plaintiff then spent the next week or so at John Hunter hospital, where she was under the care of Dr Mitchell Hansen. As the plaintiff’s condition was not improving, Dr Hansen recommended that the plaintiff have surgery on her neck.

47. [241]

    On 3 February 2020, after the plaintiff was discharged from hospital and returned to their Charlestown home. Mr Furner initially took 3-4 days off work to care for the plaintiff at home as she was very disabled; she spent most days lying in bed. He had to help her with just about all aspects of her personal care.

48. [242]

    After he returned to work a few days later, he prepared her breakfast and lunch before leaving for work. In the evenings after work, he would cook dinner, do the laundry and attend to housework and cleaning. He also did all the household shopping. He easily spent 2-3 hours a day providing the plaintiff with assistance and doing all the housework at Charlestown and some of the housework when down at Bangor. He did not really do any housework prior to the accident. He says that the kids stepped up and contributed to the housework at Bangor.

49. [243]

    In late March 2020, the COVID-19 pandemic had just started, and communities were virtually going into lockdown. It was decided it was in the best interests of their family that the plaintiff return to live in Sydney with their youngest daughter, Bella, and their son Kyle move up to live with Mr Furner in Newcastle.

50. [244]

    At that time, he had only been in his role as the assistant coach of the Newcastle Knights for 5 months. He had signed a 3-year contract with that team which was to run for the 2020, 2021 and 2022 seasons. That contract of employment was worth approximately XXX per year which included a car and private health insurance.

51. [245]

    During the 2020 season, the plaintiff’s condition was not improving and it was clear that she would not be returning to live in Newcastle. As a result, he informed the Newcastle Knights that he would be unable to see out his contract past the 2020 season, as he would need to return to Sydney to assist and support the plaintiff. At that time, he did not have any job lined up in Sydney and he was deeply concerned about being unemployed.

52. [246]

    The Newcastle Knights agreed to release him from the final 2 years of his contract, given the significant issues surrounding his wife's health. He subsequently obtained employment as an assistant coach with the Canterbury-Bankstown Bulldogs commencing in the 2021 season, which is where Mr Furner is currently employed. He is currently earning approximately $30,000 less than with his Knights contract.

53. [247]

    He has been a head coach in the National Rugby League (NRL) and the English Super League, where the yearly income in such roles is generally greater than $400,000 per annum. He wishes to return to being a head coach in the future, but has decided not to pursue such employment opportunities at this current time because of the plaintiff’s health. He is, however, keen to return to head coaching within the next 2-3 years. If that does occur, he will not be able provide the plaintiff with the personal and housework assistance that he is currently providing due to the significant time commitments involved in being a head coach.

54. [248]

    Between the time of his wife's accident and the plaintiff’s husband’s return to living at their Sydney home he estimates that he performed, on average, 1.5hrs/day of housework at Charlestown that she had performed before she was injured.

55. [249]

    In October 2020, Kyle and Mr Furner returned to live in Bangor with the plaintiff and Bella. Since that time, he and the children have shared the domestic chores. Bella does the morning shift at home with the plaintiff, as Kyle and Mr Furner are both out of the house by 5am.

56. [250]

    Kyle comes home for a couple of hours during the day to check on the plaintiff and make her lunch and tidy up. In terms of the night shift, the cooking is shared between Mr Furner, Bella and Kyle. Mr Furner mainly does the grocery shopping, cleaning, washing the dishes, putting the rubbish out and washing the clothes at night.

57. [251]

    Since moving back to Sydney he is easily performing 1-2 hours per day of housework which he did not do before his wife's injury. The kids’ contributions to assistance in housework is on top of this.

58. [252]

    On occasions he sees the plaintiff try to do some tasks in and about the household. For example, she will try and vacuum with the cordless Dyson, but after a couple of minutes she has to stop because of the pain. At that point, she becomes distressed about the situation, given she feels like she can do nothing around the house, which is something she used to take great pride in doing.

59. [253]

    More recently, he was at home and the plaintiff was attempting to cook a meal for them. She was in the kitchen trying to chop vegetables. However, due to FRthe pain and discomfort in her neck and her lack of feeling in her left hand, she could not cut the vegetables. The plaintiff broke down in the kitchen sobbing uncontrollably, and said words to the following effect: “I am useless. I can't do anything anymore. I have no independence”.

60. [254]

    In early February 2022, Mr Furner recalls he received a telephone call from Kyle informing him the plaintiff had been found passed out in bed and was taken to hospital. At the time, he was on a pre­season training camp in Tamworth. As a result, he immediately drove back to Sydney to her.

61. [255]

    Since this time, he believes the plaintiff’s pain and condition generally has deteriorated. He has real concerns about her welfare and safety, as he doesn't know if she can withstand the pain much longer. She is very upset and frustrated by the constant and debilitating pain she is in 24 hours a day, which he says has robbed her of her independence.

62. [256]

    Prior to the accident when the plaintiff was working at the offices of the Newcastle Knights Monday through Wednesday, then returning home to be with her children at Bangor and working remotely Thursday & Friday. The plaintiff had Saturday game day attendance obligations. The plaintiff performed all the housework at Bangor. That is, the plaintiff was running two households.

Medical evidence

1. [257]

   I have set out in this judgment that the plaintiff’s neck problems were caused by the accident. I preferred the evidence of Drs McGeogh, Wright and Giblin over that of Prof. Shatwell. On 9 May 2022, Dr Peter Giblin and Professor Michael Shatwell provided a joint expert orthopaedic conclave report. It provides the following opinions.

2. [258]

   The experts agree the prognosis for the soft tissue injuries to the right hip and right elbow is good, on the basis that there is no reported ongoing symptoms and no physical abnormalities at the time of examination. This also accords with the plaintiff’s evidence that these injuries have resolved.

3. [259]

   Professor Shatwell considered that the soft tissue injuries sustained in the fall from a standing height would have a good prognosis with resolution of any symptoms from sprains or strains within a few days, or weeks, with three months being the maximum. Dr Giblin agreed with Professor Shatwell except he has significant concerns for the probable effects of the treatment of this injury.

4. [260]

   While Professor Shatwell's opinion that the treatment of the neck with an artificial disc was not causally related to the injury. Dr Giblin opined there is a causal relationship. As set out earlier in this judgment, I prefer Dr. Giblin’s evidence. The plaintiff had undergone further surgeries (one after the date of their join report and conclave evidence) caused by injuries in the accident, as set out earlier in this judgment.

5. [261]

   So far as the ongoing disabilities and complaints arising from the plaintiff’s injuries, Professor Shatwell considered that the plaintiff will have some residual pain and disability relating to the disc replacement at C6/7. The extent of her disability is variable. Both Prof. Shatwell and Dr Giblin rely upon the plaintiff’s description of difficulties managing housework, home duties and work activities.

6. [262]

   Dr Giblin found no evidence of pre-existing impairments that would affect the plaintiff’s capacity for enjoyment of life but would expect that there would be normal age-related degenerative changes in the plaintiff’s cervical spine.

7. [263]

   Further as to any future treatment required by the plaintiff due to her injuries, the experts noted from their knowledge of cervical surgery of this nature, that the adjacent segment may deteriorate sufficiently to require surgical intervention, such as intervertebral body fusion.

8. [264]

   Other surgeries such as posterior decompression may be required following disc replacement surgery. It is difficult to know if the need for this type of surgery will eventuate and therefore costs, periods of hospitalisation, periods of recovery and rehabilitation cannot be estimated with any accuracy, but since this report the plaintiff’s neck condition has deteriorated.

9. [265]

   These experts agree that as a consequence of the injury and its treatment, the plaintiff will require 6 hours per week domestic care for the future from the time of the surgical operation that was performed in August 2022.

10. [266]

    As to the plaintiff’s future earning capacity, Prof. Shatwell and Dr Giblin agree the prognosis for the injury should have been good and that the plaintiff would have been able to continue with her clerical type duties for the foreseeable future with minimal, if any, impact. However, following the surgery to the cervical spine there were ongoing complaints and disabilities which have been recorded in Professor Shatwell's and Dr Giblin's reports.

11. [267]

    Dr Giblin is of the opinion that the plaintiff’s cervical spine, as it stands, is always going to be a liability both directly and indirectly to herself and any potential employer. Her earning capacity and gainful employment will be hampered significantly. The plaintiff did manage clerical duties from home until September 2020, when she resigned from her work with the Newcastle Knights.

12. [268]

    On 23 May 2022, Dr Lee, psychiatrist, and Ms Kate Glancey, psychologist provided a joint report and gave conclave evidence. There is considerable disagreement between these experts as to the plaintiff’s diagnosis. I have summarised their joint report:

13. [269]

    Dr Lee does not consider that the plaintiff suffered from major depressive disorder on the basis of the plaintiff’s report to him that she still enjoyed socialising, movies, got on well with her family and that it was pain rather than psychological problems that prevented her from working.

14. [270]

    Ms Glancey’s view is that the plaintiff was suffering symptoms of mental disturbance. The plaintiff reported mental disturbance associated with pain and compromised functioning. The plaintiff provided convincing reports of having developed a depressive disturbance and she reported an overwhelming sense of loss associated with depression. She also reported having developed anxiety associated with social contact and became somewhat socially avoidant. At the time of Ms Glancey’s assessment, the plaintiff’s depression and anxiety were reported to persist.

15. [271]

    In Ms Glancey’s opinion, the diagnosis was major depressive disorder and adjustment disorder with anxiety. There is nothing in the medical reports subsequently provided that have caused Ms Glancey to change her view as documented in her report.

16. [272]

    As to the disagreement between the experts as to the diagnosis, Ms Glancey stated that the plaintiff reported to have developed symptoms of mental disturbance following the injury and onset of chronic pain and sleep disturbance associated with pain. Ms Glancey reported the plaintiff to have developed symptoms of depression over time following the injury. She also reported low self-worth with loss of employment and loss of income and intrusive mental activity associated with the impact of the fall. She lamented the loss of her lifestyle prior to the fall and pondered great uncertainty regarding her future. She reported having developed anxiety that was uncharacteristic of her premorbid functioning and anxiety associated with further injury and she reported uncharacteristic anxiety when among unfamiliar people.

17. [273]

    Dr Lee considered in his original report the additional diagnosis of somatic symptom disorder. He also highlighted that the plaintiff was uncooperative with his assessment of her. He notes that he has not been provided with pre-injury medical records to further explore the possibility of pre-existing somatic symptom disorder.

18. [274]

    Dr Lee referred to his previous report and gave evidence that the DSM-5 states that malingering should be strongly suspected when there is any combination of the following:

    1. (1)

       Medico-legal context of presentation.

    2. (2)

       Marked discrepancy between the individual's claimed stress and/or disability and the objective findings and observations.

    3. (3)

       Lack of cooperation during the diagnostic evaluation.

19. [275]

    Dr Lee opines that malingering should be strongly suspected and is a prime reason for the disagreement. The plaintiff’s report to him and the plaintiff’s presentation at the consultation was inconsistent with major depressive disorder or cognitive dysfunction. Dr Lee also stated that contrary to what he was informed by the plaintiff, she had pre-existing pain and psychopathology such as abnormal cognitive behavior and experiences. However, his opinion does not accord with my earlier findings.

20. [276]

    Ms Glancey noted that Dr Lee’s comments that the plaintiff did not report childhood sexual abuse. He reports that she was uncooperative with psychometric testing and that the plaintiff did not report the extent of anxiety and depression that she did in her assessment with Ms Glancey. In contrast, Ms Glancey states that at assessment the plaintiff was fully cooperative. She impressed to be candid in her report. She provided reports of previous life stressors and trauma associated with psychological disturbance.

21. [277]

    Ms Glancey cannot explain why the plaintiff refused psychometric testing administered by Dr Lee. She says that it appears from the history of documents provided that the plaintiff was cooperative in other assessments with the other specialists.

22. [278]

    Ms Glancey observed that Dr Lee states in his report that she did not report significant psychological symptoms, but she cannot ascertain from reading Dr Lee’s report as to whether a detailed enquiry regarding psychological symptoms was made. At her assessment she conducted a detailed enquiry regarding psychological symptoms.

23. [279]

    Dr Lee recorded that he routinely attempted to take a thorough history. In his opinion the most likely explanation for her being uncooperative was that to admit pre-existing problems would have detracted from the impact of the compensable injury.

24. [280]

    Unlike Dr Lee’s experience, Ms Glancey gave evidence that during assessment with her the plaintiff was fully cooperative. The plaintiff was candid at the consultation. She openly provided reports of previous life stressors, trauma and associated psychological disturbance.

25. [281]

    Dr Lee stated that the plaintiff did not report previous life stressors and trauma and associated psychological disturbance. Nor did she reveal her previous problems. In fact, she said that she had no previous physical or psychological problems. Lack of cooperation and inconsistency in reporting is consistent with abnormal illness behaviour and compromises the assessment of her condition.

Pre-existing injuries

1. [282]

   Dr Lee considered the possibility of Somatic Symptom Disorder, previously known as somatoform disorder. He noted that she was experiencing pain before this accident for which she was receiving massage. He is unaware when her disorder started because she did not inform him of previous pain and also because he does not have access to contemporaneous records. However according to Lamberty “somatization disorder might more accurately be considered a personality disorder with mood and anxiety disorder features”. Childhood trauma is related to somatization because it brings about insecure adult attachment. During stressful periods, pain behaviours or various somatoform symptoms are used to secure attention from loved ones, rest or time away from work.

2. [283]

   Suggestive of a genetic contribution to somatization is the repeated finding of antisocial traits and substance abuse in male relatives of somatizing females: Her brother abused drugs and she sued her close family member for sexual abuse. Hence, she is likely to have had a longstanding predisposition to physical complaints when stressed.

3. [284]

   However, it is very difficult on a behavioural basis to distinguish between somatoform disorders, factitious disorders and malingering. It has been suggested that the distinction between factitious disorder, malingering and somatoform disorders may not even be valid, rather clinicians should consider excessive illness behaviour as a complex product of both cognitive and motivational processes.

4. [285]

   The fact that she was having to travel to Sydney from Newcastle on weekends to support her children at the time of the accident is consistent with a stressful situation that physical complaints have allowed her to manage.

5. [286]

   Dr Lee noted Prof. Shatwell's finding of normal neck movement during the history he recorded (which are inconsistent with her guarded movements of her neck on formal examination), extremely poor left sided grip without wasting to account for the low values (inconsistent with her normal muscle bulk), most unusual non-dermatomal numbness, and persistent symptoms despite surgical decompression. He also cannot explain her speech or swallowing difficulties, or her lower limb symptoms on the basis of C6/7 disc pathology.

6. [287]

   Ms Glancey observed that the plaintiff reported to her that she was a survivor of childhood sexual assault. The plaintiff reported she was able to repress memory of sexual assault and lived free from mental disturbance associated with the assault until 2015 when she suffered a recurrence of cancer.

7. [288]

   The trauma of the diagnosis undermined repression of childhood traumas and she recovered memories of abuse. She was then diagnosed with complex post-traumatic stress disorder.

8. [289]

   Ms Glancey also noted that in the medical documents that she was suffering neck pain in the days prior to the fall. Dr Lee stated that Professor Shatwell noted neck pain severe enough to require prescription of opiate medication 19 days prior to the development of further neck pain and considers that the development of left arm nerve root symptoms was not caused or aggravated by the accident. As it turns out, I did not accept Prof. Shatwell’s opinion as to the cause of the plaintiff’s neck pain.

9. [290]

   The experts were asked certain questions, from which responses were given. These question/answers are as follows:

10. [291]

    Q1. Were the plaintiff's pre-existing conditions symptomatic at the time of the subject incident? If so, how did this symptomatic condition affect the Plaintiff's: i) Ability to work? ii) Need for treatment? iii) Requirement for domestic assistance?

11. [292]

    A. Dr Lee was only aware that she had complaint of pain before the incident. He does not have data that indicates evidence of inability or ability to work. He is only aware that she was getting massage for pain [to her neck] beforehand. He is also unaware if she required domestic assistance, but it appears she was assisting her children in Sydney.

12. [293]

    Ms Glancey stated that the plaintiff spent five weeks as an inpatient for the treatment of mental disturbance in 2015. She reported having been medicated in respect of disturbance and achieved a successful response to treatment and ceased medication. She underwent counselling. Since that time, she is reported to have functioned without significant mental impairment. She did not report any further need for treatment and was not in treatment at the time of the fall. She did not report compromised capacity for employment following this time, nor did she require domestic assistance at the time of the fall.

13. [294]

    Dr Lee stated that somatization disorder might be accurately considered a personality disorder with mood and anxiety disorder features. It appears to affect reliability of symptom report from one point in time to the next, as well as the accuracy of report of lifetime symptoms. Therefore, it is important in such cases to have access to corroborative evidence because symptom reports may not be valid or consistent, and it therefore may be more accurate to consider a long-term vulnerability to subjective complaints.

14. [295]

    Q2. How and to what extent do any such pre-existing condition(s), if any, impact her capacity to work and/or need for care?

15. [296]

    A. Ms Glancey is unaware as to whether she ceased employment at the time of treatment for post-traumatic stress disorder. Given she spent five weeks in an inpatient facility, she is assuming she was not working at that time. However, she ceased counselling 12 months prior to the fall. She spoke of mental toughness following treatment. Her report suggests that post-traumatic stress disorder associated with childhood sexual assault did not compromise her capacity for employment and did not require assistance with self-care, particularly at the time of the fall. She reported a longstanding history of employment and appears to have been motivated in employment. She reported a great sense of self-worth associated with employment.

16. [297]

    Dr Lee stated that the plaintiff had a somatoform condition, it is likely to have affected from time to time her capacity to work and reflected a need for care. According to him, there is no doubt that somatization is associated with access to resources particularly during stressful times, noting that she was at the time of the accident viewing a house and having to provide care to her children who are based in Sydney.

17. [298]

    Q3. If the pre-existing conditions impact the plaintiff's capacity to work or need for care, to what extent is this impact?)

18. [299]

    A. Ms Glancey stated that she does not believe that any pre-existing condition, impacted the plaintiff's capacity to work or need for care at the time of the fall. At the time of the fall, she maintained her home without assistance. She also travelled from Newcastle to Sydney to assist her three adult children with home care. She had also recently secured her dream job.

19. [300]

    Dr Lee noted her pre-existing pain complaints, the possibility of pre-existing somatization, the fact that she was having to travel between Newcastle and Sydney to care for her children while working in her apparent dream job, the accident occurred as she was inspecting a house in Newcastle, that she post-accident enjoyed living in Sydney, and noting that psychiatry is inherently an inexact science, if pushed Dr Lee would estimate between 50 to 70 per cent, again highlighting that psychiatry is not an exact science.

20. [301]

    Q. Was the plaintiff pre-disposed to psychological or psychiatric symptoms and/or injury occurring even if the incident on 18 January 2020 had not happened?

21. [302]

    A. Ms Glancey considered that a previous diagnosis of post-traumatic stress disorder could potentially serve to undermine psychological resilience in the event of a significant stressor. However, her report of mental disturbance as reported to have developed after the fall is internally consistent and is commonly reported by sufferers of chronic pain.

22. [303]

    Dr Lee considers that she was predisposed to complaints of symptoms even if the incident had not occurred, noting in somatoform disorders that emotional conflicts are converted into bodily symptoms in lieu of directly discussing or bringing emotional conflict into conscious awareness.

23. [304]

    Q. Is there any agreement as to the prognosis of the plaintiff's injuries? If so, what is the prognosis?

24. [305]

    A. Ms Glancey states that the plaintiff’s prognosis in respect of mental disturbance is significantly related to her physical prognosis. In her view, while she suffers pain and compromised functioning as reported at the time of assessment, she will likely suffer symptoms of depression and anxiety. However, her physical condition is a matter for specialised medical opinion.

25. [306]

    Dr Lee considered that her prognosis is uncertain because of the variability in reporting of symptoms and the fact that the assessment is occurring in a medico-legal context. Legal issues have been shown to profoundly effect the reporting of symptoms, compensation results in an increase in pain perception and a reduction in the ability to benefit from treatment and economic insecurity increases physical pain. He is therefore uncertain of the prognosis.

26. [307]

    Q. Do you agree or disagree that the plaintiff's ability to undertake her pre-injury occupation as a community support worker has been negatively affected by her psychiatric injuries? If there is disagreement, please explain the areas of disagreement and your reasons.

27. [308]

    A. It is Ms Glancey’s view that the plaintiff’s capacity to undertake her pre-injury occupation is largely related to her physical condition and is a matter for specialist medical opinion. Depression as reported to exist at assessment may well compromise her capacity within an employment role. However, if she was to successfully resume meaningful employment it would likely serve as therapeutic.

28. [309]

    Dr Lee does not consider that she suffers from a diagnosable depressive disorder as a result of the injury. He does not believe that any depression that she suffers would impact on her ability to undertake gainful employment in the open labour market given that she reported her problem was pain. He notes disagreement among medical specialists as to the diagnosis and the organic causation of her complaints.

29. [310]

    Q. Do you agree or disagree that the plaintiff is fit from a psychiatric perspective to work as a community development manager or in any other suitable paid/gainful employment?

30. [311]

    Ms Glancey stated that depression was reported to exist at assessment and may well compromise her capacity to resume gainful employment. However, if the plaintiff could return to suitable meaningful employment this would likely be therapeutic for her symptoms of mental disturbance. Dr Lee and Ms Glancey agree that meaningful employment would be considered therapeutic.

31. [312]

    Dr Lee does not consider on the basis of her reported psychological symptoms that she is incapable of working in community service or other suitable gainful work. He noted that work is often helpful in regard to maintenance of self-esteem and socialisation.

32. [313]

    Q. If there is disagreement between you as to the plaintiff's capacity for work, what are the areas and reasons for your disagreement?

33. [314]

    A. Ms Glancey stated that views regarding the plaintiff's capacity for work is related to the question of the credibility around her physical condition. However, this is a matter for specialised medical opinion. In her view mental disturbance is significantly related to her pain condition.

34. [315]

    Dr Lee states that there is a slight disagreement in regard to her psychiatric capacity to work but does not agree that it prevents her from working.

35. [316]

    Q. Do you agree or disagree that the plaintiff requires future treatment for her psychiatric injuries?

36. [317]

    Dr Lee did not consider that the plaintiff needs future treatment for her psychiatric injuries based on her presentation to him.

37. [318]

    Ms Glancey maintained the diagnosis of major depressive disorder and adjustment disorder with anxiety, it is her view that the plaintiff requires professional intervention for mental disturbance. She has suggested treatment with both a psychiatrist and a psychologist and consideration of psychotropic medication. If the Court is to accept the credibility of her pain condition, a pain management program should be considered. Treatment will likely extend over the period 12-18 months.

38. [319]

    Ms Glancey stated that the recommended cost of treatment by a psychologist at the time of her assessment was $260 per hour. She was unaware of the cost associated with psychiatric treatment. The plaintiff had ceased previous psychiatric treatment 12 months before the fall and has described herself as mentally tough following the treatment. The treatment she has recommended is related to depression and anxiety that were reported to have developed as a sequence of pain and compromised functioning associated with the fall.

39. [320]

    Q. The extent to which such treatment would have been required in any event due to any pre-existing condition.

40. [321]

    A. Ms Glancey stated that the plaintiff was not suffering pain and compromised functioning as reported after the fall, it is highly unlikely she would have developed mental disturbance requiring treatment associated with the fall.

41. [322]

    De Lee stated that this is inherently difficult given the nature of somatoform disorders which tend to wax and wane in response to stress, perceived stress and the need for support, and can fluctuate according to many circumstances. However, he considered there was a significant likelihood that such treatment may have been required in any event due to a pre-existing somatoform predisposition.

42. [323]

    Ms Glancey and Dr Lee disagreed on the plaintiff's requirement for treatment on the basis that they disagreed on the specific psychiatric diagnosis.

Conclave evidence – Dr Lee and Ms Glancey

1. [324]

   When giving the evidence, the key difference between Ms Glancey and Dr Lee was their assessment of the plaintiff’s signs of “malingering and somatoform symptoms (T135)”, if any.

2. [325]

   Dr Lee’s view was that the symptoms demonstrated by the plaintiff were a result of a pre-disposing condition, namely, somatoform disorder, whereas the view of Ms Glancey was that the plaintiff’s symptoms were a result of the accident.

3. [326]

   Both Dr Lee and Ms Glancey provided their understanding of what constitutes somatoform disorder.

4. [327]

   Ms Glancey stated that somatoform disorder ‘is likened to a personality disorder. That it is a disorder like often that is onset following trauma, particularly trauma in young years and is often, well can be seen where it is triggered in terms of stressful life events.’ (T135)

5. [328]

   Dr Lee defined somatoform disorder as follows:

6. [329]

   Dr Lee and Ms Glancey are also in disagreement about the concept of malingering. Dr Lee stated the following regarding the connection between malingering and somatoform disorder:

7. [330]

   In forming his opinion, Dr Lee relied on the plaintiff’s presentation, the fact the plaintiff was uncooperative, Professor Shatwell’s report and other documents (T151). Professor Shatwell indicates that the incident did not cause the full extent of the plaintiff’s physical complaints (T152).

8. [331]

   Professor Shatwell’s report commented on an MRI study performed on 22 January 2020 which provided pathological evidence of physical pain-inducing abnormalities. When giving evidence, Dr Lee stated that the presence of MRI scan abnormalities does not always equate to clinically significant pain (T153). However, Dr Lee stated that it was difficult for them to pass an opinion about the implication of an MRI scan done two days after an accident (T153).

9. [332]

   Dr Lee stated that the if a complaint is not explained by a physical condition, the presentation of pain is usually for secondary gain (T154). Dr Lee then conceded that the proposition of secondary gain would not be supported where there is a consistent history of pain that is demonstrated pathologically (T154).

10. [333]

    When it was put forward to Ms Glancey that the plaintiff, when engaging with Dr Lee, was uncooperative, did not engage in psychometric testing and did not provide a complete history, Ms Glancey stated that such circumstances would not change her view (T138). Ms Glancey further stated that the plaintiff did not demonstrate non-cooperation during her assessment of the plaintiff (T139).

11. [334]

    Had the plaintiff been uncooperative with Ms Glancey, Ms Glancey is of the view that she would have investigated why that was the case (T139). This differs to the approach taken by Dr Lee. Dr Lee stated that when one is uncooperative, he avoid asking questions to prevent ‘badgering somebody to cooperate with a test that they find intrusive’ (T139).

12. [335]

    Dr Lee was of the view that a ‘paper and pencil test’ (T141) such as a psychometric test consistent with DSM guidelines is the best way of established the veracity of reported symptoms in a subjective assessment of an uncooperative individual’s symptoms not fully explained by an injury.

13. [336]

    Ms Glancey noted that truthful reporting is a significant feature of a diagnosis (T142). When provided with documentation demonstrating therapeutic intervention with a counsellor on a raft of issues faced by the plaintiff, Ms Glancey stated that the substance of those documents were reported to her by the plaintiff (T144). Ms Glancey conceded that the documents provided evidence that the plaintiff suffered from a mental disturbance despite the report she prepared stating, (at page 8), that ‘there was no indication in the plaintiff’s reports or in the documents provided that plaintiff suffered mental disturbance in the 12 months or so prior to the subject fall (T145).

14. [337]

    Nonetheless, the evidence of the plaintiff’s unreported mental disturbance or stress would not change the opinion reached by Ms Glancey in her report (T146). Furthermore, Ms Glancey stated that plaintiff’s prior stresses would not lead to a diagnosis of somatoform disorder (T146). In the words of Ms Glancey, a diagnosis of somatoform disorder would require ‘a history of mental disturbance or reports of complaints or reports of dysfunction over a long period of time, particularly early in life.’

15. [338]

    When Ms Glancey was asked whether an assessment of the plaintiff’s psychological conditions may have been influenced by unreported situational factors, Ms Glancey stated that she would have to qualify her opinion with respect to the new information but that would not significantly dimmish the conclusion reached in the report (T148). Ms Glancey posited that previous stressors would not invalidate the pain reported from the injury. The undisclosed stresses faced by the plaintiff could have also served as a predisposing factor in the pain reported by the plaintiff to Ms Glancey (T148).

16. [339]

    Moreover, Ms Glancey could not attach any significant particular clinical significance to the situational stresses (T154) and noted that the clinical significance of the situational factors decreased upon consideration that the plaintiff continued to function competently in most endeavors (T154-5).

17. [340]

    Dr Lee stated that the plaintiff’s failure to disclose resulted in the hypothesis that the anxiety and depression resulted from non-related accident stress was tenable (T149). Dr Lee noted that the undisclosed stresses were long term in nature and included matrimonial difficulties (149). Dr Lee explained that such stresses were consistent with the idea that the accident was not the most significant cause of her psychological problems (T149). Dr Lee’s opinion did not change throughout the course of giving evidence (T149).

18. [341]

    The plaintiff submitted that the evidence of Dr Lee should be rejected. With respect, Dr Lee was a witness for the defendants, not an independent expert for the Court. His dogged maintenance of the proposition that if symptoms are not fully accounted for by a ‘physical lesion’ or ‘injury’ or ‘pathology’, then it was difficult to reject the proposition that there was secondary financial gain/malingering.

19. [342]

    Dr Lee made much of the fact that he relied on Prof. Shatwell as he was a physical doctor and much more qualified than him in respect to MRI scans. Then, curiously, Dr Lee proceeded to give a lengthy oration apparently endeavouring to evince his own expertise on matters outside his specialty.

20. [343]

    Ultimately, he was forced to accept that in the presence of pathology an alternative explanation to secondary financial gain/malingering was that the patient was truly in pain (T154-155). In response to Dr Lee’s rather reluctant concession as to common sense, her honour noted “but if you've got an event, which is here, and you have pain, and you have something on the scan, that to me seems as though you'd take notice of that”.

21. [344]

    On the other hand, the Court had the benefit of reasonable and measured evidence from Ms Glancey who found the plaintiff to be a genuine historian and someone continuing to suffer psychologically because of her physical injuries. When confronted with the August 2019 psychological material from the plaintiff treating psychologist, Vanessa Allen, Ms Glancey was measured in recognising those life matters as ‘situational stresses’ which could not be regarded as relevantly significant as the plaintiff continued to enjoy a full social and recreational, domestic, housework and employment life.

22. [345]

    The opinion of Ms Glancey that she was suffering from a major depressive disorder and adjustment disorder must be qualified by reference to the following exchange:

23. [346]

    Ms Glancey gave her opinion that the plaintiff’s adjustment disorder and depressive disorders and anxiety were a consequence of the fall. Her opinion was not significantly diminished. Ms Glancey explained that in her reports at (T148.20-35):

24. [347]

    Prior to the fall, Ms Glancey agreed at (T148-150) that the plaintiff may have been suffering symptoms of stress, perhaps diagnosable, perhaps not, and that may have served as a predisposing factor. Then the following exchange between them took place:

25. [348]

    The defendants’ submitted that there is no doubt that the plaintiff suffers:

    1. (1)

       a physical injury; and

    2. (2)

       a mental health condition.

26. [349]

    There is also little doubt that the plaintiff has undergone a procedure aimed at reducing that pain, which has left her in significant surgical pain that is expected subside in another four weeks.

27. [350]

    There is no doubt that there would have been a time when her pain meant that she required some kind of domestic assistance.

28. [351]

    I prefer Ms Glancey’s opinion to that of Dr Lee for the following reasons:

29. [352]

    The plaintiff felt uncomfortable at the consultation with Dr Lee, resulting in Dr Lee forming the opinion that she was uncooperative. She was cooperative with all the other medical practitioners. Dr Lee formed an adverse opinion of the plaintiff because he was of the opinion that she was uncooperative when she declined to engage in psychometric testing. When Dr Lee was asked during cross-examination why he did not take steps to investigate why the plaintiff was being uncooperative, when the plaintiff was cooperative with Ms Glancey, he replied that he took the view that he avoided asking questions “to prevent badgering someone to cooperate with a test they found to be intrusive”. In my view to ask for an explanation for why the plaintiff did not want to participate, I do not think falls into badgering someone to co-operate with a test they found to be intrusive. It would only be after he received a reply and if he had asked further questions that it may amount to badgering.

30. [353]

    Further, Dr. Lee placed heavy reliance upon the medical report of Professor Shatwell, an orthopaedic surgeon, as to his findings on the plaintiff’s neck movement and persistent symptoms despite surgical decompression. Dr Lee adopted Prof. Shatwell’s opinions. However, Dr Shatwell’s opinion was not the one I preferred. It should be observed that the plaintiff has had a number of operations on her neck that Dr Lee has not taken into account.

31. [354]

    With respect, Dr Lee’s diagnosis of “malingering” on the basis of the DSM5 criteria has not borne out by the evidence. As I stated earlier, he formed an adverse opinion of the plaintiff, as the plaintiff did of him. In my view, it was up to him to take steps to establish a therapeutic alliance and even if partially successful, the plaintiff may have disclosed her psychological symptoms and may have undertaken psychometric testing. Had she taken this combative approach with other medical practitioners, I would not have arrived at this view.

32. [355]

    Ms Glancey diagnosed the plaintiff with Major Depressive Disorder and Adjustment Disorder with Anxiety. Ms Glancey’s diagnosis warrants professional intervention. In Ms Glancey’s experience, depression warrants consideration of antidepressant medication. Disturbance with anxiety is may benefit from psychological intervention. Ms Glancey recommends provision be made for 15 consultations with a psychologist. The recommended cost of treatment by a psychologist is $260 per hour. Ms Glancey also recommends referral to a psychiatrist and provision be made for 12 consultations with a psychiatrist. Ms Glancey is of the view that should the plaintiff obtain a therapeutic response to antidepressant medication, she will likely require such medication throughout the foreseeable future. Ms Glancey further recommends consideration be made for a pain management program.

33. [356]

    Ms Glancey continued that the depression would compromise the plaintiff’s capacity to engage in routine care for her home. Should the plaintiff not have the support of her husband, mental disturbance would support a recommendation for two hours of domestic assistance each week.

34. [357]

    For these reasons, I prefer the evidence and diagnosis of Ms Glancey to that of Dr Lee.

Quantum

1. [358]

   The plaintiff’s date of birth is XX. She was 51 years of age at the time of the accident. She is now 53 years old.

Non-economic loss

1. [359]

   Section 16(1) of the Civil Liability Act relates to non-economic loss, it reads:

2. [360]

   It is common ground that the plaintiff’s non-economic loss exceeds 15% of the most extreme case.

3. [361]

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

4. [362]

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

5. [363]

   The plaintiff claims $352,500.00, which is 50% of the most extreme case. The defendant claims between 28-30% of a most extreme case, which is $97,000 to $159,000.

6. [364]

   The defendant submitted that the plaintiff’s assessment of the injury at 50% is with respect, nothing more than aggrandizement. Rather, on an if found basis, the plaintiff’s damages for non-economic loss were said to be 28-30% of the most extreme case and between $97,000-$159,500.

7. [365]

   The defendant submitted that any psychological overlay is pre-existing and to whatever extent it remains could be explained by a somatic symptom disorder.

8. [366]

   It is also clear that she considered the trial stimulator a success and accepts that her neuropathic pain has reduced 40% during the trial. It must be expected a similar level of pain reduction.

9. [367]

   In those circumstances on the plaintiff’s pain levels, if they do sit regularly at 8/10 without the stimulator, will reduce to 4.8/10

10. [368]

    In answer to a question about her pain levels referable to November 2020, the defendants’ noted that the plaintiff asserted that her pain sits at an eight to nine out of ten daily. Her inability to concede that the pain subsided at all at various point, notwithstanding that the physio records “pain has now settled, numbness hasn’t.” It was also noted that the plaintiff made no inquiry as to whether physios were conducting their services during the lockdown period between January 2020-July 2020. I do not find the defendants’ submissions of any real significance, but I refer to her pain levels later in this judgment.

11. [369]

    Before the accident, the plaintiff used to love socialising, going to the movies and going down to the local bowling club for a meal. However, she hardly ever does any of those things because she is always in pain and discomfort and the plaintiff has become very socially withdrawn. The plaintiff enjoyed walking. However, she is now unable to walk her 60kg dog; she said she did not have the strength to manage him.

12. [370]

    Before the accident, the plaintiff’s true passion outside of their family was dancing. She previously owned and operated her own dance studio when we lived in Canberra, while she was also the head of the Raiders cheer squad. Since that time, she's also been heavily involved in dancing competitions, as well as Bella's dancing career. The plaintiff also took great pride and joy in making dance costumes, which required considerable time and effort. She contributed to the styling and design of costumes. The plaintiff previously enjoyed sewing and beading costumes for her daughter’s dance performances however she was no longer able to sew due to pain. However, due to the pain and discomfort she is in, along with her inability to properly use her left hand, she is no longer able to make such dresses. This has had a significant impact on his wife’s well-being, as she is no longer able to enjoy such activities.

13. [371]

    In more recent times, the accident is continuing to negatively impact on the plaintiff’s life, as follows: She no longer socializes with friends and/or family; She is constantly rubbing her neck and holding her left arm; She seems to always be in pain, especially with respect to her neck; She regularly raises her left shoulder up, while at the same time leans her head towards her right shoulder, to provide some temporary pain relief; She spends a lot of time in bed due to the pain she experiences.

14. [372]

    On some days when the pain is bad, she does not even get out of bed; She is always flinching her neck to find some pain relief; In terms of her mobility, she finds it difficult to walk because of her constant pain and discomfort; She always seems to be dazed and/or spacey, especially after taking her medication; She can only sit in the car for short periods, before she starts to become irritated.

15. [373]

    She gets very moody and has very little patience, which is the opposite to what she was like before the accident; She appears to have put on weight since the accident; She has issues with sleeping and appears to always be tired and/or fatigued; She also appears to have lost a lot of self-confidence and is regularly upset; She no longer exercises or goes for walks as she did prior to the accident; She is self-conscious about the scar on the right side of her neck; She avoids lifting heaving items due to the pain and discomfort in her neck; She avoids walking on the driveway at home because she is scared, she will fall over just like what happened with the accident; and she has difficulties with concentrating. She reported uncharacteristic anxiety. She reported physical symptoms of anxiety including racing heart. She reported anxiety associated with her functioning and uncertainty of her future.

16. [374]

    In terms of their relationship, it has also been negatively impacted because of the accident. They sleep separately because the plaintiff is regularly awake during the night. She wakes with bad nightmares to the point where she is screaming, and the plaintiff’s husband can hear her from the other side of the house. As a result, he will go and comfort her to make sure she is okay. They no longer go out for date nights to the movies, nor do they go for long drives. The plaintiff previously enjoyed these activities. When they go out for a meal together, which is rare, we will only be at the restaurant for a very short period, because the plaintiff gets uncomfortable very quickly.The accident has affected the plaintiff’s relationship with her son as they now “clash a lot”. Her son has observed that the accident has affected her mental welfare and hope for the future.

17. [375]

    The injury has affected the plaintiff’s relationship with her husband. His evidence is that they no longer organise date nights together, such as going to the movies or going for long drives or sleep in the same bedroom, due to her sleep cycle. The plaintiff reported sleep disturbance which she attributed to pain. She reported latency of sleep. She reported night awakenings with secondary insomnia. She reported fatigue and lethargy on rising. The plaintiff has been unable to return to gardening, walking the dogs and performing some craft work.

18. [376]

    The plaintiff now has a limited ability to do housework and provide domestic services for her husband and children, as she once did. Her evidence that she is able to make toast, eggs, rinse a dish or reheat a meal does not provide her with the quality of life she once enjoyed.

19. [377]

    The plaintiff reported to Ms Glancey that she has lost interest in her personal appearance; she said it was an effort to present herself. She reported emotional disturbance. She reported withdrawn noncommunicative behaviour and has reported uncharacteristic irritability and hostile mood. She reported low self-worth which she attributed to the loss of her job and the related loss of income. She reported to have applied for numerous positions unsuccessfully.

20. [378]

    The injury has affected the plaintiff self-confidence and body image. The combination of these factors have clearly reduced the plaintiff’s amenities and enjoyment of her life, as well as her expectation for the future. She reported feeling self-conscious with the scar on her neck. She noticed people looking at the scar. She said people had questioned her regarding the scar. She spontaneously commented that she was self-conscious regarding the scars she bears from surgery in respect of breast cancer however the scar on her neck exacerbated feelings of self-consciousness.

21. [379]

    The plaintiff has neck pain and left arm pain due to a what Dr Timothy Steel found was a herniated disc fragment on the side at C6/C7. The plaintiff described her symptoms as an electric shock kind of pain that radiated down her fingers. She reported to Ms Glancey persisting pain and constant pain in her neck; she reported aching pain in her neck. She reported constant pain in her left shoulder. She reported electric shock-like pain radiating from her neck down her left arm. She reported numbness in two fingers of her left hand. She reported to use anti-inflammatory medication. She avoided the use of analgesics. The plaintiff has suffered significant pain and discomfort since her injury. The plaintiff’s pain was still to such an extent, as to be significant and compensable. It has had an adverse effect of her life day to day.

22. [380]

    Taking all these matters into account, the plaintiff’s quality of life has been seriously affected. I assess that the plaintiff’s non-economic loss to be 45% of the most extreme case. This equates to $317,500.00.

Past and future economic loss

1. [381]

   Section 12 of the Civil Liability Act 2002 (NSW) provides for damages for past or future economic loss. It reads:

2. [382]

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

Past-economic loss

1. [383]

   The plaintiff claims $1000 per week for future economic loss. The defendant submitted that if there is any basis for future loss of earning capacity, an allowance may be made by way of buffer is $50,000. The plaintiff submitted that past economic loss should be valued at $131,000 ($1,000npw x 179wks)

2. [384]

   The defendant submitted that past economic loss should be zero by reason of, the collection of Jobkeeper payments, her capacity and resignation. The plaintiff’s employment history has been sporadic, due to a series of significant life events, such as getting married, moving around for her husband’s work, being diagnosed with cancer and undertaking full-time care of her three children, as well as full-time housework.

3. [385]

   The plaintiff’s previous employment history has been recorded as follows: In 1990, the plaintiff worked as an executive assistant at the Chief Minister’s Office in Canberra. Between 1990-1994, the plaintiff also ran a dance studio in Canberra. In 1994, the plaintiff was the head choreographer and cheerleader of the Canberra Raiders. In 1989, she was promoted to running the Raiderettes. From 2005 to 2009, the plaintiff operated a beauty therapy business on a part time basis. The plaintiff recalls that she was earning approximately $500-$600 net per week at that time. From 2014-2017, the plaintiff ran a Crust Pizza franchise in Townsville. While she worked in the franchise many long hours, it did not result in financial income. Her evidence was that she drew no income in the years of 2016 and 2017. In 2018, her taxable income was $38,895. In 2019, her taxable income was $43,104. The plaintiff’s annual salary with the Newcastle Knights was $63,926.

4. [386]

   From 2017-2019, the plaintiff was employed by the 'Men of League' foundation as the 'National Administration Manager' and 'Executive Assistant' to the CEO of that foundation. In 2018, her taxable income was $38,895. In 2019, her taxable income was $43,104. In late 2019, the plaintiff worked full time (38 hours per week) with the Newcastle Knights as its 'Community Relationships Coordinator'. The plaintiff recalls earning approximately $63,926 per annum. The plaintiff intended to work until the age 70. However, the plaintiff resigned from this job on 30 September 2020 due to her injuries. This was due to her no longer receiving COVID-19 Jobseeker payments. If the COVID-19 pandemic hadn’t occurred, she would have continued with her job at the Newcastle Knights. Up to the time of this judgment, it is my view that due to her neck, pain and psychiatric condition, the plaintiff has been totally incapable of working. She had no earning capacity. A period of 142 weeks has passed since her resignation. However, I expect her earning capacity to improve in the future as a result of the permanent implant of the spinal cord stimulator. I will return to this topic under the heading future economic loss.

Future earning capacity

1. [387]

   Section 13 of the CLA reads:

2. [388]

   In State of New South Wales v Moss (2000) 54 NSWLR 536, Heydon JA reviewed numerous authorities before concluding, at [87]:

3. [389]

   The lifestyle change is permanent, dramatic, and involves an incapacitating loss of independence, and the period of formal rehabilitation can last for 12 months or more.

4. [390]

   As to the plaintiff’s incapacity with respect to earning capacity, Prof. Shatwell and Dr Giblin agree the prognosis for the injury should have been good and that Ms Furner would have been able to continue with her clerical type duties for the foreseeable future with minimal, if any, impact.

5. [391]

   The plaintiff’s earning capacity and gainful employment will be hampered significantly.

6. [392]

   Mr Furner’s evidence was that if the plaintiff wanted to work that was up to her. He confirmed she was on a “decent wage” while working at the Men of League (T192.42) and he did not accede to the counsel for the defendants’ assertion there was some ‘understanding of the roles in the household’ that he worked full-time and earn the money while she engaged largely in domestic tasks (T193.5).

7. [393]

   It is unreasonable to assume that her income would have continued at that level given her patchy work history and constant movement in light of her husband’s coaching career.

8. [394]

   The plaintiff has demonstrated that she is intelligent and capable of sustaining employment in administrative jobs, such as an executive assistant at the Chief Minister’s office. She had the ability to prepare her excellent witness statement. The plaintiff has completed courses as a beautician, nail technician and dance teacher. If the plaintiff hadn’t been injured, she would likely have continued in her role as Community Relationships Coordinator. I have taken into account that it is more probable than not that when her husband moved due to different clubs to meet his coaching commitments, the plaintiff would have moved with him and she would have been able to obtain a job coordinating community relations or obtained other administrative public service roles. She would not be limited to working for Rugby League.

9. [395]

   While I have calculated the plaintiff’s net weekly earnings at $1,200 net from her 2019 tax return, the plaintiff has claimed only $1,000 net per week, so I will assess her past economic loss at $1,000 net per week. If the accident had not occurred, the plaintiff would have continued in her employment with the Newcastle Knights as a Community Relationships Coordinator.

10. [396]

    I assess the plaintiff’s past economic loss from the date of the accident 18 January 2020 to 28 June 2023, which is 179 weeks and 4 days, rounded up to 180 weeks at $1000 net per week which equates to $180,000.

11. [397]

    Some considerable time was spent by the cross-examiner endeavouring to impugn Mr Furner’s credit on the basis he felt his marriage and his wife’s mental state were good before her accident. It is submitted that is the precise finding the Court should make having appreciated that there were situational stresses in the plaintiff’s pre-accident life (such as there are in the lives of all members of the community) which did not impair her capacity to live a full and happy family, social and employment life.

12. [398]

    The difficulty with the future claim for future working capacity are that the assumptions on which they are based are entirely speculative. See s 13(1) of the Civil Liability Act. It is at least clear that the plaintiff’s ability to work or engage in domestic chores is not a function of her psychological sequela.

13. [399]

    The Court would note that Dr Giblin acknowledged that she was capable of resuming full time sedentary work in administrative capacity. These opinions were expressed prior to the plaintiff’s operation to have a spinal cord stimulator implantation on 24 August 2022.

14. [400]

    The defendants’ counsel submitted that there is no reason why the plaintiff is not able to continue working given she is a tenacious worker with a high and broad skill set. See for example (TT, day 1, line 41).

15. [401]

    Her future working capacity has been exaggerated: (from 109)

16. [402]

    The difficulty with the future claims are that the assumptions on which they are based are entirely speculative: See s 13(1) of the CLA.

17. [403]

    It is at least clear that the plaintiff’s ability to work or engage in domestic chores is not a function of her psychological sequela.

18. [404]

    The Court would note that Dr Giblin acknowledged that she was capable of resuming full time sedentary work in administrative capacity (as did Dr Shatwell) from November 2020.

19. [405]

    The plaintiff claims $1000 per week until the age of 70. Her evidence was that she drew no income in the years of 2016 and 2017. In 2018 her taxable income was $38,895. In 2019, her taxable income was $43,104. The plaintiff’s annual salary with the Newcastle Knights was $63,926. It is unreasonable to assume that her income would have continued at that level given her patchy work history and constant movement in light of her husband’s coaching career.

20. [406]

    On 27 September 2022, counsel for the defendant drew to this Court’s attention that the reduction in the plaintiff’s pain levels from the stimulator should be considered when assessing the plaintiff ability to work (T366-25-43):

21. [407]

    The plaintiff claims $1,000 net per week. Mr Furner’s expectation was that had she not been injured, his wife would have worked and would still be working now (T193.12). Dr Low was of the view that based on an ongoing inability to tolerate prolonged postural positions and maintain prolonged periods of sitting and concentrating secondary to her cervical spine injury, he considered the plaintiff unable to return to her pre-injury role in the foreseeable future. Dr Low also reported that the plaintiff was experiencing overall symptoms such as difficulty concentrating and fatigue secondary to interruption in sleep. The plaintiff reported to Ms Glancey physical restrictions associated with pain. The plaintiff reported pain when maintaining a seated position and a consequence she was unable to sit at a desk for periods of time. She reported pain when standing for longer periods.

22. [408]

    Mr Furner noted that prior to the plaintiff’s resignation, the plaintiff couldn’t tolerate even reduced hours. Dr Low suggested that the plaintiff would require restrictions against performing any degree of manual handling using her left arm, avoidance of any above shoulder manoeuvres and avoidance of work that would require travelling for extended periods of time greater than 60 minutes. Overall, he held that the plaintiff would effectively be confined to sedentary based duties working reduced hours. With further treatment, he considered that a more realistic return to work goal would be 12 hours a week.

23. [409]

    Dr Giblin was of the view that the plaintiff was permanently unfit to work in an environment where she has to use her upper extremities in a heavy repetitious impact fashion or for constant pushing, pulling, lifting and twisting or repetitive use above shoulder height. Any of these physical activities which would place a strain on her neck will have a tendency to increase her cervical symptoms. However, he said that the plaintiff would be fit for a full time sedentary work environment in which she can change her body habitus at will and avoid the aforementioned physical restrictions.

24. [410]

    While it is difficult to assess the plaintiff’s future earning capacity in circumstances where she has recently undergone an operation a few weeks prior to the resumption of the part heard hearing and understandably she was experiencing very significant pain, it is to be expected that she over the coming months since the operation would have improved. However, it is likely that her pain will decrease, it is difficult to assess the degree of improvement. The plaintiff is intelligent, resilient and resourceful, she is capable of periods of casual work. The plaintiff’s pain levels will still affect her ability to concentrate and sit in a chair for extended periods of time.

25. [411]

    The plaintiff’s overall award of damages will be discounted by 15% to take in account the usual vicissitudes of life, such as accident, unemployment, sickness and death.

26. [412]

    While the plaintiff claims that she will work until 71, this is unlikely. I assess future economic loss on the basis that she retires at the normal retirement age of 67. The plaintiff is expected to retire in 14 years. The Multiplier (14 years – 5%) is $1000.00. As to the plaintiff’s earning capacity, I assess the plaintiff has an earning capacity of 20%. 20% of $1,000 net per week is $200. I assess future earning capacity at $1,000 npw - $200 = $800 npw for 14 years x 529.3 x 85% equates to $359,924.

Past loss of superannuation

1. [413]

   Past superannuation is to be calculated at 11% x 180,000. This equates to $19,800.

Future loss of superannuation

1. [414]

   I assess future loss of superannuation at $359,924 x 11%, which equates to $39,592.

Past out-of-pocket expenses

1. [415]

   The plaintiff claims past out-of-pocket expenses at $74,130 + $145,000 and provided a Schedule itemising the payments made by the plaintiff.

2. [416]

   The schedule of payments made by the plaintiff include Medicare payments amounting to $14,000, Medicare gap payments paid by the plaintiff amounting to $733.70, HCF Private Health Fund payments estimated to be approximately $55,000, HCF Gap payments amounting to $1,000 in hospital excess, a payment of $275 to I-MED Radiology Network for an MRI of the cervical spine, a payment of $525 for attendance at consulting rooms by A/Prof Timothy Steel, a payment of $2,000 for an assistance fee to Sydney Spine & Pain, a payment of $2,000 for pharmaceutical expenses to Priceline Pharmacy Menai and a payment of $96 to HPS Pharmacies Waratah for medication. The plaintiff has also attended extensive postoperative physiotherapy sessions for 10 months.

3. [417]

   These are all unpaid, I assess as necessary and reasonable the sum of $74,130. I allow that amount.

4. [418]

   Since the schedule was prepared on 24 August 2022, the plaintiff had elective surgery to have a spinal cord stimulator installed, in order to manage her pain levels. Sydney Spine and Pain estimated that this surgery would cost between $145,000. I allow $145,000. Overall, I allow $228,570.

Future out-of-pocket expenses

1. [419]

   The plaintiff claims future out-of-pocket expenses at $150,000. This comprises of GP and specialist consultations, physical rehabilitation, future surgery, medication and counselling. Dr Giblin notes that potential complications can lead to recurrent surgical and related procedures costings not infrequently exceeding $100,000.

2. [420]

   Following the accident, the plaintiff says that she has developed sadness, a hopeless mood and suicidal thoughts and have been prescribed medications to control her psychological symptoms. The plaintiff understands that she has been diagnosed with Major Depressive Disorder and Adjustment Disorder.

3. [421]

   As per Ms Glancey recommendations the plaintiff’s requires psychological intervention. I agree with Ms Glancey’s recommendation that the plaintiff be made 15 consultations with a psychologist at a cost of $260 per hour, this equates to $3,900. I also agree with Ms Glancey’s recommendation that the plaintiff be referred to a psychiatrist and provision be made for 12 consultations with a psychiatrist. According to the Royal Australian & New Zealand College of Psychiatrists, the initial consultation fee is $405, the consultation fees proceeding are $320 per session. At 12 sessions, the fees would amount to $3,925. I allow this amount.

4. [422]

   The plaintiff has been taking various analgesics and psychotropic medications to manage her ongoing symptoms. These include pain killers and antidepressants. In the past, she has taken Lyrica. Her general practitioner is currently prescribing her, and she is taking anti­depressants. The plaintiff feels very upset about this situation, given the amount of work she had in the past put in with her mental health issues back in 2016, in order to recover from the issues, she was suffering from at that time. She regularly takes Panadol and/or paracetamol almost on a daily basis, which at time can take a slight edge off the pain. The plaintiff is currently also taking Gabapentin. She estimates that she would spend approximately $10 per week on medications. I allow this amount. I agree with Mc Glancey that the plaintiff should be provided with a therapeutic response to antidepressant medication for the foreseeable future.

5. [423]

   I agree with Ms Glancey’s recommendation that the plaintiff be compensated for the expenses that would be incurred by participating in a pain management program.

6. [424]

   Dr Low found that the plaintiff will require the following treatment with cost guided by recommended AMA rates. Ongoing prescription of analgesia for breakthrough pain. Access to multidisciplinary physical therapy for periods of symptom exacerbation. Treatment modalities should include physiotherapy, exercise physiology and hydrotherapy. Ongoing review with treating neurosurgeon at 6 to 12 monthly intervals and an ongoing review with general practitioner at 3 to 4 monthly intervals to coordinate her care. Dr Yu also suggested that multidisciplinary pain management program of physiotherapy and psychology would be appropriate.

7. [425]

   Prior to the accident, the plaintiff has had no major operations besides a mastectomy for bilateral breast cancer in 2012, followed up by a total hysterectomy. On 1 February 2020, the plaintiff underwent a C6/C7 cervical anthroplasty with Mobi-C implant on 1 February 2020 performed under the care of Dr Hansen. On 5 January 2021, Dr Bentivoglio recommended that if the plaintiff still had significant C7 nerve root compression, she would need to have further surgery to release the nerve.

8. [426]

   Dr Giblin stated that the plaintiff will need life-long access to advice and investigations by her treating surgeon in relation to recurrent symptomology in her cervical spine. The timeline is indefinite and the day to day costs are difficult to determine. He said that future surgical considerations may arise and this would include but not be limited to, a cervical disc revision surgery with the all up hospital, medical and ancillary costs of at least $28,000 barring any complications.

9. [427]

   Dr Giblin is in general agreement with Prof. Shatwell's comments but is more reserved because he has the concern that foreign material in the cervical spine remains a source of liability in terms of complications such as infection, loosening and periprosthetic fracture. In his experience, having practised in the one address for over 40 years, he has seen many of these surgical procedures run into complications after about 25 to 30 years and the recurrent surgical and related procedures costings not infrequently exceed $100,000. The lifestyle change is permanent, dramatic, and involves an incapacitating loss of independence, and the period of formal rehabilitation can last for 12 months or more.

10. [428]

    In the next 25 to 30 years, there is a chance that the plaintiff may have to undergo recurrent surgical and related procedures. The approach I will take is that set out in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 as per Deane, Gaudron and McHugh JJ at p 643:

11. [429]

    I asses the likelihood of this surgery taking place at 30%, this equates to $30,000.

12. [430]

    Taking into consideration all these expenses, I calculate the plaintiff’s future out-of-pocket expenses at $119,130.

Past Attendant Care

1. [431]

   Section 15 of the Civil Liability Act reads:

2. [432]

   Mr Furner was not seriously challenged about the amount of additional domestic housework he has performed as a consequence of the plaintiff’s need for such assistance since her accident (paras 46, 47 & 52 C072).

3. [433]

   In respect to the assessment of gratuitous care damages, the plaintiff submitted that the discourse between the Court and the cross-examiner at T269.46 – T270.23 makes it tolerably clear the Court has and should bring to bear on the findings ordinary experiences of life. The defendants’ protestations about the children being ‘able’ to do more for themselves prior to the accident (in the words of the court ‘aspirational’ (T270.17) misconceives the statutory requirements set out at s 15(2) of the Civil Liability Act.

4. [434]

   If the court is satisfied that there has been a (a) reasonable need for the services provided by the family members and (b) that need has arisen solely because of the injury and (c) the services would not have been provided to the plaintiff but for the injury then so long as the threshold in s15(3) is met, attendant care damages ought be awarded.

5. [435]

   The plaintiff has given a full and detailed account of the circumstances of the Furner household’s division of housework prior to the plaintiff’s accident as compared to since. It should be accepted that the plaintiff performed virtually all the domestic chores (at that stage managing 2 households) but has needed significant support from her husband and children solely as a result of her injuries since the accident.

6. [436]

   Relevantly, the evidence of Isabella at p 228 was clearly given in response to the timeframe before the accident. The evidence given by each of the children as to the amount of care they have given their mother was not distinct as to period of time. The evidence was at an impressionistic level an embellishment.

7. [437]

   More relevantly however, the touch stone to the claim is reasonableness. Section 15(2) also provides that no damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that—(a) there is (or was) a reasonable need for the services to be provided.

8. [438]

   In this respect while the Court may well consider a 22-year-old male living at home is usually dependent on his mother for his basic needs, it is not reasonable to compensate the plaintiff for no longer being able to do that work, to fulfill that need of her dependent adult son. His evidence was that he was quite otherwise sufficient to run boxing classes and hold a professional job.

9. [439]

   This is also extends to the reasonableness of being compensated to manage all of the domestic chores of two homes, This is especially so when the plaintiff left to live with her daughter in Sydney from March. While her husband and on remained in Newcastle.

10. [440]

    More specifically the unchallenged evidence of the Dr Giblin was that she has been undertaking 70% of the domestic chores, leaving the heavier intermittent matters to family members. This is despite Mr Furner conceding that she has done the vacuuming.

11. [441]

    Both Drs Giblin and Shatwell do not establish that she has met the threshold, nor is there any cogent evidence to suggest that she had 6 hours per week of domestic services for a continuous six months.

12. [442]

    The plaintiff claims 21 hours per week. This is a gross embellishment of her true care claim and for from the bounds of reasonableness. The plaintiff was cared for 2 hours a week for 3 months. The cost of care was $30 per hour for 13 weeks.

13. [443]

    The plaintiff claims 2.5 hours of gratuitous care per day from March 2020 to October 2020, a period of about 240 days. The experts agree care was required for three months following the accident. Thereafter there is a disagreement on the extent to which care is reasonable. The plaintiff does not establish the relevant threshold in s 15 of the Civil Liability Act.

14. [444]

    The plaintiff’s husband would easily spent 2-3 hours a day providing the plaintiff with assistance and doing all the housework at Charlestown, some of the housework when down at Bangor and 1.5hrs/day of housework at the Charlestown house. Since moving back to Sydney, he is easily performing 1-2 hours per day of housework which he did not do before his wife's injury.

15. [445]

    I accept that the plaintiff will be able to carry out more tasks than she has been due to the latest surgery which should result in her experiencing less pain. However, she never will be able to perform heavy and repetitive movements.

16. [446]

    The plaintiff’s daughter, Bella, spent 60-90 minutes per night performing the activities for her mother. Kyle would come home between 10-11am each morning to check on his mother and provide her with any assistance she needs. Since his mother's accident Kyle estimates that he has to perform between 4-6 hours/week of housework, and this continues to date.

17. [447]

    I have already set out the plaintiff’s husband’s evidence on attendant care earlier in this judgment.

18. [448]

    Bella (after some initial confusion caused by poor AVL communication from the United States: see T228.5, T228.21, T228.49, T229.15, T229.21, T231.21, T231.25) gave domestic care evidence the essence of which was that prior to her mother’s fall she was busily occupied with her own endeavours and, aside from making her own breakfast and tidying her own bedroom, did not volunteer to assist with house work leaving her mother to do it.

19. [449]

    The fact that prior to the accident there was some frustration between mother and daughter and a request by the plaintiff for her daughter to help merely confirms the plaintiff was performing all the housework (T230.43).

20. [450]

    The assistance Bella has provided since the plaintiff’s accident is set out at paras [11]-[14] of her evidentiary statement (C078).

21. [451]

    Bella confirmed that upon her return from the United States in February next year she will return to providing domestic assistance for her mother.

22. [452]

    Isabella (“Bella”) Furner is the plaintiff’s daughter. She was born in XXX 2002. She is aware that mother was injured in an accident on 18 January 2020.

23. [453]

    Prior to the accident, she did not perform any of the domestic chores. Her mother would pretty much do everything in the house, as she was a “clean freak” and very particular about the cleaning and the day to day running of our family home.

24. [454]

    Her mother did all the cooking, shopping, cleaning, laundry, mopping and even mowing the lawns. Her home was always pristinely clean and Bella said this was the case as far back as she can remember.

25. [455]

    In terms of meals and cooking, her mother would cook for her entire family every night with the exception of Fridays prior to the accident, as they had 'Pizza Fridays' in their house as a treat.

26. [456]

    As her mother obtained work up in Newcastle, her mother lived with her father during the week in Newcastle, but came back to Sydney every weekend and stayed with her brother and did all housework. Her mother would cook all our meals for the following week, so she would not have to worry about any meals and/or cooking, while she would also clean the house.

27. [457]

    Shortly after the accident, Bella travelled to Newcastle when her mother was in hospital. When she arrived, her mother could barely talk, Bella could see her mother was in extreme pain. She had never seen anyone in as much pain as her mother as when she arrived at the hospital. The pain became so bad, she says that her mother was virtually crippled and could not move and/or talk like a normal person. She had not seen her mother ever experience that level of pain, even when she was going through her breast cancer treatment.

28. [458]

    She recalls that the plaintiff had surgery performed on her neck, but that did not alleviate her pain and discomfort. She noticed at that time her mother did not have any feeling in her finger and thumb on her left hand. As a result, she had issues with using her left hand, which meant she had difficulty doing the most basic of tasks.

29. [459]

    Shortly after the surgery, the plaintiff moved back to Sydney to live with her as the first Covid lockdown had just commenced. Her brother moved up to Newcastle to live with their father.

30. [460]

    Once her mother moved back into the family home with her in around March 2020, she says her mother was in no condition to perform her previous housework. As a result, Bella did all the housework and looked after her mother.

31. [461]

    Shortly after her mother returned to living in Sydney, her mother and father purchased a house at XX, Bangor NSW. It is the property they currently live in. That is a six­bedroom, three-bathroom, three story house, with a pool and large backyard with grass. There is no carpet throughout the house, as it is made up entirely of floorboards and tiles.

32. [462]

    From April-October 2020, it was only Bella and her mother living together in Sydney. Bella was working and studying dance every weekday from 8am-3pm and she would subsequently teach at the dance studio from 4-7pm each night. She cooked cleaned and did laundry prior to leaving for dance each morning. That would take her approximately 60-90 minutes each morning.

33. [463]

    Bella also attended to whatever chores were necessary at night upon her return from the dance studio, including mopping the floors and cooking. Although her mother was the only person living in the house at that time, the house became quite dirty during the day, mainly due to the dogs, as they lived in the house, and one of them was still a puppy at that time. She would estimate, she spent 60-90 minutes per night performing the activities for her mother, as stated above.

34. [464]

    In October 2020, her brother and father moved back to Sydney because her mother was not getting better. Upon their return, she continued to perform the same tasks she was performing between April-October 2020, however, her brother and father would also provide assistance during the day and in the evenings. Bella is still providing such assistance to her mother up until today.

35. [465]

    Bella is devastated that her mother has been left the way she now is, after a simple slip and fall on a driveway, but she cannot do her housework forever. She is likely to move out of the family home in the next few years.

36. [466]

    Later this year she will be moving (and probably has moved) overseas to work on a cruise line ship. She was originally meant to have worked on the ship in 2021, but due to the Covid pandemic, that did not occur. She has also recently obtained a scholarship to dance at the Broadway Dance Studio in New York City, which she will likely undertake during 2023.

37. [467]

    Bella is currently working 3 separate jobs which are as follows: (a) Dancing at Marque nightclub which is located in the Star Casino. That is every Friday and Saturday night; (b) Shop assistant at Bevilles Jewelry store, which is located in Miranda. On average she will work 5 shifts a week which are either 5 or 9 hour shifts during the day; (c) and casual teaching at Ettingshausen's dance studio which is approximately 1 or 2 shifts per week in the afternoon.

38. [468]

    I have already referred to the domestic care Mr Furner has provided after the plaintiff’s accident.

39. [469]

    Kyle Furner is the plaintiff’s son. He was born on 5 December 1997. His evidence is that his mother was involved in an accident on 18 January 2020 ('the accident').

40. [470]

    In 2013, he moved to Townsville with his mother and father, as his father had obtained a job in that city. As a result, him and his sister moved with their parents up north and lived in Townsville from 2013 until late 2016. He completed years 11 and 12 of his schooling while he lived in Townsville. Kyle believes that before her accident, his mother was a very social person who enjoyed catching up with friends. She also returned to watching father's football games, which she had stopped doing while we were living in Townsville.

41. [471]

    His mother also spent a lot of time with his youngest sister Bella, as they were both heavily involved in dancing. The plaintiff loved dancing, which was one of her true passions in life, as she had been involved in dancing since she was a child. She also enjoyed going to the gym and going for walks prior to the accident.

42. [472]

    Before her accident, he did not perform any chores at home, besides occasionally cleaning his room. His mother did everything in the house, as she was obsessed with the cleanliness of the household and was very particular about how the house should be cleaned.

43. [473]

    His mother did all the cooking, cleaning, washing clothes, putting clothes on the line, folding clothes, mopping the floors inside the house, wiping benchtops, and mowing the lawns. Their home was always clean. His mother also did all the grocery shopping for the family.

44. [474]

    Prior to his mother's accident his father didn't do any housework as his job (being an assistant coach of a professional rugby league team) required him to leave home at 5am each morning and not return until 5-6pm each night.

45. [475]

    His mother did all the cooking for the family most nights. The meals his mother cooked were always very healthy, as his mother and father were very health conscious. His mother was also aware he had to be very strict with his diet when he was boxing. She quite often made him a totally different meal to what everyone else was eating.

46. [476]

    Bella and Kyle started to attend to chores at home because their mother wasn't around. When Kyle’s father was in Sydney, he also did a lot of housework at the Bangor house.

47. [477]

    For several months after his mother had her neck surgery and Kyle was still living in Newcastle, he travelled up and saw her one night a week. He did that to try and give his father a break from performing all the domestic assistance activities for her, while he was also concerned about her general welfare.

48. [478]

    In late March 2020, his mother moved back to Sydney to live with Bella, as the first covid lockdown had just commenced. At that time, he moved to Newcastle, so his father was not living on his own. He remained living in Newcastle with his father until October 2020. During this period everyone was doing their best to look after his mother and do housework. His father was doing all of it at Charlestown and Bella and him did a fair portion of it at Bangor.

49. [479]

    In October 2020, he and his father moved back to Sydney as his mother was not getting any better. At that time, he observed his mother was always grabbing her neck, holding her left arm in a sling like position, and generally always in pain. As a result, his mother had difficulties in performing the most simple of tasks, such as holding a plate or putting a cup on a bench. Even walking from the couch to the kitchen was an effort for his mother, due to the pain and discomfort she was experiencing, which continues up until today. Since he moved back home in October 2020, his sister still attends to the domestic tasks to assist his mother in the morning.

50. [480]

    Due to his work commitments, he left home at 4.30am each morning, as he runs his own boxing gym in Sutherland, which opens at 5am Monday-Friday. However, due to Bella's inability to be home during the day, he would come home between 10-11am each morning to check on his mother and provide her with any assistance she needs.

51. [481]

    While he was at home with mother, he would make her a cup of tea and prepare her a meal for lunch. He would also vacuum the floors of the house because their dog, which is a 76kg French Mastiff, sheds hair, which upsets his mother. That would take him approximately 45-60 minutes each day, as his mother could no longer undertake vacuuming.

52. [482]

    Since his mother's accident Kyle estimates that he has to perform between 4-6 hours/week of housework and this continues to date. From time to time, he has seen his mother try to vacuum or mop or clean the kitchen, but after a couple of minutes she would stop the task because of the pain and discomfort she was experiencing. Kyle said his mother has done the best she can, despite her significant injuries arising from the subject accident.

53. [483]

    He does not know how much longer he will be able to perform the domestic tasks that he has referred to above because his business is picking up and he is finding it more difficult to not be at work during the day.

54. [484]

    In early February 2022, his mother had a procedure on her neck. Approximately one to two weeks after that, he came home one day to find his neighbour standing inside their house. He immediately went upstairs and found his mother unresponsive in the bed. The neighbour had already called an ambulance. He observed his mother trying to talk but she wasn't making any sense. She was immediately taken to Sutherland hospital.

55. [485]

    Since the accident, his relationship with his mother has become strained and they clash a lot, as she is always very moody and down about her situation. She is no longer the happy mother he once knew, and he feels like sometimes she takes the anger out on him.

56. [486]

    He has started to become concerned about his mother's mental welfare, as her injuries and pain from the accident appear to be taking a significant toll on her. He is concerned she will never recover and/or return to the person she was prior to the accident.

57. [487]

    On December 2020, the plaintiff reported to occupational physician Dr Sean Low that she lived in a six-bedroom, three-story house with a back yard and pool. She stated that prior to the subject injury she was largely responsible for all household chores, some gardening activities and maintenance of the pool.

58. [488]

    The plaintiff reported to Ms Glancey, the use of self-imposed limitations in an attempt to manage pain. She avoided heavy lifting due to pain. She avoided heavy domestic duties including vacuuming and cleaning showers. She was unable to drive long distances due to pain. She reported great frustration with physical limitations.

59. [489]

    The plaintiff stated that she currently remains independent with personal care, she can self-dress and self-wash. In terms of domestic duties, she stated that she is only able to perform the bare minimum. She gave examples of being able to load the dishwasher. Otherwise, she relies on assistance provided to her by her husband and children. The plaintiff has suffered loss by having a need for the services now provided by her family members.

60. [490]

    In early 2020, the plaintiff’s husband would easily spend 2-3 hours a day providing the plaintiff with assistance and doing all the housework at Charlestown, some of the housework when down at Bangor and 1.5hrs/day of housework at the Charlestown house. Since moving back to Sydney, he is easily performing 1-2 hours per day of housework which he did not do before his wife's injury.

61. [491]

    In October 2020, Kyle and Mr Furner returned to live in Bangor with the plaintiff and Bella. Since that time, the domestic chores have been distributed among them. The plaintiff’s daughter, Bella, spent 60-90 minutes per night performing the activities for her mother. Kyle would come home between 10-11am each morning to check on his mother and provide her with any assistance she needs. Since his mother's accident Kyle estimates that he has to perform between 4-6 hours/week of housework and this continues to date.

62. [492]

    The plaintiff is unable to perform many of the basic tasks that she once did prior to her injury, to look after herself and her family. The combined effort of her immediate family to perform services of a domestic nature for the plaintiff, as set out in the evidence Mr Furner, Bella and Kyle were reasonably needed to support the plaintiff. While I acknowledge that the hours of care may fluctuate or lessen with time, the domestic assistance required to be provided to the plaintiff exceeds the threshold of 6 hours in CLA s 15(3)(a). I find that the criteria in section 15(2) is made out and thus the requirements of section 15(3) are satisfied.

63. [493]

    The plaintiff is to be compensated for the past attendant care services provided by her family at 7 hours per week at $34.77 dollars an hour for 131 weeks, this equates to $31,884.

Future attendant care

1. [494]

   Dr Low held that should the plaintiff not have access to assistance from her family members, she would require four to six hours of domestic and gardening assistance each week. Secondary to injuries sustained, she is currently confined to performing only minimal light duties such as loading the dishwasher.

2. [495]

   The plaintiff’s prognosis is considered poor. She has sustained a significant injury resulting in the need for major surgery. Based on the type of surgery she has undertaken, she is also at risk for further complications such as adjacent segment disease. There is an expectation of ongoing symptoms with future deterioration in the foreseeable future.

3. [496]

   When fully appreciating the extent of the plaintiff’s medical condition, the Court would readily appreciate the performance of heavy and repetitive movements such as are required with chores have been well beyond her since the accident. The Court would also be aware that housework involves significantly more than her retained capacity to make toast, eggs, rinse a dish or reheat a meal.

4. [497]

   The defendant submitted that given the uncertainties, if any future commercial care is allowed it should be on the basis of a buffer of $40,000.

5. [498]

   The plaintiff submitted that in the alternative to awarding the plaintiff compensation for future gratuitous care, future paid care should be $1,760,000, by calculating 8 hours per week x $50 hours x 875.5.

6. [499]

   As to future care it is unreasonable to expect that her ability to complete household domestic tasks will extend to 8 hours of week for the balance of her life in circumstances where symptoms are expected to improved as a consequence of the spinal cord stimulator and in circumstances where her husband will continue to do the heavier tasks as he always did prior to the fall.

7. [500]

   Following the plaintiff’s injury, members of the plaintiff’s family have assisted the plaintiff with daily tasks. Mr Furner spends approximately 2-3 hours a day providing the plaintiff with assistance and undertakes 1.5 hours of housework a day at the Charlestown house and some of the housework when down at the Bangor house. Since moving back to Sydney, Mr Furner has performed 1-2 hours per day of housework which he did not do before his wife’s injury.

8. [501]

   In October 2020, Kyle and Mr Furner returned to live in Bangor with the plaintiff and Bella. Since that time, the domestic chores have been distributed among them. Bella does the morning shift at home with the plaintiff. Kyle checks on the plaintiff during the day for a couple of hours, makes her lunch and tidies up. The cooking at night is shared between Mr Furner, Bella and Kyle. Mr Furner mainly does the grocery shopping, cleaning, washing the dishes, putting the rubbish out and washing the clothes at night. This attendant care provided by the plaintiff’s family members is likely to continue.

9. [502]

   As a consequence of the injury and its treatment, the plaintiff will require 7 hours per week domestic care for the future from the time of the surgical operation that was performed in August 2022. While the adult daughter and son have provided care in the past, they will move out of the family home to pursue their careers and relationships, the plaintiff’s husband may not be able to provide care due to the demands of his working career. Hence, I assess future attendant care on a commercial basis. I calculate her future care I accordance with the 2022 rates for the provision of attendant care services to be 7 hours per week of assistance for personal care, as well as cleaning and household tasks at $34.77 per hour. The plaintiff is 53 years old and is expected to live for another 33.8 years. Thus, the plaintiff should be paid $213,112 in future attendant care services.

Costs

1. [503]

   Costs are discretionary. Costs usually follow the event. The defendants’ are to pay the plaintiff’s costs.

   1. (1)

      I propose to enter the first, second and fourth defendants are to pay the plaintiff damages in the sum of $1,509,512, arising from an accident that occurred on 18 January 2020, once the calculations have been checked by the parties.

   2. (2)

      The defendants are to pay the plaintiff’s costs.