Akgun v Stockland Property Management Pty Ltd and Anor - [2024] NSWDC 253 - NSWDC 2024 case summary — Zoe

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Akgun v Stockland Property Management Pty Ltd and Anor

[2024] NSWDC 253

District Court of NSW|2024-06-19

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-06-19

Catchwords

s 5D
s 5F
s 5R
s 13

Source

Original judgment source is linked above.

Catchwords

s 5Ds 5Fs 5Rs 13

Judgment (32 paragraphs)

[1]

Introduction

By amended statement of claim, filed 4 October 2023, the Plaintiff claimed damages against the First and Second Defendants.
The First Defendant ("Stockland") was at all relevant times the manager and occupier of a shopping centre known as Stockland's Mall Merrylands ("The Mall").
The Second Defendant ("Assetlink") was at all relevant times a cleaning contractor with various contractual obligations with Stockland requiring it to perform cleaning and other services at The Mall.
On 4 September 2020, the Plaintiff fell on a travelator between level three and level two of The Mall, and suffered injuries which he claims are ongoing.
The Plaintiff's claim is that Stockland, as the occupier and manager of the Mall, is liable to him for damages, the provisions of s 5B of the Civil Liability Act 2002 (NSW) ("CLA") being engaged.
The Plaintiff's claim against Assetlink was again for negligence for breach of what he contended was its duty of care to him in performing the cleaning services, again the CLA was invoked.
During the course of the hearing, the Plaintiff's claim against Assetlink was resolved, and at the conclusion of the matter I will enter orders by consent to the effect that there will be judgment for Assetlink against the Plaintiff with each party to pay their own costs.
As between Stockland and Assetlink, there were cross-claims going both ways. As a consequence of the Plaintiff's claim for damages against Assetlink being concluded, Assetlink consented to judgment against it on its cross-claim against Stockland with no order as to costs. Again, I will make those orders by consent as part of my final orders.

[5]

The Plaintiff's evidence

It is not possible from the CCTV footage to identify the mechanics of the Plaintiff's fall on the travelator. It could be the result of him slipping or tripping or some other mechanism. It is most consistent with a slip, but I cannot put it any higher than that. As his father was in front of him, he did not see what happened. From the little that can be seen on the footage, there does not seem to be any sort of trip or stumble but, as I have said, it is not clear.
That leaves me with the Plaintiff's description as to what it was that happened to cause him to fall. I was concerned when making assessments as to the Plaintiff's credibility, and perhaps more importantly, his reliability as a witness because of his intellectual disability. Nonetheless, having observed the plaintiff give evidence over quite a long period of time including being cross-examined by two experienced counsel, I formed the view that he was entirely honest and that his evidence in relation to his recollection as to what happened does reflect his actual memory. That of course does not mean his evidence is reliable. In some respects, I do not think it is reliable and is probably the product of some honest but flawed reconstruction during the years since the accident.
The central aspects of the Plaintiff's evidence in relation to the fall were firstly that he fell because his foot slipped out from under him, and secondly, when he was seeking to get up from the travelator, he put his hand on its surface and the surface was wet. He was steadfast as to these two matters.
He also said that at some time, either when he was on the ground, getting up, or even after he was limping off with his father, he patted his pants/buttocks and felt that they were damp. It is this aspect of his evidence that I do not think is sufficiently reliable for me to act on. His evidence in this regard was confusing, contradictory, and was not to my mind the product of a clear memory. It is more likely the product of some sort of honest but unreliable reconstruction.
Stockland has made submissions that, notwithstanding the Plaintiff's evidence, I should not accept that there was any dampness or wetness on the travelator because it points out correctly that the CCTV footage which covers about a 15 minute period shows that, over approximately six minutes prior to the Plaintiff's fall and for about nine minutes after the fall, many pedestrians go down the travelator and none seem to have any difficulty walking at all. It is also submitted that the CCTV footage does not show the Plaintiff patting his pants/buttocks at any time, although I think it is fair to say that it would be possible for that to have happened at some points and not be picked up by the footage. The Defendants also observe that the Plaintiff's shoes leave no wet marks on the tile surface when he walks away and that he does not look at the soles of his shoes.
As I have said, the Plaintiff's father cannot give any direct evidence as to what happened because he was walking in front of the Plaintiff when he fell. To the extent that he gave evidence as to what happened, I do not think it was particularly reliable. For example, he said in evidence in chief that he noticed that the Plaintiff's wallet was wet when he picked it up, but when cross-examined on that same topic, he either was not sure or resiled from that evidence completely. He also said that he felt the travelator was wet when he helped his son up, but this was said for the first time in cross examination, it did not form part of his evidence in chief. When he reported the accident to centre management on 11 September, he did not report the slip occurred due to slipping on a wet surface, and finally when the Plaintiff consulted his general practitioner Dr Zhu the next day, the history taken by the doctor (and I think it is overwhelmingly likely that this history was given by the Plaintiff's father) claimed the slip was due to a "wet shoe", although in his evidence the Plaintiff said that he did not notice his shoes were wet. I think all this uncertainty is the product of the state of near panic the father was in immediately following the fall and subsequent attempts by him to reconstruct what he thinks happened.
Ultimately, the question of fact boils down to whether I accept, on the balance of probabilities, that the travelator at the point where the Plaintiff fell was wet and that the cause of the Plaintiff's fall was that he slipped on that wet surface.
I am so satisfied, and find as a matter of fact, that the probable cause of the Plaintiff's fall on 4 September 2020 was that he slipped on a wet surface on the travelator, which caused him to fall and suffer some immediate injuries.
This finding is not just based on the Plaintiff's evidence, it is consistent with the expert evidence of Dr Cooke, which was to the effect that if the travelator was dry, it did not represent a slipping hazard at all. However, with the presence of liquid the pedestrian surface on the travelator was highly slippery and likely to cause a slip and fall incident. The presence of water can readily be explained from a number of sources. It is common ground that it was raining quite heavily at the time and that, whilst all of the car parks are undercover other than the car park at level five, the car parks that were undercover did have wet areas because wet cars drove into the carparks and caused water to drip onto the ground. The car park at level five was open to the elements and undoubtedly would have been very wet. From each level of car park there is an entrance to The Mall adjacent to the travelator. At each of those entrances there was a permanent mat, obviously designed to remove water from people's shoes as they enter The Mall. The photographs in evidence also have in place a "caution: slippery when wet" sign. Whist these signs were not there on the day, their presence in the photographs very much indicates that the experience of the occupier is that water can come into the centre on people's shoes when they come in from the car park at any level. The Plaintiff and his father's uncontradicted evidence was that, shortly prior to the accident, they had gone outside at level five to "get some air". It was raining and although they both said that they stood undercover, it is highly likely that some water got on the Plaintiff's shoes at that event. The food court of The Mall is on level four, which is only one travelator distance away from the travelator upon which the Plaintiff fell, and it is common ground and obvious that people would regularly buy drinks from the food court, and then consume them whilst walking around The Mall, including whilst travelling on the travelators, and no doubt from time to time spill liquid. I can make no finding as to the source of water being on the travelator at the time of the accident, but I am satisfied that there are a number of very plausible ways that water could have got on the travelator on that day. In the context of Dr Cooke's opinion, that is all consistent with the Plaintiff's evidence.
For those reasons together with my conclusion that what I can see on the CCTV footage is most consistent with a slip, I find, on the balance of probabilities, that there was water or some other liquid on the surface of the travelator, which the Plaintiff's foot came into contact with, causing him to slip and fall.

[6]

The nature of the duty owed

In Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 ("Zaluzna"), the High Court described the nature of the duty owed by the occupier of the shopping centre to those persons within the centre. That duty is to exercise reasonable care for the safety of persons within the shopping centre to avoid a reasonably foreseeable risk of injury.
Section 5B of the CLA applies. Section 5B(1) is in the following terms: "(1) A person is not negligent in failing to take precautions against a risk of harm unless:- (a) The risk was foreseeable (that is, it is a risk of which the person knew or to have known), and (b) The risk was not insignificant, and (c) In the circumstances a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
The risk of harm identified by the Plaintiff is the risk that a pedestrian may slip and fall whilst using a travelator whilst its surface was wet. I accept that characterisation. I find that risk of harm in the circumstances was a foreseeable risk. Indeed, the cleaning contract between Stockland and Assetlink identified the risk as it prescribes steps to be taken by Assetlink in circumstances where there is wet weather to ameliorate the effect of water being brought into the premises and to perform slip testing of pedestrian surfaces. The operations manager ("Mr Farhat") identified the very risk of harm when Stockland performed a risk assessment and sought to address the risk in 2022.
Furthermore, it is obvious that there is a real risk of people falling on a wet travelator given: 1. The fact that the travelator is a pedestrian surface with a slope; 2. Slip testing by Dr Cooke of the travelator demonstrates that a wet travelator was significantly slippery and unsafe; 3. The cleaning contract provided for Assetlink to undertake slip testing of pedestrian surfaces such as the travelator; 4. The cleaning contract also recognised the need to undertake further cleaning in the event that there was wet weather.
Accordingly, I find that s 5B(1)(a) is satisfied.
Turning then to s 5B(1)(b), to my mind, the risk was not insignificant. This was again the view of Mr Farhat in 2022, who decided to take steps (quite properly albeit belatedly given the travellators were installed at least as early as 2009) to eliminate the risk as a result of incident reports which contained details of injuries sustained. It is no answer to state (as Mr Farhat attempted to do) that the risk of injury was insignificant as the travelator was away from the source of water (P5) or the food court (P4). It is a matter of common knowledge and common sense that a slip and fall may cause serious injury to a pedestrian. There was, in my judgement, a real risk of the surface of all travelators being wet from time to time. Thus, section 5B(1)(b) is in my judgement also made out.

[8]

The history of the travelators

The travelators were purchased some years prior to the accident from a company known as "Schindler's". The travelators were purchased "off-the-shelf" and at the time they were supplied they complied with all Australian design and safety standards.
In 2022, some two years after the Plaintiff fell, Stockland conducted an assessment of risks within The Mall and sought to determine and implement ways to minimise any risk identified.
As a part of that process, Stockland identified a risk, being that the travelators within The Mall were slippery when wet. Stockland also identified that this risk could be alleviated if travelators were treated with a product known as Chemrex or some similar product. Stockland, in this process, of course identified the very risk of harm which is central to this case. This product, whilst explained to me as not simply being "nonslip paint", adheres to the surface of the travelator and ameliorates the risk that had been identified by Stockland to the effect that the travelators were slippery when wet. Treating travelators, and in particular the travelator on which the Plaintiff fell, with Chemrex or some similar product, is the precaution that the Plaintiff says Stockland ought to have taken. It is the precaution identified by Dr Cooke.
In 2022, after the risk assessment, Stockland decided, and Mr Farhat gave evidence before me that he was part of that decision-making process, to treat some, but not all, of the travelators with Chemrex or some related product. This took place in 2022, two years after the accident, however the Chemrex material was only applied to those travelators going down from level five (undoubtedly because it was identified that it was likely that water would come into the centre from the uncovered car parks on level five) and the travelator going down from level four, the food court, to level three, no doubt because it was identified that there was a risk of water or other liquids getting on the surface of the travelator by people spilling drinks and the like, having purchased them from the food court.
The cost of application of the Chemrex-like material to each travelator was approximately $9,500. The evidence is that there was a total of twenty-six travelators in the Mall as of 2022. The total cost of the treatment of four of them in 2003 was approximately $50,000. If all the travelators sloping downward, which would have included the one the Plaintiff fell on, had been treated in the same way, that cost would have been about $250,000.

[10]

The suggested precautions

By the conclusion of submissions, I think it is fair to say that it was common ground that the relevant risk of harm for the purpose of the CLA was the risk that people, when walking upon the travelators when wet, would slip and fall and suffer injury.
The Defendants have tendered evidence which demonstrates that this risk has actually occurred from time to time over a period of approximately 14 months from July 2000 to September 2020. The incident records produced on subpoena for the 1 July 2019 to the date of the Plaintiff's accident on 4 September 2020 year reveal: 1. 586 reported incidents which include reports of slips etc; 2. 21 incidents involved a travelator (including stuck trolleys, etc); 3. Of those 21 incidents, 14 incidents involved slipping on a travelator: incident no.s: 1. 28 - 1502085 10 June 2020; 2. 1501774 10 June 2020 (raining that morning); 3. 1495291 29 May 2020 (raining all day); 4. 1480479 26 May 2020 (raining overnight; rooftop car park surface was wet); 5. 1389372 14 March 2020 (had been raining heavily outside); 6. 1386932 12 March 2020; 7. 1343546 10 February 2020; 8. 1179757 2 November 2019; 9. 1173046 28 October 2019; 10. 968836 5 July 2019) (to 30 June 2019) and incident no.s: 11. 1582766 10 August 2020; 12. 1564665 29 July 2020; 13. 1558437 19 July 2020 (claimed water on travelator; sunny day); 14. 154775 11 July 2020 - (to 4 September 2020)). 1. Of those 14 incidents, five (5) incidents either involved water on the travelator surface or it was noted or claimed to have been raining that day (incident no. 1558437 (claimed water but was reported to have been clear sunny day). ; 2. The remaining nine (9) incidents of slipping on a travelator did not involve water and did not document rain that day (incident no.s not emboldened); 3. Of the fourteen (14) slip incidents on a travelator, only one (1) incident occurred on travelator no. 6 before the plaintiff's accident (incident no. 408 -1173046 28 October 2019) and this was when the travelator was not operating with no foreign substance or record of rain. In short, the slip occurred despite the travelator having adequate slip resistance when dry (Dr Cooke's opinion); 4. On 11 September 2020, a report was made of the plaintiff's accident on 4 September 2020: " 0845 hrs on Saturday the 12th of September 2020, M8 Jessica reported an incident to S/O Rahul. M8 Jessica ISHAK said, "Around 1630 hrs on Friday the 11th of September 2020, one customer came to centre management office to report an incident which happened on 04th of September 2020. He said I came here on Friday the 4th of September, me and my son were going down via travelator, while going down from P3 to P2 on travellator my son slipped and broke his foot. We went and got an X ray done on Saturday the 05th of September and operated on Monday the 07th of September 2020.S/O Rahul review the CCTV footage found person concerned slipped on the travellator at 1326 hrs. Weather on Friday the 04th of September was cloudy and there was raining. S/O Rahul saved the CCTV footage for future use". There was no reference to water contamination.
Stockland's point is that, whilst I think accepting that the risk of people slipping and falling on wet travelator services existed, the decision taken in 2022 to treat some but not all of the travelators represented the most precautious that a reasonable person would have taken if the question had been considered prior to the Plaintiff's fall, thus satisfying s 5B(1)(c), or to put it another way a reasonable person prior to the Plaintiff's fall in the position of Stockland would have not done anything more than Stockland did in 2022. Whilst Stockland accepts that it had not done anything to reduce the risk at the time of the accident, its submission is that what it did in 2022 was reasonable and thus it need not have treated the travelator on which the Plaintiff fell and thus it is not liable.
Stockland also relies on s 5B(2), in particular s 5B(2)(a), its submission being that the probability that harm would occur if the alleged precaution was not taken etc, is such that I should conclude that there has been no breach of the duty imposed by the statute.
I do not think either point is right for the following reasons. Firstly, the relevant risk which I consider was foreseeable was in my opinion not insignificant. It is not to the point that of the ten or eleven million people who come to The Mall each year, only about five reported to the centre an incident of slipping on liquid on a travelator. That might be said to be an insignificant risk in the context of five people out of eleven million, but to each individual who slips the risk is not insignificant in the sense that, once they fall, there is a very high degree of at least possibility that they will be injured.
It is only the reported instances of slipping and falling which occurred that can be counted, so these figures obviously understate things significantly. As reported, there were still five slips and falls in a period of slightly more than a year. That is a slip and fall on a travelator when wet approximately every two months. If there is only a 50% reporting rate, then that would equate to a slip and fall on a wet travelator at a rate of about once a month. By reference to s 5B(2)(a), it seems to me that there is not just a probability that harm would occur if the alleged care was not taken, it actually becomes a certainty. As far as s 5B(2)(b) is concerned, there is a reasonable likelihood of serious injury being caused and the burden of taking the precautions was a cost to a very large organisation running an enormous shopping mall of at most $250,000. The social utility of shopping malls (s 5B(2)(d)) would not in any way be impacted by the suggested precautions, as the shopping mall could continue to exist and function and, on the Plaintiff's case, would be a safer place for everyone and the convenience, if it be a social utility, of pedestrians being mechanically assisted when walking can be retained.

[12]

Causation

Section 5D of the CLA is in the following terms: "5D General principles: (1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent - (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party".
It is not clear to me if this test is any different to the Common Law prior to the CLA. It has been said that s 5D(1) reflects the "but for" test, namely, but for the negligent act or omission, would the harm have occurred. It must also be remembered that the Plaintiff does not need to prove causation absolutely, but the legal test remains on the balance of probabilities.
A useful summary regarding the approach to causation is contained in Gomez v Woolworths Group Pty Ltd [2024] NSWCA 121 at [65]-[69].
In my judgement, the probabilities are satisfied in this case. In the circumstances, Stockland's failure to treat the travelators with Chemrex was a necessary condition for the occurrence of harm and that s 5D(1)(a) is made out. It was the breach of duty that probably caused or significantly contributed to the Plaintiff's slip and fall. Dr Cooke said that in the absence of water being on the travelator, the travelator would have been safe from a slip perspective, but when wet it was dangerously slippery. There is no evidence that the Plaintiff had a propensity to fall or misstep. Further, the Plaintiff and his father gave evidence that he had used the travelator before without incident. The CCTV footage shows the Plaintiff walking normally and without hurrying when his feet suddenly go out from under him. I think it was the presence of liquid on the travelator that probably caused the Plaintiff to slip and fall. I have found it was a breach of duty to permit the surface of the travelator to be in the state it was when the Plaintiff suffered his injury, and that state was a necessary condition for the occurrence of harm within the meaning of s 5D(1)(a).

[14]

Contributory negligence

Stockland also pleads that the Plaintiff was guilty of contributory negligence. In essence the submission is that the Plaintiff ought to have been taken reasonable care for his own safety to prevent damage from the risk I have identified and that he breached that duty because he did not make use of the moving handrails when walking down the travelator.
I do not think that failing to hold onto the moving handles is conduct which could satisfy the requirements of s 5R of the CLA.
As was explained in Boral Bricks Pty Ltd v Cosmidis (No. 2) [2014] NSWCA 139: "The question whether a person has been guilty of contributory negligence is determined objectively, the question being whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take…"
As a necessary element for any finding of contributory negligence, I must first find that the relevant risk of harm was foreseeable by the Plaintiff, that such risk was not insignificant, and in circumstances a reasonable person in the Plaintiff's position would have taken precautions against the risk (s 5B(1)). The relevant risk of harm in this case is the risk of slipping on a wet travelator and falling causing injury. This is not a matter that was foreseeable by the Plaintiff in the circumstances as the Plaintiff was not on notice of that fact i.e., that wet travelators are dangerously slippery, nor was he on notice that there was any water on the travelator. In all the circumstances it is not a risk that the Plaintiff knew or ought to have known of. Moreover, s 5B(1)(c) also requires a finding that a reasonable person in the Plaintiff's position would have taken precautions against the risk of harm. Embedded in that proposition is an assumption that the Plaintiff, and the notional reasonable person, must have been aware of the very risk before he could be expected to take steps to avoid it.
I have viewed 15 minutes worth of CCTV footage of many people using the relevant travelator before and after the Plaintiff's fall. While some of them hold the handrail while standing stationary on the travelator, the vast majority of them do not do so and instead walk on the travelator, often carrying multiple shopping bags or pushing shopping trolleys or prams. Whilst the question for me is objective, I do not think it is irrelevant to observe that many of those people ought to be taken to have been ordinary reasonable people and hardly any of them are taking the precaution suggested by Stockland.

[16]

Damages

The Plaintiff seeks non-economic loss damages, past out-of-pocket expenses, future out-of-pocket expenses, past economic loss, past superannuation loss, future economic loss, future superannuation lost, past care, and future commercial care.
I set out the Plaintiff's schedule of claimed damages. Non-economic loss damages $252,500 (35% of a most extreme case) Past out-of-pocket expenses Medicare notice of charge - deemed - all services taken in the amount of $4,474.05 expired on 14 October 2022 $5,000 (TBC but to be assessed or as agreed by the parties) Future out-of-pocket expenses (itemised as follows) $41,035 Physiotherapy 12 Sessions at $100.00 per consultation (one off) $1,200 (Report of Dr Bodel, 03 May 2022 PCB 248) Orthopaedic Surgeon Consultations $2,130 (Report of Dr Dryson 15 June 2022 PCB 256 - 1 each year from 10 years - $200/52 x 902 x 0.614 ) Removal of Plate and Screws Orthopaedic Procedure (one off) $5,000 (Report of Dr Bodel, 03 May 2022 PCB 247; Dr Hyde Page 4 April 2023 pg 8) Attendances to General Practitioner every 3 months at $75 per consultation allowed for 48 years (8.65 x 971.5) $8,403 (Report of Dr Dryson, 15 June 2022) Analgesia (Panadol/ Nurefon) at $350.00 per annum allowed for 48 years (6.73 x 971.5) $6,538 (Report of Dr Dryson, 15 June 2022) Psychiatrist Consultations bimonthly at $400.00 per consultation allowed for 12 attendances $4,800 (Report of Dr Parmegiani, 28 September 2023 PCB 266 ) Psychologist Consultations every 6 months at $270.00 per consultation allowed for 21 years (10.38 x 971.5) $10,084 (Report of Dr Parmegiani, 28 September 2023 PCB 266) Psychiatric medication costed at $120 per month for 24 months (one off) $2,880 (Report of Dr Parmegiani, 28 September 2023 PCB 266) Past economic loss $123,220 $600 net per week from 17 March 2021 to date $102,000 ($600 x 170 weeks) Past superannuation loss (11% of net past economic loss) $11,220 Future economic loss $258,475 $300 per week calculated for 36 years $225,624 ($300 x 884.8 x 0.85) Future superannuation loss $32,851 (14.56% net loss) Past care $34,475 7 hours/week, calculated from 4 September 2020 to date 7h x 197 weeks x $25 Future commercial care $113,848 2.75 hours/week, for the next 40 years (until age 74) 2.75h x 917.5 (40 years) x $45 TOTAL $828,553"

[17]

The medical evidence

The Plaintiff has seen many doctors and there has been tendered in evidence a multitude of medical reports and clinical records.
I am grateful to the parties who have cooperated to prepare a chronology which largely deals with the Plaintiff's medical appointments, reports, and medical opinions received since the date of the accident.
I set out a summary of that chronology, which I consider to be accurate. I have only included what I think are the most relevant events. There are many more; I have included some non-medical events concerning an insurance payout. Consults Dr Bo Li Zu Yesterday on an escalator, due to wet shoe sprained right ankle "5 September 2020: pain around right lateral malleolus and distal Achillies region some swelling lateral malleolus region Nil bruises noted Gait limping due to pain Referred for x-ray 6 September 2020: X-ray of right ankle There are fractures in the distal shaft of the fibula, with extension to just above the level of the ankle joint. There is normal anatomical position of the ankle joint. 7 September 2020: Admission to Westmead Hospital Emergency Department Spiral fracture of the right distal fibular treated by open reduction and internal fixation by Dr Kanawati, Orthopaedic Surgeon. Consults Dr Kanawati, Orthopaedic surgeon 9 October 2020: It was my pleasure to see Goksel today. He is now four weeks after his right ankle open reduction and internal fixation. He is currently doing very well. His wound has healed very well. X-rays today reveal maintenance of the position of the distal fibular plate and satisfactory positioning of the hardware. I am very happy with Goksel's progress. I had a lengthy discussion with him and his farther regarding his progress and his return to walking. I am happy for him to start physiotherapy and range of motion exercises now. He should remain non-weightbearing in a CAM boot for the next two weeks. I am happy for him to start weightbearing as tolerated in two weeks and I will see him again in four weeks with another x-ray. 6 November 2020: Consults Dr Andrew Kanawati, Orthopaedic Surgeon It was my pleasure to see Goksel today. He is now two months after the right ankle open reduction and internal fixation. I am very happy with his progress. He is starting to weight bear and his wound has still healed very well. He complains of intermittent shooting pain when he weight bears but I think this is due to stretch of his Achilles tendon rather than any neurological dysfunction. He has no sensory deficits in his foot. X rays today reveal anatomically aligned fibular with satisfactory positioning of the hardware. I'm very happy with Goksel's progress. He should continue weight bearing as tolerated and continue physiotherapy. I will discharge him from my care unless he has any other change in symptoms. 26 November 2020: Hypothyroidism which causes weight problems and swelling and is controlled by oroxine but the plaintiff has been non compliant with medication on occasions - 3 January 2012 for 1 year and again on 26 November 2020 (City west medical centre clinical notes). Consults Dr Philip Vuong History: 29 November 2020: Ongoing right ankle pain and swelling, worse with prolonged standing and walking. Associated right sided limping gait. Examination: Right ankle: tenderness of the lateral aspect Right limping gait Consults Dr Habibboglu Last 2 days right lower leg/ankle and feet is swollen, father stated that it is getting better today, had a physio session day before. neurovascular examination is intact, no rash no sign of cellulitis. 13 December 2020: continue RICE management. go to Ed if any acute concern. Prophylactic celexane sc injection discussed. Actions: Diagnostic Imaging requested: Venous doppler US right leg Consults Dr Alaaddin Abdullah Emin, GP Recent fall in stockland in walking electric stair on 4/9/2020, it was raining , stairs were slipper(y) r/v in wmh d/c letter reviewed had right ankle fracture, had operation for it 20 February 2021: still has swelling around right ankle with pain Actions: Diagnostic Imaging requested: ct right ankle. Send imaging reports to My Health Record. hads rehab r/v and f/u with him unemployed now, not able to work because of injury 2 March 2021: Consults Dr Mazyar Danesh, Pain Specialist I saw Goksel for a review today. The intermittent swelling in his right ankle has been improving substantially. This is not accompanied by any neuropathic pain descriptors these days. He has been taking high-dose Vitamin C and Vitamin E every day, and has seldom required to take Naprosyn for his right ankle over the course of the 4 past weeks. I have tried to reassure Goksel and his mother that the intermittent swelling in his right ankle is more likely to be in the setting of impaired lymphatic drainage and impaired muscle pump rather than an autonomically mediated phenomenon related to complex regional pain syndrome. At this point in time, I have recommended ongoing engagement with physiotherapy, increasing weight-baring time with 3 blocks of 20 minute walks daily. I shall review this young gentlemen in about 6 weeks' time and I shall report back to yourself about his progress. Consults Dr Emin r/v by another GP he told his gp that he has LBP as well after the fall he ordered CT LL reduce weight 5 May 2021: not lift or carry heavy object don't bend frequently lie on hard surface cycling and swimming (if possible) complete rest during acute attack analgesia Surgery Consultation left ankle pain worse after exercises tender at lat side of right ankle 21 August 2021: rice analgesia ankle brace r/v prn Consults Dr Emin ongoing right ankle and right foot pain 6 November 2021: tender around lat malleoli he has left ankle pain as well symptom treatment 19 November 2021: Dr Harry Abdalla refers the Plaintiff to Dr Shulkwong Law Consults Dr Emin 4 December 2021: ankle and foot pain right one is still not much better cont with analgesia 9 December 2021: Dr Harry Abdalla refers the Plaintiff to Dr Medhat Guirgis, Orthopaedic surgeon Medscan report (Dr Srivastava) to Dr Emin: 10 January 2022: Ultrasound upper abdomen. Right upper quadrant pain? Cause Extensive cholelithiasis with gall bladder thickening Consults Dr S.K. Law, Consultant Psychiatrist Thank you for asking me to see the above-named man. Mr. Akgun has seen me on 8-2-2021, with your referral letter of 19-11-2021, accompanied by his mother, and a Turkish language interpreter. Owing to his suffering from multiple pain symptoms in the past couple of years, he has become on and off depressed, tired, forgetful, and had low motivation for things in life (your information). He never expressed suicidal ideation, and he showed no bizarre thoughts and did not receive messages in the head. He had a fall in September 2020, and sustained fracture/s to bones around the right ankle area, and he then received operation to fix the problems. Now there is left an operation scar over the lower end of the right leg. 9 February 2022: He also has suffered from back pain since August 2021 (your information and he's been taking Meloxlcam 7.5 mg. daily p.r.n. for pain relief). Background - He was born in Turkey, by Caesarean delivery. He has been in Australia since the age of 5 years old, and he has completed primary and high school education, but in supported classes, as he has had slow learning problem. He has suffered from intellectual disability (your information). Mental· examination revealed he was·-somewhat nervous and depressed, but not suicidal or psychotic. Conclusion - He has suffered emotionally (adjustment disorder with depressive features). I counselled him, and I have prescribed Zoloft SO mg. nocte. I asked him to see me for a review in four weeks. Dr Manoharan (General surgeon) letter to Dr Emin: 2 March 2022: Pl referred with symptomatic gallstones confirmed by ultrasound. Recommended admission to Auburn Hospital for laparascopic cholecsystectomy Consults Dr Emin 12 March 2022: Pain in right ankle is still not better Using tab regularily Occ lbp radiatres to legs Bone scan 31 March 2022: 1. Focal tracer uptake in the right tibial plafond region as described, raising the possibility of subchondral/osteochondral changes plus/minus osteochondral defect. 2. Subtle tracer uptake in the feet likely related to early/low-grade arthropathy. 3. Previous right distal fibula fixation surgery with mild (nonspecific) tracer uptake, best explained by ongoing post-surgical remodelling. 3 May 2022: Medico legal review by Dr James Bodel, Orthopaedic surgeon 9 May 2022: Medico legal review by Dr Evan Dryson, Occupational Physician 23 May 2022: Consults Dr Hany Abdalla Consults Dr Emin Insurance going to arrange conference with me for superannuation 25 May 2022: Education Ongoing pain in right ankle and lower back pain Cont with medications Having self physio 15 June 2022: Dr Dryson (occupational physician) reports 15 June 2022: at Ex P1 257: "he is now restricted to work of sedentary to light physical demand and work there is no frequent to constant standing, or frequent to constant sitting…Mr Akgun would be able to return to his office based work such as he was doing prior to COVID lockdown but only if there is ability to vary posture between sitting and standing"; see also 258; Consults Dr Emin Ongoing pain in right ankle and right foot 6 July 2022: Worse in cold weather and after exertion Cont with analgesia Rice Consults Dr Emin had rehab r/v on20/7/2022 wait for report 6 August 2022: f/u on 17/8/2022 bouts of anxiety when he uses escalator and even when he uses stairs education counselling cont with zoloft Surgery consultation for Total permanent disablement claim filled in… 22 August 2022: Weight: 135kg Main Street Medical Centre clinical notes Removal of the Plaintiff's gallbladder by Dr V Manoharan, Consultant General Surgeon 5 September 2022: Dr Manoharan report to Dr Emin: Histology reported as chronic cholecsystitis Consults Dr Emin right ankle pain is still not better 30 November 2022: analgesia heat message 16 January 2023: Consults Dr Hany Abdalla 17 January 2023: Dr Emin certified to MLC the plaintiff was able to work (with ability to move around and change physical positions ) Consults Dr Emin Right ankle pain is still not better 19 January 2023: Worse in cold weather Education Analgesia Consults Dr Emin 20 March 2023: ongoing pain in right ankle despite treatment analgesia physio 23 March 2023: Medico legal review by Dr Murray Hyde Page, Orthopaedic surgeon "As he has only ever done the work as an office assistant, it seems to have been photocopying and other basic clerical duties where he can go from regular sitting to standing and walking position, I consider that he is still fit to undertake the physical tasks involved with this type of work without any restrictions. In other words, he could go back to the same work he was doing working for the travel insurance agency and would not have any major impact on his ability to work on his ongoing ankle and back symptoms". 11 April 2023: The plaintiff received $413K in TPD payment under his MLC Policy. Consults Dr Emin Depression 24 April 2023: Psychosis Actions: Prescription added: ZOLOFT TABLET 50mg 1 TAB daily p.c Prescription added RISPERDAL TABLET 1 mg 1.5 TAB daily p.c. 28 September 2023: Medico legal review by Dr Enrico Parmegiani, Consultant Psychiatrist 17 October 2023: Medico legal review by Kelly Walcot, Occupational Therapist 24 October 2023: Medico legal review by Dr Jeff Bertucen, Consultant Psychiatrist 23 November 2023: Report of Dr Medhat Guirgis"

[19]

Non-economic loss

The Plaintiff's case is that I should assess non-economic loss damages at 35% of the most extreme case.
The Plaintiff emphasises that his damages are ongoing, he continues to suffer pain in his right ankle and lower back, and that because of the onset of osteoarthritis in his right ankle there is a reasonable probability that his physical symptoms will get worse.
The Plaintiff also points out that he is suffering from depression and anxiety, which I accept is a consequence of the fall and the injuries he suffered.
The Plaintiff says that it is the psychiatric component of the Plaintiff's injury which causes him to not be able to work at all at this time. The Plaintiff does however accept some capacity to work going forward.
On the other hand, Stockland observes that orthopaedic surgeons, Doctors Bodel and Hyde Page, do not refer to the need for pain management or further treatment, other than conservative treatment and removal of the hardware in his ankle, which should relieve swelling and tenderness, and that his ongoing pain could be treated by pain management recommended by occupational therapist Kelly Wolcott.
Ms Wolcott has recommended that the Plaintiff and his family would benefit from occupational therapy input to provide pain education and strategies to complete activities despite pain.
As far as the depression is concerned, Stockland accepts that the Plaintiff has depression but stresses that there is a recommended treatment plan in place and there appears to be some confidence by the medical practitioners that with appropriate treatment he may well recover within a period of about two years.
I have been referred to a number of cases which indicate a notional range of damages for similar, but of course not identical, cases. Stockland, whilst referring to Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95 at [36], where the court stated: "The trial judge assessed non-economic loss, in accordance with s 16 of the Civil Liability Act, as a proportion of a most extreme case. The proportion was assessed on the basis that he suffered "a significant aggravation of [his] left wrist, with considerable pain and consequential disability," together with an injury to his ribs and chest and shock (the last two elements being short-lived) and ongoing distress, upset and anxiety, although these factors appeared to be given little weight."
In that case, the relevant proportion was fixed at 26% by the trial judge and not disturbed by the Court of Appeal.
As I have said, the Plaintiff contends that I should find non-economic loss damages at 35% of the most extreme case. On the other hand, Stockland contends I should find somewhere between 22 to 25% of the most extreme case.
Taking all matters into account and doing the best I can and accepting that it is difficult to articulate reasons, I have determined that it is appropriate that non-economic loss damages should be awarded to the Plaintiff based on 27% of the most extreme case.

[22]

Past economic loss

The Plaintiff claims $600 net per week from 17 March 2021 to date, being 170 weeks.
There is no issue between the parties that, for a considerable period following the accident, the Plaintiff was disabled from doing any work as a direct result of the injuries he sustained in the fall.
However, Stockland does not accept the whole of the past period is attributable to those injuries. It points out two matters. The Plaintiff did receive a payout pursuant to a total and permanent disability policy in his favour in April 2023. Stockland submits that, in those circumstances, there was a real reason, especially whilst the claim was being considered, whether it was conscious or unconscious, for the Plaintiff to be demotivated from any desire to work. I think that is a reasonable proposition.
Stockland also points to the gallbladder issues the Plaintiff suffered and the operation that took place in September 2022, with symptoms being reported from March 2022.
It should not be overlooked that the Plaintiff's ability to find work prior to the accident was of course hampered considerably by his intellectual disability. This, combined with the COVID epidemic which had caused his then employment to be suspended, was the reason he was not working at the time.
I have considered the fact that COVID was preventing the Plaintiff from working at the time, the gallbladder related pain in January 2022, the surgery in September 2022, a reasonable period of recuperation by the end of 2022, and that early in 2023 Dr Emin certified to MLC that the Plaintiff was able to work (with ability to move around and change physical positions), together with Dr Hyde Page's opinion that he was able to return to his former position by now.
The view I have formed having read all of the medical evidence, but also having watched the Plaintiff for the best part of the day give evidence before me, is that physically he ought have been able to return to office work of the nature he was performing prior to the accident by now. True it is he is suffering some ongoing pain and discomfort, but if he is able to stand up and sit down when he thinks necessary, I think he could perform the work.
Moreover, the Plaintiff's father, who I think has only the Plaintiff's best interest at heart, is actively encouraging him to try and return to work. From this I infer that the Plaintiff's father has formed the opinion that he would be capable of doing some work.
That being said, I am equally satisfied that the Plaintiff in his own mind honestly believes that he is not capable of going back to work. It may be the anxiety and depression are causing him to have this belief. I have not overlooked that working in a job involves more than just doing the job, it involves getting up in the morning, leaving the house, catching public transport to and from work, and the like.
I am satisfied that the anxiety and depression are, at least to some extent, consequences of the fall. Having said that, I do think a large reason for the Plaintiff's historic and present demotivation was, and is, the existence of the insurance claim. I also think that, with treatment, his depression will probably resolve over time.
Accordingly, and I must say with some hesitation, but taking into account the various matters I have referred to, I award past economic loss at $600 per week for 100 weeks.

[24]

Future economic loss

The Plaintiff's claim is for $300 per week calculated for 36 years.
The rationale for this is that the Plaintiff accepts that he now has a residual ability to work, and that the calculation is based on a 50% reduction in future income. The Plaintiff's case is that he will never return to his pre-accident employability.
Stockland makes the following observations. Firstly, that I need to consider, pursuant to s 13 of the CLA, what would have been likely in the future but for the injury, in other words, the "counterfactual". This requires consideration of unrelated conditions that existed at the time of the injury, including hypothyroidism and the intellectual disability I have referred to, rendering the Plaintiff dependent on the ongoing existence of the job support program or like programs.
Hypothyroidism, which causes weight problems and swelling (and the Plaintiff has experienced significant weight gain since the accident), can be controlled by medication, but the Plaintiff has been non-compliant with taking the medication on occasions, including one period of a year from 3 January 2012.
Stockland's submission is that the Plaintiff is most likely to return to his ability to do office work as before the accident, and within his restrictions (standing and sitting at will) as an office worker as soon as his psychiatric disorder is treated, and there is no reason to think that there will not be successful treatment. Stockland also submits that his physical condition will improve once the hardware is removed from his ankle and the rehabilitation treatment that is recommended is undertaken.
Very significantly, in evidence before me, whilst I was extremely conscious when assessing each response by the Plaintiff so as to be satisfied that he fully comprehended and was answering the question asked, the Plaintiff did give frank evidence to the effect that, since he had received the $413,000 from a Total and Permanent Disability insurance policy, he was "not interested in returning to work".
Stockland's submission is that lack of interest is not connected to the accident at all.
I do not think it is as simple as that. Whilst I accept that the Plaintiff gave an honest and frank answer when asked the question, I think the answer needs to be understood in the context of the ongoing depression and anxiety being suffered by the Plaintiff.
Of course, as a matter of common sense, his motivation to get work may well be affected by having received a large amount of money. However, the same application of common sense compels the answer that, combined with the symptoms of depression and anxiety, the receipt of the money would only be one aspect of the reason.
Ultimately, Stockland says that if I accept that the psychiatric disorder is what is preventing or limiting the Plaintiff from working at the moment, that I should find that disorder will be resolved in a maximum of two years and therefore should allow no more than 104 weeks at $300 per week.
I think I will be a little bit more conservative than that, and whilst I generally accept Stockland's submissions, I propose to allow future economic loss at $300 per week for 200 weeks.

Akgun v Stockland Property Management Pty Ltd and Anor

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Judgment (32 paragraphs)

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Cases Cited (4)