Bridge v Coles Supermarkets Australia Pty Ltd

Supreme Court of NSW|2017-07-03|Before: Campbell J

Background

Mr Bridge was born on 7 June 1960. His age was 53 and 10 months when the accident happened, and 57 and 6 months now. He was raised and educated on the Central Coast, leaving Wyong High School in third form in 1975 to take up an apprenticeship as a bespoke shoemaker, or cobbler. He obtained his trade certificate in 1980.
Other than the years, roughly, 1984-86, he did not pursue his trade further, spending the major part of his adult working life employed in the earthmoving and transport industries. To date this employment has included work: for Hymix in the quarries (between 1980 and 1982; and from 1986 as a plant operator); as a truck driver with Donovan Transport (from 1995); and as a plant operator and truck driver for Woodbury excavations (from 2000). After moving to Toormina he worked as a truck driver: with Little Transport (from 2005); Kachel's Wholesale Meats (from 2006); and as a line haul driver with Northern Transport Services (from 2008 to 2012). In the period immediately preceding the accident, from 18 March 2014, he had recently commenced employment as a grade six plant operator for TG Jung Quarries.

The subject injury

After his fall on 6 April 2014, Mr Bridge recalls feeling immediate pain in his left hip and leg, accompanied by daze, shock and embarrassment at what had happened. His wife immediately came to his aid, along with a man who identified himself as a doctor from Coffs Harbour Hospital. An ambulance was called and following his admission to Coffs Harbour Hospital he was informed that he had damaged his previous prosthesis, suffering a peri-prosthetic ("around the prosthesis") fracture. Surgery was performed and Mr Bridge was discharged on 17 April with crutches and a Zimmer splint that had been fitted from underneath his buttock down to his shin.
I accept Mr Bridge's evidence that after his discharge from hospital he was unable to weight-bear and was "pretty well confined to the house" requiring assistance with personal care and with ambulating to the dining table for meals. His pain was such during this period that he was in considerable constant pain requiring narcotic and analgesic pain killers. He was in this state until the Zimmer splint was removed on 8 July 2014. He became both very anxious and depressed about the poor prognosis proffered by Dr Marshall (as to which see below [83]ff). From about September 2014, he was able to resume driving albeit with considerable difficulty initially.
Mr Bridge feels his condition has plateaued since April 2015. He does have ongoing pain and discomfort in his left hip depending upon his activities. He has some referred pain from the hip and buttock to his left thigh. He can sit in the one position for about 40 minutes before he feels the need to move around. He can walk for up to three-quarters of an hour. He is unable to squat and is extremely cautious when bending or lifting. He avoids uneven terrain and "lots of stairs". He is conscious of the need to avoid the risk of falling over and for this reason sometimes uses a walking stick when he is likely to be away from home for prolonged periods. As I have said, Mr and Mrs Bridge live on a 5 acre property and he is unable to maintain the area including performing the work he previous performed before the accident, even with a hip replacement. He feels socially isolated and he is cautious when going out not to engage in any activity which might put him at the risk of falling. For this reason he has given up his previous hobby of rock fishing. He was a keen motor cycle enthusiast. He still has his Harley Davidson but has rarely ridden it because of the risk of a fall. When he has ridden the bike since the accident, his pre-occupation with falling is such that he does not enjoy the experience. His sex life is reduced.
Dr Darrin Marshall, the operating orthopaedic surgeon, described the Zimmer NCB proximal femoral plate as being "nine holes in length and cables to secure it. The trochanter was also fixed using approximately 6 screws." In his operation note, Exhibit CB1.8, he described the procedure as "painstaking". In his report to Dr Leal, Mr Bridge's GP, of 20th May 2014 he said that Mr Bridge: "needs to take extreme care with what he does, as we won't get a second chance to try and fix this. He has got to have a real think about his lifestyle and work and try to get as long as he can out of this hip revision, because it certainly won't last forever and I am not sure what we will do once it wears out". He re-emphasised this at a further consultation on 8th July 2014 where he said: "We have touched again on the significance of this fracture and how careful Larry will have to be, when we have had a good long term talk about his career options and he really isn't going to be suitable for any type of manual work that places his hip at risk of dislocating". I take it from Dr Marshall's reference to Mr Bridge "starting to think in general terms what else he could possibly do" that the surgeon was recommending against Mr Bridge returning to his previous occupation. On 30th September 2014, Dr Marshall referred to Mr Bridge's "young age and still working". He said, "that all impacts on the longevity of the hip".
On 5th November 2014, Dr Marshall pointed out that the hip replacement would wear out, but was pessimistic about performing a further revision which, he said, "on this patient may not be actually possible at the time, depending on his bone quality" (Exhibit CB 1.12). He was "quite hesitant" to allow Mr Bridge to return to work as a truck driver mainly because "of his risk of falling and the stress that is going to place on his hip revision".
On 12th August 2015, Dr Marshall said "the prognosis is very guarded, as this is a very serious injury and required major surgery to have the femur bone reconstructed and a new hip replacement inserted".
Dr Marshall thought that Mr Bridge was walking comfortably with minimal pain. The pain he was experiencing came from "irritation from all the cables and metalware that is on the side of his femur bone". He advised against Mr Bridge's return to work "as a truck driver". He said: "the surgery has been so extensive that we cannot take the risk of him further damaging that bone when climbing in and out of trucks, the jumping down and the jarring and the positions they place themselves into, and he is asking for trouble with that hip replacement. If he suffers something like a dislocation we may be unable to fix that and he may have to have his hip removed. If there was other types of employment that would be suitable such as sedentary office based type work, he would be able to undertake that." Dr Marshall regarded his employment options as "very limited" and strongly recommended he "not return to his previous occupation".
The details of the surgical procedure carried out by Dr Marshall were elaborated upon by Doctors Bodel and Smith who prepared a joint expert report of 3 July 2017 (Exhibit D) and gave concurrent expert evidence on day 2 of the trial. They explained that the accident necessitated a revision of the Mr Bridge's original hip replacement which was technically much more elaborate than the original procedure or the type of standard revision expected after the expiration of the limited life of a hip prosthesis. Dr Bodel explained (see 101.7 T) the nature of Mr Bridge's injuries which included a fracture of the upper part of the shaft of the femur. The sub-trochanteric region of the femur, described by Dr Bodel by analogy to an inverted ice cream cone, required reconstruction by means of a network of plates, screws and wires in order for it to receive a new prosthesis. Dr Smith explained that this was a "comminuted" fracture (see 102.6 T), that is, it left the bone in several bits which required piecing together.
Nonetheless, both experts agreed that Dr Marshall had achieved a very good technical result in trying circumstances (102.17 T). The primary area of disagreement between Doctors Bodel and Smith related to Mr Bridge's residual capacity and suitability for work, in particular for work related to his previous employment and involving the operation of heavy machinery. My findings in respect of this disagreement, of course, will have a bearing on Coles's liability for Mr Bridge's future earning capacity.

Non-economic loss

Coles does not say that the severity of Mr Bridge's non-economic loss falls beneath the threshold of 15% of a most extreme case. Accordingly, he is entitled to an award of damages for non-economic loss (s 16(1)) to be determined in accordance with the Table in s 16(3) of the Act. As at 1 October 2017, the maximum amount that can be awarded is $612,500. [1]
Coles submits that this case falls somewhere between 28-30% of a most extreme case while Mr Bridge submits that the appropriate range is between 35-40%, more specifically 38%. Mr Roberts elaborated in his closing submissions (see 248.30 T) on the basis for that higher percentage, pointing to the fact that "this was a dreadful injury" which has had a "dreadful effect" (248.31 T). As Mr Bridge stated at the end of his evidence-in-chief, he views the future as "pretty bleak" (70.1 T).
I accept that Mr Bridge continues to suffer significant ongoing pain and other symptoms. I accept that he has suffered a consequential psychiatric condition because of the negligence of Coles, bearing in mind his past history of a degree of depression due to unemployment.
Mr Bridge's general practitioner, Dr Colin Leal, considered that Mr Bridge was suffering from reactive depression and referred him for psychological treatment with a clinical psychologist, Mr Craig Baker, on 14th October 2014. He underwent seven sessions of psychological counselling. He complained of a number of different symptoms including loss of interest in his usual activities; loss of pleasure from activities that had previously brought him enjoyment; chronic feelings of sadness; feelings of tension and anxiety; and loss of concentration. He was anxious about the future including the severe consequences of further like injury. Mr Baker considered that the history, presentation and tests results were consistent with the criteria for either post-traumatic stress disorder, a moderate major depressive disorder, or a somatic symptom disorder. Mr Baker was of the view that the prognosis was uncertain, and from a psychological point of view that Mr Bridge was not fit for work (Exhibit CB 1.15, page 16).
Mr Bridge was seen by Dr Michael Prior, Consultant Psychiatrist, on 9th August 2016 at the request of the solicitors for the second defendant, proceedings against which were discontinued. His report of 10th August 2016 is in evidence as Exhibit CB 1.25. It is worth recording that Dr Prior received a history of pre-existing depression during periods of unemployment. He found that the history provided by Mr Bridge was internally consistent and was also consistent with his findings on mental state examination. He diagnosed Mr Bridge as suffering from Chronic Adjustment Disorder with depressed and anxious mood. This expert said "this occurs on the background of an individual with some obsessive/perfectionistic personality traits". Dr Prior discounted the more elaborate differential diagnoses of the psychologist. In his opinion, Mr Bridge's psychological condition was due to his chronic pain, physical limitations and the ramifications of these on his social recreational and occupational functioning. He regarded the cause of Mr Bridge's anxiety to be his fear of re-injury lest he damage his hip beyond repair.
I prefer the opinion of Dr Prior to that of Mr Baker. Diagnosis in my opinion is more the province of the psychiatrist than the psychologist. Having said that, there is no real inconsistency in the sense that Dr Prior accepts the genuineness of Mr Bridge's complaints, as did the psychologist. The difference between them relates to the correct diagnosis. I also accept that from time to time in the future, he will need to undergo psychological counselling and perhaps require medication.
Dr Marshall's assessment that the multiple fractures around the prosthesis inflicted by the fall on 6 April 2014 would render any future revision much more problematic was accepted by Dr Bodel (see 108.1 T; Exhibit CB 2.24, p 7) in his second report and his oral evidence. If anything, Dr Marshall was more pessimistic. Given that he is the operating surgeon who actually saw the damage, I regard his views as worthy of considerable weight. This is relevant to non-economic loss because it is likely that the inevitable need for revision, if it can be undertaken at all, will be much more problematic and painful. One has to allow for the chance that he will be left with a gross disability if no revision can be undertaken. Offset against this is the consideration that he would definitely have required at least one future revision in his lifetime in any event with the pain and risk of a poor outcome which attends all such procedures.
His injuries have had a significant impact on Mr Bridge's social life, as evidenced by the fact that he no longer has friends around, doesn't go to the beach with his wife, and scarcely engages in his former hobbies of motorcycle riding and rock fishing.
Section 16 requires the making of an evaluative judgment which is in part a matter of degree, impression and judgment. Bearing in mind the consequences that have flowed from Mr Bridge's injury, subject to the consideration that he already had a prosthetic hip which would have inevitably required replacement and revision, albeit of a less difficult and extensive kind to that now in store (if it can be done at all), and taking his age into account, I assess the severity of his non-economic loss expressed as a proportion of a most extreme case as 36%. This entitles him to an allowance of $220,500 under the statute (ie 0.36 x $612,500).

Past out of pocket expenses

A figure of $1,887.05 is agreed in relation to expenses represented by the Medicare refund. He was treated as a public patient in Coffs Harbour Hospital and no charge is recoverable. What remains in dispute is Mr Bridge's entitlement to a further $3,084.28 in relation to which Coles makes no concession. That sum is comprised of the costs of a ride-on mower ($1,699) and modifications that have been made to Mr Bridge's motorbike ($548), as well as the costs of physiotherapy (see 50 T) and medication, presumably the cost of Panadeine Forte although this is not entirely clear (see 225 T).
Mr Roberts submitted in closing that those disputed items should be recoverable as a reasonable response to the injury occasioned by Coles's negligence (244 T). It is unclear when Mr Bridge purchased the ride-on mower, though most probably that was in 2016 (see plaintiff's evidentiary statement at p 12 [69]-[71]). The timing of that purchase is significant only in so far as I must avoid double counting when it comes to Mr Bridge's claim for lawn maintenance as a component of future commercial assistance.
I will allow the further sum claimed by Mr Bridge as I am satisfied that these expenses reasonably arose from the injuries and are not excessive.

Future out of pocket expenses

There is substantial disagreement on the sum to be allowed by way of damages for future out of pocket expenses. By way of buffer, Coles argues I should allow something between $2000 and $4000. Mr Bridge asks for $41,688.00. That figure is comprised of an allowance for visits to his general practitioner, for medication, for sessions with a psychologist, and for a lump sum for which Mr Bridge submits will be an earlier and more complicated hip replacement revision occasioned by this accident. Mr Bridge also seeks $12,635 for aides recommended by the occupational therapist, Ms Lausch: an orthopaedic lounge chair, an adjustable bed, a raised toilet seat and replacement costs for each of these.
In closing, Coles submitted that there was no basis for the costs for a psychologist, amounting to $18,000 over 10 years, that these sums were excessive and ought not be allowed (222.35 T). There was also said to be no reasonable basis for an award of damages for the various aides (223.8 T). In reply, Mr Bridge contended that the sum of $100 per month under the heads of general practitioner and medication were explicable by reference to Mrs Bridge's evidence that Mr Bridge must attend a GP to get his scripts for Panadeine Forte, of which he takes a lot, along with Neurofen (244.13 T). In oral evidence, Mrs Bridge approximated that the Panadeine Forte would cost about $100 per month (181.32 T). I will allow this sum of damages amounting to $18,385.
In explaining the figure put forward for Mr Bridge's sessions with a psychologist, it was submitted that the total of $18,303 was not plucked out of the air, but calculated by reference to a document tendered on the plaintiff's case (244.47 T), which became Exhibit E. That publication of the Australian Psychological Society recommended a fee of $133 per half hour consultation. As I have said, Mr Bridge was referred to a psychologist, Mr Baker, in October 2014 whom he saw on and off until the beginning of 2017. At first the consultations were once a week, but in more recent times once every three weeks. I accept that Mr Bridge derived some assistance from those sessions. So much is evident from his statements that he "was a lot happier" and would "see things in a different light" after those sessions (57.21 T). Nonetheless, Dr Prior, as it was conceded, does not support the idea of Mr Bridge attending a psychologist for a further ten years and to my mind while it is reasonable for Mr Bridge to attend a psychologist for some ongoing treatment, a period of ten years' treatment is not reasonable. I would allow two years' treatment, once every three weeks ($44.33/week x 99.4 = $4406).
Mr Roberts submitted in relation to the lump sum cost for revision surgery that that surgery would occur sooner and be more complicated than if this was simply the replacement of an undamaged prosthesis (245.13 T). While it was accepted by Dr Bodel that any prosthetic fracture does complicate further surgery at a later stage, Dr Marshall had achieved a very good result (108.1 T). In any case, it is inevitable that a revised hip prosthesis would need to be performed but for the injury within around a decade from the date of the primary hip replacement (105.46 T). It is conceded that the lump sum of $5,000 is an estimate (245 T). I propose to allow it as a conservative estimate. I have borne in mind that on Dr Marshall's view there is a real chance that revision surgery may not be possible.
As for the cost of aides, those figures were taken from the report of Ms Lausch (Exhibit CB 1. 27, p 35) and were said to speak for themselves. Mr Bridge was cross-examined as to his need for those aides (82.23 T) and when it was suggested that the reason he hadn't bought them was that he didn't really need them, Mr Bridge replied by saying that "I don't have a lot of money and the money I have I'm hanging onto" (82.38 T).
In my judgment, those aides are not reasonably necessary. They are not mentioned in Exhibit D. Although Dr Bodel did refer to the need for assessment by an occupational therapist, his reference was not specifically in relation to the need for curative apparati. As Mr Bridge has got by without these things, preferring not to spend his own money on them, I am not persuaded that they are reasonable as between him and Coles for the purposes of assessing damages.

Economic loss

The claim for damages for economic loss, both past and future, was the most contested aspect of the parties' submissions as to quantum. This is because there is disagreement as to Mr Bridge's future residual earning capacity as a result of these injuries, at least in part, arising out of the concurrent evidence of Doctors Bodel and Smith. Further complexities arise from the fact that as at the date of injury, Mr Bridge had only recently commenced work for Tom Jung Quarries and was on probation. Since the date of injury, Mr Bridge has been unemployed and he was cross-examined extensively by counsel for Coles as to the reasons for not having made efforts, with some exceptions only which I will discuss in a moment, to seek further employment.
Turning first to the concurrent evidence, the experts acknowledged (104.22 T) that Dr Marshall had expressed a degree of concern as to the risk of re-fracture due to further injury and that it was difficult to predict the outcome were Mr Bridge to suffer a further peri-prosthetic fracture. Doubtless it would entail a significant degree of technical difficulty, as did the last surgery. Such concerns must inform an assessment of Mr Bridge's fitness for work, especially in circumstances where he has been employed working with heavy machinery. As I have said, I am impressed by the evidence of Dr Marshall on this topic because of the advantages he enjoyed as operating surgeon over the qualified experts.
The experts were asked about the risks inherent in various activities upon which they opined in considering Mr Bridge's fitness for work. Neither expert recommended that he walk on uneven ground, especially in a quarry-type setting (see 105.26 T). Mrs Bridge gave evidence to the effect that around the garden she assists him and he "avoids the divots and things like that, the unevenness of it … He walks around it" (179.48 T). In terms of operating a plant including an excavator, Dr Bodel raised concerns about climbing up into the machinery or driving a machine with a heavy clutch (105.46 T). However, when asked about the jarring associated with such tasks he stated that more would need to be known about the particular pieces of machinery and how they operated (122.6 T). Sitting down would be likely to be more uncomfortable than a precursor to further hip problems, provided that it was intermittent (107.22 T). Dr Smith also reasoned that sitting down would not be contra-indicated (105.26 T).
It must be said that Dr Smith was more optimistic than Dr Bodel about the possibility of Mr Bridge resuming work of a similar kind to that which he carried on before the injury. In part this was because he considered that machines such as front end loaders or excavators are designed to be driven without a great deal of effort (116.49 T). However, it must be recognised that such work does not simply entail sitting; the acts of walking across uneven ground, especially in the setting of a quarry, mounting the machinery, and operating a possibly heavy clutch would be made difficult by Mr Bridge's present condition. Indeed he gave evidence as to the pain caused by operating a clutch when he resumed driving after his recovery (52.22-31 T). Dr Smith did acknowledge the difficulties of climbing, observing that on clinical examination he could feel and possibly hear the cables moving that hold together Mr Bridge's hip.
Taking the expert evidence together with Mr Bridge's evidence as to his improvements in mobility (61ff. T) that appear to have plateaued since 2015, I find that it is unlikely he would be capable of resuming his former employment. This is so notwithstanding Mr Bridge's own assessment of his circumstances (82.4 T; 86.50 T). In arriving at this conclusion, I have relied principally upon the evidence of Dr Marshall which I accept. I appreciate he referred to truck driving but I would regard his views as equally applicable to plant operation which seems to me on the evidence to be equally heavy work.
Other possible avenues of work were explored in cross-examination and Mr Bridge agreed that during his consultation with Dr Marshall in July 2014 he suggested that he could carry on work in a desk job, for instance as a parts interpreter for a car or spare parts dealer (78.15 T). However, at his stage in life, Mr Bridge's prospects of pursuing a career different from that which he previously pursued are at best doubtful. This is supported by the opinion of Ms Lausch, the occupational therapist.
It was accepted that Mr Bridge had made some attempts at gaining employment, namely as a shop assistant in a hardware store in mid-2015, but to no avail. Mr Bridge accepted that in the past two years he has not actively sought employment (90.4 T).
In any event, it is submitted by Mr Roberts that Mr Bridge has a residual earning capacity of $400 net per week, and I infer that he concedes that he has some limited capacity to work. I will adopt Mr Bridge's concession in that regard in calculating damages for economic loss. I do not accept, as Coles argued, that working as an assistant in a hardware store would be harder than operating plant. Mr Bridge's assessment of that comparison (79.42-46 T; 81.48-82.21 T) is uninformed given he has not done the former work and is no expert in the field, with respect. The real difficulty may not be with sitting in the machine operating levers. Rather the difficulty is with the heavier aspects of the job and the risk of further injury given the extensive comminuted fracture. Walking on uneven ground, climbing in and out of the machine, and using a heavy foot clutch are all beyond him now, not least because of the risk of further fracture resulting from another heavy fall.
In my judgment, Mr Bridge's most likely circumstances but for the injury would have been to carry on work as a plant operator and/or excavator driver: s 13(1). There is no reason to suppose, given his past employment in this area, that he would not have survived the probation period in which he was at the time of the injury.
In my judgment Mr Bridge was totally incapacitated for work until about July 2015. Thereafter he has been fit for mainly light sedentary work, perhaps increasingly over time. The concession of $400 per week by way of residual earning capacity is properly made. This probably represents the reality that a man of Mr Bridge's age with few transferrable skills and with his disabilities will find it difficult to find and hold down regular, fulltime, suitable employment. Work is more likely to be available on a part-time or casual basis. I have not overlooked that he may yet have skills in his original trade even if they are somewhat rusty now. However, shoe repairing probably fits the bill. Whether such work is readily available as an employee rather than in one's own business is not known. He probably would not be in a position to set up on his own account at this stage of his life. As always, there are many imponderables. Moreover, adopting a figure of $400 per week throughout the period makes some allowance for Mr Bridge's failure to mitigate given that he has made no real attempt to find suitable work.
As for past economic loss, the evidence was that Mr Bridge earned $23 per week on probation plus a further $15 plant allowance. This is $935 per week gross. I will allow $779 per week net during the probationary period which still had two months to run when he was injured. I have found that Mr Bridge's most likely circumstances but for the injury were to complete the probationary period of three months and then to undertake a full-time position at Tom Jung Quarries. According to Craig Martin, an expert vocational assessor whose report of 23 January 2015 is Exhibit CB 1.26 (p 18), loader operators earn $1457.95 gross which I calculate is $1130 net. Nonetheless, I accept Coles's submission that Mr Bridge has had a residual earning capacity from the time of his consultation with Dr Marshall in July 2015 and in particular since their further consultation in April 2015 when it was confirmed that Mr Bridge had made a sound recovery. I accept Mr Bridge was unfit for any work until say 6 July 2015. Thereafter he has had a residual earning capacity of $400 per week, on average. Taking into account that residual capacity I will allow $162,212 for past economic loss calculated as follows: A further 8 weeks of probation at $779.00 net per week = $6232.From about 6 June 2014 to 5 July 2015 at $1130, say 56 weeks = $63,280. From 6 July 2015 to 19 December 2017, say 127 weeks at ($1130 - $400) $730 = $92,700.

Future economic loss

Turning to future economic loss, it is necessary to bear in mind what was said by the Court of Appeal in Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1; [2005] NSWCA 208 (by Ipp JA, the other members of the Court agreeing on this point), extracting the principles earlier laid down by the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. This requires me to take account of the hypothetical future effects of wear and tear on his previous hip prosthesis absent the severely aggravating effect of the subject injury, as well as the effects of the Mr Bridge's other pre-existing conditions, including his back and shoulder problems.
Ipp JA at 105 affirmed the principle that it is for the defendant to satisfy the evidential onus that a plaintiff is suffering from pre-existing conditions. Those are not in dispute in this case, though there is some "disentanglement" required of the ongoing symptoms of the present injury and Mr Bridge's pre-existing difficulties. For instance, Dr Smith was of the opinion that several of Mr Bridge's complaints (109.16 T) on examination were most likely related to his existing lower-back issues. He explained the basis for this opinion (113.6 T). In addition to his back condition, Mr Bridge suffers from time to time from numbness to the left hand, neck pains and pain in the left shoulder (86.5-20 T). Taking these matters into account, as well as the risk of a fall of this kind, given Mr Bridge's history, arising from non-tortious circumstances, I would discount the final sum of damages under this head by a further 10% when assessing damages for loss of future earning capacity. Therefore I will apply a 25% reduction for the future after accounting for Mr Bridge's residual earning capacity.
In his vocational assessment report of 23 January 2015, Mr Martin (at pp 4, 18) sets out movements in the wages of a loader operator up to 2015 from which I have, as I have said, calculated the net figure of $1130 per week. Taking into account what Mr Bridge has previously earned, that is to say, around $40,000 per annum, and taking into account his residual earning capacity which I accept to be $400 net per week, I would allow $226,063 for future economic loss which comprises $730 net per week until Mr Bridge's retirement less 25%. 412.9 is the 5% multiplier for 10 years$730 x 412.9 = 301,417 x .75 = $226,063.

Employer's superannuation contributions

Adopting the conventional figure of 11% in relation to past employer's contributions to superannuation for the purposes of s 15C laid down in Nadjovski v Crnojlovic [2008] NSWCA 175, this amounts to $10,197.
For future economic loss, I will calculate the employer's superannuation contribution at 14%, being $31,649. I have done this to take account of the statutory rate of 12% on gross earnings.

Interest

Mr Bridge did not claim interest either in his statement of claim or schedule of damages; nor did Senior Counsel raise interest in oral argument. Acknowledging what was said in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; [1982] HCA 59, I grant liberty to apply in respect of interest.

Past gratuitous and future commercial attendant care

Mr Bridge submits that he exceeds the intensity and continuity thresholds laid down by s 15 of the Act in respect of two periods of past gratuitous assistance. The figures are based on the occupational therapist's report and are: $17,556 for the 28 weeks from 17 April to 31 October 2014, and $6,032 for the 26 weeks between 1 January and 30 June 2015. As for the period from November to December 2014, a worker from the workers compensation insurer rendered assistance after Mrs Bridge suffered a workplace shoulder injury. After 30 June 2015, it is conceded that the intensity threshold is not reached. During the first period, Ms Lausch assessed Mr Bridge's need at 22 hours per week. I regard this as reasonable and having heard from Mr Bridge and Mrs Bridge, I am satisfied the care was actually provided and would not otherwise have been provided. For the second period, Ms Lausch assessed the need at 7 hours per week. I am satisfied this care was in fact provided and would not otherwise have been provided.
Coles submits (223 T) that there is no factual basis for the first period and that in any case no assistance should be allowed past October 2014.
I accept the argument on behalf of Mr Bridge. It seems to me that Ms Lausch's assessment supports an allowance of the magnitude claimed (see the summary at p 32 of Exhibit CB 1.27).
In regards to future commercial assistance, Mr Bridge also relies on the report of Ms Lausch as the basis for claiming 2.5 hours a week for the costs of professional maintenance. Coles says that it is not at all required (223 T).
As I have said, Mr Bridge and his wife reside on 5 acres of property at Toormina. Mr Bridge gave evidence that though he was capable of mowing the lawn, it causes significant increases in pain and if he could afford it, he would hire someone for the task (248 T). That part of the property that is not lawn is no longer maintained, nor is the pool (62 T). Mrs Bridge was cross-examined about her capacity to maintain the property in light of her shoulder injuries (183 T) and I accept that she could not reasonably be expected to undertake these tasks given her condition.
Mindful of the need to avoid double counting, on the one hand, given that I have allowed for the costs of a ride-on mower, and mindful of the fact that Mr Bridge might one day face difficulty in using that mower with the deterioration of his injured hip, I would allow 2 hours per week for the next 20 years. That amounts to (2 x $40 x 666.4) $53,312.

Damages Summary

I allow the following amounts: Non-economic loss $220,500 Out-of-pockets Past $4971 Future $ 27,791 Economic loss Past $162,212 Future $ 226,063 Past super $10,197 Future super $31,649 Gratuitous and commercial assistance Past gratuitous $23,588 Future commercial $53,312 Contributory negligence None TOTAL $760,283

ORDERS

My orders are: 1. Judgment for the plaintiff in the sum of $760,283; 2. I grant liberty to apply in respect of any claim of interest; 3. The defendant is to pay the plaintiff's costs on the ordinary basis up to and including 20 June 2017, and on an indemnity basis from 21 June 2017.

Endnote

Paragraphs [89], [97], [130] Amended by consent

Amendments 19 February 2018 - Cover Sheet Order (1) amended by deleting the amount "$688,071" and inserting the amount $760,283; Paragraph [89] amended by deleting last sentence and inserting in lieu thereof: "As at 1 October 2017 the maximum amount that can be awarded is $612,500". Paragraph [97] amended by deleting last sentence and inserting in lieu thereof: "This entitles him to an allowance of $220,500 under the statute (ie 0.36 x $612,500)"; Paragraph [130] Past economic loss amended by deleting "$92,700" and inserting the figure "$162,212" Paragraph [130] total figure amended by deleting "$688,071" and inserting "$760,283. Paragraph [131] Order 1 amended by deleting "$688,071" and inserting "$760,283". 19 February 2018 - Paragraph [130] amended by deleting the figure $217,800 and inserting the figure $220,500 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2018

Liability - Duty of care

The nature and content of the duty of care owed by Coles to Mr Bridge was not controversial. These questions have been settled since the decision of the High Court of Australia in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 (at 484 - 8), adopting what had been said by Deane J in Hackshaw v Shaw (1984) 155 CLR 614; [1984] HCA 84 (at 662 - 3). In an action in negligence against an occupier: "All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff." In Zaluzna, a plurality of justices said (at 488) the fact that a plaintiff is a lawful entrant upon land occupied by the defendant "establishes a relationship between them which of itself suffices to give rise to a duty on the part of [the occupier] to take reasonable care to avoid foreseeable risk of injury to [the entrant]."
In Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Gleeson CJ said at 263 [17] - [18] that the duty owed by an occupier to a lawful entrant relates "to the physical state and condition of the carpark". His Honour said: "The basis of the duty which, as occupier, the appellant owed in relation to the physical state or condition of the premises was control over, and knowledge of, the state of the premises."
Hayne J (at 292 [112]) also referred to the central consideration of control in the following terms: "The occupier of land has power to control who enters and remains on the land and has power to control the state or condition of the land. It is these powers of control which establish the relationship between occupier and entrant "which of itself suffices to give rise to a duty ... to take reasonable care to avoid a foreseeable risk of injury"." The quote at the end of the passage is from that part of the plurality judgment in Zaluzna to which I have referred (at [27] above).
The central liability issue in the present case relates to breach, or negligence. But in assessing that question, it is well to bear the settled formulation of the duty of care, and the rationale for it, firmly in mind.

The arguments of counsel

Questions of breach, causation and the quantification of damages are governed by the provisions of the Civil Liability Act 2002 (NSW). Referring to the requirements of s 5B of the Act, Mr Weinberger did not dispute that Mr Wagstaffe's results, for what they may be worth, demonstrated the surface of the carpark where Mr Bridge fell was very slippery. Rather he said the evidence showed no more than this was a localised problem. His essential argument was that Coles was not the owner, but merely the occupier of what was described as a "brand-new construction" (204.27T). Learned counsel submitted that in such circumstances, "if one has a brand-new carpark" there's a higher duty on the lessor than the lessee in many ways (204.5T). Implicit in the argument was that Coles had no reason to suspect, let alone know, that the surface of the carpark was unduly slippery to pedestrians when wet. Given the evidence of Mr Wagstaffe, Mr Weinberger submitted that the only way Coles could have ascertained this was by carrying out slip-resistance testing on "every square centimetre" of the carpark; an audit was insufficient because it consisted of no more than a series of "spot check[s]" which may well have failed to disclose the localised problem (204 T)
The requirement to check every square inch is said to be the only available precaution to identify and avoid the risk that materialised and reasonable care did not justify such an extraordinary measure.
Reference was made to Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [19]; Schultz v McCormack [2015] NSWCA 330 at [74] - [75] and Swift v Wearing-Smith [2016] NSWCA 38.
Mr Weinberger's arguments on liability can be summarised by reference to this passage from his oral argument (T 205 at [40] - [50]): "Now, in my submission, a reasonable person in Coles' position would not have taken any steps at all; it was a brand new construction; it had contracted with Canzon* to deliver a compliant structure; there's no evidence of any prior complaints at all. The plaintiff attended this shopping centre on four or five occasions previously, maybe up to six. He had no prior complaints. His wife did not express any - provide any evidence of any prior concern or complaints, and indeed, on the very day of the accident, when the car park was wet, and the plaintiff was wearing thongs, when he walked towards the doors, when he got out of his car and walked to the travelator, which may in fact have been on the same side of the pathway which he fell, because he wasn't sure on which side he was walking, he didn't detect any slipperiness." (*"Canzon" is a reference to the developer against which proceedings were discontinued.) Counsel argued that Coles was entitled to rely upon its contract with the developer and assume that the shopping centre had been constructed in a proper and workman-like manner in compliance with the requirements of any relevant authority. It was submitted that Cole's obligation under the lease with the developer to keep the premises in good repair, expressly, did not extend to any defect in the premises. A localised area of slipperiness, it was submitted, was a defect in the premises. It was not argued that the terms of the lease deprived Coles of the control as occupier which is the foundation of the delictual duty.

Decision on liability

With respect, Coles' reliance upon Garzo is misplaced. Garzo was a decision turning on its own facts. To the extent to which it did give rise to questions of principle, they related to causation under s 5D rather than primary questions of negligence. In any event, with respect, Coles' reliance upon aspects of Basten JA's judgment was not to the point. His Honour took a somewhat different approach from Meagher JA and Tobias AJA. His Honour was not satisfied that the plaintiff had proved negligence. Meagher JA and Tobias AJA would have found negligence but were not satisfied as to causation. No statement of principle arises out of that decision which assists in the resolution of the present case. Strictly Basten JA can be taken as having dissented on the point relied on by Coles.
One may accept that I am bound by the principles discussed by McColl JA in Schultz v McCormack at [70] - [76]. However, I do not conceive those principles to be different from those which I have summarised above. It should also be noticed that Schultz v McCormack was factually different in a material way from the present case in as much as it was concerned with the duty of the occupier of residential premises. Although the formulation of the occupier's duty is the same, the nature and scope of it may be different as the characterisation of the premises as either residential, commercial or educational is a relevant circumstance when determining this aspect: Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [169] by Gummow and Hayne JJ. For what it's worth, the Court of Appeal decided that the trial judge had erroneously failed to find negligence in the particular circumstances of Schultz v McCormack.
So far as Smith v Werring-Smith is concerned, Hoeben JA's caution against defining the content of the duty of care in terms of the matters relied upon to establish breach (referring to Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54) must be borne in mind. However, it is well to bear in mind also that his Honour there too was concerned with the duty of care owed by the occupier of residential premises, and emphasis was laid upon the general rule that such an occupier is not required to commission experts to look for latent, or unsuspected, defects: Ahluwalia & Ors v Robinson [2003] NSWCA 175 at [23]. Again these considerations are not determinative in the present case.

Correct identification of the risk

Negligence is to be determined by application of the provisions of ss 5B, 5C and 5D of the Civil Liability Act. Breach is substantially determined by application of s 5B and the starting point, as with the previous common law, is to accurately identify actual risk of injury for the purpose of elucidating the true source of potential injury. This requirement arises out of the language of the chapeau of s 5B(1) and the decision of the High Court in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at 337 [18] by Gummow J. His Honour said, "the assessment of breach depends upon the correct identification of the relevant risk of injury". And, of course, "breach must be assessed prospectively not retrospectively".
But correct identification of the risk is a question logically anterior to the assessment of breach. The risk which requires identification is the risk which materialised. Clearly that can only be identified with knowledge after the event. I am of the view, as I said in Vincent v Woolworths Limited [2015] NSWSC 435; [2015] Aust. Torts Reports 82 - 215, that the anterior question of risk identification can only be undertaken with the benefit of hindsight. If the focus is on identification of "the true source of potential injury" (Dederer at [60]) this cannot be done without knowing what happened to the plaintiff: Vincent at [26] - [27]. I said at [27]: It should be recognised that there is an implicit degree of artificiality in assessing breach, after the event, prospectively. But the air of artificiality becomes overwhelming if one eschews all hindsight when correctly, or accurately, identifying the risk of injury at the outset. In putting it this way I am not attempting to defy authority binding on me rather, I am attempting to apply it in the ordinary, everyday business of the trial court. It seems to me, reading Gummow J's judgment in Dederer, especially from pp 351-355, as a whole, the question of the proper identification of the risk is a precursor to the assessment of breach. That is to say it is a question logically anterior to, and separate from, the assessment of breach. At that preliminary point it is permissible, indeed necessary, to know what happened and what act or omission the plaintiff says constitutes negligence. These matters involve hindsight. When these things are known, one then embarks upon (returns to, as Gummow J put it: Dederer at [65]) "the inquiry into the assessment of breach". From this point on, all hindsight reasoning is impermissible because hindsight diverts attention from what reasonable care required in foresight, to whether in hindsight the defendant could have prevented the accident which befell the plaintiff: (citations omitted.)

Foreseeability of the risk

The question posed by s 5B(1)(a) is whether the risk I have identified was foreseeable in the sense that it is a risk of which Coles knew or ought to have known. This question should be answered in the affirmative. Coles had been in occupation of the premises including the carpark for over two years by April 2014. From its occupation of the carpark, it must have known that its surface was not of a uniform finish. As I have said, this is evident from the photographs. Bearing in mind that photographs can be misleading, Mr Wagstaffe described in oral evidence the difference he noticed between the smooth polished finish and the commercial broomed finish. I would infer that that difference in finish was not simply due to natural variations in the completion of the essentially manual task of screeding during construction, as Coles argued, but is probably better explained by the contents of the first paragraph of Exhibit 5. Although that document refers to "some discolouration of the surface", it also distinguishes this part of the surface from "the balance of the areas" which "are a good clear commercial broomed non-slip finish as required by the contract". Exhibit 5 also addresses differences that might be expected in performance of the broomed non-slip finish compared with "a smooth Westfield polished type carpark finish". The author explained, "a smooth surface would be highly dangerous if wet" and "may leave Coles open to litigation". I infer from this observation that the danger if wet leaving Coles open to litigation relates to a risk of pedestrians slipping on a wet smooth surface, putting to one side for present purposes possible problems with mechanical traction. Exhibit 5 also refers to what I would regard as a likelihood of a high frequency of the carpark being wet. This is due to a short term difficulty with water ingress resulting from external water pressure on the retaining walls in the recessed carpark, at least in the short term; occasional pressurised ingress from the water table; occasional flood water; and rain ingress through the open sides of the carpark. To these could be added the common experience that in wet weather entering vehicles will track rainwater onto the surface of the carpark.
I do not accept the submission that the risk was due to a localised unforeseeable problem. The area of smooth polished finish, at least from the photographs taken by Mr Wagstaffe and from his description derived from his view of what they depicted, were large enough to be apparent to the occupier. And Coles had actual notice of the inefficiency of smooth polished concrete as a means of passage when wet. If I am right in thinking there is a correlation between what is referred to in Exhibit 5 as an area of discoloration compared to the balance of the floor, and the smooth finish, then Coles had that matter and the reason for it drawn to its specific attention during the email correspondence about the performance of the surface of the carpark.

Would a reasonable occupier have taken precaution?

Mr Bridge's case is that Coles was negligent in failing to take precautions against the risk of harm which materialised in his case. The precautions put forward are: 1. Carrying out tests of the type subsequently performed by Mr Wagstaffe to ascertain the degree of slipperiness of that part of the carpark having the smooth polished surface; 2. Creating a non-slip walkway as described and suggested by Mr Wagstaffe; and 3. Erecting the warning signs stating, "Slippery when wet", which were in fact erected on 9th April 2014 (Exhibit CBH.76, page 73).
The question posed by s 5B(1)(c) whether, in the circumstances, a reasonable person in Coles position would have taken those precautions is to be determined having regard to the considerations listed in s 5B(2), "amongst other relevant things". It is also absolutely fundamental that the question be evaluated entirely prospectively, that is to say, looking forward as though Mr Bridge's accident had not occurred and without any advantage of hindsight whatsoever.
Amongst the other relevant considerations is an expectation that an entrant to the premises would use reasonable care for his own safety. Meagher JA explained this in Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 (Macfarlan JA and Fagan J (the latter on this point) agreeing) and expressed it this way (at [54]): In assessing what reasonableness requires in response to a particular risk of harm, the reasonable person in the occupier's position is entitled to take into account "with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety": per Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74; a passage cited with approval in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45] fn 69 (Gummow J); [2007] HCA 42. The weight to be given to that expectation is in each case a matter for factual judgment: Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234 at [35]; [2005] HCA 19; and the matters to be considered include the "obviousness of [the] risk, and the remoteness of the likelihood that other people will fail to observe and avoid it" (at [36]). The Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) continued (at [37]): The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration. (See also Radd v VM and KTB Holdings Pty Ltd [2017] NSWCA 190 at [34]).

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