Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71

Her Honour referred to the evidence of two particular witnesses, Melissa Rixon and Louise Skinner, about the operation of that system.

Ms Rixon was the store manager at the time. She identified that cleaners cleaned the store before and after hours. The store was not cleaned by external cleaners while it was open to customers.

She said that there had been incidents from time to time with customers falling on grapes. The staff were instructed at all times to keep a lookout for spillages and anything that may be a hazard and were also taught, in particular, to be on the lookout for grapes that may have fallen on the floor.

Ms Skinner, who was the employee of Coles that saw the appellant immediately after her fall, said that the most common item that customers would slip on was grapes. She said that the manager in the fresh produce section caught a lot of people eating grapes and kids would run up and grab them. Customers would take grapes from the produce section and drop them while eating them as they walked around the store or feed them to their children. She recorded that she had worked in the “self-serve area” between 2013 and 2019 and was told by Coles to be aware of the floor and make sure things were not spilled on the floor. She said that staff were shown a video including five to eight minutes on dealing with a spill and that they were instructed to keep a lookout and to clean as they went.

The primary judge then referred to the submissions made in relation to comparable cases involving a “clean as you go” policy: Prasad v Woolworths Ltd [2017] NSWDC 79; 24 DCLR (NSW) 356; Razzak v Coles Supermarkets Australia Pty Ltd [2017] NSWDC 183 and Woolworths Ltd v McQuillan [2017] NSWCA 202. She noted that these authorities have not found that “clean as you go” systems are insufficient solely because they do not have a periodic and documented system of inspection. Her Honour found (at [32]) that there was no evidence that the system at the Woden Coles had not been complied with and that, noting that “a proper lookout does not mean a perfect lookout”, there was no evidence that “staff have not kept a proper lookout” even if a grape had been missed (at [35]). Her Honour concluded “I decline to find that Ms Buljat has shown that Coles breached its duty of care to Ms Buljat.”

Her Honour then went on to make contingent findings in relation to damages. She traced the medical attendances of the appellant following the fall. She identified that an ultrasound on 28 September 2017 disclosed “a tiny subcutaneous haematoma and a tiny tear of the tibialis anterior muscle” (at [40]). She recorded that a further ultrasound of the calf muscles reported on 15 November 2017 showed that the tear had healed without any visible scarring. She found that the appellant attended the emergency department at the Canberra Hospital on 9 February 2018 complaining of pain and swelling in her right calf for two days (at [50]). Investigations of this condition identified a deep vein thrombosis (DVT) in the tibioperoneal vessels. She was placed on medication and further ultrasounds in 2018 showed no persistent DVT.

She found that the appellant had suffered an earlier spontaneous DVT and pulmonary embolus in 2015 which resolved after she took anticoagulation medication for six months (at [52]). However, after the 2018 DVT the appellant was again prescribed blood thinners and has been told that she will need to take them for the rest of her life. She referred to the appellant’s extreme concern about having to take this medication, due to the possibility of a brain bleed and falling into a coma.

The primary judge identified (at [53]) the medical issues as being: (a) whether the DVT in February 2018 was related to the injury sustained in the fall; and (b) whether the appellant’s ongoing symptoms were related to the fall by reason of a “post thrombotic syndrome” or a chronic pain disorder.

So far as the first issue was concerned, her Honour identified that there had been a conflict of opinion between the two vascular surgeons (Associate Professor Paul Myers and Professor Rodney Lane) retained to give an opinion about the causal link between the DVT and the appellant’s ongoing symptoms. However, the difference of opinion arose from inaccurate instructions given to the expert retained by the appellant as to the location of the DVT (at [56]). By the time the joint report was subsequently produced by the experts (only received on the second day of the hearing) Dr Myers considered it was possible but unlikely that the DVT identified in February 2018 was related to the fall and Dr Lane said it was possible but highly unlikely that the DVT was so related (at [57]). Her Honour made reference to the reasons for that conclusion and to the opinion of Dr Lane that the 2015 DVT was the probable predisposing factor as it would have caused venous wall damage (at [58).

Her Honour referred to the concession in submissions by counsel for the appellant that the February 2018 DVT was not related to the fall. She found that the appellant had failed to show, on the balance of probabilities, that the DVT was related to her fall (at [59]-[60]).

Her Honour then addressed whether the post thrombotic syndrome referred to in some of the expert medical evidence was caused by the fall at Coles. She identified that she had not been provided with an explanation from a doctor as to the features of that syndrome (at [61]). However, her Honour did understand that it related to ongoing pain and swelling in the right leg as a consequence of a DVT.

Her Honour’s comment about the lack of explanation of post thrombotic syndrome was made in the following circumstances. During the course of the proceedings, her Honour had asked the parties for an explanation as to what post thrombotic syndrome involved. Ultimately, counsel for the respondent sought to tender a document describing the condition. That was objected to by counsel for the appellant and was not provided.

Her Honour then referred to the evidence of Dr Garth Eaton, an occupational physician, whose report was tendered by the appellant. She recorded that his conclusion that the injuries sustained in the accident likely significantly contributed to the development of post-thrombotic syndrome was based upon the assumption that the fall was likely to have significantly contributed to the development of the DVT. She noted (at [66]-[67]) that counsel for the appellant had not invited her to conclude that the post thrombotic syndrome arose out of the injury sustained in the fall at Coles and declined to make such a finding.

She next turned to consider whether chronic pain syndrome was caused by the fall. She referred to the terms of the report of Dr Eaton and the submissions made by counsel for the appellant. The submission made by counsel for the appellant was, in effect, that continuity of pain in the lower leg since the fall with no break in the pain during that period supported a finding that the pain is related to the fall. The primary judge said (at [70]) that the submission overlooked the “paucity of medical evidence supporting the proposition that [the appellant] has a chronic pain syndrome causally related to the accident and the medical evidence attributing her symptoms to other causes”.

Her Honour found that Dr Eaton did not say that the brief episode of pain caused by the fall in 2017 was the cause of a chronic pain disorder from 2018 to today. She identified that his opinion was based upon the assumption that pain and swelling in her right leg and associated psychological and emotional difficulties were as a result of the fall, rather than on the basis that the 2018 DVT and any post thrombotic syndrome was unrelated to the fall (at [71]).

Similarly, the psychiatrist retained by the appellant, Dr William Knox, had expressed an opinion based on the effect of the 2018 DVT. The psychiatrist retained by the respondent, Dr Doron Samuel, on the other hand could not explain how her mental health difficulties were connected with the fall and the primary judge thought that the same applied in relation to any chronic pain disorder.

The primary judge concluded that no doctor had expressly related the appellant’s ongoing disabilities to the injury that she sustained in the fall (at [76]). No doctor had suggested that the minor muscle tear was causing or contributing to her ongoing complaints. Further, the appellant had not shown that the 2018 DVT was causally related to the fall (at [77]). Rather the ongoing symptoms were consistent with either a post thrombotic syndrome arising from the 2018 DVT or a psychological/psychiatric condition arising from the post thrombotic syndrome symptoms and/or the appellant’s concern as to the possible side effects of the medication which she takes in order to prevent another DVT (at [77]).

Her Honour then indicated the damages that would have been awarded if she had found Coles had breached its duty of care.

The contingent assessment of damages was expressed briefly. Her Honour concluded: (a) General damages for pain and suffering would have been $15,000 plus interest, awarded from the date of the fall up until 15 November 2017 when the ultrasound report showed that the tear had healed without any visible scarring. (b) Domestic assistance in the past would have been awarded at three hours per week for the seven weeks up until 15 November 2017 (three hours x seven weeks x $48.20/hour = $1012.20 plus interest) with nothing in relation to the future. (c) Out-of-pocket expenses were $526.36, based upon a calculation provided by Coles which was not disputed by counsel for the appellant. (d) No amount would have been awarded for past economic loss (for which no amount had been claimed) or for future economic loss.

The primary judge ordered that there be judgment for the respondent and that the appellant pay the respondent’s costs.

In Franklins Ltd v Brown [2000] NSWCA 177 the New South Wales Court of Appeal was dealing with a slip as a result of a loose lettuce leaf in a supermarket. There was a regular system of cleaning the floors in the fruit and vegetable produce area. However, that system did not cover a period of half an hour in the early afternoon. The defendant’s evidence sought to suggest that during that period, shop assistants working in that part of the store were required to keep their eyes open for materials which had fallen on the floor, and if such material was seen to be on the floor, either to remove it themselves or to have it removed by others. Of this system, Powell JA (with whom Heydon JA and Brownie AJA agreed) said (at [10]): This system, in my view, was clearly inadequate and his Honour was perfectly entitled to say that that system was not good enough.

In Alat v Franklins Pty Ltd [2012] NSWDC 104; 15 DCLR (NSW) 203 a judge of the New South Wales District Court was addressing a slip on some thickened cream on the floor of a supermarket. The issue was the frequency of any cleaning and inspection system. The finding of the court was that, as at 2008, a reasonable person would have instituted a system of cleaning and inspection of an aisle such as that in question (which contained numerous liquid items) with a minimum frequency of every 15 minutes: at [50].

Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 involved a disabled person who was using crutches slipping and falling on what had been a hot chip or grease deposited by such a chip in a “sidewalk sales area” outside a department store in a shopping centre. So far as the sidewalk sales area was concerned, it was part of the duties of a “people greeter” to keep an eye out for spillages in that area. There was no system in place on the day of the incident for the periodic inspection and necessary cleaning of the sidewalk sales area. The evidence established that the common area adjacent to the sidewalk sales area was cleaned every 20 minutes. The principal issue so far as the High Court was concerned was how long the chip had been on the ground before the slip occurred. In addressing that issue, the court said (at [38]) that reasonable care required inspection and removal of slipping hazards at intervals not greater than 20 minutes in the sidewalk sales area. That statement must be seen to have been made in the context of the evidence that this was the inspection and cleaning regime in place in adjoining areas. It was, therefore, clearly anchored in the evidence available in the case before it.

Prasad involved a slip on a liquid substance in the aisle of a Woolworths store. Woolworths had no dedicated cleaners during trading hours and relied on a “clean as you go” approach. The approach did not involve any obligation on staff to look for hazards, only to act when they were observed. The District Court judge found that in the absence of some evidence of the effectiveness of the clean as you go approach, it was not a reasonable system and hence there was a breach of duty of care (at [13]-[17]).

Corrigan v Coles Supermarkets Australia Ltd (No 2) [2017] NSWDC 238 was a case involving a slip and fall on some wet flooring. Among the precautions taken was the “clean as you go” system. That system was said to not require ordinary Coles staff to look for foreign matter on the floor. It was found not to be a reasonable system for detecting and removing the hazard created by clear substances on the floor: at [47]. However, in that case, one of the additional measures taken was that another employee had the role of wiping up any water or spills in the area in question. That evidence persuaded the court that a reasonable person in Coles’ position would not have done more than employ such a person in relation to recognising and removing slipping hazards in the front area of the store.

Razzak involved a slip in the produce area of a Coles supermarket. Nonslip mats were put in high-risk areas. There was evidence of a “clean as you go” policy. The factual conclusion was that “the Coles system of cleaning, reinforced by training and supervision, resulted in the floor of the fresh produce area being checked, and if necessary cleaned, at least every 10 minutes”: at [113]. That was sufficient to amount to reasonable care.

McQuillan involved the plaintiff slipping on a grape. Woolworths had been found liable at first instance. It was conceded by the appellant that there was no evidence that the cleaning system could be improved. It had a number of components: (a) overnight cleaning finished at 7am; (b) instructions were given to all employees to be constantly on alert for any material, in particular grapes, if on the floor and to clean, pick up or deal with such material immediately; (c) signs on the floor warning staff and customers to look out for grapes and to pick them up and dispose of them; and (d) hourly floor inspections by staff prompted by an announcement and bell over the public announcement system commencing just before 10am when each staff member was to inspect the designated area and assess and deal with any slip risk.

In those circumstances, the Court of Appeal allowed an appeal and set aside the decision below.

Each of these cases reflect a factual conclusion as to whether or not the conduct of the occupier was reasonable within the legal framework in place from time to time. They reflect judgments of trial judges and appellate courts made by reference to the particular evidence about the use of the premises and the extent of the precautions taken in relation to the risk of slips and falls. Because they incorporate a standard of reasonableness they must inevitably reflect, to an extent, social values and community expectations: see Girvan at 244-245, 249.

The evidence in the present case was that grapes were commonly dropped to the floor. In fact, they were more commonly dropped than any other item. The grapes would be dropped in different parts of the store because the customers, or their children, would drop them as they ate them while meandering through the supermarket.

The day in question was a busy one at the store. Yet the limited evidence about the area where the incident occurred was to the effect that it was not an area that would be regularly passed by staff.

To the extent that there was evidence of a system, it was one which involved staff doing other jobs keeping a lookout for spills or dropped items. So far as the area in question was concerned, no particular staff member was given the task of looking out for spills: cf Corrigan. Nor was it a case where the level of staff activity in the relevant area was such that an instruction to keep a lookout for items or spillages on the floor would provide an appropriate level of inspection such as was the case in the fresh produce section in Razzak. Further, there was no time at which the system required an inspection to be undertaken by staff in any particular area: cf McQuillan. There was evidence that a member of the meat department was in the area at the time when the fall occurred but no evidence as to the activities of that person in relation to detecting slipping hazards.

Of significance in the present case was that there was no evidence led by Coles in its case on this issue. It did not, for example, lead any evidence about the effectiveness of a system which involved all staff being required to keep a general lookout in the course of doing their jobs, but had no staff dedicated to that job or any particular time at which an inspection ought to be made. While the onus remained on the appellant to establish that there was a breach of duty, that conclusion is more easily reached when the evidence discloses apparent inadequacies in the system of a large national business such as Coles and a deliberate choice is made to lead no evidence from the organisation which would support the reasonableness of its approach having regard to issues of cost and effectiveness.

In the absence of such evidence, we conclude that a reasonable person in the position of Coles would have taken additional steps to ensure that particular attention would be paid to the issue of potential slipping hazards on the floor in the area in question. That would not necessarily require that there be separate staff whose job it was to make such an inspection, but that at least there be some system which required staff to specifically direct their attention to that issue not less frequently than once every hour. In the present case, it is not necessary to be more precise than that because of the conclusion, set out below, that causation would be established even if the required period of inspection was much greater than the one-hour period identified. Particular attention could have been paid to the area in question in a variety of ways. However, a reasonable person would have done more than give the task of watching out for spills as an additional task to all staff members to do in addition to their other jobs. That system carried with it the likelihood that spills and items on the floor would be missed because there was no dedicated attention paid to that issue at any particular time. It inevitably subordinated the detection of spills and hazardous items to the performance of the staff members’ other duties.

For these reasons, contrary to the conclusion reached by the primary judge, breach of duty was, on the evidence, established.

Following from the findings above in relation to breach of duty, causation was established in relation to injuries arising from the fall. Therefore, it will be appropriate to enter judgment for the appellant. Damages (grounds 4.9-4.13)

Her Honour assessed damages at $16,538.56. This was made up of general damages of $15,000, past domestic care of $1,012.20 and out-of-pocket expenses of $526.36. Her Honour would also have awarded interest on the two former heads of damages, but these figures were not calculated.

At the core of the assessment of damages was the finding that the injury had fully resolved by 15 November 2017. Therefore, the damages related a period of about seven weeks.

Although the primary judge did not say so expressly, the reason 15 November 2017 was treated as a cut-off date was because the appellant underwent an ultrasound on 14 November 2017 and it was the report of that ultrasound dated 15 November 2017, which revealed that a muscle tear associated with the fall had resolved leaving no apparent scarring.

The appellant attacked this closed period for two reasons: (a) the finding ignored continuing complaints of pain at the injury site which had been made by the appellant after 15 November 2017; and (b) the appellant suffered from a psychiatric injury or chronic pain disorder which had, at least as one of its causes, the fall at the respondent’s premises.

The complications, so far as the appellant was concerned, in relation to quantum arose from the DVT suffered by the appellant in February 2018. The appellant was convinced that this condition was a consequence of the fall at Coles. Not only did the DVT cause her considerable pain in its own right, but it gave rise to a psychiatric reaction ultimately leading to a diagnosis of major depression.

The appellant’s case at trial was that the DVT, and all its consequences, was a product of the respondent’s negligence. This position had to be abandoned when it became evident during the trial, through the joint opinion of Dr Myers and Dr Lane, that the DVT was, on the balance of probabilities, not connected to the fall. This in turn meant that a diagnosed condition of “post thrombotic syndrome” (the nature and significance of which was not described in the evidence) was also not connected to the fall.

Initially counsel for the appellant did not seek to have the underlined words admitted into evidence on the basis that a claim that the appellant was suffering from a chronic pain disorder had not been particularised. However, subsequently both counsel accepted that it had been particularised. As a consequence, “disorder” in the expression “chronic pain disorder” in section 9 of the report was admitted into evidence. Although not expressly dealt with in the transcript, it appears that the parties and the primary judge also treated the words “Possible developing regional pain disorder” as having been admitted even though it was not initially put into evidence.

As will be apparent, the report was prepared on the basis of a causal connection between the accident and the DVT. That is made clear by the deleted answer to question 5. Having regard to that foundation and those aspects of the report of Dr Eaton which were not read, the report does not provide an adequate basis for the contention of a causal link between the accident and the “chronic pain disorder” or “possible developing regional pain disorder” at the time of the report. It would not be appropriate to read the remaining portions of the report as including an expert opinion of a direct causal link between then current complaints of pain and the original accident. That conclusion would be unexplained and would give the report a substantially different operation to that which appears to have been intended by the author when drafting the original document.

Each of Dr Knox and Dr Samuel produced two reports.

Dr Knox’s first report dated 1 October 2019 was based on the assumption that the accident on 23 September 2017 triggered the DVT. He described the transition between accident and the DVT as follows: The condition remained painful for the next several months and then suddenly she experienced more severe pain and quite marked swelling as a result of a deep vein thrombosis that had occurred. Subsequent damage to the tissues in the area have led to the chronic pain, swelling and oedema mentioned earlier.

His diagnosis was of chronic, moderate severity Generalised Anxiety Disorder, Panic Disorder and a mild Adjustment Disorder with Depressed Mood.

In a report dated 15 May 2021 Dr Samuel, based on his consultation with the appellant, said that she did not have psychological difficulty between the time of the fall and her DVT. She said that she had her first panic attack after the DVT. He referred to her as being a vague historian. His conclusion in relation to causation of psychiatric harm was: If the subject accident is accepted as a cause of her deep vein thrombosis, then, in my view, it made a non-trivial contribution to the development of her Panic Disorder and Persistent Depressive Disorder, in addition to the contributions made by having had a pulmonary embolism previously and pancreatic artery aneurism. …

Dr Knox produced another report dated 24 January 2022, which was more tentative about the connection between the injury on 23 September 2017 and the deep vein thrombosis. He said: I have limited expertise in giving other than a general medical opinion on the relationship between your client’s index injury and the subsequent deep vein thrombosis, although given that the thrombosis occurred in the area of significant injury it is difficult to not see the index accident as having some role in contributing to the subsequent deep vein thrombosis and the physical and mental health problems which have followed. It is however understood that Ms Buljat, given her prior history, was likely predisposed to a clotting event.

He continued: Ms Buljat for her part clearly connects her ongoing poor physical and mental health to the index accident and it being a major factor in her very significant ongoing health problems and broader life disability.

He summarised the appellant’s position as follows: As reported to you on 1 October 2019 Ms Buljat has been exceedingly hypochondriacal since the deep vein thrombosis and subsequent pain and swelling in the right leg that followed the 23 September 2017 fall. She persistently ruminates about future negative health outcomes.

His diagnosis was Generalised Anxiety Disorder along with Panic Disorder. He added a diagnosis of Major Depressive Disorder.

Dr Samuel produced a second report dated 23 February 2022. This was prepared with the benefit of not only Dr Knox’s second report but also a wide range of clinical notes and reports. He characterised Dr Knox’s report as having shifted the focus of causal responsibility from the fall itself to Ms Buljat’s perception. Having reviewed the mass of documentation, the conclusion that he reached was: If it is the case that neither the need for lifelong anticoagulation, nor the post-thrombotic syndrome or other physical conditions are related to the fall at Coles, it remains puzzling as to how the diagnosed mental health difficulties are connected to the fall, beyond the Plaintiff’s beliefs. As has been documented in the medical records, the Plaintiff has had documented strongly-held views, most recently concerning vaccination, that cause her distress. Given her psychological worldview, it would be reasonable to accept that the Plaintiff’s strongly-held views about the fall are consistent with other strongly-held, yet false, views that have been a source of distress to her. From a psychiatric perspective, we are seeing different manifestations of the same phenomena that pre-dated and post-dated the subject incident. Dr Knox referred to this phenomena as hypochondrias. In my opinion, there is no clear causal nexus between the subject incident and the reported mental health difficulties.

Dr Samuel was the only doctor to be cross-examined. In cross-examination he said that although documented insomnia occurred prior to the DVT, it was only associated with depression after the DVT. He considered that the insomnia that predated the DVT was related to a physical injury such as pain. He said that the totality of the general practice records since about 2019 had very limited emphasis on the psychological component of the appellant’s symptoms. He was also asked whether the appellant was suffering from the DSM-IV diagnosis of chronic pain disorder. Dr Samuel indicated that he did not form the opinion that the appellant had a chronic pain disorder. Nor did Dr Knox or her treating doctors. He had not read Dr Eaton’s report.

Having regard to the expert evidence, the conclusion reached by the primary judge at [76] was correct. There was no basis in the expert evidence for a conclusion that, notwithstanding that the DVT was not caused by the accident, ongoing complaints of pain were caused or materially contributed to by that accident as distinct from the DVT or the unexplained post thrombotic syndrome. Similarly, there was no basis for the conclusion that the major depression diagnosed by Dr Knox was caused by or materially contributed to by the accident as opposed to the DVT or other conditions from which the appellant suffered. Further, it was not a case in which the existence of a continuum of complaint of pain in the right leg before the DVT and after the DVT would, in the absence of appropriate expert evidence as to causation, provide an adequate foundation for a conclusion that the cause of that pain was the initial accident.

In the present case, factual causation is established because the negligence that led to the fall was a necessary condition for the establishment of the false belief of a causal connection with the DVT. If there had been no negligence and no accident, then there would have been no fact upon which the appellant might have fixed as a cause of her DVT. As a consequence, s 45(1)(a) is satisfied because the accident was a necessary condition for the false belief.

It is then necessary to consider s 45(1)(b). In one sense it could be said that the predisposition to have false beliefs as to causation is simply a manifestation of the principle that a defendant takes a plaintiff as it finds her: Watts v Rake (1960) 108 CLR 158 at 160, 164. However, s 45(1)(b) requires consideration of the appropriateness of extension of liability in that way. At least in a case where it is not established that the plaintiff has, at the time of the incident giving rise to liability, a psychiatric condition which predisposes her to false beliefs, it is not appropriate to extend liability for harm caused by such false beliefs. If the medical evidence did establish a pre-existing psychiatric condition, then there would be a sounder basis for the extension of liability because the law tends to treat such psychiatric conditions as beyond the control of the injured person. Where such a psychiatric condition is absent then the responsibility for the false belief lies with the person who holds it and hence ought not be made a basis for liability of the negligent party. Dr Knox identified the appellant as demonstrating hypochondria. It is not appropriate for liability to extend to harm caused by the false beliefs of a hypochondriac as to causation.

Accordingly, the respondent should not be held liable for the appellant’s psychiatric condition insofar as it is caused or contributed to by her false belief as to causation.

The evidence of the appellant’s husband was that he was in Croatia at the time of the fall. The appellant told him that she had had a fall. He came back at about the end of September 2017. He observed that she was limping and that her leg was swollen. She told him that she was in pain. His evidence about his observations was not very specific as to time but he appeared to say that her condition gradually started getting worse with time. However, as pointed out above, his evidence was very clear that the discovery of the blood clot in a right leg completely changed her psychological state.

So far as the primary judge’s finding that the condition had resolved by 15 November 2017 is concerned, that obviously reflects the ultrasound evidence. It is consistent with the primary judge not accepting the appellant’s complaints of ongoing pain made to her doctor after that date, in particular on 20 November 2017 and 14 December 2017, or alternatively concluding that any such pain was not causally related to the earlier accident. It is not clear which of these two approaches was adopted.

In our view it is likely that, notwithstanding the ultrasound evidence that the tear had resolved itself, the appellant continued to experience some pain as a result of the accident even though there may have been a psychological component to the causation of that pain. It was sufficient to warrant attendances at her general practitioner and referrals for further investigations. It is not possible, on the evidence, to make a more specific finding than that.

So far as the appellant’s psychological condition is concerned, there can be no doubt that the discovery of the DVT overwhelmed any ongoing physical or psychological cause of pain arising from the fall. The significance of that diagnosis was made clear by the evidence of the appellant’s husband referred to at [66] above. Having regard to the intervention of the DVT, the psychological consequences of it and the existence of the unexplained “post thrombotic syndrome”, it is not possible to conclude on the balance of probabilities that the physical effects of the fall extended beyond the discovery of the DVT. As a consequence, the date of diagnosis of the DVT provides a clear end date, more consistent with the medical records, for the award of damages that can be attributed to the fall.

The difference is a period of two months. Accepting the primary judge’s assessment of damages up to 15 November 2017 at $15,000, given the limited evidence related to the period from 15 November 2017 until 12 February 2018 it is appropriate to increase the award of general damages to $20,000. Having regard to the fact that the damage occurred in the period 23 September 2017 to 10 February 2018, interest on this will be $4000 ($20,000 x 4% x 5 years).

Applying the same formula as the primary judge to past domestic assistance, but for 14 weeks, instead of seven weeks, the result is $2,024. Interest on this calculated at Court Procedures Rules 2006 (ACT) rates will be $485.

Out-of-pocket expenses should also be increased to take into account the additional period up until the DVT. Exhibit E before the primary judge indicates that an amount of $800 inclusive of interest is appropriate.