Carnemolla by her tutor Carnemolla v Arcadia Funds Management Limited

The duty of care the defendant owed the plaintiff

1. The defendant's duty of care, the contents of which are not in dispute, is a duty owed to all entrants at the business premises, namely to ensure that the premises are safe and free from any foreseeable risk of harm which was not insignificant. This duty extends to ensuring that the floor of the corridor leading to and from the areas designated for the male and female toilets (as well as for a changing room and the cleaners' equipment) was safe to be traversed. There was no submission of any special duty owed to persons with disabilities (Town of Port Headland v Hodder (no 2) [2012] WASCA 212 at [55]).
2. The plaintiff told the cleaning staff who were called to assist her that she had slipped on water on the floor in the area immediately in front of the female toilets. Issues of foreseeability, risk and breach of duty are pleaded on the basis of water being on the floor and as not having been obvious to the plaintiff by reason of the nature of the liquid on the floor and the absence of signage. The risk of water accumulating at the entrance of the female toilets, thereby causing the risk of slipping, is asserted to be reasonably foreseeable and the risk of the harm to the plaintiff from resultant injury in such circumstances is not insignificant.
3. The particulars of breach of duty of care pleaded in the statement of claim were drafted with a broad brush. At the conclusion of the hearing, the parties agreed that only six of the particulars pleaded were relied upon. These are: 1. Exposed the plaintiff to a risk of damage or injury of which the defendant knew, or ought to have known; 2. Failed to take any, or any adequate precautions to prevent the injury to the plaintiff; 3. Failed to take any, or any adequate precautions for the safety of the plaintiff; 4. Failed to keep the said premises in a clean state at all times; 5. [not pressed]; 6. [not pressed]; 7. [not pressed]; 8. [not pressed]; 9. [not pressed]; 10. Failed to provide a proper and adequate floor surface to ensure that even when liquid was split on the floor surface; [sic] it would not pose a risk to the plaintiff; 11. [not pressed]; 12. Failed to identify the risk of water being traversed from the floor of the female toilets to the entrance of the toilets; 13. [not pressed]; 14. [not pressed].
4. The defendant denies that there was any water on the floor. In paragraph 7 of the defence, the denial is further put on the following bases: "7. Further and in the alternative, the Defendant says that: (a) the Defendant was not guilty of negligence, as defined in the Act; (b) the Defendant was not negligent in failing to take precautions against risk of harm to the Plaintiff in respect of the matters pleaded in the Statement of Claim, by reason of the provisions of s 5B(1) and (2) of the Act and s 5C of the Act; (c) any injury suffered by the Plaintiff is not causally connected to the acts or omissions of the Defendant as 'causation' is defined by s 5D of the Act; (d) any risk of injury to the Plaintiff from allegedly slipping on water as she exited the common area bathrooms was an "obvious risk" as that expression is defined by s 5F of the Act and no relevant duty therefore existed to warn of that risk pursuant to s 5H of the Act. (e) any duty of care the Defendant is found to have owed to the Plaintiff (which is not admitted) was wholly discharged by engaging Asset Cleaning Services Pty Limited as a specialised, independent cleaning contractor."
5. The defendant pleads contributory negligence as follows: "5. As to the whole of the Statement of Claim the Defendant says that if any damages were suffered by the Plaintiff as alleged (which is denied) they were caused or contributed to by the Plaintiff's own negligence. PARTICULARS OF CONTRIBUTORY NEGLIGENCE (a) Failing to take any or any proper care for her own safety; (b) Failing to watch where she was walking; and (c) Failing to keep a proper lookout."
6. As was the case with the plaintiff's pleadings, not all of these issues were raised during the hearing. The defendant's case was that there was no water on the floor, not that it was an "obvious risk". The basis upon which a s 5D defence was pressed was unclear, as Mr O'Dowd conceded that his challenge to the plaintiff wearing thongs as being causative of the accident was essentially a matter for contributory negligence. The central issue in the proceedings was whether any duty owed by the defendant to the plaintiff was discharged by the defendant delegating the cleaning tasks to the cleaning company, Asset Cleaning Services Pty Limited, including a requirement that cleaning rotations occur at intervals of not more than 15 minutes for common areas and not less than 20 minutes intervals for bathroom facilities. The adequacy of those delegated tasks was conceded by the plaintiff. The reliance upon the arrangements for cleaning was relied upon by the defendant pursuant to s 5D of the Civil Liability Act 2002 (NSW) (see paragraph 6 of the defendant's statement of issues).
7. As to quantum, the issues identified by Mr Sheller SC were as follows: "QUANTUM 8. The extent to which the plaintiff's injuries and ongoing disabilities are causally related to any act or omission of the defendant. 9. The nature and extent of the Plaintiff's injuries, and the ongoing disabilities claimed to have arisen from the Plaintiff's injuries. 10. The nature and extent of the Plaintiff's pre-morbid medical condition and whether the Plaintiff's ongoing medical problems are a consequence of these problems as opposed to any effect from the alleged fall. 11. The quantification of damages, in particular but not limited to: (a) Quantifying the Plaintiff's claimed entitlement to non-economic loss damages and the extent to which such damages are causally related to any act or omission of the defendant; (b) The nature and extent of the Plaintiff's alleged past and future requirements for care; and whether such expenses were and will be causally related to any act or omission of the defendant; (c) The nature and extent of the Plaintiff's alleged past and future out of pocket expenses and the extent to which such expenses were and will be causally related to any act or omission of the defendant." (Defendant's Statement of Issues).

The facts in dispute

1. The facts in dispute have been helpfully summarised by Mr Sheller SC as follows: 1. The mechanism of Ms Carnemolla's fall at the Defendant's premises on 29 September 2016 (12:23pm) ("the fall"). 2. The cause of Ms Carnemolla's fall. 3. The nature of the surface of the floor at the time of the fall. 4. If the fall was caused by the floor being wet, the capacity of the floor to be safe for walking on when wet. 5. How safe the floors were generally? 6. The knowledge of the Defendant concerning the safety of its floors. 7. What cleaning was undertaken immediately following the fall which obscured or removed what had previously been on the floor. 8. The capacity of those in attendance to inspect the floor in circumstances where the Ms Carnemolla's injury meant that she could not move or be moved for close to two hours following the fall. (Plaintiff's Schedule of Facts and Issues in Dispute)

Documentary evidence relied on by the plaintiff

1. The plaintiff, whose evidence is set out in detail below, was by herself when she attended the female toilets. Her difficulties in giving evidence mean that it is best to start with the contents of the Neeta City Liability Incident Report (Exhibit C, which was tendered by the plaintiff after I granted her leave to reopen her case to do so; a challenge to the tender of the document was withdrawn (T 110)).

The contents of Exhibit C

1. Exhibit C, the Liability Incident Report is a computer-generated document which contains a number of "dropdown" boxes. Page 1 records the time of the incident and the fact that there were no witnesses; page 2 describes the personal injury details.
2. Relevant information on page 1 includes that the location in question had last been inspected by a cleaner named "Rajdeep" at 12:10:33, about 12 minutes before the plaintiff's accident (at 12:22pm). The cleaning supervisor on duty that day was Pankaj Katyal. Rajdeep reported the plaintiff's fall to the supervisor approximately a minute after it occurred (at 12:23pm; see page 10 of Exhibit C).
3. The following description of the accident is then set out: "On Thursday the 29/09/2016 at approx. 12:23 I was contacted by C2 Rajdeep over the two way radio to attend the Food Court Amenities in Relation to a Slip and Fall incident. Upon my arrival I saw a lady sitting down in the Corridor, The lady is now known as Mrs. Lisa Carnemolla. Mrs Carnemolla stated to me that she was walking out the corridor and she slipped in the corridor over a water spillage. I then inspected the area but was unable to locate any wet or dry contributing factors that may have been involved in Mrs Carnemolla slip and fall incident. I also looked for any skid marks but was unable to identify or locate any marks. At the time of incident Mrs Carnemolla was wearing Thongs and was also wearing prescription spectacles. I then asked if she has any relevant injuries or medical history that we should be aware of she stated that she has depression and that she has taken respirodone active and panadol this morning. I then asked the POI if she is okay. She stated that "I was walking out from the toilets and I slipped on the water. I fell on my left knee breaking the falling by hitting my left knee which made the crack sound when it hit the terrazzo" she also stated that she "I have a lot of pain in my knee and that I cannot move." She also asked me that [sic] what is going to happen and I then stated that paramedics will asses [sic] her and will take her to hospital if required. I then provided her with an ice pack for the alleged injury location to help her prevent any inflammation. At this time myself and S1 Moustapha Morris put the food court toilets to lock down to prevent any trip and falls and further injuries to the POI as she was on the ground. I and S1 advised her to sit on the chair if she can but she denied stating that she cannot sit on a chair as she was unable to mobilise. NSW paramedics were then informed by S1 at approx. 1227. While I was waiting on paramedics POI's brother and Mother arrived. The brother was wearing a purple jumper and was persistent that there was water on the ground. He also stated that he used to be a cleaner for company called Harrison from Belmore and that the floor needed to be mopped. At approx. 1325 the POI took a panadol herself but she was informed beforehand that not to eat or drink until paramedics arrive and advice to do so otherwise. At approx. 1340 NSW paramedics were given another courtesy call for E.T.A. At approx. 1420 she agreed to sit on the chair as per her mother's advice. I then went to CMO to get the wheel chair so that we can open up the toilets again and move her to better location. At appro.x 1430 NSW paramedics were on site. At approx. 1445 were off site in VAN no. 1825 and stated they are probably going to take the POI to Fairfield hospital. CCTV Footage is non-conclusive due to fixed positioning of the cameras and obstructions."
4. The area of the fall was described as "clean and dry" (page 12); the notation "floor was dry" appears lower down on the same page. It was noted that it was raining at the time of the incident (at page 12) and that the plaintiff was wearing thongs (page 12).
5. The injury type was described as a "bruise", although described in more detail in the longer version of the report. Liverpool Ambulance was called at 12:26pm. Unfortunately, the time of arrival of the ambulance at the scene of the incident was not until 2:30pm, two hours later. Mr Sheller SC submits that this is of significance in terms of the discovery of whether or not there was water on the floor, in that the plaintiff was lying propped against the wall for more than two hours after the incident in question, in circumstances where he submitted that this could have impeded discovery of the water.
6. Photographs were taken of the manner in which the plaintiff's legs were placed at the time of the fall, as well as of the thongs she was wearing (pages 7 and 8 of Exhibit C).
7. The following additional information was set out: 1. In answer to the standardised question "Were there any wet or dry contributing factors that may have be [sic] involved", the box for "No" was ticked. 2. In response to the standardised question "Please state what was found", the dropdown box "Nothing" was selected. 3. However, the answer to the question "Was the area cleaned before your arrival if yes by who" was "No", from which I assume that what is intended to be conveyed is that no cleaning had occurred when the area was last inspected at 12:10:33. 4. The injury is described as being "significant", as "Yes" was ticked against the question "Did the Injured person walk away with any significant sign of injuries", although there is a notation that the injury was a "bruise". It is noted that the ambulance was called and that she was taken to hospital. The answer "Bruise" probably has more to do with the limitations of the dropdown boxes than any other factor. 5. The location of the incident is recorded (page 4) as having occurred at "GL Food Court Amenties [sic]". A list headed "Type of Incident" gives a series of items such as "Chips", "Beverage", "Steps", "Inadequate Lighting" and "No Apparent Reason" (the box which has been ticked). 6. The next series of entries is important. In answer to the question "Was the injury contributed to the following", the box "Yes" has been ticked and the word "Terazzo [sic]" has been selected from the dropdown box. In addition, the box for "Other" has been ticked and the word "Teazzo [sic]" was recorded. I infer from this that there are two dropdown boxes and that the word "Teazzo" [sic] also can be filled in manually when the box "Other" is ticked. (I note that this has not occurred, however, in relation to the next question, which is whether there had been a "Stepping on or Strike Against" incident). The box for water damage is similarly ticked "No". The type of floor surface is noted as being "Terazzo [sic]". 7. The plaintiff is described as having been "Reasonable" (as opposed to "Upset" or "Aggressive") and add "Whats [sic] is going to happen now?". 8. The plaintiff's reference to water is recorded on page 6 as follows: "She stated that "I was walking out from the toilets and I slipped on the water. I fell on my left knee breaking the falling by hitting my left knee which made the crack sound when it hit the terrazzo" she also stated that she "I have a lot of pain in my knee and that I cannot move."."" [This is a direct cut and

The Notice to Admit Facts

1. By way of answer to a Notice to Admit Facts, the plaintiff admits: 1. That as at the date of the plaintiff's accident, the Defendant had engaged Asset Cleaning Services Pty Limited to undertake cleaning duties at the Centre; 2. As can be seen by the contractual documents and cleaning specifications, the system employed was a rigorous system, and no criticism has been made in any evidence called by the Plaintiff as to the effectiveness or adequacy of that system; 3. As at 29 September 2016, the cleaners were required to observe a 15 minute loop of all common areas, and a 20 minute loop for all amenities; 4. The plaintiff fell at approximately 12.22pm on 29 September 2016; 5. That the area where the plaintiff fell was last monitored at 12.10pm on 29 September 2016; 6. The area where the plaintiff fell was part of the common area of the centre; 7. That a 15 minute loops for monitoring/inspection was an adequate system of cleaning for common areas.
2. I also note that the plaintiff's subpoenaed the defendant's records requiring it to produce documentation in relation to all incidents involving slips and falls in the shopping centre. It is agreed that there is no prior instance of a slip or fall in the corridor in question being recorded by the defendant.

The discharge summary

1. Mr Sheller SC drew my attention to the reference to the plaintiff having a slip in water set out in the hospital discharge referral dated 5 October 2016: "ADMISSION SUMMARY Presenting Problems Falls PRINCIPAL DIAGNOSIS Displaced left patellar fracture ORIF Summary of Progress Dear Doctor, Thank you for your ongoing care of Ms Lisa Carnemolla, a 36 year old female who underwent an open reduction and internal fixation for a displaced fracture of her left patella. HPI: Mechanical fall - slipped on water Injury to left knee Not able to weight bear since fall Did not hit head, no LOC Denies other injury B/G Depression Migraines Bipolar Schizophrenia Asthma"
2. This is the only treating report referring to water as a reason for the slip. The source for this information is unknown.

The plaintiff's oral evidence

1. It was agreed between the parties that the constellation of medical issues which requires the plaintiff to be represented by a tutor is of significance when considering her ability to give evidence. She was able to give some parts of her evidence with very careful accuracy but it was my observation that she did not understand some of the questions she was asked. In addition, although she answered truthfully, at times her answer was in conflict with undisputed evidence. I have set out examples of these problems below.
2. The plaintiff described how after leaving school in Year 10 she went on to a disability pension on which she has remained ever since. She has never worked. She described her daily social activities prior to the accident as follows: "Q. Before the fall, did you used to go out at all? A. Before I had the accident, I was going out to the shop before I had the accident in the leg. … Q. Did you used to go there by yourself? A. I went by myself when I didn't have the kneecap operated." (T 17)
3. These outings formed a very important part of the plaintiff's way of life. Apart from these activities, she remained at home with her family, or walked to the local park or shops.
4. The plaintiff's inability to answer "time" questions as to before and after the accident can be seen by the following answer: "Q. Did you used to go to the park nearby before the accident? A. The park. Before the accident I couldn't do anything. I had to stay at home most of the time..(not transcribable)..all my pains and falls and accidents, and I couldn't do much." (T 19)
5. She had similar difficulties with answering the precise questions when describing the accident as the following shows: "Q. And once you were in the shopping centre, did mum go off and do some shopping? A. She had to go to the food shop and when she came back out of the food shop and she asked my brother - my son who is four, and he said that, "Where is Lisa", and she saw me on the floor and I was in a lot of pain." (T 20)
6. I have taken into account the limitations on the plaintiff's understanding of the issues and have interpreted them as generously as I can.
7. Mr Sheller SC led the plaintiff through a number of questions about the day in question. At T 20 line 44 to T 21 line 2, the plaintiff was asked: "Q. Once you were inside the shopping centre. A. That's correct. Q. And I think you've told us before, and I think it was by reference to the day you fell, that Paul might have gone upstairs a level, and I'm not sure if you said this, but it would help us. Why did he go upstairs do you think? A. Because there was a - I said to mum, "But I'm quickly going to the toilet", and it was an emergency. And then I - after I finished hit my hands and washed my hands, I came out. I felt something under my feet and I fell."
8. This is inaccurate, as the plaintiff's mother was not with her at the time she found she needed to go to the toilet. This is an example of how the plaintiff's answer needs to be seen in light of her other difficulties. This is also an answer of some significance, as saying the plaintiff "felt something under my feet" is the closest the plaintiff came to describing how it came about that she fell.
9. Mr Sheller SC led her through what happened as follows: "Q. And is it right, and I think again you've started telling us a bit about this, that you went to the bathroom? A. Yes. Q. And is this right, the bathroom you went to is near the food court? A. Near the food court. There was the one male bathroom and one baby change room, and the women's was next to it. Q. See if this is right, that when you went off to the toilet you had to go down a corridor, and you saw the men's toilet. A. Yes, I did. Q. And as you get close to the men's toilet you need to turn to your right to go down another corridor where the women's toilet is. Does that sound right? A. Yes, that's correct. Q. I think you've described this. You had some urgency to go to the toilet on that occasion. Is that right? A. Yes, that's correct. Q. And you went into the toilet, and you were able to go to the toilet and then wash your hands. Is that right? A. That's correct. Q. Then do you remember coming out of the toilet? A. I came out of the toilet and I felt something under my feet, and I slipped. Q. Now, can you remember whether the toilet - whether there was a door that you had to open to go in and out of that women's toilet? A. Well, when I opened the door it had a handle. Q. So you think there might have been a door to go in and out. A. A door handle to pull. Q. Do you think this is right, that you pulled the door open‑‑ A. Yes. Q. ‑‑and then went out? A. That's correct. Q. Now, you've described how you felt something under your feet and then you slipped. Do you know once you'd left the toilet how many steps you might have taken before you felt something under your feet? A. The only thing I remember was one metre apart. Q. One metre apart. A. Yes. Q. That's your memory. All right. Now, do you remember that you were back in that corridor‑‑ A. Yes. Q. ‑‑which leads to the women's toilet? A. Yes, that's correct. Q. Then once you slipped over, did you land on your backside? A. I landed on my back, and then I fell. Q. So do you feel like you - is this a fair description, you fell like you landed on your back, and then sort of went to one side? Is that right? A. That's correct. Q. After you have fallen do you remember saying anything or shouting or screaming? A. I - when my brother was there I said, "Excuse me, anyone there to help me". The cleaner wasn't there so after the cleaner came later and the man, the other cleaner came later too." (T 21-22)
10. This cannot be right, as the plaintiff's brother was not present. Once again, the plaintiff has said that she felt something under her feet but has not identified what it was.
11. Mr Sheller SC asked at T 22 line 47: "Q. And is this right as best you recall, at the time you fell there was no‑one nearby, there was no‑one next to you or visible? A. No‑one was there when I fell but afterward I thought the people at the side of the - the other side, they told me to..(not transcribable)..two security guard and one cleaner. Q. So you think that after you fell you called out, someone came. A. Yes. Q. After you fell, you called out, someone came, and then you remember other people coming, security, or a cleaner. Is that right? A. That's correct. Q. Can you remember how you felt after your fall? A. Well, after when I had that fall I was in very bad - in a lot of pain. I was crying and - and I - I had my leg like this." (T 22-23)
12. The plaintiff had some difficulty describing how her legs were placed, and the preferable course for me is to accept what is shown in the photographs. She said her left knee was hurting and she told the security guards or cleaners who came up to speak to her. Mr Sheller SC asked at T 25: "Q. Was it long after you fell or within a couple of minutes? A. Just a few - a few minutes and I fell, before the two - two cleaners came afterwards and they told me that - that we had to call the ambulance on that same day after three hours."
13. Again, this shows the plaintiff conflating events. The cleaners did in fact say that they had called the ambulance and appear to have explained to her that there was some delay. I prefer to accept the version set out in Exhibit C.
14. The reason the plaintiff remained in the position where she had fallen, although with her back propped up against the wall, was as follows: "Q. ‑‑in your left knee, do you remember the security guards or the cleaner talking to you there straight after the fall? A. Well, the lady came up before then, after I had that fall. She said to me, "Don't let anyone come around here because you're in a bad position." Q. So you remember someone saying you were in a bad position‑‑ A. And they had to‑‑ Q. ‑‑and no-one is going to come around you. A. ‑‑to make sure the customer doesn't come through the doors again. Q. Make sure the customers don't come through. A. That's correct." (T 25)
15. The plaintiff was asked if she told the cleaners or the security guards what had happened. The plaintiff answered as follows: "Q. Do you remember anyone saying to you, that's amongst the cleaners or the security guards, what had happened, or asking you what had happened? A. Well, they said to me, "What happened? Are you okay? Can you speak?" and I said, "Well, I'm in a lot of pain." I was crying and - and I was emotional. Q. What was the last thing you remember? A. I was‑‑ Q. Sorry. The last word you said. A. The last words I said, "I was very bad emotion." Q. "Very bad emotion." Do you recall saying anything about what had happened to you, how you'd fallen? A. Well, I don't remember exactly what happened. Q. You don't remember saying or having a discussion about what had happened. A. No." (T 25-26)
16. The plaintiff described the ambulance arriving: "Q. Did the ambulance come at some stage? A. The ambulance came straight - straight away afterwards, they came towards the - the - the ambulance came in and they told me that I had to go straight to the emergency - the emergency room." (T 26)
17. Again, this is incorrect, in that what the plaintiff is describing is clearly not what happened. The ambulance did not come straight away; it was delayed for more than two hours.
18. The plaintiff's cross-examination (commencing at T 31) was brief. The plaintiff was not asked any questions about the mechanics of the incident. In particular, she was not asked about feeling anything under her feet, slipping in water or her conversations with the security guards or cleaners. This is not a criticism of the cross-examination; Mr O'Dowd was under no obligation to do so where the plaintiff had failed to identify water as the reason for the fall and had said she was unable to remember her conversations with the cleaners or security staff.
19. The plaintiff was asked about her injuries and disabilities (T 31-34). She said at T 33: "Q. You told him that you had got back to getting out and about around home, and to the park on your own by then. Correct? A. That's correct. Q. Have you gone to any of the places you used to go yet, or‑‑ A. I'm starting slowly this time now, because I know every time I look at my leg I feel - it's going to be the rest of my life like this. HER HONOUR Q. Sorry, did you say, "It's going to be the rest of my life to be like this"? Is that what you said? A. With my neck - with my leg. Q. I understand. A. It's broken and broken all the time." (T 33)
20. Mr O'Dowd asked at T 34: "Q. And when you used to get the bus and the train to Manly, how far away is the bus stop from the house? A. About five or ten minutes. Q. So you think you can now walk to the bus stop? A. You have to..(not transcribable).. Q. Sorry? HER HONOUR Q. Sorry, just say that again. A. If I get the..(not transcribable)..I'll be able to go back again. Q. If the wind is blowing-- O'DOWD: No, if she gets the case to win, she'll be able to go back again. HER HONOUR: I'm sorry-- O'DOWD Q. So after the case is finished, you'll be able to go back and do that again. Is that right? A. Yes. Q. So you're waiting for that to happen before you back to your usual activities? A. That's correct." (T 34)
21. Answers were at times difficult to follow as is noted on T 35 where Court Reporting Services contacted the court to say they were having difficulties with the plaintiff's evidence and in particular the line "If I get the case to win". Fortunately, these were all able to be resolved. The plaintiff did indeed say "If I get the case to win."

Mrs Carnemolla's evidence

1. Mrs Carnemolla was not present when the plaintiff (hereafter "her daughter") fell, but was called to the scene by her son shortly after it occurs. As noted above, her son suffers an intellectual disability. He was not called as a witness.
2. In examination in chief, Mrs Carnemolla had the opportunity to describe what her daughter told her about the fall: "Q. What did Lisa say, anything about her knee once you'd seen her and had an opportunity to talk to her? A. Well, as soon as I saw her I said - I asked her what happened. She said, "I slipped. I fell. My - my - my foot is - my knee is very - my leg", she said, "Is very sore." And I said, "Can I help you up?" and I was trying to help her up because I just got the thinking I'll try. She goes, "No, no, no, don't touch me. I - I can't move."" (T 42 - 43)
3. Mr Sheller SC then asked: "Q. So when you saw her, you asked her what happened. She said she slipped, she fell, and that her left knee was hurting. A. Yes. Q. You tried to A. Help her up." (T 43)
4. Mr Sheller SC then asked about about conversations Mrs Carnemolla with her daughter and also with security guards: "Q. In any event she said that she couldn't - what did she say to you when you tried to help her up? A. She said, "No, no, don't touch me. I - I - I can't move. I'm really sore." Q. I think you mentioned seeing three security guards in the area. Is that right? A. Yes, they were standing just near - nearby. Q. Are they people that you had seen around the shopping centre on other occasions? A. Yes. Yes, I have. Q. Did any one of those security guards have a discussion with you? A. Yeah, I - Q. Just would you answer that? HER HONOUR: Answer yes or no. SHELLER Q. Did one of them have a discussion A. Yes. We did talk. Yes. We did talk. Q. Was that with one, two, or all three of the security guards? A. No. Just one. One. Q. And do you remember who spoke first between you and that security guard when you had your discussion? A. No, I can't remember. Q. You can't remember. All right. Do you remember what you said to the security guard? A. I remember him telling me that -[OBJECTION] [QUESTION WITHDRAWN] Q. Can you remember what you said to the security guard? A. I can't remember who spoke first. Q. Do you remember yourself saying anything to the security guard? A. Yes. I did ask what happened. Q. And do you remember the security guard saying something about - saying something to you. A. Yes. He'd said that she had a fall." (T 44 - 45)
5. Mrs Carnemolla then described a cleaner coming to the scene: "Q. Do you remember there being some discussion about an ambulance being called? A. Yes. Q. Now, from and do you remember that it took some - a long time for the ambulance to arrive? A. Yes. Q. And do you remember that while you were waiting for the ambulance, however, long it was that Lisa remained in that same position? A. Oh, yes. She never moved. Q. Now, in addition to the security guards - the three that you've said you saw, did you see any cleaners at any point in time? A. I only saw a female cleaner come inside around us. She went to the toilets. Came back out and just walked out. Q. So was that - when you say A. She didn't do anything. She just came" (T 45)
6. Mrs Carnemolla described waiting two hours before the ambulance came, after which she took her son home: "Q. When you actually went down the corridor to start with - the first corridor in order to get to where Lisa was, was that area blocked off? A. It was, yes. Q. Can you remember how it was blocked off? A. It had the sign up. Q. You're making a triangular A. Slip - yes. Q. thing. A. And plus there was some - I think it could have been another security guard. If anybody tried to go in there and saying I'm sorry you can't - got to use another toilet. Q. So you saw the security guard talk to A. Nobody was allowed to walk into that. Q. That was your observation that no one was allowed there? A. From - yes. Q. Now, you remember the ambulance coming? A. Yes. Q. And the ambulance took Lisa away? A. They did, yes. Q. Now, you didn't travel in the ambulance to the hospital, was that right? A. No, I did not. Q. You took Paul home? A. I did. Q. To collect your husband. A. Sebastian." (T 46)
7. This was the full description given by Mrs Carnemolla of her observations concerning her daughter's accident. The word "water" does not appear anywhere in her evidence in chief.
8. Mrs Carnemolla was cross-examined about the degree to which her daughter suffered ongoing disabilities. In particular, she was cross-examined about her daughter's frank statements to the court that she would resume her independent activities as soon as the court case was over. She initially resisted, in cross-examination, that her daughter was able to move around more or less as well as before the accident, but eventually conceded that apart from having trouble with steps (which she said her daughter went up and down in a sideways action: T 63), her daughter was able to visit the park and local shops. She acknowledged that she was aware of disability options for travellers on public transport and buildings.
9. In the course of cross-examination, Mrs Carnemolla conceded that much of her concern for her daughter relates to her pre-existing conditions: "Q. You've agreed that she's pretty well fine on level ground. Correct? You've agreed with that? A. Yes. Q. So, for example, if she went to Bondi and she walked on the footpath, she would be okay to do that, wouldn't she? A. Yes. Q. And if she went even to the ferry, she walked up on the gangplank on the ferry and got a ferry to Manly, she could do that? A. Yes. Q. And she could walk up the Corso at Manly and sit at the beach and look out at the ocean? A. Yes. Q. That's the sort of thing she used to describe to you that she did before, isn't it? A. Yes. But the minute she gets to the stairs, she stops. Q. She takes her time and she's very careful. Correct? A. She doesn't take the steps. Q. Of course, you've been, if I can put it this way, a wonderful mother. I'm not just trying to be overly complimentary. You've got a couple of children who you spend a lot of time taking care of. A. Mm. Q. You have a lot of concern for your daughter, of course. A. Yes, of course. Q. And you are, after this accident, very concerned about anything else happening to her. A. Exactly. Q. I'd like to suggest to you that it's your daughter's intention that once this case is over, she's going to go back to those outings. That's her mind. A. That's her mind, but it's not mine. Q. So you might tell her not to, even if she wanted to. Correct? A. To my judgment, the way I see her do the stairs, I do not trust her on her own." (T 67)
10. Mrs Carnemolla also acknowledged that her daughter was able to help with household tasks such as making her own bed, although adding "not as before" as a proviso to the performance of these tasks (T 68 - 69).
11. As a witness, Mrs Carnemolla presented as truthful and as being aware of her obligations to assist the court, but also as a mother whose lifelong concerns about her children's long-term disabilities operated as a kind of magnifier of the problems her daughter faced in the long term. Her apprehension in this regard is understandable.
12. However, Mrs Carnemolla's inability to recall and describe any reference to the plaintiff saying she had slipped on water, or that the security guards had said or done something in this regard, means that I am deprived of any evidence of what happened in this regard by the only lay witness called for cross-examination in the plaintiff's case. This creates problems not only in relation to her own evidence, but also in relation to the facts as assumed by the expert called by the plaintiff, Mr Burn.

Mr Burn's expert report

1. Mr Burn's report of 6 November 2018 describes a visit to the site of the accident on 28 August 2018.
2. Mr Burn's report may be summarised as follows. He first notes (page 1) that the plaintiff slipped and fell opposite the cleaners' cleaning room closet while traversing the corridor leading from the female toilets, but without referring to the cause of the fall. He next sets out that this corridor is surfaced with 400 mm square terrazzo floor tiles (p. 3). He then sets out information from his own observation and experience of this shopping centre (nearly all of these passages were either objected to or, in the case of the cleaners' activities, not read).
3. Mr Burn then makes observations about the visibility of water spills, noting that while the terrazzo tiles have a sufficient coefficient of friction when they are dry, they do not have this when wet, and that the coefficient of friction for the wet terrazzo tiles used for flooring in the defendant's premises is well below that which is safe (see figures 14 and 15). The balance of the report is an analysis of statutory obligations which was not referred to by the parties.
4. Mr Burn was cross-examined and made significant concessions in relation to the appropriateness of the terrazzo tiles.

Analysis of Mr Burn's report

1. Mr Burn's report suffers from significant defects. The first of these is that four steps to take to prevent injury are identified as follows: 1. Installing a floor with a coefficient of friction sufficiently high to aid in slip prevention; 2. Implementing a safe system of inspection; 3. Installing warning signs at eye level as to the hazardous nature of the floor surface; 4. Ensuring the cleaners do not allow spillage when using the cleaning cupboard.
2. It is unclear from the report whether one step would be enough (and if so, which), or all four of these are required, although the latter is the more probable. I note, however, that the plaintiff has conceded, in response to the Notice to Admit Facts, that there is a safe system of inspection, has withdrawn the claims about cleaners' spillage during submissions, and makes no claim of need for warning signs. This leaves the sole basis out of these four issues as being replacement of the terrazzo tiles. However, not only are the report's opinions based on the assumption that all four defects apply, but there are no costings or other recommendations in relation to the replacement of the terrazzo tiles in the corridor (or indeed in the shopping centre generally).
3. The next problem is that Mr Burn's assumption that the plaintiff slipped in water is not sourced to any direct statement by the plaintiff or her mother, although the plaintiff's mother was present when he inspected the floor (see paragraph 1 on page 1). His descriptions of the accident at paragraph 1.0(b) and 2.0 (last paragraph) do not refer to water at all. He refers to the Cleaners Report at the end of paragraph 3, but without indicating that the presence of water was refuted by those present.
4. In addition, Mr Burn's report does not provide expert opinion but merely a surmise, in that all he can say is that it was "more probable than not that contamination of the floor would occur" (paragraph 3(d), p. 7), in circumstances where the coefficient of friction was lower than acceptable, the area was more prone to spillage by nature of the toilet facilities, there were no warning signs and where cleaning (when the cleaner came past at 12.10 pm) may not have occurred prior to the accident. Only the coefficient of friction issue survived the plaintiff's concessions but, if there was no water on the floor, Mr Burn conceded in cross-examination that the terrazzo flooring was appropriate.
5. Mr Burn's conclusions that the plaintiff more probably than not slipped in water are effectively ipse dixit (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59] and [87]), as opposed to demonstrating a nexus, established by exposed reasoning, between the relevant event and the "specialised knowledge" used to analyse it (Dasreef v Hawchar (2011) 243 CLR 588). (I will not set out the relevant principles of law concerning these difficulties, but instead note the helpful summary of the principles of this case as set out by Price J (as his Honour the Chief Judge of this court then was), in Roads & Traffic Authority of New South Wales v Barrie Toepfer Earthmoving & Land Management Pty Ltd (No 4) [2013] NSWSC 1420, citing Sackville AJA in Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [209].) This subject was addressed at length by Mr O'Dowd in his submissions.
6. The failure of the plaintiff to prove the facts underlying the opinion "deprives the Court of an important opportunity of testing the validity of the process by which the opinion was formed" (Makita (Australia) Pty Ltd v Sprowles at [72]), which accordingly reduces the value and cogency of the opinion evidence. As Heydon JA goes on to note, if the expert has been misinformed about the facts (such as whether there was in fact water), or taken irrelevant facts (in this case, the basing of opinion on signage and cleaning systems, among other issues), the opinion is likely to be valueless. Again, these issues were addressed at length by Mr O'Dowd.
7. Mr Sheller SC largely abandoned Mr Burn's report, relying essentially on the tables set out in figures 14 and 15, noting both the low result of the reading for the coefficient of friction and the "X" rating given to bathroom floors, which Mr Sheller SC submits should be similarly applied by me to the floors of the corridors leading to and from toilets.
8. The difficulty is that Mr Burn conceded (T 94) that the terrazzo floor was an appropriate surface, even for toilet bathroom systems, but added that this depended upon it being kept dry. If the cleaning system is conceded to be sufficient, that is the end of the matter.
9. A further difficulty I have with the expert's report, as with the lay evidence, is that, although the report prepared by the cleaners refers to the plaintiff saying she slipped on water, the cleaners' report is adamant that no water was found, an issue Mr Burn does not address. Mr Sheller SC invited me to find that the plaintiff may have been lying or sitting in the water, which could have dried in the two hours during which she was sitting on the floor with her back to the wall at the site of the accident. This is not referred to in Mr Burn's report at all.
10. As already noted above, there is no sworn evidence of any water being on the floor, either from the plaintiff's evidence or that of her mother. There is evidence from the cleaner's report that the plaintiff said she had slipped in water, but that no water was to be found. Mr Burn does not refer to the plaintiff or her mother providing him with information that the plaintiff slipped in water, let alone might have been lying in it for up to two hours.
11. In conclusion, Mr Burn's report is merely surmise that it was more probable than not that the plaintiff slipped in water, without exposing reasons for this, in the absence of such evidence being proved by the plaintiff at trial (let alone the categorical denials set out in Exhibit C). His report is of no assistance to the plaintiff.

Has the plaintiff discharged the burden of proof?

1. Mr Sheller SC submits that there was sufficient evidence of there being water on the floor upon which the plaintiff slipped. He acknowledged that neither the plaintiff nor her mother referred to slipping in water, but referred to Exhibit C and to the hospital discharge summary (Exhibit A), which described the plaintiff as having slipped in water.
2. I am satisfied that the plaintiff slipped, and that she said to the persons attending her shortly after her fall that she slipped in water, but I am not satisfied that there was in fact water on the floor.
3. The first, but least important, reason is the absence of such a description by the plaintiff and her mother. I take into account, in relation to the plaintiff, her significant difficulties in giving evidence, but note her ability to answer other questions of at least equal difficulty not only carefully but also precisely. It is, however, noteworthy that the plaintiff's mother also failed to refer to water. It would appear from Mr Burn's description of his instructions that assumptions are not based on any statements from the plaintiff or her mother, but upon the denials of water set out in Exhibit C.
4. As to the documentary evidence, I note the statement in the hospital discharge summary notes is unsourced. There is no other reference to the plaintiff having slipped in water other than in the medico-legal reports, which have resulted from letters of instruction from solicitors and were agreed to be read conformably with the usual restrictions for medico-legal evidence of factual matters of this kind.
5. Mr O'Dowd submitted that there were other reasons why the plaintiff could have fallen, such as a misstep or the fact that she was wearing thongs. He did not, however, cross-examine her about these, so I treat these submissions with caution. I have similarly treated his submissions about the absence of evidence of other falls in this area with caution.
6. There is no doubt the plaintiff fell, and fell badly, and that she told one or more of the defendant's servants and agents who came to her assistance of this, with the result that they endeavoured to ascertain this themselves. I also accept that she said that she "felt something under my feet and I fell" (T 20). However, that is as high as the plaintiff's evidence goes and that is insufficient to establish that she fell because she slipped on water.
7. In the event that I have erred in making a positive finding to this effect, I make the following alternative findings. Where there are conflicting inferences of equal degree of probability, and the choice between them may be a matter of conjecture, the burden of proof may simply not be discharged.
8. The correct approach in such a case is set out in Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198. The facts in that case were that a bus passenger slipped on a banana in the bus. The question was how the banana came to be there. The Court stated at [20]: "20 If partial eating and discarding of the banana be put aside, as I believe it should be, the judge's finding is undermined. Contemplating a full banana on the floor in the aisle, when and how on the probabilities did it come to be there? Deliberate discarding is unlikely; more likely, it slipped from a passenger's shopping. If the banana had been on the floor for any length of time, a banana not being likely to roll around and change its location, it might be thought that some other passenger would have come to grief; but whether or not that be so, the evidence did not in my opinion enable a finding that the banana was in the aisle for any length of time as distinct from being dropped by a passenger getting off ahead of the respondent at Cabramatta railway station. There was in short, a situation as spoken of by Dixon, Fullager and Kitto JJ in Luxton v Vines (1952) 85 CLR 352 at 358. The circumstances appearing in evidence did not give rise to "a reasonable and definite inference", but at most gave rise to "conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture".
9. In the present case, there is not even a banana; to the contrary, there is either no evidence at all or, at best, statements that water was searched for but not found.
10. Giving full weight to the submissions of the plaintiff in relation to the presence of water, in the absence of evidence that there is any water, it is not possible to reach a conclusion either way. In those circumstances, the court is not bound to do so, but may take the third course of finding that the party with the burden of proof has not discharged it: Kuligowski v Metrobus (2004) 220 CLR 363.
11. The New South Wales Court of Appeal considered these difficulties in Chen v Zhang & Ors [2009] NSWCA 202 at [47] - [65], albeit in relation to s 140 of the Evidence Act 1995 (NSW). In Chen v Zhang & Ors, the defendants' evidence was rejected for credit reasons, a far stronger basis for challenging the rejection of the plaintiff's case than is the case here, where there is effectively no evidence beyond the plaintiff's contemporaneous statement to the first person arriving at the scene and a hospital discharge summary.
12. Accordingly, if my finding that there was no water is wrong, I would alternatively hold that the plaintiff has not discharged the burden of proof that there was water on the floor and that this was responsible for her slip and fall.
13. Having made these findings, I set out my observations as to issues of liability under the statutory regime.

The relevant provisions of the Civil Liability Act 2002 (NSW)

1. The relevant provisions of the Civil Liability Act 2002 (NSW) are ss 5B, 5C and 5D: "5B General principles (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 ought 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. 5C Other principles In proceedings relating to liability for negligence - (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 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."
2. As to foreseeability, Mr Sheller SC submits that the accident was foreseeable because of the references to terrazzo tiles in the drop-down boxes. Mr O'Dowd objected to my drawing such inferences.
3. Examination of Exhibit C shows that its aim was to cover the areas of the shopping complex in a geographical and not merely a "foreseeable" sense. The reference to terrazzo tiles appears to be to the tiles covering the floor of the centre generally, not to the tiles in this particular area. Other references on page 5 include "timber", "bitumen", "vinyl", "garden" and "grass". I also note that there was no reference in Exhibit C to the corridor where the accident specifically occurred. There is a reference to "GL Amenities Food Court" but the words "corridor opposite cleaning of cupboard" have been added manually. This suggests that the other drop down alternatives would be geographical, in the sense that they would be other parts of the building, such as the Food Court or garden areas. The listing of these forms of covering and locations does not mean that the defendant foresees accidents in all of them, but rather that the form is designed to prompt proper description of the location.
4. It is clear that the form has been prepared for the purpose of reporting accidents, and that potential trouble spots are included. Some, however, are clearly in terms of location, such as "bitumen", rather than indications of specific "trouble areas". The plaintiff's claim that "terrazzo" must be seen as a "trouble area" asks me to draw too many inferences, particularly since the terrazzo tiles covered most if not all of the floor areas.
5. Another factor relevant to foreseeability is the absence of prior incidents. I accept the defendant's submissions that the absence of evidence of prior spillages or other slipping dangers is relevant to foreseeability under s 5B(1)(a). The absence of prior incidents is also relevant to s 5B(2).
6. Mr O'Dowd generally submitted, as to s 5B, that the defendant had discharged its obligation by a system of cleaning the adequacy of which was not challenged. In those circumstances, the only step Mr Burn could point to would be the replacement of the terrazzo, upon which there was no evidence as to costs: Mercouris v Westfield Shopping Centre Management Pty Ltd [1991] Aust Torts Reports 81-104 at [14]-[15]. What is also unclear is how many of the tiles Mr Burn is saying the defendant should replace - is it merely the corridor tiles, or also those in the toilets, or the mall's floor generally?
7. The absence of any reliable expert evidence capable of meeting the elements in s 5C is a significant difficulty.
8. As to s 5D, given my findings that the plaintiff slipped and fell in circumstances where she has not established that there was water on the floor, there could be no causation.

Contributory negligence

1. Contributory negligence was not addressed in the parties' statement of issues, or in Mr O'Dowd's oral or written submissions. When I inquired as to whether this claim was pressed, Mr O'Dowd identified the plaintiff's footwear (thongs) as the contributing factor.
2. A similar argument failed at first instance (coincidentally in relation to a fall in the same shopping centre, although at the time under management by a different defendant) in Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 at [30]-[31], [55] and [70]. The plaintiff in those proceedings was not only wearing pink thongs but walked past three warning cones.
3. The footwear claim was not particularised. Nor was it put to the plaintiff that her footwear was a factor in her fall.
4. Conformably with the view of the Court of Appeal in Wynn Tresidder Management Pty Ltd v Barkho, I would not have found contributory negligence to have been established.
5. Having made these alternative findings, I now make alternative findings in relation to the issue of quantum.

Quantum

1. By reason of my findings on liability, my observations as to quantum will be brief.
2. The plaintiff provided a schedule of damages claiming a total of $487,010: Head of Damage Amount Non-economic loss $247,000.00 37.5% of a most extreme case - Civil Liability Act s16 CLA ($658,000) Past out-of-pocket expenses including Medicare $1,910.00 (Medicare benefits are $768.65) Future out-of-pocket expenses $36,000.00 Past and future domestic care and assistance Civil Liability Act s15A $46,800.00 Past 18 months at 20 hours a week @ $30 per hour (30 September 2016 to 31 March 2018) Future domestic assistance $155,300.00 7 hours per week @ $30 per hour for 30 years Total: $487,010.00

1. The defendant provided a schedule of damages totalling $36,721: Non-Economic Loss - 20% of a Most Extreme Case $23,000 Past Economic Loss NIL Future Economic Loss NIL Past Out-of-Pocket Expenses $3,000 Future Out-of-Pocket Expenses $5,000 Past Gratuitous Care $5,721 Future Gratuitous Care NIL Past Paid Care NIL Future Paid Care NIL Total $36,721

Non-economic loss

1. Counsel for the parties agreed that there was little in dispute in relation to the medical findings, a surprising statement given the degree of difference between them in terms of the percentage of whole person impairment, as the above schedules demonstrate.
2. The assessment of damages for personal injuries in an action for negligence "is not an exact science" and "must always be governed by considerations of practical common sense in the context of the circumstances of the particular case": Van Gervan v Fenton (1992) 175 CLR 327 at 343 per Deane and Dawson JJ.
3. The plaintiff suffered a significant injury and underwent surgery, on 29 September 2016, for a comminuted displaced fracture of the left patella, and was discharged from hospital a week later with a walking frame. For the rest of 2016, she had considerable difficulty getting around and required assistance to the bathroom and shower as well as putting on clothes and other personal tasks.
4. The plaintiff had graduated from the walking frame to one stick by about February 2017 but by then had another problem, namely that one of the wires used in the repair of the fracture started to protrude painfully through the skin. After this was repaired, she still required the splint on her knee until the wires were removed. After that occurred, she commenced using a walking stick.
5. The plaintiff last saw her surgeon in July 2017 and, from that time on, has only consulted her family doctor for pain relief, which is essentially Panadol.
6. As is generally the case in such actions, I have received "a bundle of medical evidence expressing competing opinions… tendered without objection, with no oral evidence" and where different views are expressed as to the degree of disability (Wynn Tresidder Management Pty Ltd v Barkho at [103]). The principal views expressed are those of Dr Giblin (for the plaintiff) and Dr Harvey (for the defendant). For the reasons set out below, I prefer the views of Dr Harvey.
7. By early 2019, Dr Harvey reported (15 January 2019, p. 4) that the plaintiff was walking only with a slight limp and no longer required a stick.
8. The plaintiff is now able to walk on flat surfaces without difficulty but suffers from what Dr Harvey calls "loss of confidence" in relation to public transport. This was what the plaintiff also told the court, in that she was anxious using stairs and went up or down sideways, hanging on to the rail. While Mr O'Dowd stressed the availability of disabled access for public transport and many buildings, the locales the plaintiff liked to visit before the accident (especially parks and beaches) are constructed by nature, not by designers. In addition, I assume the plaintiff is unable to drive due to her other health issues, which means that she is more reliant on public transport or the kindness of others than would otherwise be the case.
9. The plaintiff has other disabilities, in that she also cannot kneel or squat. This would make some housecleaning tasks difficult or at least unpleasant.
10. In the short term, the plaintiff has suffered a significant knee injury which has not been entirely successfully repaired. She has required extensive assistance in the home from the time of the accident up until at least mid-2017, by which time she no longer needed to see her surgeon and was able to walk (albeit with a stick on most occasions) along flat surfaces, although with a limp and not for long distances. She can now manage without the stick, but has physical limitations in terms of the nature and duration of certain movements as well as a degree of apprehension about falls which is understandable in the circumstances.
11. In the long term, as Dr Harvey notes in his report of 19 September 2017, the plaintiff is likely to suffer osteoarthritic changes, which will be exacerbated by her weight issues (she has a BMI of 35) and for this reason Dr Harvey considers that the plaintiff may well come to require a knee replacement in 10 - 15 years time. However, that does not mean that the plaintiff will (apart from the period when she undergoes surgery) be significantly handicapped in this way for the rest of her life. There is no evidence before me as to the knee replacement surgery being likely to fail or to be risky.
12. I note the differing opinions of Dr Giblin and Dr Harvey set out in paragraph 4 of Dr Harvey's report of 15 January 2019. The plaintiff's evidence is that she is able to walk to the shops and park, distances Dr Harvey describes as "significant". I also note that the plaintiff's evidence on performance of housework was similar to the history extracted by Dr Harvey, namely that she was able to perform certain household tasks such as helping in the kitchen and washing up but not helping with the washing.
13. The estimates of non-economic loss given by the parties are very far apart. This is not unusual. In Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203, Letherbarrow SC DCJ noted that this is not uncommon, adding (at [47]) that in the proceedings before him that the defendant's schedule of damages was approximately 5% of the amount sought by the plaintiff. The difficulty is that where the positions taken are so far apart, the parties may lose the opportunity to assist the trial judge to arrive at an appropriate sum "in the context of the circumstances of the particular case" (Van Gervan v Fenton at 343 per Deane and Dawson JJ).
14. Having had the opportunity to observe the plaintiff in the witness box, I can understand that this accident has had a significant impact on her lifestyle as well as her health. I view her apparent admission that she plans to return to her normal lifestyle in context, namely the cautionary position taken by her mother. As a person with other health issues, the plaintiff's mobility is of key importance in her life. Viewing her evidence and endeavouring to reconcile the competing medical opinions, I consider an appropriate percentage is 30%.

Past and future out of pocket expenses

1. Past out of pocket expenses are agreed at $1,910.
2. The principal issue in relation to future expenses is the sum sought for future knee replacement surgery. The percentage of potential for this future surgery is largely agreed between the parties. Mr Sheller SC reduced this claim in the course of oral submissions to a figure of $15,000 - $20,000 while Mr O'Dowd revised his figure to an amount of around half these figures. Given the complexities of the plaintiff's medical condition I see the need to make allowances for additional expenses and would accept the estimate of Mr Sheller SC, although for the lower amount of $15,000. This would enable me to take into account the principles set out in Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146 at [153] and [166], about which I was not addressed.

Past and future care

1. The plaintiff's claim for past care is largely acknowledged by the defendant and the principal dispute is quantum. The plaintiff's vulnerabilities would in my view warrant a generous approach being taken. The amount proposed by the defendant is miserly. In the absence of analysis by the defendant of the sum sought by the plaintiff, I would award the sum sought for past care by the plaintiff in full.
2. The situation in relation to future care raises difficulties in terms of the requirement for supervision for the plaintiff. Such a claim is acknowledged in Van Gervan v Fenton, as Mr Sheller SC pointed out, providing a copy of this decision both to the court and Mr O'Dowd.
3. In Amaca Pty Ltd (under NSW administered winding up) v Raines; Seltsam Pty Ltd v Raine [2018] NSWCA 216, White JA (at [71]) raised a query as to the availability this head of compensation, stating that it may be arguable that, for the purposes of s 15(2)(b) that services by way of supervision or protective attention by their very nature cannot be capable of performance by the injured person and thus fall outside the net of compensable claims. The issue was not determined in Amaca Pty Ltd (under NSW administered winding up) v Raines; Seltsam Pty Ltd v Raine because it was not argued, despite White JA suggesting that one of the grounds of appeal might be wide enough to cover such a submission.
4. No such submission was raised in these proceedings so it is not necessary to deal with White JA's observations further. I would add, however, that the facts of this case demonstrate the potential for unfairness of a court taking such a narrow approach to supervision obligations for disabled and/or vulnerable members of the community, a burden falling generally upon the family members who carry out the many hours of anxious care that arise as a result.
5. As to the quantum of the claim, I am mindful of the observations of Basten JA in Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Limited v DM and BP Wiskich Pty Ltd [2013] NSWCA 443 at [93], to the effect that an assessment of the number of hours per week which might be required to undertake domestic duties and gardening is not the kind of expertise normally attributed to orthopaedic surgeons. All of the opinions I have in relation to past and future need for care come from orthopaedic surgeons; neither side has retained an occupational therapist. This is regrettable as such a report would have been of assistance not only to the court but to the plaintiff. As a result, when considering issues of future care (where these claims are challenged), I have only very generalised observations from the plaintiff and her mother.
6. The plaintiff's mother's concessions in cross-examination as to the amount of housework the plaintiff can do demonstrate that the plaintiff cannot pass the threshold. She does not require pain medication of significance and has been able to perform a number of the household tasks she was performing beforehand. The need to supervise her on visits outside the home was similarly the subject of concessions, as set out above. The plaintiff not only made similar concessions by candidly admitted she intended to resume her independent excursions when the proceedings were over.
7. Taking the above into account, no award for future care should be made.
8. If such an award had been made it may have been necessary to adjust the sums claimed conformably with Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer and Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95, as the sum sought under this head was acknowledged not to have been adjusted to take the issues they discussed into account. In the absence of such submissions, I cannot arrive at an appropriate estimate.

Orders and costs

1. An earlier hearing date for these proceedings (14 May 2019) was vacated on 30 April 2019, on the basis that the plaintiff wished to amend to join the company which carried out the cleaning of the premises. Although leave was granted, this party was not joined and there were further applications before this court on 4 October 2019 for which the plaintiff was ordered to pay costs.
2. I have reserved the issue of costs of the proceedings, as Mr O'Dowd indicated that submissions in relation to these earlier events would be a significant issue for determination in relation to the costs orders to be made.

Orders 1. Judgment for the defendant. 2. Costs reserved with liberty to apply. 3. Exhibits retained until further order.

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: 15 April 2020