Coggins v Ourimbah-Lisarow RSL Club Ltd

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 New South Wales Department of Housing v Hume [2007] NSWCA 69 Fennell v Supervision and Engineering Services Holdings Pty Ltd and Santos Ltd (1988) 47 SASR 6 CASES CITED: Hackshaw v Shaw (1984) 155 CLR 614 Jones v Bartlett (2000) 205 CLR 166 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Roads and Traffic Authority v McGregor [2005] NSWCA 388 Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Aileen Coggins - Plaintiff Ourimbah-Lisarow RSL CLub Limited - Defendant

COUNSEL: Mr PA Beale for Plaintiff Mr NJ Polin for Defendant

SOLICITORS: CMC Lawyers for Plaintiff Lee & Lyons for Defendant

1 The plaintiff, Aileen Mary Coggins, was a 74-year old age pensioner who attended on 24 October 2007 the premises of the defendant, Ourimbah-Lisarow RSL Club Limited, to play the game of Bingo. She did so on a regular weekly basis. At the end of the game on the day concerned at about 12 noon she was walking from the Bingo room to the Club restaurant to have lunch when she said one of her feet caught in netting on the floor causing her to fall to the ground. Injuries were thereby sustained to her face, neck, elbows, hands and knees; an ambulance transported the plaintiff to Gosford District Hospital. Damages were sought by reason of the defendant's negligence in, essentially, creating and allowing to exist a trip hazard in the foyer area of the Club.

2 For its part, the defendant denied any negligence and did not admit the plaintiff suffered any injury, loss or damage. In any event, it was alleged that the plaintiff was guilty of contributory negligence in failing to have regard for her own safety by not keeping a proper lookout. Both liability and damages were vigorously contested, particularly in light of a motor vehicle accident two weeks later on 6 November 2007 in which the plaintiff was engaged while driving her car. Injuries were said to be sustained to the left side of her body, hip, hands, knees and left wrist. Her main continuing problems were claimed to be to the neck and shoulders for which the incident in the Club rather than the motor accident was said by the plaintiff to be the cause.

3 The Civil Liability Act 2002 applies to the determination of this matter.

4 Born on 7 June 1933, the plaintiff finished schooling at age 14 years and then was employed in various occupations as a domestic assistant in the staff living quarters of a hospital, fabric worker in a clothing factory and shop assistant in hairdressing salons. During that period she married and with her husband, who died in 1992, raised two children on the Central Coast of the State. She retired from the workforce in her mid-fifties and after her husband's death commenced in about 2001 to live with her daughter, son-in-law and their four children at Terrigal.

5 In order to enable her daughter to care for the children and to engage in and support their school and sporting activities, the plaintiff said she did the housework such as vacuuming, cleaning, mopping, sweeping, bathroom cleaning and garden maintenance; her daughter, Tracey Anne O'Brien, confirmed those tasks and added ironing of clothes, cooking and bed-making. It seemed also that Mrs O'Brien needed assistance herself from the plaintiff due to a disability in the spine from a fall at home; the effects of depression and a fear of heights were said to need the plaintiff's help in the domestic situation. Even so, Mrs O'Brien conceded that without her mother she and the other family members could maintain the household, although outside commercial assistance with the garden would be needed.

6 In her primary evidence, the plaintiff said she played Bingo "quite a lot" at the defendant's Club premises. Socially, she mixed with friends, participated in Yoga and Tai Chi and exercised by walking.

7 The plaintiff said that before the subject fall in October 2007, initially thought by her to on 24 September 2004, her health was good and she had no prior injuries or any prior falls. However, on being tested in cross-examination she admitted to four prior occurrences - in August 1998 she either fell off a chair when it collapsed or slipped outside a glass door injuring her neck, left arm and left shoulder with sensations of pins and needles; in November 2000 she fractured her right wrist from a fall; in May 2005 while getting into a car the car keys jabbed into her ribs and hospital attention was obtained; and in December 2006 her foot caught on a board under a car as she entered it and a fracture of the right wrist was sustained for which a plaster cast was fitted at Wyong Hospital for five weeks. The plaintiff's explanation for not advising those earlier falls in evidence when asked about her state of health was that she thought the present occasion concerned the neck and wrist problems from the subject fall in October 2007 at the Club; and, although accepting she should have mentioned them, during evidence she did not do so because she became tired and hungry.

8 However, the plaintiff conceded those prior falls and injuries were not mentioned by her to any of the medical practitioners she was referred to by her solicitors for an opinion in respect of the present claim. Indeed, the plaintiff was examined on 17 February 2009 by Professor Fred Ehrlich, a specialist in orthopaedic rehabilitation, when the subject fall and the motor accident were reviewed as they affected her. In his report the next day, Professor Ehrlich in dealing with the plaintiff's past health recorded she "has never had any previous injuries of any kind and has always been in good health…only previous surgery had been for her tonsils when she was young; and some four or five years ago for gynaecological problems."

9 Mrs O'Brien was not aware of her mother's falls in November 2000 and May 2005 but she recalled the August 1998 fall from the chair and the fractured wrist in December 2006. Even so, she rated the plaintiff's agility before the October 2007 fall at the Club as 9 on a scale of 10; since then, she gave a rating of only 1 or 2 on a scale of 10. Reference was made to the plaintiff's long-standing hobby of quilting.

10 After leaving the Bingo room, the plaintiff said she walked towards the restaurant to have lunch. The route took her around the bar area, through the main foyer past the reception desk just inside the entry to the Club and then into the restaurant. She could not agree or disagree to walking very quickly in so moving to the restaurant. In the path of her travel, the plaintiff said there was a display of boxed prizes stacked on top of each other as she approached the restaurant entry doors about 10 feet beyond - she said she probably did see netting draped over the prizes but later accepted she did not see it; she was unsure whether there were any tables and chairs placed near the display. The prizes were in the middle of the passageway in the open area and as she moved, as she said, about 10 feet from the edge of the prizes her foot suddenly caught causing her to fall forward on the right-hand side onto the carpeted floor on her face, elbows and knees with her hands under her. She then noticed the netting was around her foot.

11 While still on the floor, the plaintiff realised her nose was bleeding, with pain in her face, mouth, elbows, knees (right knee bleeding) and neck as the head was thrust back on impact with the floor. Two women, both wearing uniforms of the Club, then attended to help her get up and sat her on a chair; she recalled one of the women said "get rid of that off there" as the netting was removed from her foot and repositioned by tucking it under the display boxes. Shortly thereafter a man, wearing a Club uniform, arrived and the plaintiff was comforted until the ambulance attended when a supporting collar was placed around her neck and she was transported to Gosford District Hospital. At the time, the plaintiff rated the level of pain experienced as the maximum of 10 on a scale up to 10. X-rays were taken in hospital and, on no fractures being found, pain medication was administered and she was discharged into her daughter's care at home.

12 On discharge from hospital, the plaintiff was provided with a letter from Dr Matthew Tyson to give to her general practitioner advising of injury to the cervical spine and for review "for any ongoing pain and consider starting her on medication for osteoporosis." Symptoms then experienced as she rested at home in bed for two weeks were pain in the back, neck, lips, right knee, right hand and right elbow. However, she did not attend a doctor for review and follow-up of the continuing problems and eventually went shopping with her daughter, Mrs O'Brien.

13 Pursuant to the defendant's policy, a receptionist on duty at the time of the plaintiff's fall, Danielle Anne Lynch, completed an incident report. Ms Lynch stated in it as to the details of the incident: "At app (approximately) 12.15pm a lady walking past the display of gardening goods tripped on netting and fell on face. The lady has a bleeding nose which is very sore and a sore neck. Phoned ambulance and reported to supervisor."

14 The ambulance record showed attendance on the plaintiff at the defendant's premises at 12.38pm on 24 October 2007 with the chief complaint being "cervical pain" and the incident history as "tripped over netting, falling forward out-reaching arms and hitting face on carpet. Nil LOC (loss of consciousness). CO (complained of) cervical pain described as an ache radiating to shoulders and pain to upper and lower lips." The plaintiff was triaged at hospital at 1.20pm with the presenting problem of "trip and fall" and the nursing assessment as "lacerated and swollen lips…over netting at club. Hit face. Neck pain radiation shoulders. 0 LOC (zero loss of consciousness)." The Emergency Department notes recorded the plaintiff was given Neurofen and Panadol with good effect, she tolerated a meal and was ambulating well; at 6.20 pm she was discharged.

15 Margaret van der Kolk gave evidence in the plaintiff's case. She had not met the plaintiff either before or since the subject incident. Ms van der Kolk went to the Club on 24 October 2007 for lunch with a friend and as she was leaving the premises saw a lady, taken to be the plaintiff, in the foyer area near a display of prizes "fall flat on her face…went over…saw feet entangled in a net which was on the prizes. The netting was very dark and couldn't see it until I bent over." She said a man and a woman wearing the Club uniform arrived and sat the lady onto a chair. Ms van der Kolk said the fall occurred about one foot away from the display of prizes, which was about one metre high and covered in netting although she did not know the state of the netting before the fall. She could not recall whether there were any tables and chairs positioned near the display.

16 Ms van der Kolk remained at the scene for about 10 minutes and left before the arrival of the ambulance. During that period she noticed the plaintiff had blood on her face and was badly shaken. She said she saw the staff remove the netting from the plaintiff's foot and tuck it under the stack of prizes, with one of the staff commenting "she's got her foot tangled in the netting." The plaintiff was heard to say "my knee hurts."

17 For the defendant, Ms Lynch gave evidence of the plaintiff's fall which she witnessed occurred as she stood behind the reception desk. Ms Lynch had been a receptionist at the Club for about three months having earlier for nearly four years performed duties in the bar and games room; she is now assistant manager at the Southern Cross Hotel, St Peters. She explained that the display in the foyer area had been there for four or five weeks and it comprised various gardening implements and tools as prizes in a raffle conducted by the defendant. It was set against a corner wall with the prizes stacked and protruding about three-quarters of a metre from the wall; netting with quite large holes was draped over the display and tucked under it on the floor. In front of the display were six white foldout tables about one metre long and three-quarters of a metre wide with four chairs positioned at each table. She drew a diagram while in the witness box of the area concerned showing the layout, the display and the tables and chairs by reference to the reception desk, some amusement machines and the restaurant. Although not to scale, the diagram illustrated the path taken by the plaintiff from the Bingo room, where first seen by Ms Lynch, between the tables towards the display and the location of the fall.

18 Ms Lynch said she noticed the plaintiff walking because it was, unusually for elderly patrons, at a quite quick pace. After walking between the tables, about 10 to 12 metres from the reception desk, Ms Lynch saw the plaintiff trip, fall forward into the next table catching her face on its edge and then fall to the ground; she rushed to the plaintiff and sat her on a chair. Ms Lynch noticed the netting, which was about 600 millimetres from the plaintiff's feet, was a "little bit out" about 15 centimetres from the display. The plaintiff had a bleeding nose and complained of a sore neck. The supervisor, Linda Lang, was called; Ms Lynch telephoned for an ambulance and then left the plaintiff in the supervisor's care.

19 Of significance, Ms Lynch detailed the protocol followed on commencing her shift each day at 10.00am - she switched on the entertainment machines, checked the tables and chairs in the foyer area and ensured the display of prizes was neat and tidy. Specifically also, she said she had never seen the netting sticking out from where it was tucked under the display and was unaware of any complaints by anyone about the presence of the netting, although an assumption was made that the plaintiff tripped on something. In assisting the plaintiff, Ms Lynch thought she did so alone and was unaware anyone else was present, such as Ms van der Kolk who was a patron of the Club, and, certainly, she denied disentangling the plaintiff's foot from the netting; she denied also the suggestion that there were no tables and chairs in the area of the fall.

20 The Secretary/Manager of the defendant Club, John David Atkins, was on duty at the time of the plaintiff's fall in his upstairs office and later became aware it had occurred after the plaintiff had left the scene. In a diagram consistent with that drawn by Ms Lynch, Mr Atkins depicted the layout at the time of the fall by showing the six tables and four chairs to each table in relation to the location of the display. It seems, as he said, that the display was of items for prizes in a spring promotion by the Club of gardening equipment - lawnmower, blower vac, tools and miscellaneous items - which had been there for nearly two months. The display was about 1.5 metres long, 0.5 of a metre deep and 1.0 metre high with netting draped over it for security; the netting was tautly placed and tucked in under the items at floor level. Mr Atkins said that on arrival at the Club each day his practice was to look around the premises and to check that things were in order, including that the display was secure; he periodically made similar checks throughout the day. Like Ms Lynch, Mr Atkins had never seen the netting in a state other than tucked under the prizes and no complaints had been received about the presence of the display with the netting over it.

21 It was suggested to Mr Atkins, as it was to Ms Lynch, that there were no tables and chairs present at the time near the display but he maintained they were there and that the closest table to the display was under 0.5 of a metre away. He said the tables and chairs were for the use of members and guests on arrival at the Club; they had since been replaced by lounges.

22 The circumstances and mechanics of the plaintiff's fall at the Club premises from her evidence were somewhat unclear. She was quite vague in her recollection as she walked from the Bingo room towards the restaurant and spoke of walking in the "open area" about 10 feet from the display of prizes even though she did not see the netting draped over the prizes and was not conscious of the presence of any tables or chairs. It is true that Ms van der Kolk too was unsure about the tables and chairs being there. However, the evidence of Ms Lynch clearly defined the plaintiff's path of travel, at a quick pace, from the Bingo room and then between the tables in front of the display to walk along the narrow space (about 0.5 of a metre) between the display and the line of tables. Mr Atkins made it clear the tables and chairs were in position at the time and both he and Ms Lynch gave consistent evidence of the state of the netting immediately before the plaintiff's fall, although they referred to the checks made of the netting to ensure its security. In any event, from the evidence of the plaintiff and Ms van der Kolk it was the case that after the fall the plaintiff's feet, or certainly a foot, was entangled in the netting.

23 I make the following findings on the occurrence of the plaintiff's fall -

(1) The plaintiff was walking at a quick pace from the Bingo room to the restaurant.

(2) In the foyer area against the wall there was a display of prizes of gardening equipment extending from 0.5 to 0.75 of a metre from the wall.

(3) Draped over the display was netting with large openings in it and which was taut and folded under the prizes at floor level.

(4) In front of the display there was a series of six tables each with four chairs so positioned that there was a space of about 0.5 of a metre between the outer edge of the display and the tables.

(5) Opposite the display towards the front entrance of the Club there was located the reception desk at a distance of about 10 to 12 metres.

(6) The display and the tables and chairs had been located in the foyer area as part of a promotion/raffle of spring garden equipment for a period of nearly two months.

(7) There were no complaints from patrons or reports of any incident causing injury to a person in the period of the display in the foyer area.

(8) The initial path of travel by the plaintiff from the Bingo room to the restaurant took her in the open foyer area nearest to the reception desk but she diverted from that path, walked between the tables towards the display of prizes along the narrow space between the display and the tables.

(9) The plaintiff was aware of the display but did not see the netting draped over it and was unsure about the presence of the tables and chairs.

(10) As she walked at a brisk pace she lost her footing and fell forward to the floor landing on her face, elbows and knees with her hands tucked under her body.

(11) It is unclear whether the netting was then protruding from under the stack of prizes at floor level.

(12) After falling as she was being assisted to her feet, the plaintiff noticed the netting for the first time which was around her foot; Ms van der Kolk confirmed that the netting was tangled around the plaintiff's foot and the netting then was protruding from the edge of the display by about 15 centimetres.

(13) The plaintiff was assisted and comforted by Ms Lynch and Ms van der Kolk.

(14) The security of the display unit with its netting was checked at least once daily by Ms Lynch at about 10.00am and by Mr Atkins from time-to-time during the day.

(15) In walking along the narrow space between the display and the tables the plaintiff caught her foot in the netting by treading on the edge of the display itself (that is, on top of some of the items at floor level thus displacing the netting tucked under the display) or by brushing against the netting and pulling it slightly away from the display.

(16) In the days following the fall the plaintiff experienced pain in her back, neck, lips, right knee, right hand and right elbow; after bed rest she stayed at home on medication until within two weeks when she was well enough to be able to shop with her daughter and then to drive a motor vehicle to visit friends.

24 On 6 November 2007 the plaintiff was driving herself home, as she said, at about 5.50pm (other evidence timed it at 7.30pm) following a Melbourne Cup function at the home of a friend in Lisarow on the Central Coast. In the course of proceeding through a roundabout, the plaintiff's vehicle (Ford Festiva hatchback) was struck by another vehicle on the front left passenger's side. The impact was such that her vehicle was spun around four times before it came to rest. She was able to exit the vehicle and sat on the kerb awaiting ambulance assistance and the attendance of police. The Nissan did not stop and left the scene of the accident but the plaintiff's vehicle was towed away and was later written off. She said injuries were sustained by here to the left side, hip, both hands, both knees and with the most serious being fractures to the left wrist and fractured small finger on the left hand; in later answers she agreed she had neck, chest and back pain, although the more serious injuries were to her throat and hands but the neck injury was not serious. She was taken to Gosford District Hospital by ambulance for treatment and was discharged the following morning. She returned to the hospital on 13 November 2007 to have a plaster cast applied to her left wrist and which remained in place for up to six weeks.

25 The ambulance record of the accident noted complaints by the plaintiff of left shoulder, left hand and sternum pain. In Gosford District Hospital, the triage report on the plaintiff on her arrival in the Emergency Department recorded complaints of "sternal pain/left shoulder pain/left wrist pain/left rib pain…lateral left neck pain." Significantly, however, and contrary to the evidence of prior injuries including the fall at the Club, at the initial nursing assessment at the hospital on 6 November 2007 the medical history was shown as "Nil. Up to date tetanus." There was an absence in the hospital progress notes of 13 November 2007 of any injury prior to the motor accident. Further, it appears that the plaintiff consulted her general practitioner, Dr Diana Spooner, on 23 November 2007 according to the doctor's clinical notes in relation to the motor accident on 6 November 2007 but there was nothing recorded as to the incident at the Club on 24 October 2007 - the immediately prior entries showed visits to Dr Spooner on 17 and 19 July 2007 for migraine headaches and the next visit was on 28 February 2008 for a routine blood pressure check. Then, on 6 March 208 the notes showed a visit concerning the completion of forms regarding the motor accident for the plaintiff's solicitor, but, again, no mention of the fall at the Club. Indeed, Dr Spooner in a letter dated 19 June 2008 to the plaintiff's solicitor stated she did not see the plaintiff at any time regarding the October 2007 fall at the Club.

26 On 27 February 2008 the plaintiff attended her solicitors and consulted Kristel Kay Hacker for the purpose of completing a personal injury claim form in relation to the motor accident. The conference, according to Ms Hacker, lasted for one hour but the plaintiff said it went for one and a half hours. It seemed that the blank claim form was provided to the plaintiff beforehand and it was completed by Ms Hacker from information supplied by the plaintiff at the meeting; the plaintiff then swore a statutory declaration that the information given in the claim form was true and correct in every respect. The motor accident on 6 November 2007 was described in terms consistent with the evidence in the present proceedings. The injuries from the accident were described in this way: "Soft tissue injuries to the following areas: neck, middle back, low back, left hip, left hand (with two fractures), left knee (cut open), right knee (grazed), left wrist (I am right handed), left shoulder, right shoulder (aggravated previous injuries)."

27 The then effects of the injuries were stated in the claim form as follows: "I am more anxious and cautious. Pain in affected areas, particularly the low back, hand, knee, hip. Since the subject accident, my son-in-law, Tony O'Brien, is now gardening and cutting the lawn. He does six or seven hours per fortnight. My daughter, Tracey O'Brien (4 children), helps with washing, cleaning (4 bedrooms), ironing, vacuuming (3 toilets/2 bathrooms) approximately 7 hours per week."

28 In response to a question on the claim form seeking details of any other injuries, the plaintiff disclosed "soft tissue injuries" on "24/9/07" (clearly this should have been "24/10/07") and added: "I had attended Ourimbah Club Bingo and was walking past a display and on the floor was fishing netting that caused me to trip (left foot). I fell on my face, my …(unreadable) joint hurts. Right cheek bone, neck pain, side of cheek, jaw, right elbow, right knee. However, these had largely resolved prior to MVA. " (emphasis added)

29 The motor accident claim form was duly forwarded to the relevant insurer and on 22 January 2009 it was part of the documentation provided in an application for assessment of a permanent impairment dispute by the Medical Assessment Service (MAS) under ss 58(1)(d) and 60(1) of the Motor Accidents Compensation Act 1999.

30 Included with those papers was a report dated 25 July 2008 from an orthopaedic surgeon, Dr John Bentivoglio, after examining the plaintiff on 9 July 2008. In giving a history of injury from what the plaintiff advised, the report referred to the subject fall at the Club and Dr Bentivoglio commented that "she (the plaintiff) advised me she had not had a significant problem with those areas (facial region, neck, right shoulder and right knee);" injuries recorded from the motor accident were a seatbelt bruise to the chest wall, both shoulders, fracture of the left wrist/hand as well as the neck and knee region. That Dr Bentivoglio was advised the plaintiff attended Dr Spooner the day following both the Club incident and the motor accident was contrary to both the plaintiff's evidence in the proceedings and that of Dr Spooner. The area of most trouble to the plaintiff was said to be the neck which Dr Bentivoglio noted she felt 25 per cent was due to the fall and 75 per cent to the motor accident - the plaintiff repeated that view in evidence; the shoulders and knees were the other problem areas, attributable in equal proportions to the fall and the accident.

31 On 20 June 2008 the plaintiff was examined by Professor David J David, a maxillo-facial surgeon, who provided a medico-legal report the same day and which was included in the application for the MAS assessment in relation to the motor accident. He recorded a history from the plaintiff of injury from both the fall and the motor accident and said: "She appears to have made a complete and uneventful recovery from that incident (the fall)…Apart from exacerbation (as a result of the motor accident) of her neck discomfort which is still minimally present, she has no other abnormality…Her complaints currently are a minimal problem with her neck and those arising out of her fractured wrist…The initial soft tissue injury to her face sustained at the Ourimbah Club has completely resolved and this was not exacerbated by her accident in the roundabout."

Consequences for plaintiff, including domestic circumstances

32 The primary evidence of the plaintiff was that the injuries she sustained in the fall in October 2007 had not resolved at the time of the motor accident in November 2007 and she still experienced symptoms, particularly in the neck and shoulders, which affected her functional capacity in an ongoing manner.

33 Immediately after the fall at the Club the plaintiff said her nose and mouth recovered. However, her neck did not improve and daily pain was experienced, ranging from 5 to 8 on a scale of 10 for maximum severity, for which she took Neurofen tablets. She said the shoulder and arm pain gradually worsened with "pins and needles" in the fingers; the right knee had improved. Although a lot of exercise could not be done, and yoga and Tai Chi were discontinued, the plaintiff found walking made her feel better. Otherwise there were no symptom free days, mainly from the neck and shoulders with headaches, so that her activities in daily living became restricted. Before the fall she did the housework for the family at her daughter's house, including as to washing clothes, vacuuming, cleaning, mopping, sweeping, bathroom cleaning, bed linen, cooking and garden maintenance; she enjoyed the hobby of quilting. After the fall, those domestic activities could not be done because of the neck and shoulder problems. The plaintiff's daughter, Mrs O'Brien, said she then performed the domestic duties but would wish them to be done on a commercial basis to free her to attend to the needs of the children.

34 Following the motor accident, the plaintiff experienced aches and pains in her body with everything being affected so that she was unable to again take up the household duties. The neck and shoulders continued to be the main problem areas but her right knee was worse. Even so, on being confronted with the report from Professor David, and specifically those portions of it concerning recovery from the fall, she confirmed telling him the truth as to how she fell and understood the examination was about the motor accident and not the fall; indeed, she seemed to accept his overview of the resultant state of the injuries from both the fall and the motor accident and, specifically, that the problems with her neck and wrist were minimal. But Professor David, in taking a history from the plaintiff as to the fall, expressly recorded that "she appears to have made a complete and uneventful recovery from that incident…On examination today she is fit, mobile and articulate…All movements were conducted in an active manner…" The plaintiff agreed her condition at the time of seeing Professor David on 20 June 2008 had stayed much the same.

35 Perhaps the most striking point about the real position of the plaintiff's condition following the fall at the Club and just prior to the motor accident two weeks later comes from what was said in the injury details in the motor accident claim form which was provided also for the assessment by MAS. As Ms Hacker said, the plaintiff provided that information the effect of which she wrote in the claim form. The form recorded what was said by the plaintiff that these injuries had "largely resolved" prior to the motor accident. The plaintiff said the injuries had not so resolved, although she agreed to making sure the contents of the form were correct.

36 The plaintiff was closely tested at some length on that apparent inconsistency during which she varied in answers from the correctness of what the claim form said to non-resolution of the injuries and she explained that "I'm not trying to mislead anyone. My injuries had not gotten better. The injuries had not resolved." She admitted to being aware the claim form was submitted to claim damages for the motor accident but that, as she effectively said, "I did not say injuries had largely resolved - I can't understand how that got there. I am saying it was not correct. The form was done for me and I swore to it."

37 Also, the plaintiff in affirming she needed domestic assistance after the fall acknowledged that the claim form referred to such assistance from her daughter and son-in-law "since the subject (motor) accident."

38 The plaintiff's evidence as to her condition just before the motor accident as a result of the fall two weeks earlier was clearly equivocal and lacking in credibility. I am far from satisfied she was as disabled after the fall as she asserted. I consider any incapacity from the fall had all but resolved at the time of the motor accident, including her ability to perform domestic tasks. I find that the plaintiff here focussed upon the fall by overly exaggerating her resultant disabling condition which, in reality, was minimal. That finding, in my view, is supported by her evidence where she said her health before the October 2007 fall was good with no prior injuries notwithstanding the incidents causing injury in 1998, 2000, 2005 and 2006 as particularised earlier in these reasons. In fact, her prior medical history in those respects was not advised to medical practitioners she saw in connection with the present proceedings, such as Professor David and Dr Bentivoglio (who noted "good health" in the past); an orthopaedic rehabilitation specialist, Professor Fred Ehrlich, examined the plaintiff on 17 February 2009 and in a report the next day as to past health said "Mrs Coggins has never had any previous injuries of any kind and has always been in good health." Plainly, such advice by the plaintiff to those doctors was erroneous and, again, resulted in her endeavour to focus attention on the fall at the Club as the source of her continuing difficulties.

39 Finally on the consequences for the plaintiff of both the fall and the motor accident, it should be emphasised that one is very much dependent on the subjective evidence of the plaintiff but which, as I have indicated, was exaggerated and equivocal. I would propose to treat such evidence with caution in the absence of any supporting objective evidence.

40 The medical evidence in this case was not extensive and was mainly medico-legal in nature because of the lack of treatment sought by the plaintiff for her injuries. Certainly her general practitioner, Dr Spooner, could not assist. I have referred already to the views of Professor David and to the information relied upon by Dr Bentivoglio in concluding aggravation to pre-existing degenerative changes as a result of the fall and the motor accident and I will not repeat them. Otherwise the effect of the medical opinions may be dealt with in summary form.

41 Associate Professor G David Champion: He examined the plaintiff on 11 November 2008 to provide an appraisal of the injuries from the fall at the Club; he took details of the later motor accident. From discussions with the plaintiff, Professor Champion attributed to the fall 50 per cent contribution for the cervical spine problems, 100 per cent for the knee, 10 per cent for the left hand and wrist disorder and 90 per cent for the right hand and wrist symptoms. The prognosis was thought to be of some concern as adequate recovery was not expected and with future aggravation likely even from a minor injury.

42 Dr PF Teychenne: A consultant neurologist, Dr Teychenne saw the plaintiff on 15 October 2008 and took a history of both the fall and the motor accident in October/November 2007 and found they occurred in the presence of pre-existing degenerative cervical disc disease. He considered the neck injury and present complaints were referrable to both incidents.

43 Professor Fred Ehrlich: The plaintiff was examined by him on 17 February 2009 and who provided a report the next day. He also gave oral evidence in which he agreed his opinion was based on his acceptance of the plaintiff's complaints in a subjective sense. For instance, Professor Ehrlich was unaware the plaintiff had said in the motor accident claim form that the symptoms from the fall had largely resolved and which was inconsistent with what she had told him. However, he thought those complaints were the clear consequence of both the fall and the motor accident as a significant strain aggravating the degenerative condition. Nevertheless, Professor Ehrlich outlined his clinical findings, one may say to an extent consistent with a resolution of the plaintiff's injuries, as follows: "Mrs Coggins moved with normal posture and gait. There were no gross clinical abnormalities on thorough examination of her locomotory system.

She had a good range of neck flexion and extension and normal rotation of the neck to each side.

Shoulder abduction was normal on both sides as were internal and external rotation.

Elbow, wrist and hand movements were normal. There was no localised tenderness and no discrepancy in girth measurements between her two upper limbs.

Both knees moved through a full range although there was some discomfort during this. There was some patello-femoral crepitus on the right side but no instability, no localised tenderness and there was no discrepancy in girth measurements between the two lower limbs."

44 For a period of three months after the fall incident, particularly as a result of aggravation by the motor accident, Professor Ehrlich considered the plaintiff to be unfit and partially so since that time. He considered she would require domestic and handyman assistance in future.

45 Dr FJ Harvey: A specialist surgeon, Dr Harvey examined the plaintiff on 18 September 2008 and took a detailed history from her covering work, social, recreations, health and present complaints. It was essentially consistent with the plaintiff's evidence and, significantly, it referred to prior injuries not referred to by the other doctors. Like the plaintiff, Dr Harvey stated her main complaint at present was neck and shoulder pain but, apart from degenerative changes, the radiological evidence from x-rays of the cervical spine, left wrist, hand and knees in July 2008, a CT scan of the abdomen and pelvis in November 2007 and a CT scan of the cervical spine in July 2008 were unremarkable. Dr Harvey diagnosed from the October 2007 fall that the plaintiff may have suffered soft tissue injuries to the face, knees, neck and shoulders as, indeed, such injuries could have been caused by the motor accident. However, he found "no objective evidence of injury" and "no objective evidence that she has suffered any injury in her fall in October 2007, which would affect her capacity to carry out her domestic duties or to lead a normal life." As to the shoulders and knees, areas of particular complaint by the plaintiff, Dr Harvey found, as he said, "she has a completely full range of shoulder and knee movement."

46 Dr Harvey was provided with the reports of Professor Champion, Dr Teychenne and Professor Ehrlich. He emphasised the subjective findings in those reports and the assumptions the plaintiff was in good health before the subject fall whereas he was informed of the earlier injuries sustained by the plaintiff in the incidents in 1998, 2000, 2005 and 2006 which did involve the left wrist, neck and shoulder areas as well. Dr Harvey maintained his opinions and, in particular, referred to the clinical findings of Professor Ehrlich as confirming his view "that there is no objective evidence of injury." In a manner which I found to be logically understandable as applicable to the plaintiff, Dr Harvey commented: "I think an injury in the elderly which caused some significant period of immobility in a hospital can have a permanent effect on their ability to cope afterwards. It is evident, however, that Mrs Coggins was able to keep active and she does report that soon after the first accident she attended the Mingara Club and started doing exercises in the pool. I think that this was commendable, but the fact she was able to keep going in this manner does indicate that there was no significant period of inactivity. I think a period of inactivity in the elderly can produce permanent ill effect, but this doesn't seem to be the case with Mrs Coggins."

47 Dr JM Matheson: In his report of 29 January 2009, Dr Matheson, a consultant neurosurgeon, said that on neurological examination of the plaintiff there was nothing to find - "all her reflexes were present, even her ankle jerks. There was full power and full sensation. There was no wasting."

48 Occupational therapists: Two reports respectively on 10 March 2009 and 30 October 2008 from occupational therapists Detta O'Dwyer for the defendant and Trudie Walker for the plaintiff, were made available. Ms O'Dwyer concluded, after interviewing and assessing the plaintiff at home on 5 March 2009, "that as a consequence of the fall in October, 2007, Mrs Coggins does not require any paid domestic assistance now or in the future." Ms Warner, on the other hand, and very much by reference to the plaintiff's subjective complaints, summarised past domestic care requirements as 19.1 hours per week and 4.5 hours per week into the future.

49 Conclusions: The views of Professor Champion and Dr Teychenne stand in marked contrast to those of Dr Harvey as to the effects on the plaintiff of the October 2007 fall and given the motor accident two weeks later. Earlier, however, from the lay evidence and documentary material I concluded that the plaintiff's injuries had largely resolved at the time of the motor accident; a review of the medical evidence, in my view, supports that finding. It is clear that a fall occurred in the Club and that the consequent injuries were soft tissue in nature to a person who had demonstrable degenerative changes. The clue, in my view, in determining the effects suffered is the clinical findings of Professor Ehrlich which, in an objective sense, supported the opinion of Dr Harvey that there was no evidence of injury. The subjective complaints made by the plaintiff, as I have said earlier, are to be treated with caution.

50 I accept the opinion of Dr Harvey, confirmed as it was by the clinical findings of Professor Ehrlich. It follows, and I so find, that at the time of the motor accident on 6 November 2007 the plaintiff's injuries from the fall on 24 October 2007 had largely resolved. With the short passage of time those injuries referable to the fall, of a soft tissue nature, would have fully resolved and any continuing disabling consequences for the plaintiff arose from the effects of the motor accident. In other words, my view is that the effects of the motor accident, particularly having in mind its very serious nature and so soon after the fall, have been the cause of any continuing disability experienced by the plaintiff.

51 There was no issue that the defendant as the occupier of the Club premises did not owe to the plaintiff a duty of care. The argument in this case focussed upon the nature of the duty and whether the defendant had breached it.

52 Reliance by the plaintiff in this respect was placed on the expert evidence of Robert Fogg, a safety and forensic engineer, who provided a report dated 30 October 2008. Mr Fogg, who did not inspect the scene and seemingly proceeded on facts of the occurrence advised to him by the plaintiff's solicitors, found three factors contributed to the plaintiff's injury: first, the defendant's failure to ensure the netting to cover the temporary storage location of the boxes was clearly barricaded and that netting did not protrude into the walkway so as to form a pedestrian trip hazard; second, the defendant's failure to undertake a risk assessment process by implementing appropriate checklists and documents for the temporary placement of items during the refurbishment process; and, third, the defendant's failure to instruct staff not to set up temporary storage areas in locations of main pedestrian access.

53 It is plain, in my view, that Mr Fogg formed his opinion on incorrect facts. For instance, he thought the area concerned was undergoing refurbishment and that the display consisted of boxes which were temporarily placed in a main pedestrian access with netting draped over them which protruded some distance onto the floor of a walkway; he did not mention the presence of tables and chairs on the path taken by the plaintiff in going to the restaurant and accepted also that the accessway had always previously been clear. Of course, and as I have found on the evidence, the boxes were in fact a display of prizes which had been there without incident for nearly two months; the display was against a wall behind tabes and chairs and required for access, as the plaintiff did, a deviation from the open foyer area along a narrow walkway; the netting was tucked under the display; and the refurbishment of the area concerned had been completed at the time. Further, and contrary to the evidence, Mr Fogg assumed that there was no procedure whereby the defendant's staff checked the security of the display.

54 The factual differences are such that, in my view, Mr Fogg's report is no value or utility in the circumstances here. I reject it.

55 As I have said, there was no issue that a duty of care was owed by the defendant to the plaintiff so that the contest concerned whether there had been a relevant breach of that duty. As Deane J said in Hackshaw v Shaw (1984) 155 CLR 614 at 662-663, approved by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488: "…it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk. " (emphasis added)

56 Those comments by Deane J echoed what had been said earlier by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 who added as to the response by a reasonable man to a perceived risk that it called for "a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. " And, as McColl JA observed in New South Wales Department of Housing v Hume [2007] NSWCA 69 in para [58] "the occupier of premises is only required to take such care as is reasonable in the circumstances." In Jones v Bartlett (2000) 205 CLR 166 at 184-185 in paras [57]-[58], Gleeson CJ succinctly said that the duty was "to take reasonable care to avoid foreseeable risk of injury" and that that was to be determined by "the standards of the reasonable person" involving "a factual judgment."

57 In a real sense, it seems to me, s 5B of the Civil Liability Act, in specifying general principles in relation to the duty of care, gives statutory support for the common law approach as I have outlined it above. The section sets out a number of conditions to be met for a defendant to be found to have been negligent in failing to take reasonable care in terms of foreseeability of risk, significance of risk and whether a reasonable person would have taken precautions against the risk.

58 Here, counsel for the defendant, Mr N Polin, in denying a breach of duty to any extent, described the essential features of the subject fall in this way: "It appears the plaintiff was moving quickly. She was initially proceeding around the tables and chairs towards the restaurant when she suddenly changed course and moved between tables towards the display. The only inference one could draw was that it was her intention for some reason to look at the display. It would appear that she had an area of about 600mm to move in between the edge of the display and the edge of one of the tables. It seems that in doing so her left foot must have brushed against the display and/or caught on the netting causing her to stumble. In doing so it appears that she pulled part of the netting out by about 15cm. Due to her speed she stumbled forward hitting her head on a table before falling to the floor."

59 Counsel emphasised that there was no evidence there were any problems with the display prior to the plaintiff's fall in the period of six weeks it had been there and there was in place a regular system of inspection as to its security by both Ms Lynch and Mr Atkins. Even if, submitted counsel, the netting had protruded 15cm from the display, as Ms Lynch observed after the fall, there was no evidence it was in that state immediately before or at the time of the plaintiff's fall. It followed in those circumstances that no obligation was imposed on the defendant for what occurred to the plaintiff and no other case in negligence was established by her.

60 The plaintiff's case on liability, as put by her counsel Mr PA Beale, was that she tripped on the netting. Counsel said: "The truth of the matter can be found in five separate pieces of evidence: (a) The Defendant's own incident report, prepared and signed by Ms Lynch, says that the Plaintiff tripped on netting;

(b) The evidence that Mrs Van Der Kolk saw netting around the Plaintiff's foot. She is a clearly independent witness with no bias toward either party.

(c) The ambulance officers recorded a trip over netting.

(d) The hospital emergency department initial assessment notes record that the Plaintiff said that she tripped over netting.

(e) The progress notes made by another clinician later in the day record 'tripping on netting on floor' and 'pain in the upper posterior cervical spine'."

61 In that situation, counsel then relied on the opinion of Mr Fogg for the count of negligence to have been made out. In effect, it was alleged that the netting was a pedestrian trip hazard and there had been a failure by the defendant to implement appropriate measures during the refurbishment of the premises not to set up a temporary storage area in a location of main pedestrian access.

62 Earlier I have made findings on the occurrence of the plaintiff's fall and rejected Mr Fogg's evidence for reasons then given. I will not repeat them. In the circumstances so found it is reasonable to ask the question - "But what was the negligence of the defendant?" For myself, I have extreme difficulty in finding any. At most, it was to cover a display with netting through the holes of which, if the netting was on the floor, a person's foot may enter causing the person to trip. However, there was no evidence as to the state of the netting immediately or even shortly before the plaintiff's fall other than that Mr Atkins and Ms Lynch checked the display from time-to-time and where the netting was pulled taut over the display and tucked under it at floor level. It is true that the plaintiff's foot after the fall was tangled in the netting but, as has been found, that could readily have happened after she trod on the display or brushed against it. There were no problems with the display and the netting in the period of six weeks it was present before the incident.

63 As was stated in Zaluzna, the touchstone of the existence of a duty of care is reasonable foreseeability of a real risk of injury with the measure of the discharge of the duty being what a reasonable man would do in response to such risk. The authorities emphasise in this respect the taking of reasonable care in the circumstances.

64 In my view, the defendant was entitled to locate the display of prizes in the foyer area of its premises and to cover it for security reasons with netting pulled taut and tucked under the display at floor level. It arranged for the display to be placed about 0.5 to 0.75 of a metre from a wall. Tables and chairs were located around the display, for the convenience of patrons, with a space of about 0.5 of a metre between the edge of the display and the seating. An open area in front of this arrangement was available for unimpeded passage of patrons in the premises being about 10 to 12 metres from the reception desk. In those circumstances, it may reasonably be taken, a person walking from the Bingo room or bar area to the restaurant would use the open area in front of the tables and chairs with no need to go behind them to use the somewhat narrow space past the display. The placement of the netting over the display was checked by Ms Lynch at the commencement of her shift and by Mr Atkins when have arrived; it was checked from time-to-time during the day. In my view, in those circumstances, the defendant had taken reasonable steps in relation to any risk which may otherwise have existed from the placement of the display. Indeed, it had been so placed for six weeks without incident.

65 The plaintiff's path of travel from the Bingo room to the restaurant was originally through the open foyer area but for some inexplicable reason she deviated and walked between the tables in front of the display along the narrow space towards the restaurant. She was walking briskly, was aware of the display but did not see the netting, lost her footing, fell to the floor and her foot caught in the netting.

66 In the circumstances, I find that the defendant satisfied its duty of care to the plaintiff and was not negligent. At most, in my view, the plaintiff suffered a misadventure.

67 To the extent it may be necessary, the defendant's claim of contributory negligence by the plaintiff for what occurred should be dealt with. This depends upon the facts as found. The defendant claimed, by relying on s 5S of the Civil Liability Act, that it was 100 per cent; for the plaintiff, any contributory negligence was resisted.

68 An assessment of this element involves an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for what occurred and involved a comparison of culpability, that is, the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage; it was to the whole conduct of each party attention was to be directed: see Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493-494. Of course, and as King CJ observed in Fennell v Supervision and Engineering Services Holdings Pty Ltd and Santos Ltd (1988) 47 SASR 6 at 12, "misjudgement is not contributory negligence." In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310, Mason, Wilson and Dawson JJ distinguished contributory negligence as "negligence rendering [the plaintiff] responsible in part for the damage" rather than "mere inadvertence, inattention or misjudgement."

69 I have described already what occurred as "misadventure." It is true the plaintiff did not see the netting, although aware of the display, as she walked at a brisk pace to the restaurant. There must clearly have been a misjudgement by her as she walked in the narrow space in front of the display, even perhaps some inattention as she did so, and thereby came into contact with the netting. But that is not negligence on her part. I would dismiss the claim of contributory negligence.

70 It is strictly unnecessary to deal with damages arising from this incident but it is appropriate to say something about them as full argument was provided by counsel. I will do so as shortly as possible.

71 The assessment of damages is to be undertaken having in mind my findings as to the caution with which the plaintiff's evidence of disability is to be approached and of her exaggeration of her consequent condition, including equivocation in answering questions. So too is the circumstance of the effects of the motor accident two weeks after the subject fall a most relevant consideration, particularly in light of the conclusions on the medical evidence.

72 In short, the plaintiff was a lady age 74 years at the time of the fall and suffered soft tissue injuries but with demonstrable degenerative changes. The main problems experienced were with the neck and shoulders, although injury to the knees occurred also, and she had minor facial abrasions. Those injuries at the time of the motor accident had largely resolved and would have, but for the motor accident, wholly resolved shortly thereafter. Any continuing problems are due to the motor accident and not to the fall. As to assistance in the domestic situation, before the fall the plaintiff said she did all the housework in living with her daughter and family but after the fall her daughter had to do it. That is to be contrasted with the plaintiff's statement in the motor accident claim form that domestic assistance was received since the accident from her daughter and son-in-law.

73 Non-economic loss: Having in mind the findings made, I would assess this element referable to the fall in the range of 8 to 10 per cent of a most extreme case. That does not exceed the threshhold of 15 per cent contained in s 16(2) of the Civil Liability Act so that no damages for non-economic loss may be allowed.

74 Past out-of-pocket expenses: These were claimed in the amount of $777.95 in respect of services provided by Dr PG Bobby, Dr JR Harris and Dr PH Coats during the latter part of 2008 for various items as to the shoulder, upper and lower limbs and neck. However, on the evidence the plaintiff prior to the motor accident had no medical treatment apart from the Ambulance Service and Gosford District Hospital - no claim was made for those services. Also, there was no evidence as to relevant treatment for the plaintiff from the three doctors concerned. In any event, the evidence of Ms Hacker, the solicitor who had carriage of the plaintiff's motor accident claim, was that all medical expenses after the motor accident to date had been claimed from and paid by the motor accident insurer. No allowance should be made for these expenses.

75 Future out-of-pocket expenses: Ms Hacker's evidence was that future medical expenses had been claimed from the motor accident insurer. An amount was claimed of $86.30 per week for medication, attendance on a general practitioner, orthopaedic surgeon and physiotherapist plus amounts for assessment as a driver of a motor, attendance on a neurosurgeon for review and medication specific for arthritis. In my view, those claims were simply fanciful by reference to the fall and involved no real support from the evidence, particularly having in mind the findings as to the plaintiff's condition from the fall after the motor accident. No allowance should be made for them.

76 Domestic assistance: For the past, gratuitous care in the total sum of $24,654.96 was claimed based on the report by Ms Warner. For the future, gratuitous care of 4.5 hours per week in the amount of $51,174.32 was sought, again based on Ms Warner's estimate; in the alternative, future care on a paid commercial basis for the 4.5 weekly hours totalling $79,825.51 was claimed. The defendant opposed any allowance for this element of care.

77 I have to repeat, as the motor accident claim form noted, that domestic care was said by the plaintiff to arise since the motor accident. Even so, the evidence of Ms O'Dwyer was that as a consequence of the fall no paid domestic assistance was required by the plaintiff. One may accept, as I do, that some minimal assistance after the fall would have been appropriately provided by the plaintiff's family for that two-week period before the motor accident. After that, however, my view is that any continuing care related not to the fall but to the motor accident.

78 It is to be borne in mind, consistent with Roads and Traffic Authority v McGregor [2005] NSWCA 388, that under ss 15(3) and 15B(2)(c) of the Civil Liability Act gratuitous care must amount to at least six hours per week and for at least six months. On the facts found here that threshhold has not been achieved either for the past or the future.

79 As to the claim under s 15B for the plaintiff's loss of capacity to provide gratuitous domestic care to her dependants, s 15B(2)(c) requires such dependants not to be capable of performing the services themselves. The evidence of the plaintiff's daughter, Mrs O'Brien, was that the dependants were able to care for themselves.

80 As to the alternative claim for future paid care, which would avoid the "six-hour six-month" statutory threshold, there was no evidence from the plaintiff she would wish to have it. Certainly Mrs O'Brien would accept it but she is not the plaintiff and her evidence was in the context of the s 15B claim for dependants.

81 No allowance should be made for domestic assistance damages.

82 Equipment requirements: An amount of $7,095.10 was claimed for the cost of various items of equipment to assist the plaintiff to manage and cope with the disabilities experienced in the home as suggested by Ms Warner. However, these particular matters were not attended to in the plaintiff's evidence, at best only indirectly, and the clinical findings of Professor Ehrlich and the opinions of Dr Harvey and Professor David did not support this claim. It should not be allowed.

83 The defendant did not negligently breach its duty of care to the plaintiff and was not responsible for her fall at the Club premises on 24 October 2007. Neither was there any negligence on the plaintiff's part. The occurrence was a misadventure. In any event, the plaintiff has suffered no relevant injury, loss or damage which would attract an award of damages.

84 The defendant is entitled to a verdict against the plaintiff. The parties will be heard on costs before final orders are made.

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