Gray v Wagga Wagga City Council

District Court of NSW|2021-03-17|Before: Ms J

Background

The plaintiff was 44 years old at the time of the incident. She is now aged 47. She lived at Coffs Harbour with her husband, Samuel Gray.
The plaintiff said she enjoyed an active social life prior to the incident that included dancing, walking, going to the beach and paddle boarding. Mr Gray added ziplining and sailing to the plaintiff's pre-incident activities.
In about 2012 or 2013 the plaintiff developed a condition in her lower back that caused her left sided sciatic pain. Attempts to treat the condition conservatively failed and the plaintiff's long term general practitioner, Dr Ruthnam, referred her to Professor Stoodley, neurologist, when the pain was such that the plaintiff struggled to function. She ceased social activities but she continued to work in retail with the assistance of an accommodating employer.
Professor Stoodley reported on 30 September 2014 (Exhibit A.155) that a CT scan showed a disc protrusion at L4/5 compressing the L5 nerve root. He recommended surgery which he performed on 13 November 2014. The surgery was successful and the plaintiff returned to work after a three week recovery period. She said that with physiotherapy and exercise she rebuilt her core strength and resumed her social activities as well as her intimate relationships without the need for medication.
At the time of the surgery the plaintiff worked in a surf shop where she was initially employed as a shop assistant, progressing to the position of store manager. The plaintiff said she was able to return to this employment full time undertaking all of her duties, some of which involved lifting and moving heavy boxes of stock. She said she modified the way in which she carried out some of her duties in order to protect her back from further injury.

Non-economic loss

The plaintiff has suffered from significant symptoms in her back and leg from the time of the incident. Her shoulder pain receded but revived in 2018. The medical evidence indicated that her symptoms will be long term with the prospect that further back surgery might be required at some future date.
Aside from surgery, her treatment will remain conservative with reliance upon pain relief and exercise. There was the option of physiotherapy or massage if the plaintiff had the funds with which to pay for such treatment. Although the evidence did not support a finding of psychiatric injury, I accepted that the effect of chronic symptoms of this nature on the plaintiff's enjoyment of life should be taken into account in assessing her non-economic loss.
I assessed this loss at 28% of a most extreme case and awarded the sum of $96,000 on this head of damage.

Income loss

The claim for income loss was limited to a buffer for future incapacity based on the following evidence.
The plaintiff left her employment in the surf shop in 2014 or 2015 and worked in real estate as a sales associate. In order to concentrate on her physical and mental health the plaintiff took a three month break from employment in June 2017. She became bored and returned to casual work at the surf shop, working in retail on the shop floor, and to casual administrative work with a food wholesaler, answering telephones and taking orders. Between these two jobs she worked 21 to 24 hours per week and earned between $600 and $700.
The plaintiff said that after the incident she could no longer continue with her work at the surf shop, finding the requirement to remain on her feet for a whole day, something she had been capable of prior to the incident, to be too demanding. She continued to work 20 hours per week with the food wholesaler as an accounts receivable clerk and working from home.
Dr Spittaler and Dr Rogers agreed that the plaintiff was capable of sedentary office work of this nature. Dr Spittaler thought she was capable of working full time in her current occupation but not capable of work that involved lifting or twisting.
I noted that the plaintiff voluntarily limited her working hours and that, if she chose to do so, she was capable of full time sedentary administrative work. Taking account of s13 of the Act, I considered that the plaintiff's most likely future prospects mirrored those of the past and that she would have continued to have available to her the option of working in the more physically demanding retail area or in administrative work. She is now limited to exercising only one of those options.
I determined that this limitation warranted a modest buffer to cover the remaining 30 years of her working life and awarded her the sum of $50,000.

Domestic Assistance

The plaintiff lived in a two storey, 3 bedroomed house in Coffs Harbour. She claimed that since the incident she was dependent upon the services of a cleaner for four hours a week to undertake housework that involved bending, lifting and twisting.
The plaintiff conceded that prior to the incident she had engaged a cleaner to assist with her housework, in part for the purpose of protecting her back from further injury. She claimed that as a consequence of her injuries the assistance of a cleaner was no longer optional on her part but a matter of necessity to undertake the heavier domestic and gardening tasks that she could no longer perform.
In this respect the plaintiff was supported by Dr Spittaler and Dr Rogers.
In the absence of evidence to support a claim for paid assistance to the date of the hearing, no claim for reimbursement was made. I considered the claim of two hours per week at the rate of $40 per hour to be reasonable and I awarded the plaintiff $72,800 on this head of damage.

Medical expenses

Past expenses were agreed in the sum of $4,499.53.
For the future, the plaintiff claimed the cost of ongoing consultations with her general practitioner, and of medication, physiotherapy and travel.
Although the plaintiff stated that she would be more inclined to undertake physiotherapy if she had the funds to do so, I considered that therapy of this nature would likely be intermittent and not of a continuous lifelong nature as claimed. The evidence supported the remaining claims for future treatment.
I allowed the amount of $40,000 for future medical expenses.

Summary

I assessed the plaintiff's claim as follows: Non-economic loss $96,000.00 Future income loss 50,000.00 Future domestic care 72,800.00 Past medical expenses 4,499.53 Future medical expenses 40,000.00 $263,299.53

ORDERS: 1. Verdict for the defendant. 2. Exhibits are to be retained for 28 days. 3. The parties have liberty to apply within 14 days to bring the matter before the Court to deal with the issue of costs. In the absence of any such application, the plaintiff will be ordered to pay the defendant's costs of the proceedings as agreed or assessed.

Amendments 08 April 2021 - Parties from the cover sheet field has been changed. 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: 08 April 2021

Warning Sign

I did not accept that the plaintiff's injury was caused by the defendant's failure to provide warning signs or signs alerting the plaintiff to the presence of an automatically closing door.
The plaintiff said she was unaware of the presence of the autolock door until after it struck her. Asked to explain why she had not seen it, she said she was confused and dazed by the incident and remembered little of it except that the autolock door struck her unexpectedly.
Shortly after the incident Ms Hilton prepared and placed a sign (Exhibit A2) on the fixed section of the autolock door that read: "CAUTION AUTOMATIC DOOR DO NOT STOP IN DOORWAY PLEASE CONTINUE THROUGH TO TERMINAL"
The CCTV footage demonstrated that the autolock door opened as the plaintiff approached it and that it should have been visible to her. The explanations for her failure to see it, in addition to shock, included distraction caused by her need to attend to her aunt or by her sight of waiting family members.
The sign erected by Ms Hilton after the incident warned against "stopping" within the opening of the autolock door. I have accepted the plaintiff's evidence that she did not stop. A warning of this nature, therefore, would not have assisted her.
Nor did I accept that inattention through distraction could be blamed for the incident. The plaintiff had already walked into the passageway provided by the door before it moved and struck her. Had the plaintiff seen the door or a warning of its presence, in the circumstances in which she was placed, she had no option but to proceed through it and the action that she might have taken to avoid the impact remained obscure.
In Rosenberg v Percival [2001] HCA 18, (2001) 205 CLR 434 Gleeson CJ said at [16]: "In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated."
I have already noted the incident free record of the operation of the autolock door and the defendant's system of inspection, maintenance and daily operative checks. Taking this evidence into account, I was satisfied that, at the time of the incident involving the plaintiff, the risk alleged in this case was not such that a warning was warranted.

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