Guru v Coles Supermarkets Australia Pty Ltd - [2016] NSWDC 349 - NSWDC 2015 case summary — Zoe

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Guru v Coles Supermarkets Australia Pty Ltd

[2016] NSWDC 349

District Court of NSW|2015-12-07

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At a glance

Source facts

Court

District Court of NSW

Decision date

2015-12-07

Catchwords

(1987) 162 CLR 479 Cupac v Cannone [2015] NSWCA 114 Dasreef Pty Ltd v Hawchar [2011] HCA 21
(2001) 52 NSWLR 705 Manly Municipal Council v Skene [2002] NSWCA 385 Medlin v State Government Insurance Commission [1995] HCA 5
(1995) 182 CLR 1 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61
205 CLR 254 Mt Isa Mines Ltd v Pusey [1970] HCA 60

Source

Original judgment source is linked above.

Catchwords

(1987) 162 CLR 479 Cupac v Cannone [2015] NSWCA 114 Dasreef Pty Ltd v Hawchar [2011] HCA 21(2001) 52 NSWLR 705 Manly Municipal Council v Skene [2002] NSWCA 385 Medlin v State Government Insurance Commission [1995] HCA 5(1995) 182 CLR 1 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61205 CLR 254 Mt Isa Mines Ltd v Pusey [1970] HCA 60(1970) 125 CLR 383 Penrith City Council v Parks [2004] NSWCA 201 Purkess v Crittenden [1965] HCA 34(1965) 114 CLR 164 Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42(2005) 223 CLR 442 Watts v Rake [1960] HCA 58

Judgment (46 paragraphs)

[1]

Table of Contents Nature of case [1] Factual background [2] Issues [3] - [5] Evidence overview [6] Transcript [7] Credibility and reliability of testimony [8] - [28] Plaintiff [9] - [13] Mr Damyion Guru [14] Mrs Patricia Whittington [15] - [20] Plaintiff's liability expert - Mr Neil Adams [21] - [26] Medical evidence [27] - [28] Facts [29] - [80] Plaintiff's pre-accident personal history [30] Plaintiff's pre-accident medical history [31] Accident circumstances [32] - [45] Injuries sustained in the accident [46] - [47] Medical and allied treatment and reviews [48] - [66] Resolution of conflicting medical opinions [67] - [75] Disabilities [76] - [80] Issue 1 - Whether obvious risk [81] - [94] Issue 2 - Duty of care and alleged breach [95] - [117] Risk of harm [98] - [100] Requirements of s 5B of the CL Act [101] - [110] Requirements of s 5C of the CL Act [111] - [113] Causation : s 5D of the CL Act [114] - [116] Conclusion on negligence and its effects [117] Issue 3 - Alleged contributory negligence [118] - [124] Issue 4 - Assessment of damages [125] - [177] Plaintiff's probable life span [126] Mitigation [127] - [128] Non-economic loss [129] - [132] Past economic loss [133] - [141] Past loss of superannuation [142] Future economic loss [143] - [147] Future loss of superannuation [148] Past domestic assistance [149] - [157] Future domestic assistance [158] - [161] Future out-of-pocket expenses [162] - [166] Past out-of-pocket expenses [167] - [176] Summary of damages assessment [177] Disposition [178] Costs [179] - [180] Orders [181]

[4]

Issues

Apart from the need to resolve preliminary matters concerning the credibility and the reliability of testimony, and factual matters in dispute, a review of the pleadings, the evidence and the submissions, identifies the following issues as arising for determination: Issue 1 - Whether, within the meaning of s 5F and s 5G of the CL Act, the presence of a grape or grapes on the floor of the premises constituted an obvious risk for a fall by persons shopping in the premises, and if so, does the defendant avoid liability to the plaintiff for failing to warn her of the danger of slipping and falling due to the presence of grapes on the floor; Issue 2 - Whether the defendant owed the plaintiff a relevant duty of care, and whether the defendant was in breach of that duty, having regard to the requirements of s 5B and s 5C of the CL Act, and whether any breach, as may be found, relevantly caused the plaintiff's claimed losses, having regard to the requirements of s 5D of the CL Act; Issue 3 - Whether there was contributory negligence on the part of the plaintiff, within the meaning of s 5R and s 5S of the CL Act, and if so, to what extent: Issue 4 - The assessment of the plaintiff's entitlement to damages.
The issues that arise concerning the nature and extent of the plaintiff's injuries, the residual effects of any ongoing disabilities, and the effects of these matters on the plaintiff's earning capacity, and with regard to her domestic activities, will be dealt with in those portions of my reasons that deal with damages.
On behalf of the plaintiff, in accordance with the applicable standard orders, a damages schedule was presented, totalling $1,213,812.40 plus costs: MFI "3". That schedule comprised an exaggeration of the claim, but not by the plaintiff, whose evidence I accept. That schedule bore little relationship to the evidence. That view was exposed to counsel for the plaintiff in the course of the proceedings so that it could be addressed in submissions: T117.39; T121.42; T148.45.

[10]

Mrs Patricia Whittington

Mrs Whittington, an employee of the defendant, was engaged in multi-tasking work activities within the premises at the time of the plaintiff's fall. She was going through merchandise, and was carrying out activity within the supermarket that she described as final markdown pricing for the evening. Her duties also included the periodic visual checking of the floors in the fruit and vegetable area, and picking up loose items of produce that had found their way onto the floor, if they were seen to be in that position.
At the time of the subject incident, Mrs Whittington was also responsible for supervising junior staff who were in the vicinity arranging displays of produce. She came to the plaintiff's assistance after she heard the sound of the plaintiff's fall. The effect of her evidence on the liability issue, was that the floor had been inspected, and was seen to be clear a few minutes before the plaintiff's fall, and she denied the content of a post-fall conversation the plaintiff alleged to have had with her, in which the plaintiff claimed that Mrs Whittington had apologised to her, and had said she had been on a break, and she had not had a chance to clean up, this being a reference to the floor in question.
On 7 January 2013, 5 months after the accident, Mrs Whittington had prepared a statement setting out her recollection of her involvement of the events: Exhibit "3". The preparation of that statement was undertaken with the assistance of an insurance investigator employed by, or on behalf of the defendant, by Westfarmers.
After making due allowance for the fact that Mrs Whittington was called as a witness in the defendant's case, and would have been expected to give evidence supportive of the defendant's case, I nevertheless considered her to be an unduly defensive witness. I considered that her evidence of the events surrounding the plaintiff's fall was based more upon her usual practice than her actual recollection of the events of the day in question: T72.17; T72.24; T72.34; T77.25; T80.24; T84.34; T88.49; T89.4; T95.23; T95.49; T96.5; T96.42; T97.13.
In light of those matters, I considered that the reliability of her evidence in which she claimed a recollection of having cleaned up dropped grapes before the plaintiff's fall, should be significantly discounted on disputed matters of fact: T73.14 - T73.19; T77.26; T78.25 - T78.32; T81.12; T83.43; T84.27; T84.44; T85.9.
On a consideration of the evidence of Mrs Whittington, the evidence of the plaintiff, Mrs Whittington's statement comprising Exhibit "3", and the brief factual account given by the plaintiff to her solicitors on 3 March 2013 (Exhibit "E"), even after allowing for its self-serving nature, I find that the conversation in the terms recounted by the plaintiff, had actually occurred, as claimed by the plaintiff. In the circumstances, I considered that the plaintiff had a greater interest in retaining a more accurate memory of the events in general, and over time, than did Mrs Whittington.

[11]

Plaintiff's liability expert - Mr Neil Adams

The plaintiff's solicitor commissioned a report dated 19 May 2015 from Mr Neil Adams, a consultant safety management and ergonomics expert: Exhibit "C". There were no credit issues arising from the expert liability report prepared by Mr Adams. That report stood to be analysed for reliability according to the reasoning proffered to underpin the opinions stated therein, and according to the validity of the underlying assumptions: UCPR r 31.27(1)(c); UCPR Sch 7 cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588.
In the parts of Mr Adams' report which were relevant, it was noted that: 1. The configuration of the premises had changed since the time of the plaintiff's fall: par 2.1.2; 2. The general assumptions made by Mr Adams as to the manner in which the plaintiff slipped and fell, were in broad terms sufficiently like the plaintiff's evidence of those events, to make the report of Mr Adams relevant: paragraphs 2.1.2; 2.1.3; 2.1.4.
Mr Adams carried out a number of slip resistance tests on the floor, the results of which, and the ergonomic analysis of which, were set out in Tables 1 and 2 of his report: paragraphs 3.3.5 - 3.1.10. The difficulty with the reliability of that analysis in this case, is that it was largely based upon an assumption that the floor area where the plaintiff had slipped "was wet or otherwise contaminated": par 3.1.10.
I have concluded that in this case, Mr Adams' opinions do not relevantly add to the evidence to be considered for the purpose of resolving issues in dispute, because the emphasis of the investigation he undertook should have had the focus of the grape as the contaminant.
The portion of the report of Mr Adams which sought to address the issue of preventability of the plaintiff's fall was set out in paragraph 4.13(i) - (viii). In reviewing Mr Adams' commentary in that regard, the parts that were relevant comprised criticisms of the defendant, stating that the defendant failed to have: 1. a non-slip resistant textured surface, such as a carpet in the area; 2. slip-resistant treatments applied to the surface of the area in question; 3. employees sufficiently trained in vigilance for prompt detection of spillages on the floor; 4. packaging of goods arranged so as to minimise spillages; 5. appropriate warning signs.
Mr Adams' suggestion that warning signs should have been in place must be read subject to the consideration of the issue of obvious risk within the meaning of s 5F and s 5G of the CL Act. As to the remainder of the matters raised by Mr Adams, I consider they stand to be resolved by a commonsense factual analysis, and not by expert opinion in the form, and of the content of the report upon which the plaintiff seeks to rely.

[16]

Accident circumstances

In her oral evidence, the plaintiff said that the accident occurred whilst she was walking in an aisle in the fruit and vegetable section of the defendant's supermarket, carrying a basket into which she had selected and placed some dry goods.
The plaintiff stated that she walked towards the fruit and vegetable section, and her right foot then slipped forward. She fell to the floor, and slid towards a trolley, hitting it with her left leg. She then felt pain in her left knee and to her back. The plaintiff said that whilst she was on the floor, she looked down and saw a couple of grapes stuck to her right foot, by which she meant her footwear, which comprised thongs: T16.1 - T17.18. She said she then looked about her and noticed a few more squashed grapes located on the floor in the vicinity: T17.27.
The plaintiff said that shortly before her fall, as she walked in that area she had seen two young male employees of the defendant loading fruit and vegetables, presumably onto shelving, from crates. She said she also saw a female employee of the defendant carrying out similar tasks to those two young men: T18.1 - T18.20.
The plaintiff said that after she had fallen, the defendant's female employee, Mrs Whittington, came to her aid, and in the course of those events, she told the plaintiff that she had been on her break, and that she did not have time to clean up: T18.22 - T18.29; T45.50 - T46.21; T46.48.
The plaintiff said that when Mrs Whittington came to her assistance, she asked Mrs Whittington to pick up the grapes before someone else slipped on them, and in response, Mrs Whittington then scraped the squashed grape material from the plaintiff's shoes (T19.3), which comprised thongs: T43.27.
The plaintiff described the grapes on the floor as being located near the refrigerated shelves near the back wall of the premises: T22.19 - T22.25. She described the squashed grapes on the floor as spread out over an area about a foot away from her position on the floor: T22.30 - T22.43.
In answer to questions asked of her in cross-examination, the plaintiff did not agree that the incident leading to her fall occurred about 1m to 2m away from the shelves she had described: T39.45; T40.13 - T40.19. She agreed that some black mats had been located on the floor in the grape section on the day of her fall: T42.35. She did not agree that the flooring was brown, rather than the white laminate she had earlier described: T43.3. In my view, nothing turns on the differing descriptions of the colour of the floor or the colour of the grapes in question.
The plaintiff agreed that at the time of her fall she was not looking around to see what was on the floor: T43.31. She said that it was only after her fall that she had seen the squashed grapes: T43.34. Whilst she was on the floor, in the position she had fallen, she had no difficulty seeing those grapes on the floor: T44.16 - T44.25. I infer from that evidence that the grapes on the floor would have been visible to the plaintiff had she looked in that general direction. The plaintiff explained that she did not look down at her feet when she was walking just before she fell: T54.21.
On 22 October 2012, which was three days after her fall, the defendant's employees responsible for recording and investigating incidents occurring on the premises completed an incident report: Exhibit "D". That report, identified the plaintiff, the defendant's site manager, and the manager to whom the incident report was submitted. The report identified that the incident occurred at 5.20pm on the day in question, and it stated that the last time the floor area involved had been cleaned before the plaintiff's fall, was at 1.00am that day.
The report described the incident as involving the plaintiff "walking in fresh produce slipped over on grape" whilst wearing thongs: Exhibit "D", p 2. The report noted the plaintiff had injured her left knee and forearm, and her right ankle, and that Mrs Whittington had provided the plaintiff with ice as first aid: Exhibit "D", p 3.
The incident report described the action taken by Mrs Whittington in response to the incident as, cleaning up the grapes, and checking the entire department for further debris on the floor: Exhibit "D", p 4.
The plaintiff agreed she had provided a written statement to an investigator employed by Westfarmers: T47.1 - T51.27. That statement was dated 7 January 2013, and comprised 7 pages: Exhibit "2". In that statement, the plaintiff said that after she had fallen, she looked around and saw "at least 3 - 4 other squashed grapes, as well as one under her shoe", and that she had asked the manager to remove them: Exhibit "2", p 4.
On 6 March 2013, the plaintiff consulted her present solicitors, who filled out a client intake form. That form set out an account of the accident circumstances. Some extracts from that form, Exhibit "E", are as follows: "… Slipped right foot, fell forward (right foot went out in front) Landed on left knee with right leg extended Saw 3 or 4 squashed grapes on floor with some squashed on the sole of shoes (saw this on standing up) 3 employees in fresh produce, initially customers helped her up. One female staff member initially attended to her. Asked for an incident report. She was filling out an incident report. … Staff member, female said to her "I really sorry, just came back from my break … did not have time…" Our client pointed to floor "Can someone please clean these up…" CCTV was just above where she fell in fresh produce. …" [Emphasis as in Exhibit] [Exhibit "E"]
On 7 January 2013, Mrs Whittington provided a signed statement about the incident at the request of her employer: Exhibit "3". Relevant to the events in question, that statement set out the following: "… 2. On 19 October, 2012, about 5.00 p.m. I was at the mushroom section of Fresh Produce. This is the same location as where mushrooms are currently on display. I was standing on a step stool and I was starting the mark downs. 3. Previous to commencing that task, I had completed an inspection of the Fresh Produce Department and I picked up whatever may have been on the floor. I know for a fact that the last area I checked was the grape section. From the time that I completed the inspection to when this incident occurred was only a maximum two minutes. There is no doubt of that. I remember picking up grapes and then standing moments later on the step stool. 4. I was facing the wall doing the markdowns. I heard someone fall to the ground. I turned around to a customer on the floor. I got off the stool and went directly to her. There was one green grape which was squashed and this was what she had stepped on. There was a second grape behind her and closer to the grape section and this was also squashed. 5. There was two male Team Members working at the bananas and I instructed them to clean up the mess straightaway, which they did. … 10. The two Team Members working in Fresh Produce was Matt Wedd and Tim O'Horne. I told them to be vigilant when working. They were both on the other side of Fresh Produce and had been working there for about five minutes before this incident, I remember them coming out from the back room with a load of bananas. 11. I am always out on the floor and constantly checking the grape display as I know how often they are dropped by customers. 12. I do not remember what shoes this customer was wearing. …"

[18]

Medical and allied treatment and reviews

As part of the process of identifying the plaintiff's disabilities and to obtain a baseline for assessing the plaintiff's damages, it is convenient at this point to chronologically review the medical evidence tendered in the proceedings.
On 22 October 2012, the plaintiff first consulted her general practitioner, Dr Clarke, about the effects of her fall. He noted that she had fallen on her left knee and right arm, and that in the days which followed the fall, she had then developed pain in the right shoulder, right ankle, right hand and lower back: Exhibit "5".
On 24 October 2012, x-rays of the plaintiff's left ankle and lumbar spine were carried out at the request of Dr Clarke. These were reported as showing no abnormality of the left ankle, but they did show the presence of a Grade 1 spondylolisthesis of L5 on S1, without narrowing of disc spaces. A CT scan was recommended.
On 29 October 2012, the plaintiff presented to Dr Clarke who noted she was persisting with a request for CT scanning of all of her injured parts. Dr Clarke noted he was getting a sense that the plaintiff was developing a "compensation issue".
On 30 October 2012, a CT scan of the plaintiff's lumbo-sacral spine was carried out at the request of Dr Clarke. This revealed degenerative changes at the intervertebral joints and the facet joints at multiple levels, with disc protrusions at the L4/5 and L5/S1 levels.
On 9 November 2012, the plaintiff commenced physiotherapy treatment with Ms Thilina Vitharasia, for a medial meniscus injury to the left knee, and for left peroneal tendinopathy. The treatment consisted of heat therapy, soft tissue release, stretching and strengthening exercises: Exhibit "F".
On 23 April 2013, at the request of Dr Clarke, a musculo-skeletal ultrasound of the plaintiff's right hand was carried out. This showed a small amount of fluid in the dorsal aspect of the plaintiff's right wrist without evidence of other abnormalities.
On 10 September 2013, x-rays of the plaintiff's left ankle and lumbar spine were carried out at the request of Dr Clarke. These were reported as showing no abnormality.
On 10 September 2013, Dr Peter Clarke reviewed his correspondence, and at the plaintiff's request clarified that he understood the plaintiff to be continuing to suffer from ongoing symptoms in her right hand and forearm, comprising intermittent tingling and sensations of numbness, interference with sensory perception of heat, leading to burns, intermittent pulling sensations in her left knee, associated with sharp pains, and left lower back pain, constant lower back pain, and swelling and burning sensations in the right ankle and right lower leg.
On 19 November 2013, at the request of the plaintiff's solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. After taking a history and reviewing the plaintiff's left knee, back, right ankle and right wrist symptoms, and after conducting an examination of the plaintiff in conjunction with receiving the imaging evidence he identified, he considered only conservative treatment was required, including physiotherapy on an as needs basis. He considered her to be not fit for the heavier work of a beauty therapist, including heavy facial treatments and body massage. He also considered she should be restricted from lifting weights of more than 5kgs, and that she should not do heavy repetitive bending or lifting, and that her duties should be flexible to allow her to sit or stand at will. He expressed a guarded prognosis: Exhibit "B", p 45.
On 6 November 2014, at the request of her solicitors, the plaintiff was examined by Dr John Davis, an occupational physician. After reviewing the plaintiff's history and examining her, and after reviewing the imaging evidence that he listed in his report, Dr Davis considered the plaintiff had sustained mechanical injury to her neck, capsular trauma to her right wrist, disc injuries to her lower back, and patella-femoral joint trauma to her left knee. He considered the prognosis for these conditions was expected to be variable, especially in the lower back and the left knee, and he considered there should be restrictions for a range of repetitive or strained activities, which he described. He also foreshadowed the plaintiff's emotional adjustment was likely to be affected by anxiety and depression, and he considered that the injury in question had a quite significant impact on the plaintiff's ability to enjoy life's general amenities: Exhibit "B", pp 20 - 21.
On 18 November 2014, at the request of her solicitors, the plaintiff was examined by Dr Max Ellis, a consultant orthopaedic surgeon. Dr Ellis reviewed the plaintiff's history, viewed the imaging evidence, and identified the plaintiff's complaints as being in her neck, right arm, headaches, right shoulder pain, left knee difficulties, persistent low back pain aggravated by lifting, bending, and difficulty with prolonged standing, sitting and walking. He also identified right ankle pain, and right wrist problems. He expressed his opinion in impressionistic terms. He summed up the plaintiff's multiple injuries as being a musculo-ligamentous condition with aggravation to a degenerative neck condition, traumatic capsulitis of the right shoulder, right wrist, right ankle and left knee, as well as radiated neck and back pain. He identified the back symptoms as an aggravation of a pre-existing condition. He was equivocal in his views as to whether there were economic consequences of the plaintiff's injuries: Exhibit "B", pp 33 - 36.
On 14 January 2015, the plaintiff underwent CT scans of her cervical and lumbar spines, which were reported as showing a reversal of her normal cervical lordosis, and disc bulges of varying extents, at the levels L4/5, L5/S1, consistent with minor degenerative changes in both areas of the spine which were examined: Exhibit "B", pp 44 - 45.
On 11 March 2015, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Edward Schutz, a consultant surgeon. After reviewing the plaintiff's history, examining her and reviewing the imaging evidence, Dr Schutz concluded that it was possible the plaintiff had pre-existing disc pathology of the lumbo-sacral spine. He considered the reported injuries to the plaintiff's right shoulder of a muscular or soft tissue nature and he dismissed the plaintiff's neck, right shoulder and right hand symptoms, saying they "appeared to be trivial", and he similarly dismissed as "nebulous" the plaintiff's right wrist symptoms. He referred to the plaintiff's right hand symptoms as being common for persons of her age, and not due to the accident: Exhibit "1", p 13. Dr Schutz appeared to have expressed only tentative opinions as he highlighted that only limited information was available: Exhibit "1", pp 14 & 16.
In formulating his opinions, Dr Schutz appears to have addressed the task of assessing impairment in a misguided manner. He sought to apply percentages of a most extreme case to different injured parts. This led to apparently nonsensical results, for example, his opinion that the contribution of the subject accident to the plaintiff's back complaints was "no more than around (half) of my total": Exhibit "1", p 17. The overall tenor of his opinion was that the plaintiff's problems were not all accident-related, were minor, and ought to have been the subject of earlier recovery: Exhibit "1", pp 17 - 20. An annexure to his report commented on Dr Conrad's consultation with the plaintiff on 19 November 2013: Exhibit "1", annexures pp 1 - 3. Dr Schutz's report will be evaluated against the contrary opinions of Dr Conrad, Dr Davis and Dr Ellis.
On 21 May 2015, the plaintiff underwent ultrasound studies of her shoulders which were interpreted as showing mild biceps tendinosis and moderate bursitis, without tears: Exhibit "B", p 46.
On 25 August 2015, at the request of her solicitors, Dr Conrad prepared a commentary report. He had available to him, the report of Dr Schutz, dated 23 March 2015. Dr Conrad disputed Dr Schutz's assessments of the percentage of impairment affecting the plaintiff. That dispute did not go to any issue in the case. However, and pertinently, Dr Conrad pointed out that Dr Schutz's assessment did not appear to have addressed the plaintiff's back injury, which was a significant feature of her injury. Dr Conrad did not accept Dr Schutz's critique upon his own report: Exhibit "B", p 14.
On 3 September 2015, at the request of the plaintiff's solicitor, Dr Davis provided a commentary on the 23 March 2015 report of Dr Schutz. Dr Davis was critical of Dr Schutz's assessment of the plaintiff's level of impairment. Dr Davis identified methodological differences in assessment issues that resulted in differences in the respective assessments by Dr Schutz and his own assessment. That dispute did not affect any issue in the case. Dr Davis saw no need to change his opinions in light of Dr Schutz's commentary: Exhibit "B", pp 30 - 32.
On 11 September 2015, Dr Ellis re-examined the plaintiff. His further report which followed from that consultation was essentially in similar terms to his first report: Exhibit "B", pp 38 - 42.

[19]

Resolution of conflicting medical opinions

In my view, the reports of Dr Conrad, Dr Davis, and Dr Ellis, provide cogent and coherent explanations for their respective views as summarised between paragraphs [57] to [66] above. These experts were not required for cross-examination regarding those views.
The defendant's medico-legal expert, Dr Schutz was not required for cross-examination either. However, in my view, his analysis and commentary has not proceeded according to the requirements of UCPR r 31.30(1)(c); UCPR Sch 7, cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588. I have therefore concluded that where Dr Schutz's opinions are insufficiently explained, and where they differ from the other experts, those views should be rejected.
A particular aspect of Dr Schutz's opinions that I consider does not meet that standard, was his comment that the plaintiff had a pre-existing constitutional disorder of the lumbar spine (Exhibit "1", pp 13 & 14), suggesting that no more than "around (half)" of the proportion of any total of the plaintiff's back symptoms and restriction of movements, with related radiating symptoms to the left thigh are related to the subject accident: Exhibit "1", p 17. Dr Schutz did not explain the basis of that opinion, which was oracular in nature, rather than being adequately reasoned. Arbitrary opinions of that kind cannot be seen to be reliable.
The cited analysis of Dr Schutz was in terms that sought to assist in sifting what problems were due to the plaintiff's underlying or pre-existing condition, and which, if any of her problems were due to the exacerbating effects of the fall.
To the extent that the plaintiff had underlying problems that were vulnerable to exacerbation by injury, the principle to be applied is that the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18].
In cases such as this, to the extent that there has been an exacerbation of an underlying condition, the defendant generally has the evidentiary onus of teasing out that which was not caused by the accident: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. However, those observations must be read in light of the general obligation of the plaintiff to prove that her claimed disabilities were caused by the fall in question: s 5D of the CL Act; Glen v Sullivan [2015] NSWCA 191. In my view, the reasoning and the opinions within Dr Schutz's report were not of determinative assistance to any of those analytical tasks.
Furthermore, Dr Schutz's analysis has, to a significant degree, been misdirected to seeking to ascribe a percentage impairment to the plaintiff's situation according to a comparison with the benchmark of a most extreme case. That is an evaluation that must be undertaken by the court in the consideration of an assessment pursuant to s 16 of the CL Act. That exercise is not assisted by oracular and inadequately reasoned pronouncements from medical experts.
Dr Schutz's oracular pronouncements can be found in a number of places in his report dated 23 March 2015: Exhibit "1", as follows: 1. At page 15, he stated, without an identified basis, that it was "highly unlikely that there would be persisting symptoms [in the plaintiff's right wrist] due to a strain to this region, 2.5 years after the accident"; 2. Also at page 15, after noting that a bruising or strain of the patellar ligament can cause chronic symptoms without an injury to the knee joint itself, Dr Schutz stated, without reasons, that the plaintiff's bilateral "fairly symmetrical patella femoral crepitus … is likely to have been constitutional and pre-existent". In expressing that view, Dr Schutz did not discuss the effect of the injury the plaintiff had suffered to her left knee in that context; 3. Also at page 15, without saying why, he expressed the view that the plaintiff's right wrist and hand numbness was not due to her injury, he seems to have based that opinion on the absence of an early investigation of that matter, and in doing so, he appears not to have had due regard to the plaintiff's historical account of having twisted her right wrist in the fall, as he recorded at page 4 of his report; 4. At page 17 of his report, Dr Schutz did not explain with adequate reasons why he considered that the plaintiff's patella ligamentous symptoms due to tendinitis "could be anticipated" to gradually recover over time without leaving permanent symptoms. The expression "could be" was nothing more than conjecture, without additional explanation. It is therefore of little, reliable or probative value; 5. At page 19 of his report, Dr Schutz stated that "any of the minor effects of the 19 October 2012 accident would have recovered or settled considerably within a period of 6 - 12 weeks". In making that statement, Dr Schutz does not seem to have taken into account the plaintiff's subjective complaints, which required reasoned consideration if he considered they should be disregarded. Furthermore, his contextual use of the term "minor effects" was itself subjective, and of little assistance to the required analysis; 6. At page 20 of his report, Dr Schutz stated, without supporting reasons, that the "likelihood is that Mrs Guru would very likely have developed similar symptoms [in her back] whether the accident had occurred or not". That statement was oracular. It was therefore of no assistance to the defendant in the analysis to the tasks faced by the defendant: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. Furthermore, because of its lack of probative value, it was no obstacle to the plaintiff's evidentiary task of proving her complaints were accident related: s 5D(1) of the CL Act; Glen v Sullivan [2015] NSWCA 191.
For the reasons outlined in the preceding paragraphs, in this case, I find myself unable to rely upon or accept the opinions expressed by Dr Schutz concerning his medical assessment of the plaintiff.

[20]

Disabilities

I accept the evidence of the plaintiff as to the nature and the effect of her disabilities upon her. I also accept the summary of those matters as variously described in the medical evidence.
Given my general acceptance of the plaintiff's credit as a witness, and my acceptance of her evidence generally, I propose to treat the plaintiff's history as summarised in the medical evidence, and referred to in the paragraphs that follow, as evidence of the plaintiff's difficulties that she has experienced as a result of her injuries: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.
In summary, I find that since the subject fall, the plaintiff has continued to suffer from right shoulder pain, with associated stiffness, pain in her right wrist, with associated pain and swelling in three fingers of her right hand with occasional numbness, pain in the back of her neck, back pain, pain in her right ankle with associated occasional swelling and a burning sensation, and constant pain in her right knee.
I accept that prolonged walking causes the plaintiff to suffer problems, as does prolonged sitting at the computer. She experiences problems with bending and sitting for prolonged periods. She experiences difficulty with negotiating a large number of stairs. The combination of the plaintiff's problems have led her to experiencing emotional difficulties concerning her moods. She has become "snappy" with her children, and she has become an unhappy person. Her sleep is also impaired.
I find the plaintiff to be impaired in her ability to participate in her pre-injury leisure pursuits, which included gymnasium exercise, hiking, kayaking, swimming, bushwalking, archery and dancing. Her ability to carry out housework has also been impaired. She uses painkilling medication to cope with her difficulties. Those are all matters that are relevant to the assessment of damages for non-economic loss, loss of earning capacity, and domestic assistance, which are the subject of the consideration of Issue 4.

[21]

Issue 1 - Whether obvious risk

As the question of whether the claimed defence of inherent risk affects the scope or content of the duty of care owed, it is convenient to consider that claimed defence before any consideration of whether the defendant was in breach of its duty of care to the plaintiff.
By paragraph 9 of its defence filed on 12 December 2014, the defendant has in effect claimed that it did not have a duty to warn the plaintiff of the slipping danger posed by the presence of the grape or grapes on the floor of the premises, because such presence represented an obvious slipping risk: s 5F, s 5G and s 5H of the CL Act.
Section 5F of the CL Act relevantly provides: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
Section 5G of the CL Act relevantly provides: 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
Section 5H of the CL Act relevantly provides: 5H No proactive duty to warn of obvious risk (1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
The determination of the obviousness of a risk of harm requires an objective test to be applied by reference to the position of the plaintiff: s 5F(1) of the CL Act. This means that the relevant consideration is, not what the plaintiff had in mind at the time, but rather, what a reasonable person in her position would regard as obvious in the circumstances: Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482, at [59], [61].
In this case, I accept and find that as the plaintiff walked towards the produce shelves, she had applied her visual attention to the displays of merchandise for sale in the defendant's store. I consider that a reasonable person in her position would have done the same: s 5F(1) of the CL Act. At that time, she was looking for items to select and place in the shopping basket she was carrying. This was the very purpose of her presence in the store. This was an activity that the defendant had anticipated its customers would follow.
In the course of such events, it was reasonable for a person in her position to assume that whilst her attention was being directed to displays of merchandise, she could not also be looking for spillages of fruit or vegetable matter on the floor. This was a circumstance of which the defendant was well aware, as can be inferred from the evidence of Mrs Whittington, whose job it was to cast an eye over the floor area in question to look out for material of the kind on which the plaintiff slipped and fell.
Therefore, in this factual context, the plaintiff's evidence of not having looked at the floor before she fell, was not a matter that should be regarded as forming the basis for a finding that there was an obvious risk within the meaning of s 5G or s 5H of the CL Act. I consider that a reasonable person in the position of the plaintiff at the time, would have done the same as she had done.
This is because the plaintiff's momentary distraction of her attention away from an inspection of the floor, was a matter the defendant anticipated in the course of its business activities. That is, the defendant wanted its customers to pay attention to the shelves and crates of merchandise, and it recognised the risk of falls posed by vegetable matter on the floor, by instructing its staff to be on the lookout for such things, and to clean up such things whenever they were detected. It would be unreasonable to expect the plaintiff to be looking in two places at once in the circumstances.
The plaintiff was not on the premises to traverse an obstacle course. Whilst she was there, she was entitled to expect that the defendant would exercise reasonable care for her safety whilst she was shopping and looking for merchandise to purchase. In those circumstances, the plaintiff should not have been expected to have to pay particular attention to where she was placing her feet whilst walking towards places in the premises that caught her attention as a shopper. She was entitled to expect that the defendant would have an adequate and safe system of maintaining the floor in a clean state against the risk of customers falling on fruit and vegetable matter that had become foreseeably deposited on the floor.
During a moment of distraction whilst shopping for merchandise on display, it was entirely understandable that the plaintiff was unaware of risks posed by an existing spillage of grapes or other vegetable matter on the floor. I find that the plaintiff has proven, on the balance of probabilities, that like a reasonable person who would have been in her position at the time, she was not aware of the slipping risk posed by grapes or similar matter on the floor, which the defendant now seeks to characterise as one which was obvious: s 5G(1) of the CL Act.
I consider the defendant's argument to the contrary to be a convenient hindsight analysis and not one based on a prospective analysis as is required: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124].
For the reasons outlined above, I find that the defendant has not made good its claimed defence of obvious risk. It is therefore necessary to address questions concerning the duty of care owed, and the scope or content of that duty.

[22]

Issue 2 - Duty of care and alleged breach

As the defendant was the occupier of the premises in question, it owed entrants onto the premises a duty to take reasonable care with regard to the inspection, maintenance and repair of the premises, against a foreseeable risk of injury that could have been avoided by the exercise of reasonable care: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, at p 488; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, at [13], [18]; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [45].
The plaintiff pleaded 17 separate particulars of negligence, as follows: 1. Failing to take any or any adequate precautions for the Plaintiff's safety. 2. Putting the Plaintiff in a position of peril in the circumstances. 3. Exposing the Plaintiff to a risk of injury which could have been avoided by reasonable care on its part. 4. Failing to provide a safe floor that was free of slippery substances. 5. Failing to clean or adequately clean the said floor. 6. Allowing a slippery substance to remain on the floor. 7. Permitting a slippery substance to get on the floor. 8. Failing to devise, institute and maintain a proper and safe system of spot checks of floors. 9. Failing to provide a safe means or system of cleaning the floor and draining the same thereby avoiding leaving slippery substances on the floor. 10. Failing to place suitable signs warning customers including the Plaintiff of the dangers of slippery substances on the floor. 11. Failing to cover the floor area with mats, hessian or some other similar material to prevent the Plaintiff and other customers from slipping on the floor. 12. Failing to barricade the area or place a staff member in the area to prevent and warn customers from walking over the slippery substance. 13. Failing to warn the Plaintiff of the presence of the substance on the floor. 14. Failing, by its servants or agents, to observe that a quantity of slippery substance was on the floor. 15. Failing to more frequently and adequately inspect and clean the area around the fruit and vegetable area of the store. 16. Failing to inspect the aisle ways to ensure they were safe prior to allowing customers access. 17. Having insufficient staff rostered on during the busy luncheon (sic) period.
In essence, the nature of the negligence alleged by the plaintiff was that the defendant failed to take reasonable care for the plaintiff's safety by having in place an adequate system of inspecting for spillages of produce, failing to provide sufficient staff to clean up spillages as they were reasonably observed, and failing to warn the plaintiff that she should be aware of a risk of falling due to spillages on the supermarket floor.

[24]

Requirements of s 5B of the CL Act

Section 5B of the CL Act provides: 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.
There can be no question that a business entity which operates a supermarket in which there are open shelves offering loose fruit and vegetables for sale carries the foreseeable risk that some fruit and vegetable matter may end up on the floor and thereby pose a slipping risk to persons walking within the premises: s 5B(1)(a) of the CL Act.
The risk of a person slipping and falling in the circumstances in which the plaintiff found herself, because of the expected volume of shoppers handling the goods on display and transferring them to shopping trolleys, and pedestrian traffic, should not be seen as one that was insignificant in the context of s 5B(1)(b) of the CL Act.
In my view, a person in the position of the defendant would have taken precautions against the risk of a customer slipping on fruit and vegetable matter on the floor, in this instance, a grape: s 5B(1)(c) of the CL Act.
The question of whether the defendant should have taken the precautions against the risk of the plaintiff slipping and falling on the premises by slipping on a grape, as was contended by the plaintiff, must be evaluated in light of the provisions of s 5B(2) of the CL Act.
I consider that there would have been a high probability of the plaintiff, or a person in her position, slipping on a grape located on the floor if the contended precautions were not taken. I take this view because in a supermarket selling loose fruit and vegetables on open shelving, enabling customers to handle the goods, creates a significant risk of spillage of such goods onto the floor, thereby posing a risk of slipping and falling for customers: s 5B(2)(a) of the CL Act.
I consider the likely seriousness of the harm to the plaintiff or persons in her position in the described circumstances was significantly serious. This is because a person falling onto a hard floor surface is vulnerable to the risk of serious bodily injury of various kinds, all of which can be significant in terms of serious harm: s 5B(2)(b) of the CL Act.
This aspect of the consideration requires an assessment of the extent of any burden on the defendant in taking the contended precautions to seek to avoid the risk of harm from the plaintiff and others in her position sustaining injury by slipping and falling in the described circumstances.
In my view, in a commercial supermarket business operation, a system that applies personnel resources to the task of vigilant inspection and cleaning where needed, is not unduly burdensome. This is so where the defendant had a number of staff who were assigned multiple overlapping tasks, as described in the evidence of Mrs Whittington. It appears the defendant had adequate staff assigned to the area, namely, Mrs Whittington and the two other male employees: s 5B(2)(c) of the CL Act.
A consideration of the social utility question of the activity which created the risk does not relevantly arise. There is a high social utility in providing supermarket services to the community. It is intended as part of such social utility, that the provision of such services would derive profit for the defendant. There is no social utility for such services to be provided without the concomitant exercise of reasonable care and skill on matters of the safety of entrants onto the premises: s 5B(2)(d) of the CL Act.

[26]

Causation: s 5D of the CL Act

I now turn to the consideration of the question of causation which includes the question of the scope of the defendant's liability. Section 5D of the CL Act provides: 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.
The plaintiff has established a question of factual causation in that, but for the failure of the defendant to recognise the presence of the grape on the floor, and clean it away, she would not have slipped on that grape, fallen, and sustained the described injuries: s 5D(1)(a) of the CL Act.
It remains to consider the question of the scope of the defendant's liability: s 5D(1)(a) of the CL Act. In that regard, it is plainly appropriate for the scope of the defendant's liability to extend to the harm suffered by the plaintiff. This is because the defendant's occupation of the premises was for the purposes of operating a business, one of the overheads of which involved expenditure on staff salaries, where the duties of staff included the tasks of inspection and cleaning of floors of strewn fruit and vegetable matter. It is not suggested this is an exceptional case: s 5D(2) of the CL Act. In those circumstances, it is plainly appropriate to extend the defendant's scope of liability in the present case to the plaintiff's injury because there was a negligent failure on the part of the defendant's staff to fully or properly implement that identified system: s 5D(4) of the CL Act.

[28]

Issue 3 - Alleged contributory negligence

By paragraph 8 of its filed defence, the defendant raised the following allegations of contributory negligence against the plaintiff: 1. Failure to take adequate care for her safety; 2. Failure to maintain a proper lookout; and 3. Failure to observe her surroundings.
The defendant's claim that the plaintiff was contributorily negligent is based on the plaintiff's evidence that she had not been looking down at her feet as she was walking in the premises just before her fall: T54.21. Whilst that evidence was capable of sustaining findings that the plaintiff had not taken adequate care for her own safety, and that she had failed to keep a proper lookout by observing her surroundings, for the reasons that follow, I find that the defendant has not made good its claimed defence of contributory negligence.
To sustain its contributory negligence defence, the defendant must satisfy the requirements of s 5B and s 5C of the CL Act: Solomons v Pallier [2015] NSWCA 266, at [48]. The identification of the risk of harm to the plaintiff, in the context of a consideration of the issue of alleged contributory negligence, is as has already been considered in connection with the issue of negligence, as described at paragraphs [98] to [100] above.
The allegations of failure to take care for her own safety by maintaining a proper lookout in observing her surroundings are of wide compass, but the context is important. The plaintiff was looking around her for items to purchase. Her surroundings were a supermarket where goods were attractively displayed to induce customers to select particular items for purchase. A reasonable person in the position of the plaintiff in those circumstances would have kept a proper lookout and taken in her surroundings: s 5B(1)(a) of the CL Act.
However, in the course of looking around her, it was not only foreseeable that the plaintiff might encounter some obstacle or contaminant on the floor, that risk, in a supermarket which employed staff whose duties it was to inspect and clean the floor when needed, should be seen as being an insignificant one: s 5B(1)(b) of the CL Act.
Whilst it is arguable that a reasonable person in the position of the plaintiff would have kept a proper lookout and cast an eye over the floor area where she was intending to walk, that consideration must be tempered by allowing scope for momentary inattention whilst looking at the goods on display. I consider that this is what occurred in this instance. I therefore find that the defendant has not discharged its onus of proof in connection with the third precondition for a finding of contributory negligence on the part of the plaintiff, as required by s 5B(1)(c) of the CL Act.
The defendant's claim of contributory negligence on the part of the plaintiff should be rejected and it is therefore dismissed.

[34]

The defendant suggested to the plaintiff that since her injury, she has continued to make the same amount of money from her business as she did beforehand. The plaintiff denied that proposition, but in doing so, she could not recall the relevant figures, and she said she left those matters to her accountant.
The defendant's submission that the plaintiff has continued to make the same amount of money as she did before her fall is on one view, oversimplistic, because there is no detailed evidence of any client numbers, services provided, or the charges involved, and the level of the plaintiff's overhead expenses. An analysis of those matters would permit reasoned conclusions of the nature of any losses incurred by the plaintiff, and any associated patterns or trends. The plaintiff carries the onus of proof on such matters.
The plaintiff's accountant, whom she relied upon for matters of a financial nature, was not called to give factual evidence. No expert evidentiary report of a financial nature was tendered, and no primary source documents were tendered.
In approaching an assessment of the plaintiff's claim for economic loss, it is not only necessary that it be shown there has been an impairment in earning capacity, but it is also necessary for the plaintiff to establish that as a result of such impairment, she has suffered a financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.
In applying those principles to the evidence, as to her earnings, I consider that the plaintiff has failed to establish any past economic loss flowing from her injuries. In coming to that view, I have considered her net earnings as summarised at paragraph [133] above, and her evidence that her clients dropped in number since the accident: T57.6. The evidence on this issue has been left in an unsatisfactory state and without relevant explanatory detail. I consider the state of the evidence precludes an award of any damages for past economic loss, not even a buffer amount.
In arriving at that conclusion, I have not overlooked the plaintiff's evidence that she finds the massage component of her work as being problematic after her injury. However, the medical evidence cannot reasonably be read as supporting that claim because the medical reports did not consider the actual detail of that aspect of her work. Furthermore, the plaintiff was not asked to explain, how, in terms of her disabilities, why that component of her work was beyond her. Nor was evidence called as to the proportion of her work that comprised massage.
A fundamental problem with the plaintiff's claim for past economic loss is the undoubtedly disruptive effect on her business of her move to Ballarat in 2013. Her earnings in the run-down period and in the re-establishment period would be relevant considerations but that material was not tendered. The plaintiff has failed to discharge the onus of proof she carried to demonstrate the factual and monetary basis for her claim for past economic loss. No evidence was directed at those matters.
I therefore find that on the state of the evidence adduced, the plaintiff is not entitled to any damages for past economic loss.

[36]

Future economic loss

The plaintiff claims an amount of $411,000 for future economic loss. That claim is based upon an assumed loss of $500 per week net projected at 5 per cent over 30 years until the plaintiff's age of 70 years (x 822) without discount for any vicissitudes. The foundation for that claim cannot be reconciled with any aspect of the evidence.
The difficulty in assessing the plaintiff's claim for future loss of earning capacity is that on the evidence, it is difficult to identify any recurring or likely recurring losses. Furthermore, the medical evidence does not reasonably permit a conclusion that the plaintiff's disabilities would continue for the remainder of her working life. The plaintiff has the onus of proof on that issue. There is little in the way of evidence to support this element of the plaintiff's claim.
Despite those difficulties, an assessment of the claim is still required, and the terms of well settled authority enable a monetary assessment to be achieved in the form of a buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27]. Counsel for the plaintiff informed me that I "just had to do the best that can be done on the evidence": T144.2.
On the most benevolent view of the medical evidence, it is possible that the plaintiff may encounter some difficulty in the future with some of the physical aspects of her work as a beauty therapist, including massage work. The evidence in support of such a proposition is not strong. It is also possible that those possible difficulties may be productive of some kind of economic loss, which on the evidence, is difficult to discern, predict or assess. In those circumstances, I consider that an appropriate award by way of an economic buffer against the possibility the plaintiff may incur loss in that regard, is the sum of $40,000.
I therefore award the plaintiff damages for future economic loss in the assessed amount of $40,000.

[38]

Past domestic assistance

The plaintiff claims an amount of $38,680 for past gratuitous domestic assistance. That amount consists of first, the calculation of 8 hours per week of assistance costed at $25 per hour for an initial period of 157 weeks ($31,400), and secondly, for further assistance on a paid basis for 2 hours per week at $35 per hour or $70 per week over 104 weeks or $7,280. The total of these two amounts is $38,680. In the course of submissions, counsel for the plaintiff conceded that amount "maybe on the high side": T142.28.
The defendant's position on the plaintiff's claim for past gratuitous services was that the evidence of the plaintiff's circumstances did not meet the threshold of six hours per week to enable damages to be awarded for such services. The defendant's position on the paid component of past domestic services was that the medical evidence, and the evidence as a whole, does not satisfy the requirements for proof of an injury-related need for such services.
I accept the plaintiff's evidence that for a time, over the claimed period of 104 weeks, because of the effects of her injuries, she had a need to pay for a cleaner as she could not do her housework in circumstances where her husband was away and her son had a limited facility for carrying out that work on a gratuitous basis. Notwithstanding the absence of documentary evidence, I accept the plaintiff's evidence that she engaged a cleaner for 2 hours per week at $35 per hour over the claimed period of 104 weeks. Therefore, damages on that account should be assessed in the claimed amount of $7,280.
In relation to the gratuitous component of the claim, I consider that the plaintiff has not satisfied the threshold requirements of s 15 of the CL Act to enable an award of damages for past gratuitously provided domestic assistance.
I take that view because that component of the claim relied upon the evidence of the plaintiff's son Damyion, who is aged 15 years. He said the housework he performed when the family lived in Sydney consisted of "my chores and my rooms. I did the dishes. I cleaned the kitchen area. I still made some dinner sometimes when mum wasn't able to": T67.32 - T67.34. The evidence did not satisfactorily differentiate between the chores he performed in any event, and the tasks he had taken on which, but for her injuries, the plaintiff would have performed.
On moving to Ballarat, the plaintiff's older son took on the vacuuming and the mopping, and he and his brother helped with the washing (T67.30 - T68), and put away the heavier items of shopping: T68.14. He also cleans the bathroom and makes his bed, and his brother does the dusting: T69.1 - T69.8. I do not consider that the evidence adduced supports the proposition that the plaintiff's injuries preclude her carrying out those tasks so that she must have them performed for her.
The plaintiff's evidence was that her older son would spend about half an hour to 45 minutes per day doing chores around the house for her: T37.33. She said her younger son would spend about half an hour (per day) on chores: T37.37. This amounts to about 7 to 8.5 hours per week. Whilst I do not doubt this was so, there was no persuasive evidence to link those services provided by the plaintiff's sons, to an accident-related need: Griffiths v Kerkemeyer [1977] HCA 45. In my view, the vague state in which the evidence on this topic has been left, precludes acceptance of this component of the plaintiff's claim. I find the plaintiff has not discharged the onus of proof in respect of the claim for past gratuitous services.
In arriving at that finding, I have not overlooked the plaintiff's evidence at T62 - T63, in which she stated she cannot do everything in the way of housework, including tasks that involve a lot of bending, picking things up, mopping, vacuuming and the like, due to back strain, and pain in her left knee, right ankle and right wrist: T62.25 - T62.44. The evidence is imprecise, and is in parts questionable, for example, it transpired that her younger son's assistance in doing the dusting, which was part of the 3.5 hours per week claimed, was due to the plaintiff having allergies, which had nothing at all to do with the accident.
For the above reasons, I therefore assess the plaintiff's damages for past domestic assistance in the amount of $7280.

[41]

Past out-of-pocket expenses

The plaintiff claimed that she has incurred out-of-pocket expenses in the amount of $20,285.40: MFI "3".
That sum was identified as comprising an amount of $2,436.35 paid by Medicare; a claim of $48 per week for Nurofen for 157 weeks, in the sum of $1884; a claim for Voltaren anti-inflammatory gel at a cost of $12.50 per week over 157 weeks in the sum of $1962.50; a claim for Diflam gel at a cost of $5.25 per week over 157 weeks in the sum of $824.25; a claim for Elastoplast heat pads at a cost of $28.75 per week over 157 weeks, in the sum of $4513.75; a claim for heat bags at a cost of $5.25 per week over 157 weeks in the sum of $1022.07; a claim for insoles at a cost of $2.29 per week over 157 weeks in the sum of $359.53; and a claim for an aquatic programme in the sum of $6914.
When the schedule was initially examined in the course of submissions, the plaintiff abandoned all but the Medicare component, which was increased from $2436.35 to $4217.50 as shown in Exhibit "K", which was tendered at that time.
The defendant has not agreed to any aspect of the plaintiff's claim for past out-of-pocket expenses: T119.5. As the defendant correctly pointed out, the onus of proof on the issue of recoverable out-of-pocket expenses rests with the plaintiff: T119.33.
The tender of the Medicare schedule does not of itself prove the plaintiff's claim for past out-of-pocket expenses. It simply proves the expenses listed on the schedule have been paid by Medicare. Without cogent explanatory evidence, I find myself unable, in a reasoned way, absent further explanatory evidence, to infer that the amounts listed on the Medicare schedule, represents amounts reasonably incurred by the plaintiff in relation to accident-related treatment.
In light of that identified difficulty, I have been invited to make an arbitrary assessment as a fall-back approach: T119.16; T119.47. That suggested solution very much goes against the grain when it comes to resolving a matter in dispute in legal proceedings: T119.18. The position of the defendant was that no amount should be allowed for past out-of-pocket expenses because of a lack of convincing evidence: T119.49.
In examining that submission in light of the medical evidence and the Medicare schedule, it is evident the plaintiff commenced seeing Dr Clarke on 22 October 2012, which was 3 days after the accident, and on the very next working day after the accident. In those circumstances, I consider the expenses the plaintiff has incurred in seeing Dr Clarke should be accepted as being accident-related, even though the evidence for this is not strong. These expenses total $1012.80.
On a similar approach, I allow the cost of imaging tests that were ordered on referral, excluding mammography and breast screening costs and pelvic scans. The imaging which I have allowed amounts to a total cost of $337.65.
Of the other amounts on the Medicare schedule, the nexus between those amounts and the plaintiff's injury has not been explained through cogent explanatory evidence or agreement on such matters. For example, the claim of a payment to a Dr Le for "Beauty/Health Care" on 8 November 2013 is difficult to relate to the aftermath of the subject fall. On the state of the evidence, it is not reasonably possible for me to undertake a closer analysis in the face of such little assistance on the matter.
Doing the best I can on the evidence, I therefore assess the plaintiff's claim for past out-of-pocket expenses in the total amount of $1350.45.

Guru v Coles Supermarkets Australia Pty Ltd

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