Jackson v KAH Australia Pty Ltd t/as Bayview Boulevard Sydney

Jackson v KAH Australia Pty Ltd t/as Bayview Boulevard Sydney - [2017] NSWSC 747 - NSWSC 2017 case summary — Zoe

[5]

Background

The plaintiff was born in December 1969 in Brisbane. She is currently 48 years old. She attended school at Craigslea High School. The plaintiff left school at the end of Year 11.
In 1995, she undertook a 12 month course through the Australian Institute of Applied Science in aromatherapy. Aromatherapy is a holistic therapy involving the use of essential oils, plants, massage and reflexology. (T15.41-42). She obtained a certificate in massage. During that course, she undertook training in a range of subjects including anatomy and physiology. (Ex B).
In 1997, the plaintiff commenced working for Foxtel. The plaintiff states she was the Gold Coast manager for Foxtel and the second in charge in Queensland. The plaintiff says that she was the one that brought Foxtel to the Gold Coast. (T16.10-15).
When the plaintiff was about 19, she completed a real estate sales certificate. In about 2002, the plaintiff started her own real estate business, Hindsight Realty Pty Ltd. (T17.1-5). She organised the purchase of multiple properties so that developers could then proceed with their plans. Hindsight Realty has been dormant since 2011.
After her first child was born in July 2004, the plaintiff ceased full time work. In December 2006, her second child was born. She says that she continued to receive an income from the Hindsight Realty for some years after she ceased working. The plaintiff says that her ex-partner and father of her children, had a similar business and she says that she assisted him from time to time. The plaintiff says that she earned her largest income in 2007. (Ex B).
Prior to the accident on 21 July 2011, the plaintiff planned to commence her own business working from home. Apparently her long term plan was to develop land that she had previously purchased and build a retreat. She intended to practice alternative medicine, subsidised by her income from the property development business which she hoped to build up once her children were older.
On 21 July 2011, while attending a neuro-linguistic course at the hotel, the plaintiff slipped on water in the hotel foyer injuring her left foot.
On 7 January 2013, the plaintiff suffered a further injury. She says that when she got up off her bed to assist her four year old daughter in the bathroom, her left leg gave way due to numbness of her left foot and she fell injuring her head. She says that the numbness in her left foot is a result of the accident on 21 July 2011.

[8]

The plaintiff

The defendant submitted that the Court should find that the plaintiff lacked credibility and that her evidence was unreliable. I carefully observed the plaintiff give evidence and while she was cross examined at length. Overall, I have reached the conclusion that the plaintiff was tailoring her evidence, so as to bolster her claim for damages. I shall refer to a number of examples where the plaintiff gave unsatisfactory evidence. I have reluctantly come to the conclusion that her evidence was unreliable and unless corroborated by independent evidence (other than her current partner John Kleeman) I have approached her evidence with caution.
Some examples of the plaintiff's unsatisfactory evidence are as follows.

In her evidentiary statement (Ex B), the plaintiff makes no mention of having organised a seminar on the Gold Coast in November 2011 for Ian R Crane a pan-geopolitical analyst from England at time when she claims to have been significantly disabled. Nor does her evidentiary statement make mention of her having travelled to London for two weeks in September 2012 when she went sightseeing and met with Hemal Radia, a speaker on the law of attraction, with the intention of organising for him to present a seminar in Australia. (T45-T46). The plaintiff gave no evidence of experiencing any difficulties undertaking these activities, yet this was at a time when she says that she was significantly disabled.
In her communications with the owners of the Mount Burrell property (referred to later in this judgment) the plaintiff claimed that she had suffered economic loss solely due to the owner's fault. (Exs 1 and 3). However, there was no independent evidence before the Court to support this claim.
When cross examined, the plaintiff says that she complained to orthopedic surgeon, Dr Nihal and physiotherapist, Mr Cook, about her left foot problems. However their contemporaneous medical records do not have any record of this.
The plaintiff's initial evidence was that she did undergo drug and alcohol testing in accordance with the orders of the Federal Circuit Court but then proffered a confusing explanation as to why she refused testing. (T84.40-49). However, when re-examined she admitted that she actively refused to be drug and alcohol tested. (T168.1-38). I shall refer to in more detail to this later in this judgment.

I shall refer to some other examples of her unreliable evidence when it becomes relevant.

[9]

John Kleeman's credibility and evidence

Mr Kleeman is the plaintiff's current partner. I also carefully observed him give evidence and during cross examination. I formed the opinion that his evidence was also crafted to portray the plaintiff as being very disabled. At times Mr Kleeman's evidence was almost verbatim to the very odd evidence given by the plaintiff. As with the plaintiff, I will approach his evidence with caution when it is not corroborated by independent evidence.
In 2014, Mr Kleeman met Ms Jackson at a charity event (this took place after both of the alleged accidents). They formed a relationship, and in January 2015 they began living together. Mr Kleeman says that the plaintiff has difficulties with her short term memory. His evidence is that she has no recollection of any day to day events. He claims the plaintiff has poor concentration, no absorption, poor retention and that everything has to be written down for her. (T170.37-49). Mr Kleeman stated that because of the plaintiff's lack of concentration and memory loss or lack of memory of conversations, he would advise and assist her with business negotiations. (T171. 23-25). He stated that he advises and proofreads the plaintiff's emails and then authorises her to send them. (T172.23-25).
According to Mr Kleeman most emails prepared by the plaintiff require many changes, such as the way they are written. There are some examples of such emails later in this judgment. He gave evidence that if the plaintiff had purchased the Mount Burrell property, his role in the business would have been organising the marketing, helping with the financial side of things and collecting money. (T172.33-37). However, he did not intend to make any financial contributions towards the proposed purchase of the Mount Burrell property. He is currently receiving a Newstart allowance. (T182.42-48). He says that he is also the plaintiff's carer.
As to the plaintiff's physical limitations, once again Mr Kleeman's evidence was almost identical to the plaintiff's. He gave evidence that the plaintiff would show him where to plant trees on the Mount Burrell property known as the Silk Pavilions. For convenience, I shall refer to the property as the "Mount Burrell property". The Mount Burrell property accommodation consists of a three bedroom, three bathrooms house on a 100 acre property. It is award winning luxury accommodation located in the Tweed Valley on the North Coast of New South Wales. It also consists of a number of eco pavilions, pavilions and accommodation. It marketed as "glamping" and a bed and breakfast. (T95-96). The property already had established fruit trees and the plaintiff and Mr Kleeman only planted seedlings. (T99). Mr Kleeman says he would dig the hole and then the plaintiff would plant the seed, which was a very basic task. (T174.10-11). The plaintiff would come to the verandah and point to where Mr Kleeman needed to do things. His evidence is that because of the location of the property she would very rarely walk out onto the grounds. (T188.15-25). He would drive the plaintiff around the property. (T189). Mr Kleeman's evidence is that he carries out all the physical work. This evidence is at odds with the emails sent by the plaintiff to the Owners of the Mount Burrell property referred to later in this judgment.

[10]

The first injury on 21 July 2011

On 21 July 2011, the plaintiff was attending a neuro-linguistics course run by Quantum Change Seminars at the hotel. Her aim was to work as a neuro-linguistics learning practitioner in a Quit Smoking Franchise. Her evidence is that she had already purchased a franchise for approximately $20,000. (FFASP and Ex 6, p 97). However, there is no documentary evidence to support this assertion. The course ran for five days. The last day of the course was 21 July 2011. As a result of completing this course, I accept the plaintiff gained a NLP Master Practitioner Certificate.
At about 1.30 pm on 21 July 2011, the plaintiff was in the company of other course attendees returning to the hotel after having lunch. It is common ground that it had been raining all day. At about 2.25 pm upon her return from lunch, the plaintiff entered from the side door and walked across the foyer of the hotel towards the lifts. As she was about to get into the lift closest to the concierge, she slipped and fell injuring her left foot. She was looking where she was going, but was unaware of the presence of water on the floor until she slipped. As she slipped and fell she became aware of extreme pain in her left foot/ankle area. She was assisted up from the floor by other patrons. The surface of the foyer floor where the plaintiff slipped is a hard glossy tiled surface. Three photographs of the foyer floor are shown in Ex A. The plaintiff's uncontested evidence is that the flooring shown in Ex A is the same as what she fell on the day of the accident. After she fell she returned to the lecture room, but departed the course three hours early and took a plane back to her home on the Gold Coast.
The plaintiff's evidence is that there were no warning signs advising guests of the hotel that the floor was wet. Nor were there any ropes or any items to cordon off the foyer area that was wet. There were no containers for patrons to put their umbrellas into to prevent water being left on the foyer floor. She says that she did not see any anti-slip mats placed on the foyer floor nor in the area where she fell. (Ex B, [19] to [23] and [24] to [27]).
Tony Boscarello's statements dated 26 March 2013 and 16 September 2015 were admitted into evidence without objection. (Ex E). He resides in Western Australia. He corroborates the plaintiff's evidence. He was also attending the seminar and was an eyewitness to the plaintiff's fall. His evidence is that on the day of the accident at about 2.20 pm he, the plaintiff and a group from the course were coming back from lunch. As he was waiting for the lift, the plaintiff approached the lift and slipped over on the wet floor. He observed she landed very heavily on the floor and that the plaintiff's foot was immediately impacted and that she was in a lot of pain. He and a couple of other people helped the plaintiff up and assisted her into the lift. Mr Boscarello stated that the plaintiff was unable to walk and was in a lot of pain and in shock. He and other guests tried to comfort her and help ease the pain she was in.
Mr Boscarello's evidence is that there were no signs in the hotel foyer saying "caution wet floor" even though it had been raining heavily and there was water on the foyer floor. (Ex E, Statement 26 March 2013). Tony Boscarello did not recall seeing any cleaners in the vicinity of the accident nor does he recall if there were any containers provided for wet umbrellas. He saw people walking into the hotel with umbrellas that were dripping water on to the floor. His evidence is that there was a big puddle of water in front of the lift and in the general vicinity. Relevantly, he noticed some people sliding on the wet floor; however they were able to gather themselves and not fall over completely. Mr Boscarello himself also slipped on the wet floor but was able to stop himself from falling completely. (Ex E, Statement 16 September 2015).
Mr Nihal Jayasinghe's statement dated 22 March 2012 was tendered over objection pursuant to s 67 of the Evidence Act 1995 (NSW). His statement is annexed to the affidavit of Tanya Harris-Roxas dated 8 March 2017. (Ex 9). Mr Jayasinghe was the front office manager at the hotel at the time of the plaintiff's accident. He has not been able to be located. Hence, his evidence was not the subject of cross examination.
On 22 July 2011 (the day after the plaintiff's accident), Mr Jayasinghe confirmed that the plaintiff had telephoned him and reported the incident and her subsequent injuries. She advised him that immediately prior to the accident she had entered the downstairs foyer of the hotel from the side entrance, which leads to the neighbouring Westfield building. She told him that she then walked towards the rear of the foyer and as she approached the middle lift she slipped in some water that was on the tiled foyer floor. She reported to Mr Jayasinghe that it was raining at the time and the water may have been rain water from an umbrella or similar. The plaintiff reported that she landed heavily on her foot when she fell and was then assisted to her feet by other guests. The plaintiff later advised him that at the time of the accident she had been wearing normal shoes that did not have heels. (Ex 9, [4] and [5]).
On being advised of the incident, Mr Jayasinghe says that he viewed the CCTV footage of the hotel foyer around the time of the plaintiff's accident but the CCTV footage was inconclusive. Mr Jayasinghe deposed that during wet weather there were three wet floor signs that were placed around the foyer to warn guests of the potential of a slippery floor. He also stated that there was also an umbrella basket placed at the side entrance to the foyer for use by guests to store their wet umbrellas. He deposed that they [the hotel] were not required to put out wet weather mats or similar during wet weather as there were permanent mats located at both entrances that performed this task. (Ex 9, [10] and [11]).
So far as a system of inspection was concerned, Mr Jayasinghe stated that the cleaner's duties were to clean the ground floor foyer at 6.00 am and 11.00 am each day. Then "usually" the floor was cleaned on three other occasions, the times of which are not specified. There was no checklist to confirm whether any of these inspections actually took place. (Ex 9, Statement [12]-[15]).
Mr Jayasinghe then outlined the system of work for wet weather that had been in place for 12 years prior to the plaintiff's accident. He deposed that at the time of the plaintiff's accident wet floor signs were definitely in place around the foyer although he does not specifically say where they were located. According to Mr Jayasinghe this signage had been in place since the previous day as it had also been raining heavily then. According to him, the plaintiff had ample opportunity to observe this and be aware of the potential for a slippery floor surface. He deposed that there had been no previous incidents which had occurred in a similar manner and that this indicated to him that in his opinion their system of work during wet weather was effective. (Ex 9, [16]).
As Mr Jayasinghe was not able to be cross examined, particularly in relation to evidence that conflicted with his, I accept and prefer the plaintiff's and Mr Boscarello's evidence over that of Mr Jayasinghe. I find that it is difficult to accept Mr Jayasinghe's evidence that no previous accidents had occurred in a similar manner during wet weather, when on this particular day, not only did the plaintiff slip on the wet floor near the lifts but so did Mr Boscarello and others guests. Also Mr Jayasinghe's evidence concerning the presence of wet weather signs and an umbrella basket is at odds with that of the plaintiff and Mr Boscarello. Once again I prefer their evidence.

[11]

Expert evidence on liability

The plaintiff relied upon the report of Mr Burn dated 10 September 2014 in relation to the issue of liability which was admitted without objection. (Ex C). The defendant did not rely upon any expert evidence. Mr Burn holds a Bachelor of Engineering (Civil), March 1980 University of Sydney, Master of Engineering Science, March 1987 University of Sydney, Diploma of Environmental Studies, May 1988 Macquarie University, Masters of Business Administration (Technology Management) October 1997 Deakin University/APESMA and a Graduate Certificate in Safety Science, UNSW, September 2013.
Mr Burn recorded that in order to aid in the selection of appropriate surface materials for installation under various uses Standards Australian in conjunction with the CSRIO published "HB: 1999 An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials". This handbook gives recommendations as to the minimum pedestrian surface classifications for various use location. Depending of the classification the minimum acceptable pendulum testing rating for the floor used would need to class "X" or better for wet or class "Z" or better for dry. For a surface to receive a class "X" classification the British pendulum Number (BPN) test results obtained would need to be within the range of 35 to 44. Mr Burn reported that the test he performed resulted in a BPN of less than 25. On this basis Mr Burn stated that the floor would be a class "Z" surface so would need to be maintained dry at all times to be safe. (Ex C, Report, p 5). The BPN wet test resulted in a number of less than 12 therefore indicating that the surface of the foyer floor of the hotel had, at the very least, a very high contribution to the risk of a patron slipping when the floor was wet. (Ex C, Report, p 14). I accept his evidence that there was at the very least a very high contribution to the risk of a patron slipping when the floor was wet.
Mr Burn concluded that there were a number of ways that the plaintiff's fall could have been prevented. They include firstly, placing an umbrella wrap machine near the entrances; secondly, putting additional rubber backed floor matting in the premises; or finally, having a regular system of routine inspections of the floor.
As previously stated, Mr Jayasinghe's view was that the hotel was not required to put out wet weather mats or similar during wet weather as there are permanent mats located at both entrances that perform this task. However, if mats were placed near the lifts Mr Burns says this would have alleviated the presence of water on the floor.

[13]

Sections 5B and 5C of the Civil Liability Act

Sections 5B and 5C of the Civil Liability Act ("the Act") are relevant. I will deal with them in turn.
Section 5B reads: "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."
Section 5C reads: "5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
In Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 ("Endeavour Energy"), Basten JA stated at [29]: "The first two elements in s 5B(1), foreseeability and significance of risk, will usually constitute matters to be considered in determining whether a duty is owed in particular circumstances to a class of persons including the plaintiff. …"
As previously discussed, it is common ground that the defendant owed a duty of care to hotel patrons and that includes the plaintiff.
The next question to be determined is whether the risk was not insignificant. In Endeavour Energy, Basten JA noted at [32]: "…The significance of a risk involves two main variables, namely the seriousness of the consequence should the risk materialise and, secondly, the likelihood of the risk materialising."
In Endeavour Energy, Basten JA at [33] explained the third question raised by s 5B of the Civil Liability Act as follows: "The third question raised by s 5B asks what "precautions" a reasonable person would have taken in those circumstances. The reference to "precautions" is a reference to conduct which might minimise or remove the risk of harm which has been identified as not insignificant. The factors referred to in s 5B(2) recognise that both the chances of the risk materialising and the likely seriousness of the harm should be addressed. The section also identifies the burden of taking precautions and the social utility of the activity creating the risk. The last two factors cannot operate against a finding of negligence in the present case…"
And finally, in relation to breach of duty of care, the Court of Appeal in CSR Pty Ltd v Wren (1997) 44 NSWLR 463 at 487 referred to the well known passage from Wyong Shire Council v Shirt [1980] HCA 12 (at 47-48) where Mason J stated: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls 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. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
The plaintiff submitted that this Court should make a finding that there was a quantity of water, or a puddle of water, as stated by Mr Boscarello (Ex E, Statement, 16 September 2015) that caused the plaintiff to slip and fall as she sought to enter the lift on the far right of the foyer in the hotel. I have already accepted Mr Boscarello's evidence.
The defendant made a number of submissions in order to establish that it has not been shown that it acted unreasonably or negligently, within ss 5B and 5C of the Act. I shall deal with them in turn.
Firstly, the defendant submitted that the opinion of Mr Burn in connection with the co-efficiency of friction has self-evident limitations because his testing was performed three years after the plaintiff's fall. According to the defendant, Mr Burn simply assumed that the foyer tiles in 2014 "were basically the same as the foyer tiles in use on 21 July 2011." There was no attempt to relate the area tested ["between the concierge desk and nearest elevator"] and where the plaintiff described her fall. The defendant says that this evidence does not permit a finding that the results of the tests performed by Mr Burn indicated the co-efficiency of friction of the surface of the foyer floor in 2011. The plaintiff's evidence, which I have accepted, is that the flooring in the foyer shown in the photographs (Ex A) is the same as that upon which she fell on the day of the accident. The surface of the foyer floor at the time of the accident was a cream coloured hard glossy tiled surface that is also shown in the photographs. Hence, I accept that it is more likely than not that it was the same floor surface in 2011 and 2014. That floor surface in the hotel foyer was one that had high traffic movements and at the very least the surface made a high contribution to the risk of hotel users potentially slipping when it was wet. This submission fails.
Secondly, the defendant submitted that it is a factual issue, in relation to what reasonable steps it could have taken in response to the foreseeable risk of harm. The defendant submitted it needs to be assessed not only by reference to the expert evidence but also taking into account the long and incident free use of the floor surface in all kinds of weather conditions: see Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705.
According to the defendant, the only evidence is that at the time the plaintiff fell, there was a quantity of water on the surface of the foyer floor. The defendant says that there is no evidence that there was any quantity of water on the surface of the foyer floor on any other occasion, and assuming there was, that it remained there for an unreasonable period of time. According to the defendant the evidence is that not only was the rain heavy on the day of the plaintiff's fall, but also the day prior, and the plaintiff had crossed the foyer floor many times during the course of each day. The plaintiff's evidence was that she found the floor surface to be safe underfoot and again notwithstanding the heavy rain on the day of, and day prior to the fall, the plaintiff did not observe there to be any water on the floor surface. (T153- T154). The defendant submitted that even if the Court were to find that the foyer floor was potentially slippery to users when wet, the incident free use of the floor surface coupled with the extremely high traffic movements, establishes that the risk of slipping was, in practical terms, very low: see Sakoua v Williams (2005) 64 NSWLR 588 at [30]; Cruise Group Pty Limited v Fullard [2005] NSWCA 161 at [15]; and s 5B(2)(a) of the Act.
I disagree with this. To my mind there is compelling evidence that the floor near the lifts was extremely slippery because at the time the plaintiff slipped and fell other guests who were waiting near the lifts also slipped on the floor but regained their balance without falling. It is my view that contrary to the defendant's assertions the risk of hotel guests slipping and falling on the hard glossy tiled foyer floor when wet in the location of the lifts was low, is incorrect. In fact the risk was high. Further, as Mr Jayasinghe was unable to be cross examined I prefer and accept the plaintiff and Mr Boscarello's evidence on this topic.
Thirdly, the defendant submitted that the system in place dealing with water on the hotel foyer has not been shown to be unreasonable. Senior counsel for the defendant says that the prior incident free use of the hotel foyer demonstrated that a reasonable system was in place. According to Mr Jayasinghe that system involved (a) permanent mats placed at the entrance to each door; (b) an umbrella basket at the side entrance; and (c) routine cleaning and inspection of the hotel foyer as well as the cleaner or concierge putting out signs. This system had been in place for 12 years and according to Mr Jayasinghe, the system had worked well given the absence of any previous incidents. (Ex 9, [11]-[12]).
So far as inspections are concerned, the plaintiff submitted that it appeared that three inspections covered the time between 11.00 am to 6.00 am the following morning. The inspections took place at roughly six hour intervals. The last rostered clean was at 11.00 am. The plaintiff fell at 2.25 pm. In circumstances where this was a highly glossy floor in the foyer of a busy hotel, the plaintiff submitted that one would have expected a significantly better system of inspection and cleaning than that which was provided.
It is difficult to accept any of Mr Jayasinghe's evidence on this topic as something appears to have gone seriously array at the time the plaintiff and other hotel guests approached the lifts in the hotel foyer. A number of guests had slipped on the wet tiled surface in the foyer at the same time. As stated earlier, Mr Jayasinghe was not able to be cross examined, so his evidence could not be tested. As I have said, I prefer the plaintiff's and Mr Boscarello's evidence.
In my view, the likelihood of guests such as the plaintiff slipping and falling on the wet, glossy floor surface in the high traffic foyer area of the hotel, was high. I am also of the view that the risk of serious injury to hotel users slipping and falling on the foyer floor of the hotel was foreseeable and not insignificant.
The next issue to be determined is what precautions a reasonable person would have taken in these circumstances. Overall, on this topic, the defendant submitted that alternate systems advocated by Mr Burn have not been shown to be reasonable because they are presumably based upon the conclusions of the testing he conducted in 2014. According to the defendant, the logic of this case involves a number of errors. The first concerns umbrella machines. This involves hindsight reasoning with attention only to this incident. The second is that it focuses exclusively upon the plaintiff's accident and the particular risk at a specific location: see Vairy v Wyong Shire Council (2005) 223 CLR 422, at 461-462 per Hayne J.
In relation to umbrella machines (as opposed to umbrella baskets) being placed at the side of the entrance of the hotel foyer, the defendant pointed to what he says is a shortcoming of Mr Burn's report. I accept that Mr Burn does not say that the use of such machines was common or usual practice in 2011. According to the defendant, the suggestion can only be understood as based on hindsight reasoning to work out preventability: see Neindorf v Junkovic (2005) 222 ALR 631, at 361-362 per Hayne J. I also agree with the defendant's submission that even if umbrella machines were in use in 2011, it is difficult to say whether guests with umbrellas would have used the umbrella machines, particularly when they were journeying to the lifts in order to travel to another floor. While it may have lessened the risk of harm, it is not necessarily true that the umbrella machine would have minimised or removed the risk of harm. Therefore it is my view that a reasonable person would not have taken this precaution.
Secondly, the defendant submitted that in relation to a management regime to deal with inspecting the foyer floor, the evidence is that there was such a system. Mr Burn did not comment upon that system or its adequacy. According to the defendant, no sensible criticism can be leveled at it, particularly bearing in mind the incident free use of the floor. In any event, in connection with causation, Mr Burn says nothing about frequency of any such system of inspection. All that is said is that the foyer floor should be "routinely inspected at regular intervals, more frequently in peak use times." (Ex C, p 8). I agree that Mr Burn did not address the management regime.
However, I disagree with the defendant's submissions for two reasons. The first is that I do not accept Mr Jayasinghe's evidence on this topic of the routine inspections. The second is that while hotel guests with umbrellas were waiting for the lift to take them to another floor in the hotel, water would drip from their umbrellas on to the foyer floor causing it to become slippery. Even if I were to accept Mr Jayasinghe's outline of the management regime (which I do not) during the period of wet weather, it seems that it was not adequate. It was raining and the hotel had high traffic. If the last routine inspections took place at 11.00 am and the plaintiff fell at 2.25 pm, this was not adequate as it was during this peak period.
Finally, Mr Jayasinghe stated that the hotel was not required to put out wet weather mats or similar during wet weather as there were permanent mats located at both entrances that performed this tasks. This is not a reasonable precaution. While this may be his view, I do not agree with it. To minimise or remove the risk of harm in these circumstances something more is required.
Mr Burn expressed the view that when it was raining and the foyer floor was wet, the defendant should have placed additional rubber backed floor matting in places where people with umbrellas and wet weather gear congregated at the lifts.
The defendant submitted that this view should not be accepted. However, it is more likely that the placing of rubber backed floor matting in this area would have minimised or removed the high risk of hotel patrons, including the plaintiff, slipping or falling on water near the lifts and suffering serious injury. The burden of the defendant doing this is not an onerous one. This, in my view, is a precaution that a reasonable person in the defendant's position should have taken.
For these reasons ss 5B and 5C of the Act have been satisfied.
I will now consider causation.

[16]

Medical treatment and evidence after the first accident

On 22 July 2011, the day after the accident, the plaintiff consulted her general practitioner Dr Lesley Smith at the Bundall Medical Centre. The general practitioner's clinical notes record "a tender mid foot with no swelling." On 12 August 2011, the plaintiff consulted Dr Andrew Hunt a general practitioner also at the Bundall Medical Centre who referred the plaintiff to an orthopaedic surgeon Dr Aneel Nihal. (Ex D, Tab - Treating, pp 17 and 21).
In his report dated 12 August 2011, Dr Nihal reported that he had reviewed the x-ray and MRI and that the MRI revealed that the plaintiff had sustained an undisplaced fracture of the plantar aspect of the medial cuneiform, lateral cuneiform cuboid associated with severe bone bruising and increased signal changes on T2 images. Dr Nihal noted that these changes were consistent with severe bone bruising, bone marrow oedema and a small fracture on the plantar aspect. On examination he recorded that the plaintiff was tender over the cuboid and midfoot bones but had good range of ankle and subtalar joint motion but was non tender over the calcaneum or on talus or on metatarsal done. (Ex D, Tab - Treating, pp 4-5).
On 9 September 2011, 21 October 2011 and 30 November 2011, the plaintiff was reviewed by Dr Nihal. On 9 September 2011, Dr Nihal reported that the plaintiff's foot was better. He suggested that she could start weight bearing and physiotherapy was arranged. (Ex D, Report 9 September 2011, p 9). At the plaintiff's consultation on 21 October 2011, Dr Nihal again reported that her foot was better. On 30 November 2011, Dr Nihal commented that her progress was satisfactory and that the recent x-ray revealed good alignment. He noted that at this time the plaintiff was walking without a moon boot. Dr Nihal recommended that the plaintiff arrange an appointment for a review in two months time should she have any problems. The plaintiff did not make another appointment. (Ex D, Tab -Treating, p 9).
The plaintiff's evidence is that she did not recall complaining to Dr Nihal about numbness in her left foot. This is consistent with Dr Nihal's notes and reports.
On 14 October 2011, 18 October 2011, 25 October 2011, 1 November 2011 and 23 November 2011 the plaintiff attended Mr Scott Clark a physiotherapist. (Ex D, Tab - Treating, pp 39-41).
Like Dr Nihal, Mr Cook's clinical notes do not make any reference to the plaintiff experiencing numbness in her left foot. Mr Cook's clinical notes dated 14 October 2011, record that the plaintiff felt her foot had started to feel better in the last two to three weeks. Mr Cook also noted that the plaintiff found it difficult to sleep due to the weight of the blanket on her foot during winter. On 25 October 2011, Mr Cook recorded that the plaintiff was able to weight bear more with her foot. On 1 November 2011, his clinical notes record that the plaintiff no longer used crutches and could walk with a moon boot. (Ex D, Tab - Treating, p 39).
The plaintiff gave evidence that during the course of Mr Cook's treatment of her left foot she did not notice any improvement whatsoever and as it was pointless she stopped going to see him. (T34.9-11). The contents of Mr Cook's clinical notes are at odds with the plaintiff's evidence. In the extract of the transcript below the plaintiff changed her evidence and agreed that she was progressing well when she saw Mr Cook on 23 November 2011.
In cross examination the plaintiff gave the following evidence (T33-T36): "Q. I take it your evidence would be then that you were still showing no improvement in your ability to weight bear on your left foot. Is that right? A. Yes. Q. You weren't showing any improvement in pain? A. No. Q. So more or less, as I would understand it from your evidence, it was pretty pointless going to see Mr Cook. Is that right? A. Correct. Q. You see, a little bit earlier today your barrister asked you about how long you were on crutches for. Do you remember that question? A. Yes. Q. And I think you said December. A. Yes. Q. Could it have been the case that certainly by 1 November 2011 you were not using any crutches at all? A. No, that's incorrect. Q. I'm suggesting to you you stopped using crutches by no later than 1 November 2011 and you were mobilising in a Moon Boot. A. I was - and the walking-stick. Q. Are you distinguishing now by the demonstration you've just shown to her Honour that weren't using crutches but a walking-stick? A. I was using crutches and then I moved on to the walking-stick. … Q. It was suggested to you 1 November. A. No, it was after that. … Q. What I am suggesting is that the fact is that as that date, 23 November 2011, you told Mr Cook that you'd been progressing well because that was the fact. A. Yes. HER HONOUR Q. You agree you were progressing well? A. Yes."
The plaintiff says that once she was no longer using the crutches or the moonboot, she noticed that she was unstable when walking on her left foot and had a number of falls and near falls. She also says that she was aware of pins and needles in her left foot and continued to have pain in her left foot. She took medication as required. (Ex B [30]).
Between September 2011 and 23 November 2011, the plaintiff did not mention the presence of pins and needles in her left foot to either her treating orthopaedic surgeons or her treating physiotherapist but as I understand her evidence, she experienced pins and needles in her left foot once she was no longer using crutches and that occurred after 23 November 2011.

[19]

The second accident - 7 January 2013

The plaintiff gave evidence that after the first accident, she had problems moving her left foot after she had been lying down. Normally she says that when she wanted to get out of bed, she would move her foot to overcome any numbness or instability problems. On 7 January 2013 at about 10.00 am, her youngest daughter called out from the bathroom. The plaintiff says that before she got off the bed she did not undertake the "wriggling" exercise that she would normally undertake but simply got out of bed to attend to her daughter who was on the toilet.
The plaintiff says that when she got off the bed her left foot had pins and needles and a numb sensation that caused her to fall. She says that she fractured her skull. The plaintiff gave evidence that she did not fall down steps (as alleged in her first statement of claim) and explained that this was a misunderstanding between her lawyers and her version of events which was given by way of telephone conference. She says that she fell in her bedroom that had tiles on the floor and a wide clear walkway through a large wardrobe which led to the bathroom. The plaintiff says that she does not remember what happened, but understands that her children found her. She believes that she lay unconscious for about 10 minutes and was positioned about two metres from the bed in the tiled walkway. She understands that she was on her back with her head at the bathroom door and her feet facing towards the bed.
Later her ex-partner attended her home, called an after-hours doctor and took the children with him. The plaintiff says that the doctor gave her some injections to stop the vomiting and at this time she was aware of severe headaches, blurred vision and pain when she moved her head. (Ex B [35]).
On 9 January 2013, the plaintiff attended Bundall Medical Centre. She was seen by Dr Dallys McCombe in relation to the fall and her head injury. The clinical notes record a different explanation for the fall and states: "Fell 2/7 ago -? Slipped in bathroom Was not unwell at all Unable to remember any of the episode K'Od ? about 10 minutes …" (Ex 10, Tab 2, p 21).
On 10 January 2013, the plaintiff was admitted to the emergency ward of Pindara hospital. While she has very little memory of what occurred, she was aware that she was admitted to hospital at about 6.00 am although the hospital records state that the plaintiff was admitted at 21.05.
The nursing clinical notes of Pindara hospital at 21.05 record (Ex 10, Tab 5, p 42): "? Trip/fall 4/7 ago. Head injury → head to tiled floor → Loc for undetermined amount of time. States ongoing headaches & dizziness since. Unable to sleep. MRI today → nil report. Pain 8-9/10 …"
At 22.30 pm the clinical notes record (Ex 10, Tab 5, p 43): "c/o headache, neck pain, post fall 4/7 c/o dizziness, nausea and loss of balance. States was attending to daughter Doesn't know why fell. …"
I accept that the history the plaintiff provided two days after the fall made no mention of the fall being caused by problems with her left foot. As she suffered a period of unconsciousness I do not place much weight on the fact that she did not mention it. The plaintiff conceded this when she was cross examined. (T59.42-45). The plaintiff told the doctors about her fall and that she had ongoing dizziness and headaches. The hospital organised various investigations including an MRI of her brain. On 11 January 2013, the plaintiff was discharged.
Contrary to the plaintiff's assertions, the results of the MRI scan did not reveal that she had a fractured skull. She says that she had headaches, intermittent confusion and was forgetting names. Eventually the vomiting stopped and she was given Panadol and Endone for pain for about three months. (Ex B [38]).
On 15 January 2015, the plaintiff consulted Dr Lesley Smith at the Bundall Medical Centre. She gave evidence that she did not recall attending the Bundall Medical Centre on that day but it was possible. Nor did she recall discussing the results of her MRI scan with Dr Smith. (T152.21-50; T153.1-3).
On or about 5 February 2013, the plaintiff says that she was treated for fluid leaking from her right ear. She attended her brother-in-law Dr Rob Pitt and he ordered some antibiotics and a repeat MRI. She was also prescribed Xanax for her depression and anxiety. (Ex B [39]). Her brother-in-law did not provide a statement nor did he give evidence.
On 8 April 2013, the plaintiff says that she had a further MRI scan of her brain. She says that she was still aware of twitching while she slept which would wake her up.
For the remainder of 2013 and into the first part of 2014, the plaintiff says that she was very stressed and depressed as she was about to be thrown out of her rental accommodation at the Mount Burrell property. Her ex-partner would not let her or the children live in the family home. She commenced taking Zoloft. The plaintiff says that she still required a lot of assistance as she was not coping from a mental or physical perspective. (Ex B [40]-[42]).
The plaintiff referred to two further falls she says she had but has not specifically claimed damages in the statement of claim for them. She says that they occurred on 16 September 2015 and 2 November 2015.

[20]

The defendant's failure to serve the report of Dr Campbell

On 30 April 2015, the plaintiff was seen by Dr Campbell a neurosurgeon at the request of the solicitors for the defendant. This report has not been served.
Senior counsel for the plaintiff submitted the most likely reason why Dr Campbell's report has not been served is because it deals with the issue of the relationship between the first and second falls. According to the plaintiff there is a serious Jones v Dunkel (1959) 101 CLR 298 issue raised by the non service of that report. The plaintiff submitted that the report of Dr Campbell clearly was not going to assist the defendant's case that the second fall was unrelated to the first fall. Further, that Dr Campbell may well have dealt with the issue of proprioception in relation to the plaintiff's ability to maintain balance as a result of her left foot injury.
Senior counsel for the defendant submitted that if the report went only to the second issue there would be little point in not serving it. Dr Lee, the psychiatrist retained on behalf of the defendant, concedes that the plaintiff has ongoing problems as a result of an acquired brain injury. The defendant submitted that any opinion of Dr Campbell would be unlikely to make things worse for the defendant in that regard.
In Fabre v Arenales (1992) 27 NSWLR 437, Mahoney JA (with whom Priestly and Sheller JJA agreed) at 449 stated: "… The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so."
This proposition arises from Jones v Dunkel at 320, per Windeyer J.
The defendant served orthopedic, psychiatric and neuropsychological evidence. The medico legal orthopedic specialists agreed as to the plaintiff's injuries and disabilities that arose from the first accident but they disagreed about the role of the sural nerve in the second accident. The neuropsychologists agreed as to the reasons why the plaintiff was unable to work after the second accident but that those reasons were unrelated to that accident. It is my view that Dr Campbell's report would probably not have added anything. In these circumstances, I do not draw a Jones v Dunkel inference.
While I am referring to the topic of Jones v Dunkel inferences, senior counsel for the plaintiff in opening submissions stated that he had been informed by letter by the defendant's instructing solicitor that the plaintiff ex-partner was to be called to give evidence. (T5.9-11). He did not give evidence. The plaintiff and her ex-partner are involved in highly contested custody proceedings. When the second accident occurred he did not reside with the plaintiff but turned up some hours later to take their children. He did not witness the alleged fall. Hence, he could not shed light upon what occurred so I do not draw a Jones v Dunkel inference.
On 7 November 2013, the plaintiff was examined by Dr Peter Sharwood. The plaintiff told Dr Sharwood that in January 2013 she had a fall at home and sustained a head injury. She believed this fall was due to the numbness of her left foot. She told Dr Sharwood that she still had ongoing symptoms related to her left foot. (Ex 6, Tab 1, p 2).
On 31 March 2014, the plaintiff was examined by Dr Endrey-Walder. She complained that: "I get numbness on the top and lateral side of the foot … it's like when you go to the dentist and get local anaesthetic." (Ex D, Tab - Medico legal, p 4)
The plaintiff also told Dr Endrey-Walder that she believed her fall at home which cause the head injury was on account of her occasionally being unable to fully feel her left foot on the ground. (Ex D, Tab - Medico legal, p 4).
On 13 January 2017, the plaintiff was again examined by Dr Endrey-Walder. She complained of numbness and loss of balance which was a result the injury to her left foot. (Ex D, Tab - Medico Legal, p 9).
While Dr Endrey-Walder and Dr Sharwood largely agree in relation to the plaintiff's injury to her left foot, disability and capacity for work in relation to the 21 July 2011 accident, they disagree as to the cause of the second fall on 7 January 2013. While the fractures were undisplaced, both Dr Sharwood and Dr Endrey-Walder's opinion is that the factures have healed.
The main area in dispute is the role of the sural nerve. Dr Sharwood's opinion is that any supposed sural nerve injury would not provide a medical explanation for collapse that occurred on 7 January 2013. Dr Sharwood's evidence was to the following effect: 1. The sural nerve is a sensory not motor nerve - meaning it carries information from the skin and does not control muscle. (T219.10). 2. The sural nerve runs (relevantly) on the outside of the foot (from the heel) to the top of the little toe (not other toes) and the tendons can be harvested. 3. The loss of sensation that might be occasioned by an injury would only be on the outside of the foot and the top of the little toe. 4. The fractures are not proximal to the sural nerve and there is 12mm of tendon, two of them separating the bones from the nerve. (T220.5). 5. Dr Sharwood's view is that if the plaintiff suffered sural nerve damage not being caused as a result of an inversion injury, it did not cause the fall. 6. Dr Sharwood concluded that he could not associate the numbness in the plaintiff's left foot with the anatomical injury that she sustained. (Ex 6, Tab 1, p 5). Dr Sharwood's evidence is that he had never seen a traction injury of the sural nerve from an inversion injury of the foot. (T224.29-31).
Both doctors agreed that they have not seen a sural nerve injury in connection with undisplaced fractures. Dr Sharwood had not seen this in 40 years of clinical practice and nor had Dr Endrey-Walder. (T227.1-20).
There was no clinical evidence of this kind of injury when the plaintiff was examined either by Dr Sharwood or Dr Endrey-Walder (T220.40-44) and no evidence of neurological deficit. (T221.25-28).
In terms of the impact such an injury might have on the ability of a person to stand and walk, the sural nerve is sensory and on the top of the foot and when a person stands on their foot they rely on the sensation of the sole of the foot not the top. (T221-T223).
While Dr Endrey-Walder was unable to give the precise reason for the fall in January 2013 he says that "given her long term symptom of incomplete sensation, a sense of numbness in the lateral third of the left foot, it may very well be that getting up off the bed she fell because the foot had let her down." (Ex D, report 31 March 2014, p 6). His opinion is reaffirmed in his second report dated 13 January 2017 but these opinions are based on the plaintiff's history she gave to them. Dr Endrey-Walder also gave evidence that the plaintiff may have suffered aggravation of early arthritic changes in her foot when she had the fall on 21 July 2011, making those changes symptomatic. (T229).
As I have recorded, the sural nerve is located on the very top edge of the foot, past the bones of the small toe. (T219.35-37). Dr Endrey-Walder is of the opinion that the rolling of the foot caused a traction injury to the sural nerve. (T227.23-27). Dr Endrey-Walder explained that the residual numbness lateral aspect of the plaintiff's left foot could have caused instability causing her to fall. (Ex 6, Tab 8, p 171). He further explained that the nerve damage is not due to the fracture, but rather suggested that the nerve damage was due to the injury which is a traction injury, a soft tissue injury, quite apart from the fracture of the small bones. (T225.21-24). Dr Sharwood agreed, numbness over the lateral part of the foot can be caused by a traction injury generally.

[22]

Plaintiff's submissions

According to senior counsel for the plaintiff, the most obvious reason why the plaintiff fell in January 2013 was because she was having problems with her left foot as a result of the injuries that she sustained in July 2011.
The plaintiff submitted that a combination of any or all of the opined problems in her left foot, being the three fractures, soft tissue injury, arthritic changes and sural nerve damage could easily explain, and in Dr Endrey-Walder's opinion do explain, why the plaintiff had ongoing problems with her left foot at the time of the second fall.
Senior counsel for the defendant submitted that the Court should find that the plaintiff's fall on 7 January 2013 was not medically or factually related to the injuries that the plaintiff suffered in the July 2011 fall.
Senior counsel for the plaintiff made lengthy submissions to explain the difficulties in the plaintiff's evidence. He referred to Mason v Demasi [2012] NSWCA 210 where the Court of Appeal has cautioned against placing too much reliance upon such histories, they having been taken for purposes other than the forensic dissection undertaken in a Court. According to senior counsel for the plaintiff, the failure of medical records to record complaints made by the plaintiff of numbness in her left foot should not be seen by the Court as persuasive.
The plaintiff's evidence is that she did not slip but rather fell as a result of the numbness in her left foot. (T56.1). The plaintiff does not recall attending the Bundall Medical Centre on 9 January 2013. Her only recollection is attending Pindara hospital on 10 January 2013. (T52-T56). Those medical notes (two days after the fall) record that the plaintiff tripped and fell in the bathroom.
Senior counsel for the plaintiff submitted the Court should place little weight on the doctor's note recording that the plaintiff slipped and fell over hitting her head rather than her foot giving way rather than her foot giving way and falling over and hitting her head.
As previously stated, the Pindara clinical notes record that on 10 January 2013 at 21:05 the plaintiff presented with (Ex 10, Tab 5, p 42): "? Trip/fall 4/7 ago. …"
According to senior counsel for the plaintiff the fact that the entry is preceded by a question mark is significant and no weight should be placed on the reference to her having tripped and fallen. There is an entry recording that the plaintiff presented complaining of headaches and dizziness from a fall and head injury four days ago associated with loss of consciousness. (Ex 10, Tab 5, p 46). Hence, senior counsel for the plaintiff submitted that little weight should be placed on the fact that the plaintiff made no mention of her left foot going numb or giving way because the plaintiff did not attend Pindara hospital for problems with her foot she was there because of the headaches and dizziness following a fall.
The plaintiff was cross examined about histories given to doctors as to her recollection as to what occurred. She agreed that she told Dr Endrey-Walder that she got up and that was the last thing she remembered. She agreed she did not tell him that she had any problems with her left foot giving way. (T61.3-26). However, the plaintiff did say (Ex D, Dr Endrey-Walder medico-legal report, 13 January 2017) that she gets numbness on the top and lateral side of the foot.
On 8 January 2013, the day after the fall, the plaintiff saw her acupuncturist, Mr Deare and noted that she had been unstable on her feet. Senior counsel for the plaintiff says that this was hardly a statement that was likely to have been made unless that was what had occurred to her on the day before.
Overall, senior counsel for the plaintiff submitted that plaintiff was obviously struggling to do her best to answer questions in relation to matters that occurred some years ago and that clearly, some of the answers she gave were due not understanding the question. According to the plaintiff an example of this was in cross examination when she was asked the following questions (T63.15-21): "Q. But why you didn't tell Dr Endrey-Walder can I suggest, Ms Jackson, is that prior to the incident in January 2013 that you did not have problems or you never complained you had problems with loss of balance-- A. Incorrect. Q. --or your foot giving way? A. Incorrect."
However, the plaintiff had mentioned that she was unstable on her feet when attending Dr Endrey-Walder. (Ex D, Medico Legal Tab, Report 13 January 2017, p 8).

[23]

Defendant's submissions

Senior counsel for the defendant submitted that putting to one side the plaintiff's credibility and reliability, there are two issues of fact need to be resolved by the Court. The first is a medical question. Did the plaintiff's injury to her left foot account for a possible numbness or loss of sensation and whether those symptoms caused the plaintiff to lose her balance and fall on 7 January 2013? The second is a factual question. Was the fall on 7 January 2013 a result of the consequence of those symptoms?
Further he submitted that in light of the objective material and logic of events, the inherent probabilities and admissions made by the plaintiff, that the Court should conclude that the fall did not arise as a consequence of any problem with the plaintiff's left foot. Senior counsel for the defendant says that in light of the plaintiff's evidence, the medical records and hospital notes of Pindara hospital there can be no question as to the accuracy of what is recorded.
The defendant submitted that to the extent that the plaintiff in the context of the 'medical' evidence in the proceedings, tried to relate the fall to problems with her foot, the plaintiff in fact had no memory of why she fell. In the Functional and Vocational Capability Report of John Raue and Gillian Stewart, the plaintiff accepted that she told Mr Raue that she "could not recall what happened." (Ex 6, Tab 6, p 152; T66.20).
During cross examination the plaintiff stated: "Q: Yeah, that's what you told Mr Raue, can I suggest, that you [told] him you could not recall what happened. A: Just thinking through. It's possibly, yes."
I accept that during 2013 and 2014, the plaintiff attended the Bundall Medical Centre. The medical records for this period do not record the plaintiff attending the medical centre for her left foot.
Senior counsel for the defendant submitted that the reports of Dr Sharwood and Dr Endrey-Walder do not report any objective clinical evidence that there was some sural nerve injury to the plaintiff's left foot and nor does the report of the Vocational Capacity Centre by John Raue and Gillian Stewart. (Ex 6, Tab 6).
The defendant drew this Court's attention to an affidavit sworn by the plaintiff on 11 June 2015 in support of family court proceedings involving the custody of her children and whether she was physically and mentally capable of looking after her children. While that affidavit does make mention of her fall in January 2013 there is no mention of her having any problems with her left foot. (Ex 5). Senior counsel for the defendant submitted that in cross examination in these proceedings the plaintiff was fully aware that when she swore that affidavit of the importance of honestly explaining in her affidavit the true state of her health. (T67-T68; T163.38-50). However, I do not think that her failure to refer to the fall was significant here. I do not place any weight on this submission.
Finally, senior counsel for the defendant submitted that there is no evidence to support a finding that the injury to the plaintiff's left foot was attributable to her fall on 7 January 2013.

[24]

Consideration

On 7 January 2013, the plaintiff fell and suffered headaches and dizziness. The histories given to Pindara hospital refer to a trip and fall, but not to her left foot giving way. It is possible that the focus of the hospital note taking was on the plaintiff's injuries rather than a fuller explanation of her left foot giving way. So far as the orthopedic evidence is concerned, on the balance of probabilities, I accept and prefer the opinion of Dr Sharwood over that of Dr Endrey-Walder for these reasons.
The fractures to the plaintiff's left foot had healed. So far as the sural nerve is concerned, it is a sensory nerve - meaning it carries information from the skin and does not control muscle. (T219.9-12). The sural nerve runs on the outside of the foot (from the heel) to the top of the little toe (not other toes) and the tendons can be harvested. The loss of sensation that might be occasioned by an injury would only be on the outside of the foot and the top of the little toe. The fractures are not proximal to the sural nerve and there is 12mm of tendon, two of them separating the bones from the nerve.
In terms of the impact such an injury might have on the ability of a person to stand and walk, the sural nerve is sensory and on the top of the foot and when you stand on your foot a person relies on the sensation of the sole of the foot. (T221-T223).
In my view it is more likely than not that the sural nerve had no role to play in the plaintiff's alleged pins and needles and numbness in her left foot. There is no real explanation as this being the cause of her fall. Therefore, it is my view that the injury she suffered to her left ankle on 21 July 2011 did not contribute to her fall on 7 January 2013. Hence, assessment of damages is only in relation to the first accident that occurred on 21 July 2011.
Before I assess damages it is necessary that I refer to the plaintiff's evidence concerning the Mount Burrell property where she proffers a different explanation in relation to economic loss. I will also refer to her unreliable evidence in relation to the ownership of the property at Bonogin.

[25]

Mount Burrell property

In January 2015, the plaintiff and her current partner John Kleeman commenced living at the Mount Burrell property. The plaintiff gave convoluted evidence regarding her plans in relation to the Mount Burrell property. The owners of the property were overseas on a holiday during the time the plaintiff occupied the property. The plaintiff had discussed purchasing the Mount Burrell property with the owners for approximately $1,600,000. (T91.48-50). The plaintiff says it was her intention was to turn the property into a health retreat centre. (T92.20-22).
No contract or agreement was formulated before the owners departed for overseas. The plaintiff agreed to pay rent in the sum of $5,000 per month until settlement. (Ex 3, p 2). According to emails exchanged between the plaintiff and the owners, a number of disputes arose between them. The plaintiff had stopped paying rent, which ultimately led to her and Mr Kleeman being evicted from the property.
The plaintiff blames the owners for not being able to establish her businesses thereby resulting in a in loss of income. She says the reasons for her loss income were due to the owners' lack of due diligence, duty of disclosure and duty of care. While the plaintiff wrote numerous emails to the owners regarding these issues, I shall refer to a few where she details the loss to her business and details how much physical work "we" (that infers herself and her partner) performed on the property.
Some of the following emails contained emjois. I have omitted them.
On 17 May 2016, the plaintiff emailed to the owners (Ex 3, pp 11-12): "Re: Property Inspection Notice Update RE: Septic … I was able to contact Damian … who came out at 1-2pm today and did a thorough inspection of the septics and tanks throughout the property, house, garden, fire cottage, glampers….he had a clear picture of the septic field and he said the cottage pump is Ph**cked and he detected a water leak from the tanks which could be what is effecting the electricity. … I am not one for quick fixes or temporary solutions, I would rather quality over quantity any day……So due to the lack of communication I have initiated my own investigations, and am happy to do so……as currently I cannot wash, or utilize anything on the laundry side of the house as there is no water. I understand it is difficult for you being O/S but seriously, I have been unable to start my businesses, and earn an income due to these due diligence issues……Which has costs me a fortune as I have had to cancel events. …"
On 26 May 2016, the plaintiff emailed the owners stating (Ex 3, p 15): "… I'm very sorry for the delays in payments but as you are aware……my expenses are very high, beautiful property with no income…..lots of legal bills etc….as soon as I can get the phone and internet connected here I can print business cards. Website etc and launch my head lice business etc….I have had no opportunity to start a business due to no power, phone, internet and blackouts etc …..we have worked out butts off to get this sorted out….. …"
On 10 June 2016, the plaintiff wrote to the owners (Ex 3, p 22): "Wow,,,,,, I've just read your tenancy eviction notice which is of the 9th June, being today??? Ok……I will go to the tribunal on the 20/06/16, I am in shock, you would to this to us, despite the warning of neighbours etc, we worked hard to support you…. I have spoken with my QC friend, Colin who did the liability for this property with three agents when it was for sale a couple of years ago and also to John, I will not be paying you further monies, as living here has cost me more than what I am paying you in rent, as I have no access to insurance, or building a business on a temporary phone number for website, business cards, advertising etc…..it was a simple request to have the place lockable, fix the consitina (sic) doors and windows. You had a duty of disclosure … … I have decided that it is pointless us staying here, if I cannot run my business, … … Duty of Disclosure is a VERY IMPORTANT THING…… We are the easiest people to work with and we work very hard…. I would still love to buy it, but cannot justify the expense with no income of living here…….. …"
On 11 June 2016, the owners replied (Ex 3, p 25): "Thanks for your email 10th June 2016, we now have a much clearer understanding of your position. So as to allow an orderly transition can you advise when we can expect vacant possession. As you would understand we now have no income so we need to get back in asap so we can resurrect our lives. …"
On 13 June 2016, the plaintiff emailed the owners (Ex 3, pp 24-25): "I am beside myself, with this, when I should be earning an income and helping people and animals, … …"
On 21 June 2016, the plaintiff emailed the owners (Ex 3, pp 27-29): "… If you wish to proceed to the tribunal on the 1st July, my QC friend, …, will accompany me…….. (Obviously QC's are 10K a day, coincidently he is also a licensed Real estate and a pilot….Lol - John….Got to see the humour in that…….. …As I am self representing……..there is a list of issues I wish to discuss with you - In particular - Duty of Disclosure and Duty of Care……Forget Money…….unfortunately due to your lack of disclosure…..you are liable and I am unable to start my businesses. I cannot obtain public liability, home and contents insurance, and I can face civil liability, so I have cancelled every retreat and workshop….. … You are my friends……I love and appreciate all the hard work, love foresight you put into this property……You and I am not a plebians ……I wish to get this over the line for us all……it may be my mistake/presumption……….forgive me for being direct……is there debt owed (due) or liability on this property. I cannot discredit or represent you without factual evidence…… … I know I am a bit of hippy and very kind, but people mistake kindness for weakness, and I am a business woman (strange but true)……..I promise you if your work with me……I'll get this over the line but I need you help…..John go for a walk……..Sue have a glass of wine…….just relax……. …"
In these emails, the plaintiff did not mention any disability to her left foot but rather blamed the condition of the Mount Burrell property as the reason that she could not conduct her business.
During 2015 and 2016, the plaintiff emailed the owners saying that she would be launching her organic head lice business in March 2016. She would be holding retreats at the property. She had organised the following retreats (Ex 3, pp 1-2): "Gerald Rogers - Live Big - Author and International sensation for his Marriage Advice that was actually translated by the Pope, for the vatican. (Confirmed - March-July window - Venue to be confirmed) Brian Pierrigrossi - Spiritual Teacher - Author - Facilitator (Very unusual for India to invite a westerner to come and teach spirituality. (Confirmed - March - July window - Venue to be confirmed)."
The plaintiff also told the owners that she would also be organising a retreat with her friends (Ex 3, pp 2-3): "I would also organise a retreat for her international friends and mentors, Sacha Stone, Max Igan, Ian R Crane and other national experts to come together to brain storm, geo political, environment etc. … I also have my real estate corporation … I will be able to work again and manage my businesses …"
The plaintiff did not mention organising these events in her statement.
In her emails the plaintiff told the owners that she had planted a fig tree, gourmet capsicums and tomatoes, a sugar plum tree and avocado tree, which she was establishing in pots first. The plaintiff in her emails also told the owners that "I" have carried out physical labour on the property. She advised that she and Mr Kleeman had been working like "Trojans". According to the emails she had cleared and pruned the trees. She and Mr Kleeman had maintained the grounds and widened the walking track to three metres. The plaintiff also asked the owners for their postal address in the UK so she could post them an album so they could see the work they had done to the grounds, inside the house and the repairs they had undertaken. The plaintiff told the owners that she and Mr Kleeman had been working over 40 hours a week maintaining the property. This creates a very different impression to the one she portrayed in court and when asked to explain the reference in the emails to "I". In cross examination the plaintiff gave the following explanation (T116.7-14): "Q. So it would be incorrect, would it, to say, "I am working hard for nothing to clear underneath the house for a further termite inspection. It has taken us nearly two weeks"? That would be wrong, would it? A. Well, "I" and "us". "I", it wasn't me; "us" being that my partner and other people were assisting us to move it out, but because I was the one that was purchasing the property in my name, I referred to "I", but I actually mean us and other paid workers, and another couple living on the property that I was assisting that were doing work for free too."
In cross examination the plaintiff gave the following evidence in relation to the termination of the lease before NCAT (T93-T95): "… But you got involved in a dispute with them, the owners, didn't you? A. Correct. Q. And they sought to terminate the arrangement, did they not? A. Correct. Q. And it was a fairly bitter and protracted set of proceedings. Isn't that right? A. Correct. Q. They tried to evict you because you'd stopped paying rent. Isn't that so? A. Correct. Q. You refused to move and so they went to the New South Wales Civil and Administrative Tribunal to get an order for you to be removed. Isn't that so? A. Correct, and it was dismissed. Q. That's not true, Ms Jackson, is it? A. It is true. Q. You know that's not true, don't you? A. It was dismissed. Q. In fact, the tribunal made an order terminating the residential tenancy agreement, didn't they? A. It went to another Court because it was the wrong jurisdiction for NCAT, so it was dismissed. So then it went to the Federal Circuit Court and then it was - I'm just trying to remember the words. They were ordered to pay my Court costs, et cetera. Q. That is not true. A. It is true. Q. And you know that's not true, Ms Jackson. A. It is true. Q. The Federal Circuit Court became involved because they got a bankruptcy notice. Isn't that right? A. That was set aside and they were ordered to pay my Court costs. Q. So it's in relation to those proceedings you say you got your Court costs, is it? A. Yes, in the Federal Circuit. Q. But you know, don't you, that the Civil and Administrative Tribunal required you to leave the premises? Isn't that so? A. The which tribunal? Q. NCAT. A. I'm just trying to remember. No, it - the - no, they were ordered - it was the sheriff, a sheriff that came to evict me and then it went to an NCAT afterwards, and then it went to federal. Q. The sheriff came out-- A. Yes. Q. --with an order and took possession of the property, isn't that right? A. Yes. Q. And you were forcibly removed, weren't you? A. Yes. Q. And the subsequent proceedings that you brought were to try and get some of your possessions. A. Correct. Q. And that was dismissed as well, wasn't it? A. In which - no - no, I was - they were actually ordered to allow me complete access and not to interfere to allow me access to get my - all my property back out. Q. The dispute with the vendors became quite nasty and bitter, didn't it? A. Yes. Q. And it would have been a stressful experience for you to be in, I take it? A. Obviously. Q. And you accused them, didn't you, amongst other things, fraud? A. Yep, benefit by deceit, lack of duty of disclosure. Q. A whole range of things. A. Yes. But they were factual, couldn't get public liability insurance, anything, on the property because none of it was Council approved, and the Council has already - had fined them, and ASIC was investigating them. Q. You ultimately appealed the decision of NCAT, didn't you, terminating the lease? A. I can't remember, I think so. Q. And that appeal was dismissed, wasn't it? A. I can't remember which came first. Q. In fact, the appeal was dismissed because you didn't turn up, isn't that right? A. Sorry, I just had a brain shut down, could you just - what, regarding the appeal dismissed -- Q. Because you didn't turn up. A. Possibly right. Q. And there was another appeal in November 2016, do you remember that? A. I don't remember the dates. Q. Anyway, late last year. A. Yes. Q. Do you remember an appeal being listed in NCAT late last year? A. Vaguely, I have some recollection. Q. And that appeal was dismissed as well because you didn't turn up, isn't that right? A. I can't remember. Q. And you didn't comply with any of the orders of NCAT to serve your evidence, isn't that right? A. I can't remember."

[26]

NCAT proceedings

On 18 May 2016, the owners of the Mount Burrell property served a notice to terminate tenancy agreement on the plaintiff pursuant to s 87 of the Residential Tenancies Act 2010 (NSW).
On 1 July 2016, NCAT made the following orders (Ex 10, Tab 18): "1. The Residential Tenancy Agreement is terminated in accordance with: ● s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. ● Failure to pay rent in accordance with agreement. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 08-Jul-2016 4. The tenant shall pay the landlord a daily occupation fee at the rate of $164.38 per day from the day after the date of termination, namely 02-Jul-2016 until the date vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 6. The landlord is to advise the tenant in writing by the delivery of a letter to the premises by 7:00 pm on 01-Jul-2016 of the orders made today. 7. The tenant, LIANA JACKSON, ...is to pay to the landlord, … the sum of $7,561.61 immediately. Default in payment of any instalment will cause the whole of the balance then outstanding to become immediately due and payable. Reasons: ● Rent from 17-May-2016 to 01-Jul-2016 $7,651.61 8. The Tribunal authorises the landlord, … to enter the residential premises at 10:00AM on 04-Jul-2016 for the purpose of: ● Inspecting the residential premises for maintenance, repairs or health and safety. The tenant is not to obstruct the landlord in carrying out these orders. If the landlord cannot gain access to the residential premises on the date agreed or in accordance with the above order, the landlord or their representative may engage a locksmith to gain entry to the premises if the locksmith alters the locking devise the landlord is to provide a copy of the door opening devise to the tenant immediately. …"

[27]

The property at Bonogin

The plaintiff gave evidence regarding court proceedings between her and her ex-partner involving property at Bonogin. She brought an application against her ex-partner and his companies in relation to a mortgage over the Bonogin property that she maintained had been fraudulently obtained in the Supreme Court of Queensland.
On 19 and 20 November 2015, the proceedings were heard in the Supreme Court of Queensland. On 17 March 2016, Philip McMurdo JA handed down his decision: Jackson v Arawak Holdings Pty Ltd [2016] QSC 133. His Honour dismissed the proceedings and cross application and ordered that the caveat lodged by the plaintiff over the Bonogin property be removed.
When giving evidence in this Court, the plaintiff denied that the proceedings had been dismissed. She was adamant that the proceedings were "still under litigation, it's all under appeal and still being investigated." (T87.1-22). Almost a year has passed since that judgment was handed down and the plaintiff has not lodged an appeal yet. However, she says that she has a document ready to file. The plaintiff also gave evidence that there are ongoing investigations into her ex-partner's activities for fraud and forgery. She says investigations are being carried out by the CIB, ASIC and Interpol. When it was put to her that this was not true, the plaintiff replied "No, it is definitely true. It's under - I'm actually under confidentiality." (T88.38-39).
Mr Kleeman's evidence corroborated that the plaintiff's case against her ex-partner involving the Bonogin property has not been finalised. During cross examination he gave the following evidence: "Q. What's your understanding of the position then Mr Kleeman? A. It's going to appeal. Q. You're aware of that, are you? A. I'm aware of that, yes. Q. Have you given advice in that respect as well to Ms Jackson? A. I'm aware of the appeal. Q. When you say "aware", aware of what? A. The intention of appeal. Q. Her intention or a document being filed? A. Her intention. Q. She hasn't filed an appeal, has she? A. She has made the judge aware of an impending appeal in 2016 because of her medical conditions and ongoing hospital - she didn't have the capacity to continue on with all the necessary documents." (T186.21-39).

[29]

Fall on 2 November 2015

On 2 November 2015, the plaintiff appeared in her family law proceedings in Southport Federal Circuit Court. The plaintiff says that when she was outside the courtroom she felt numbness in her left foot and left leg. She says that her left leg gave way, she hit her head on the lift, fell backwards then hit her head on the tiled floor and was rendered unconscious.
The plaintiff was taken to Pindara hospital by ambulance and while there did not complain that her fall was due to her foot. (Ex 10, Tab 15.119 and 125). It should be noted that the plaintiff's partner, who was with her at Court on that day, was not asked any questions about this fall when he gave evidence.
In Perry v Jackson [2015] FCCA 3530 (Ex 10, Tab 7) (the family law proceedings) Purdon-Sully J at [10] referred to the plaintiff having a seizure outside of the Court and an ambulance having to be called. His Honour at [14] noted that the plaintiff "has obvious health issues not just today". Purdon-Sully J stated that both the plaintiff's mental and physical was a concern in the proceedings regarding custody of the children. Further to this, Purdon-Sully J at [52] made an order that the plaintiff undergo hair follicle, drug and alcohol testing. This was an order that had been made previously but had not yet been complied with by the plaintiff.
The plaintiff asserts that her fall on 2 November 2015 was the reason the Court decided to give custody of her children to her ex-partner because at that time "they suspected that she had epilepsy because of previous falls and current fall." (Ex 3, [45]). The plaintiff's driver's licence was suspended. She could no longer drive her children to school. She asserts that this was another contributing factor towards her not being granted custody of her children. The plaintiff says that she has since been cleared of having epilepsy. She continues with the process of seeking custody of her daughters. It is her intention to have the case brought forward so it can be heard as early as possible.
The plaintiff gave the following conflicting evidence regarding the drug and alcohol testing: "Q. In any event, some orders were made, isn't that right, on that day? Or you don't have any recollection of that? A. Let me think, I just - turn this down a bit cause I just need to think. Q.11th- A. And orders were made on 16 November 2015, and my children were taken off me that day because they thought that I had epilepsy or something -some reason why I fell. And so was my driver's license - was taken off me. Q. Can I suggest that on 11 November, that the order of the Court was that to have equal shared parental responsibility for your children with your former partner. A. I don't remember that. I've said that three times. I don't remember anything on the 11th. Q. And because you were not present that day [11 November], the judge gave you an opportunity to re-argue against the making of those orders and that's what you did on the 16th? A. All I remember is that the Court - I went to court on the 16th which was adjourned from the 2nd. I don't remember any orders or anything else in between those dates. Q. One of the orders that was made was that you had to consent to certain testing being done of you. A. Yes. Q. Medical tests? A. Yes. Q. Alcohol and drugs tests? A. Yes. Q. And you declined or refused to undergo such testing, didn't you? A. Some, I can't remember. Some I wasn't able to comply with. Q. You were repeatedly asked, can I suggest, to on no less than three occasions by an order and a request by the independent children's lawyer that you comply with an order that you undergo such drug and alcohol testing. A. Yes. Q. And you refused. A. No, I did it get done the first time and the doctor told me that it's - it's actually relevant because it..(not transcribable)..on body mass, weight ratio, the medication I was on, smoking et cetera, and what - and all these factors and I was told it wasn't relevant by two doctors. Q. And you because you refused to comply with that order, on 16 November 2015, the Court made an order that the children live with their father. Isn't that right? A Correct." (T84.5-49; T85.1-4).
In re-examination the plaintiff gave the following evidence as to why she had not undertaken alcohol and drug testing: "Q. Ms Jackson, you told her Honour I think yesterday but it might have been in fact today; last year a judge said that you had to have drug and alcohol testing to get unsupervised access to your children. Do you remember giving that evidence? A. I vaguely do. Q. You've not had that testing, is that right? A. No. Q. Why not? HER HONOUR Q. You're agreeing you haven't had it? A. Yes. Q. You had not had that testing, had you? A. No, I haven't. … Q. Why not? A. Well partially because of all the stress and everything that I've been under I sometimes been drinking too much and … A. Sorry. Because of all the stress - stress and everything I've been under, on all the medication et cetera, I was - I was drinking too much and I was scared that I - I may fail the test. Because of the vomiting and diarrhoea I was losing my medication, so I would drink wine to put me to sleep or to relax me." (T168.3-38).

[30]

Medico-legal neuropsychological evidence

Dr Lee a consultant medico legal psychiatrist prepared a report dated 17 February 2015. Dr Lee stated that it was difficult to provide a diagnosis as he could not exclude the proposition of abnormal illness behaviour. (Ex 6, Tab 4, p 111).
Dr Shelley Keane a clinical neuropsychologist prepared a report for the plaintiff dated 30 April 2015. She recorded the plaintiff as being extremely anxious and commented that the plaintiff shook throughout the assessment and cried frequently. Dr Keane reviewed the MRI scans of 10 January 2013 and 6 April 2013 and suggested that the deficits demonstrated by the plaintiff in verbal memory function and executive functioning were consistent with a head injury. Dr Keane indicated that the plaintiff would benefit from a referral to a clinical neuropsychologist for treatment of her adjustment disorder. (Ex D).
Dr Wendy Roberts a neuropsychologist was retained by the defendant. She prepared a report dated 24 June 2016. (Ex 6, Tab 2). She recorded that the plaintiff was experiencing debilitating levels of anxiety. Dr Roberts noted that on the current evidence it was likely the plaintiff had significant pre-existing problems with anxiety and depression. In addition, the plaintiff described to Dr Roberts the stress over a disagreement with her siblings regarding an enduring power of attorney for her mother. The plaintiff also told Dr Roberts of the bitter and prolonged family court proceedings, which resulted in the care of her daughters being taken away from her in November 2015. Dr Roberts opined that these factors contributed to a significant worsening of the plaintiff's emotional state since July 2011. (Ex 6, Tab 2, p 45).
Dr Roberts formed the conclusion that despite some abnormal findings on the MRI brains scans in January and April 2013, there was no evidence of organic dysfunction attributable to the incident in January 2013 where the plaintiff hit her head. Dr Roberts did not believe the plaintiff required treatment from a neuropsychologist. (Ex 6, Tab 2, p 46).
Dr Roberts in her supplementary report dated 8 February 2017, formed the opinion that the plaintiff was a very unreliable historian. (Ex 6, Tab 2, p100). The plaintiff told Dr Roberts that prior to her left foot injury she had periods of being "a bit depressed or grief or something" but was "in a good place" and that the only emotional symptoms that she had prior to her left foot injury were "a bit of depression but not anxiety or anything like that". The plaintiff states her anxiety and depression "really trebled after the foot injury and got progressively worse". She blamed her left foot injury for the problems in her relationship. (Ex 6, Tab 3, p 98). Dr Roberts' conclusion was that while the plaintiff's emotional functioning deteriorated following the July 2011 accident, her problems were unlikely to be related to her left foot. She also found no evidence of cognitive dysfunction attributable to the incidents leading to this claim.
In their joint report dated 10 February 2017, (Ex 6, Tab 7) Dr Roberts and Dr Keane both agreed that the plaintiff's reported psychological problems were explained by factors unrelated to the fall at the hotel or the fall at her home. While they believe that the plaintiff has emotional issues that will adversely affect employability they both held the view that these issues are not related to the incidents. (Ex 6, Tab 7, p 167). Both these doctors were not called for cross examination. I accept the views expressed by Drs Roberts and Keane.

[33]

The plaintiff's life pre and post accident

In about 2002, the plaintiff started her own real estate business, Hindsight Realty Pty Ltd. She says that she organised the purchase of multiple properties so that developers could then proceed with their plans. After her first child was born in 2004, the plaintiff ceased full time work. In December 2006, her second child was born. She says that she continued to receive an income from the Hindsight Realty for some years after she ceased working. The plaintiff says that her ex-partner, the father of her children, had a similar business and she says that she assisted him from time to time. Hindsight Realty has been dormant since 2011.
Prior to the accident, the plaintiff claims that she was in the process of going back into real estate as this was where the majority of her income had always come from. I accept as a result of her left foot injury on 21 July 2011, she suffered pain and was unable to walk unassisted until November 2011. After November 2011 her incapacity to work as a result of her fall on 21 July 2011 was only a temporary incapacity. However, as a result of that injury I accept that the plaintiff had and still has difficulty with respect to prolonged standing, squatting and walking on steps or uneven ground.
The plaintiff says that her whole life has fallen apart and that she is totally dependent on other people. She claims she is constantly in a state of anxiety and depression. She has lost her beautiful home on the waterfront and her children no longer attend private school. Her relationship had broken up and she is now dependent on her present partner to provide care and assistance. While the plaintiff attributes her problems to her left foot injury, in my view she had multiple emotional problems that led to her change in circumstances. She complains of constant memory loss and requires people to remind her on a daily basis of what she needs to do. She says that she has to make lists to remind herself to do things throughout the day. Her current partner corroborates her memory loss problems. While the plaintiff may blame her accidents for her "brain damage" and memory problems, the medical evidence does not support this claim.
The plaintiff also says that she was a proud and happy mother, but all of this has changed. Since the accident she is always depressed and weeping around her children. She is aware that this must have a negative impact on them. She says that her whole life has changed and she will never get back to the position she was in prior to the injury to her left foot. She has lost custody of her children. Once again, her emotional problems are not due to the injury to her left foot.
The plaintiff says that it was her intention to build up a business again once her children were securely at school and that has now been dashed. She says that she is not capable of concentrating on anything at the moment and cannot see any bright future work wise.
So far as the plaintiff's psychological and psychiatric problems are concerned, her lay evidence does not accord with the medical evidence. Drs Roberts and Keane agree that those problems are unrelated to either the first or second fall. It is more likely than not that these psychological and psychiatric problems were not caused by either accident. I make no allowance for them in my assessment of non economic loss.
After the first injury on 21 July 2011 to the end of November 2011, the plaintiff was on crutches. After that she used a walking stick. She had difficulty cooking meals and doing housework, such as making beds and doing the laundry. Her left foot was in pain and she took medication. She says that she continued to experience chronic pain in her left foot but I do not accept this evidence as the plaintiff's evidence is unreliable. However, I do accept that as a result of her first injury to her left foot, she experienced a temporary incapacity between 21 July 2011 and 30 November 2011 where she was unable to walk unaided. I also accept that she continued and will continue to have difficulty with prolonged standing, squatting, walking on steps or uneven ground.
Taking all of these factors into account, I assess the plaintiff's non economic loss at 20% of the most extreme case. This equates to $21,000.

[35]

Economic loss

Section 12 of the Act provides for damages for past or future economic loss. It reads: "12 Damages for past or future economic loss - maximum for loss of earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or … (3) For the purposes of this section, the amount of average weekly earnings at the date of an award is: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or …"
In Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, the Court expressed the general principle in relation to an award for economic loss at [7] as follows: "7 Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss." But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss'. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if the injury had not been sustained."
Also in State of NSW v Moss (2000) 54 NSWLR 536 at 559, Heydon JA at [87] said: "87 The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility."

[39]

The plaintiff also provided a letter from ASIC dated 20 February 2004, welcoming her to her new role as director of Hindmarsh Reality; ANZ business cash management statements, addressed to the director of Hindsight Realty, for the period 22 March 2004 to 20 October 2006, showing the plaintiff's largest deposits as being $100,870 on 8 April 2004 and $494,560 on 2 June 2005. However, these financial transactions do not record the source of these funds. On 14 April 2004, the sum of $80,696 was withdrawn and on 3 June 2005, four withdrawals were made totaling $44,516. Centrelink payment summaries for the period 15 August 2013 to 30 June 2016 total $20,774 gross.
St George statements in the name of the plaintiff for the period 9 September 2007 to 8 September 2011 were also provided. (Ex C, Tab - Economic loss). These St George statements show 23 deposits totalling $191,800. There was also a total of $189,704.76 in withdrawals leaving an overall balance of $2,096. (The bank statement for the period 9 March 2008 and 9 June 2008 was not supplied).
Past economic loss is for a period of nearly six years from 11 July 2011 to 23 June 2017 being 311 weeks.
I accept that the plaintiff was totally unfit for work from the date of the accident, 21 July 2011 to 31 October 2011, a period of 15 weeks. However, it is difficult to discern the success of the plaintiff's earlier real estate business because firstly, her evidence is unreliable and secondly, she had not been working in that occupation since 2004 when she left work to raise her two children.
In July 2011, the plaintiff says that she was planning on re-entering the workforce. In order to do so she was reskilling by undertaking courses such as the neurolinguistic course. She says she had purchased a Quit Smoking Franchise for approximately $20,000. I have examined the plaintiff's financial records for 2010 and 2011. While she paid a sum of $13,000 paid to "nlp quit Egypt sharelord" on 19 October 2010 it is unclear what it is for. It may have been for the three courses she undertook namely NLP certification training, quit cigarettes in 60 minutes certification training and NLP master practitioner training. The sum of $13,000 is not the sum of "$20,000" that she says that she paid for the Quit Smoking Franchise. The onus is on the plaintiff to provide clear documentation to show that she paid for the Quit Smoking Franchise. On the balance of probabilities, I am not satisfied that she had, in fact, purchased the Quit Smoking Franchise.
In assessing both past and future economic loss, I take into account the joint opinions of Drs Keane and Roberts that there are emotional issues which would adversely impact of the plaintiff's employability but these were overwhelmingly unrelated to the plaintiff's left foot injury on 21 July 2011 and her fall at her home on 7 January 2013. Dr Keane and Roberts are of the opinion that "there are no cognitive issues adversely impacting on her employability (past, present and future) … cognitively, there is no reason why [the plaintiff] could not be in employment." (Ex 6, Tab 7, p 167). In my view, the plaintiff's emotional problems that have arisen from the breakdown of her relationship with her now ex-partner are not related to the first injury to her left foot.
Also in assessing both past and future loss, I take into account the joint opinions of Drs Endrey-Walder and Dr Sharwood that the plaintiff sustained undisplaced fractures of the medial and lateral cuneiform bones and the cuboid bone on the left foot that have healed; that her capacity to work as a result of her fall on 21 July 2011 was a temporary incapacity that lasted for the period she was unable to walk unaided (that is until November 2011); and that as a result of the accident on 21 July 2011 the plaintiff will have difficulty with prolonged standing, squatting, walking on steps or uneven ground.

[40]

Work, study and plans after the first accident

After the first accident the plaintiff organised two seminars. The first occurred in November 2011 when she organised a four day seminar on the Gold Coast for Ian R Crane a pan-geopolitical analyst from England. In September 2012, the plaintiff travelled to London to have a vacation and to meet with Hemal Radia who runs a business called Manifesting and Law of Attraction. She arranged a second conference when Hemal Radia came to Australia to speak at a seminar on the Gold Coast. She organised his flights, accommodation and function centres. She also organised the online advertising, the sale of tickets and the event website. She was required to be present at the Gold Coast seminar as she was the event coordinator. (T46-T50). There is no evidence as to her earnings in relation to these conferences.
In 2014, she completed a Certificate IV in Business with difficulty. This was a one day a week course over a period of four months. The plaintiff gave evidence that she had she had trouble understanding and with her memory while doing the course. She was assisted with the computer skills and course details that she could not comprehend. (T26.50; T27.1-3). While she may have had these difficulties, they are not attributable to the 2011 injury to her left foot.
The plaintiff's evidence is that she intended to purchase the Mount Burrell property (previously described) for $1,600,000 and turn the property into a health retreat centre. This was an aspirational desire but it is not based on a financial reality.
Since November 2011, I find that the plaintiff was capable of undertaking paid employment as this accords with the opinions of the orthopaedic surgeons and is borne out of the fact that she had organised her first seminar. I accept that there are some limitations as to the type of work she can perform. Those limitations involve prolonged standing, squatting, walking on steps or uneven ground. If the plaintiff returned to the real estate business, I accept that she would have difficulties inspecting properties that required her to walk up and down steps and on uneven ground. As I stated earlier, despite the plaintiff's oral evidence which I have found to be unreliable, without the benefit of Hindsight Reality's financial records, or an accountant's report based on these records, I am unable to assess the plaintiff's past economic loss should she have returned to the real estate business by reference to a weekly sum. If she decided to establish a Quit Smoking Franchise or event management business or some other business it would also have taken time to be financially productive. Therefore, I cannot assess her diminution of earning capacity in terms of a weekly sum.
Overall, it is not clear what the plaintiff's working life would have been but for the first accident. It is unclear whether she would have worked fulltime, part time, on a casual basis or with some period of unemployment or a mix of all. In my view, in these circumstances, the appropriate approach to past economic loss is to assess it by way of a buffer.
I make a finding that the plaintiff was totally incapacitated and unable to work due to her left foot injury for the period from July 2011 until November 2011. After that the plaintiff had some physical limitations that diminished her earning capacity that may have resulted in financial loss. As I have said it is certainly not clear when or if the plaintiff had attempted to start her own business. If she did so, it is not known how long the business would have taken to establish, what financial outlay would have been incurred and whether the business would have been profitable. Taking these findings and assumptions into account, I assess the plaintiff's past earning capacity of 310 weeks as a lump sum of $20,800.

[41]

Future economic loss

The plaintiff submitted that the assessment of future economic loss should be based on a diminution in earning capacity which is or may be productive of a loss: see Graham v Baker (1961) 106 CLR 340; Medlin v SGIVC (1995) 182 CLR 1. When assessing future loss of earning capacity, regard must be had to s 13(1) of the Act.
Claims for future economic loss are governed by s 13 of the Act. It reads: "13 Future economic loss-claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453; [2008] NSWCA 99 concerns the award of a "buffer" or as it sometimes is known, "a cushion". Basten JA (with whom McColl and Macfarlan JJA agreed) stated at [84]: "[84] As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that 'a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future', but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present."
It is also appropriate that I assess the plaintiff's future economic loss by way of a buffer as it is not possible to assess her future loss of earning capacity on a weekly basis based on the assumptions that I have set out under past economic loss. The plaintiff is 48 years old and she has 19 years of working life left. In the future she will have a small impairment in her earning capacity that may result in financial loss. I assess a lump sum of $50,000 for future economic loss.

[43]

Past gratuitous attendant care

For past gratuitous care the plaintiff claims 13.5 hours per week at $28 per hour from 22 July 2011 to 9 January 2013,13.5 x $28 x 72 weeks = $27,216. From 10 January 2013 to 23 June 2017 the plaintiff claims 9 hours per week at $28 per hour. This equates to 9 x $28 x 232 = $58,464. The total sum claimed by the plaintiff is $27,216 + $58,464 which equates to $85,680.
Before the injury to her left foot in 2011, the plaintiff was a fulltime mother and house carer. She says that she attended to all of the household needs including preparing breakfast, her daughters' lunches, driving them to school, cooking dinner, cleaning, and carrying out grocery shopping. Before July 2011 the plaintiff had a cleaner who provided two hours of cleaning per week. (T146.5-6). She was and still is totally independent in her self-care. After the July 2011 accident the plaintiff told Ms Wilson (an occupational therapist) that she required moderate assistance for the first 6 months after her first injury and she was required to hire private services for cleaning 8 hours per week for the first 3 months and then once per week for 4 hours per week. (Ex D, Report 30 May 2014, p 19; T144-T145).
The plaintiff gave a contradictory account of her mother's involvement in her domestic care. The plaintiff told Ms Wilson that after the first fall until January 2013, her mother visited one a week to assist with shopping and laundry. (Ex D, Report 30 May 2014, p 19). However, in cross examination the plaintiff gave the following evidence (T146.18-37): "Q. Ms Jackson, you also told Ms Wilson that in the period from July to January 2013, your mother would visit once a week to assist with shopping and laundry. … Q . ... So I'm talking about the period following the fall in July 11 until January 2013. Do you understand that? They're the dates I'm asking you questions about at the moment. What I'm suggesting to you is you told Ms Wilson that your mother would visit once per week to assist with shopping and laundry in that period. A. That's incorrect. Q. What, your mother didn't come? A. My mother came but didn't assist with shopping or laundry."
This is another example of the plaintiff's unreliable evidence.
Initially, Dr Sharwood expressed the view that the plaintiff would not require any domestic assistance. (Ex 6, Report 11 November 2013, p 6). Dr Endrey-Walder was provided with the report by occupational therapist Ms Wilson who recommended that the plaintiff would require approximately 3 hours per week for domestic assistance. (Ms Wilson's recommendation relates to a period from January 2012 to March 2014). Dr Endrey-Walder agreed with this assessment. (Ex D, Tab - Medico Legal, p 11). However, in their joint report, Drs Sharwood and Endrey-Walder agreed that the plaintiff might need assistance with household cleaning.
Drs Kearne and Roberts expressed the opinion that there was no need for care based on psychological, cognitive grounds. (Ex 6, Report 15 February 2017)
Until she met Mr Kleeman, the plaintiff was provided with assistance by friends or family members (other than her mother). Once again, there is no evidence from friends or family members to substantiate this claim. She says that she required family members to assist her in all areas of household cleaning and shopping. She says also says that she needed assistance with laundry, changing of bed linen and garden care. The plaintiff says that she has a reduced tolerance to sit or stand for long periods due to the residual disabilities to her left foot. I accept that she has a reduced tolerance to standing for long periods. The doctors did not say that the plaintiff had reduced tolerance to sitting for long periods. While I accept that during this period the plaintiff had the need for some attendant services commercial and/or gratuitous, the onus rests on the plaintiff to establish on the balance of probabilities who helped her, what they did and for how long. There is no other affidavit evidence or any documentary evidence (other than that of the plaintiff) to support this claim. Hence, I disallow it.

[49]

Future attendant services - commercial

The plaintiff claims 9 hours per week at $40 per hour x 924.8 for future commercial care in the sum of $332,928. The plaintiff submitted that any future care should be allowed on a commercial basis as Mr Kleeman gave evidence that he gave up his work in order to look after the plaintiff. He stated that if he did not have to look after her, he would be back in the workforce. On that evidence, the plaintiff submitted that she is entitled to commercial care. The occupational therapists agree on $35.00 per hour as a rate for commercial care. If the Court were to award money for paid commercial care the plaintiff says that she would avail herself of it. She estimates her needs are presently about 7 hours per week.
Claims of this kind are not required to meet the threshold pursuant to s 15 of the Act: see Miller v Galderisi [2009] NSWCA 353; Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343. The authorities make clear that a plaintiff needs to demonstrate not only a need for the services, but also that "gratuitous assistance to satisfy the need was unavailable": see Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [148] per Tobias AJA. The defendant submitted that the plaintiff's evidence was inconsistent with the prospect of there being any commercially paid care.
In relation to future care, Ms Johnson is of the view that the plaintiff requires one hour per week for assistance with low level cleaning, such as cleaning the bath tub, shower recess, under the bench oven and the lower level of the refrigerator skirtings. I accept Ms Johnson's opinion.
I note that prior to the first injury, the plaintiff paid for two hours of commercial care. Mr Kleeman gave evidence that he was the managing director of a licensed truck dealer and then a chairman of a charity for 12 months. He ceased working in 2015. He is currently receiving a Newstart allowance which requires him to look for employment. (T182.11-49). There is no evidence to support Mr Kleeman's working history. The plaintiff says she would like to have commercial care. On the balance of probabilities, Mr Kleeman would not provide one hour per week of gratuitous assistance to the plaintiff. One hour per week of gratuitous attend care falls below the threshold. Hence, I make no allowance for commercial care or gratuitous care.

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Judgment (54 paragraphs)

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Cases Cited (48)

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