Josephine Williams v Landsdowne Partners Pty Ltd t/as 202 Broadway - [2013] NSWDC 154 - NSWDC 2013 case summary — Zoe

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Josephine Williams v Landsdowne Partners Pty Ltd t/as 202 Broadway

[2013] NSWDC 154

District Court of NSW|2013-07-17

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At a glance

Source facts

Court

District Court of NSW

Decision date

2013-07-17

Catchwords

(1987) 162 CLR 479 Azar v Kathirgamalingan [2011] NSWDC 56 CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47
(2009) 239 CLR 390 Carr v O'Donnell Griffin
(2001) 52 NSWLR 705 Malec v JC Hutton Pty Ltd [1990] HCA 20
(2012) 246 CLR 182 Tchen v Nominal Defendant [2010] NSWCA 245 Vairy v Wyong Shire Council [2005] HCA 62

Source

Original judgment source is linked above.

Catchwords

(1987) 162 CLR 479 Azar v Kathirgamalingan [2011] NSWDC 56 CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47(2009) 239 CLR 390 Carr v O'Donnell Griffin(2001) 52 NSWLR 705 Malec v JC Hutton Pty Ltd [1990] HCA 20(2012) 246 CLR 182 Tchen v Nominal Defendant [2010] NSWCA 245 Vairy v Wyong Shire Council [2005] HCA 62

Judgment (55 paragraphs)

[1]

Index Claim [1] Claim against the second defendant [3] Pleadings [5] Background [6] The Fall [9] Issues in dispute [11] Condition of the floor and ramp [13] Report of Neil Adams [24] Cleaning system: evidence of manager [32] Failure to call Mr Bradford [35] Duty of Care [38] Negligence and Breach of Duty [42] Reasonable response [52] Causation [54] Findings on system of inspection and cleaning [60] Liability [62] Contributory Negligence [63] Damages: plaintiff's case [65] Disentangling the medical conditions [69] Damages: defendants' case [71] Dr Gupta [74] Dr Sungaran [81] Dr Blomfield [84] Significance of lack of complaint in treating doctor's medical notes [91] Expert Witnesses [94] Dr Giblin [97] Dr Dalton [109] Obesity and Diabetes [121] Credit of the plaintiff [122] Matters arising from surveillance video [125] Objection to surveillance video [128] Matters demonstrated surveillance video [130] Psychological injury [142] Carpal Tunnel Syndrome [145] Adhesive Capsulitis [147] Back and ankle injury [150] Findings as to injuries [153] Assessment of damages [160] Schedules of damages [162] Non-economic loss [163] Most extreme case [165] Past out-of-pocket expenses [169] Future out-of-pocket expenses [170] Past economic loss [173] Reduction in hours of employment [178] Future economic loss [184] Past and future domestic assistance [190] Findings: domestic assistance [201] Loss of superannuation (past and future) [204] Table of damages awarded [205] Claim against second defendant/licensee [206] Costs [216]

[8]

Condition of the floor and ramp 13It is clear from the photographs tendered (exhibit 3 and 3B), which are annexed to the report of Mr Neil Adams (exhibit 1) that the relevant area was a gently sloping ramp. The photographs tendered indicate a fall of about 10 to 14 centimetres (four to five inches) over about a one metre squared area. The surface appears to have been either repaired or reconstructed and that there was previously a step in its place. Cracks in the surface of the ramp are visible. There was no hand-rail installed. The photographs tendered show the concrete ramp was a darker colour than the terrazzo floor on either side. 14Mr Saverio (Sam) Sirriani, a director of the first defendant and manager of the hotel and nightclub on the night in question, gave evidence that the surface of the floor had not previously represented any problem nor had it been the subject of a complaint. (T 315-317; 341) 15Ms Williams gave evidence that after she fell she noticed that her clothing was wet, "around my backside and halfway up my back" (T 28.8). She noticed that she "had spills around me" (T 28.15). Having given evidence of there being multiple "spills", her counsel then referred to "how large the spillage was" (T 28.24), to which she answered ten to fifteen centimetres (T 28.42). In cross-examination, Ms Williams accepted that she only noticed one spillage, "In the dark, yes, because that - once I was sort of close to it, I could virtually see it" (T 169.47). This was despite Ms Williams' response to further and better particulars stating, "there were approximately four to five spillages of approximately two to three inches in diameter in the area where she fell" (T 171.30). 16Ms Harty gave evidence that when she came to Ms Williams' assistance after the fall, she noticed that the floor was wet, "just like basically where the ramp started" (T 251.48). She described the floor "around her", Ms Williams, as wet (T 252.8). "It looked like someone had tipped - not tipped, may have spilt liquid on the floor and it looked like people had sort of either walked through it or perhaps where she had slipped on it" (T 252.11). 17Mr Williams stated that in kneeling near his wife after the fall, his right knee became wet (T 267.46) and that he had reported the wetness to Mr Sirriani (T 268.13): "I said, 'You can see my pants are visibly wet and she has a severely broken arm; we need an ambulance.'" Mr Sirriani gave evidence that the wetness of the floor was reported to him after the fall (T 314; 328). 18The plaintiff gave evidence that she did not remember how she entered the anteroom prior to the fall. Mr Williams gave evidence that he had not crossed the threshold with the ramp that evening but entered through another door. Ms Harty gave evidence that she had crossed the threshold from the bar some five minutes prior to that and had not noticed any spillages. 19Mr Sirriani gave evidence that after the ambulance came to take the plaintiff, he "felt the ground to see if it was all wet...just rubbing the whole concrete floor" (T 314.20-34). He found that "there was no liquid; it was dry because if there was liquid, I would have got someone to clean it up." (T 315.6) He gave evidence that there was only one entrance to the anteroom (T 313.15). 20It is not in dispute that it was a quiet evening at 202 Broadway that night. 21The incident report record of the hotel (exhibit 18) noted that a "Young girl (late 20s) fell down the main stairs...stayed on the floor for about 30 minutes until the ambulance arrived...when she walked out of the nightclub with the paramedics." 22Despite some inconsistency in the evidence, for example, as to the location and extent of the liquid on the ramp, I accept, on the balance of probabilities that the floor was wet to some extent. This is based on the evidence of three witnesses which is largely consistent and credible in relation to the incident. If Mr Sirriani found the floor to be dry, it was over 15 minutes after the fall and certainly after some traffic in the relevant area by the plaintiff's husband, friends and, possibly, paramedics. It could not be said that Mr Sirriani tested the floor in the same conditions as the incident. 23I also find that any liquid was unlikely to have been visible to patrons walking over the ramp prior to the incident, given the evidence of the poor lighting, the time of night when the accident occurred and the dark coloring of the concrete.

[9]

Report of Neil Adams 24The report of Neil Adams, ergonomist and safety management consultant, dated 4 May 2012 was admitted (exhibit 1) save for its references to workplace and occupational legislation. Paragraphs 4.2-4.12, pp 11-15 were objected to by the defendants on the basis of relevance. Of those, paragraphs 4.4 and 4.5 were admitted; they referred to Australian standards for surfaces from several authorities and were admitted as being the bases of Mr Adams' opinions. The remaining sections relating to work-place standards were excluded. 25Mr Adams was not required by the defendants for cross-examination and there was no contrary expert evidence. He had inspected the premises in the area where the accident occurred. He took into account the relevant history he had been provided, including the presence of "a significant amount of liquid" on the ramp surface (p 5, 2.1.4). 26Mr Adams' report referred to an accepted standard in assessing the ramps surface: "for safe pedestrian movement in level conditions the level of friction available between the pedestrian surface and the shoe sole, expressed as a dynamic coefficient of friction, should be 0.4." He identified that "when a slope is involved, the level of slip resistance needs to be higher" (p 8, 3.1). He found that the concrete surface did not meet the standard of 0.4 when wet: "It can therefore be readily understood how a pedestrian such as Ms Williams might slip as a result of attempting to walk on that surface in wet conditions" (p 9, 3.2). Mr Adams thought that the surface should be regarded as adequately slip resistant in dry and reasonably clean conditions (p 9, 3.5). His position was that pedestrians could walk on even quite slippery surfaces provided that they are aware of the surface conditions and could adjust their gait appropriately (p 10, 3.8). 27He additionally identified that: "the likelihood of pedestrians experiencing slips on a surface is only partly dependant on the surface characteristics...The total risk that a slip might occur on any given surface is dependent both on the frictional characteristic of that particular surface, as well as on a range of contributing factors, including: the presence of potential lubricants (eg., water); gradient of the surface; footwear (or surface interface material if the footwear is prevented by the contaminant from actually contacting the pedestrian surface); pedestrian awareness of the level of available friction; whether the pedestrian is turning or exerting other forces on the surface; other aspects of gait; lighting; differentials between adjacent surfaces; and others" (p 9, 3.3) 28Mr Adams found that in the circumstance that the ramp was located within a nightclub, the presence of spilled drinks on it was quite predictable (p 14, 4.8 ff). He did not think that wearing the shoes Ms Williams did would have made much difference to the risk of slipping. He stated that in the lighting conditions that Ms Williams described, the presence of liquid on the floor would not have been obvious. 29Mr Adams found that: "Slips occur most commonly when there is some mismatch between the pedestrian's expectations about the level of friction likely to be available to them, and the level that is actually available...making a transition from an area with one level of slip resistance (such as would have been available on the dry and level surface on which Mrs Williams was walking before she reached the ramp) to an adjoining area that is slippery (such as the wet section of the smooth and sloping ramp) is particularly hazardous...Mrs Williams would have experienced a very marked reduction in the level of friction available to her as she attempted to walk down that short ramp" (p 10, 3.8) 30In terms of what might have been done by the defendants to avoid the risk of harm, Mr Adams gave recommendations as to a variety of preventative measures that could have been implemented such as anti-slip strips or that the ramp could have been reconstructed to both reduce its gradient and to provide an adequately slip resistant surface (p 16, 4.13). 31Mr Adams concluded that it "might quite readily have been foreseen by the defendant that a visitor to or a worker at the premises might experience a slip, loss of balance, fall and injury when attempting to walk down the ramp in wet conditions" (p 18, 5.2.7).

[12]

Duty of Care 38The duty of care of an occupier to a person lawfully on its premises is long established. As stated in Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 at 488: "In the circumstances of the present case, the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent." What is reasonable will vary with the circumstances of the plaintiff's entry upon the premises (Australian Safeway Stores v Zaluzna at 488). 39Similar circumstances to this case were considered in Kingi-Rihari v Millfair Pty ltd t/as Arthouse Hotel [2012] NSWSC 1592 at [142]: "The hotel's duty plainly required it to take reasonable steps for the safety of its customers, who were at the hotel in circumstances where it could be expected that some of them might be intoxicated, while walking across the highly polished wooden floor to access the bathroom." 40Numerous authorities in "slip and fall" cases such as this relate to shopping centres and supermarkets. In the matter of Kook v Caftor Pty Ltd t/as Mooseheads Bar & Cafe [2007] ACTSC 1, Harper J observed in relation to the facts of that case, which may have relevance to this matter, at [80]: "...it seems to me that supermarket spillages are in a very different category to glasses on the dance floor of a nightclub, the nightclub sells overwhelmingly alcoholic drinks in glasses or bottles to it customers. The defendant's nightclub has a dance floor adjacent to the bar. The defendant has knowledge of the regular, almost continuous presence of glasses and bottles, and also spilt drinks, on the surface of the dance floor. The presence of glasses and of spilt drinks on the surface of the dance floor seem to me a virtually inevitable concomitant of the conduct of the nightclub. In this regard a nightclub and a supermarket are at opposite ends of the spectrum." 41It was additionally observed in relation to inspection and cleaning that, "A period of that order [ten or fifteen minutes] may be perfectly adequate in a supermarket spillage context but is quite inadequate in the context of glass on a dance floor" at [83]. A similar argument may be made about the presence of liquid on a ramp entrance to a dance floor area in a nightclub.

[13]

Negligence and Breach of Duty 42For the purposes of Part 1A of the CLA, "Negligence" is the failure to exercise reasonable care and skill. What constitutes reasonable care is measured by the objective and impersonal standard of the reasonable man: Cook v Cook [1986] HCA 73; (1986) 162 CLR 376. The plaintiff has pleaded that the defendants' negligence is constituted by: a. Failing to take reasonable care for the plaintiff's safety; b. Placing the plaintiff in a position of peril in the circumstances; c. Having a section of sloping concrete flooring which was dangerously slippery; d. Having a section of sloping concrete flooring which was not fit for use in a nightclub where patrons were liable to spill drinks onto it; e. Failing to have in place any or any reasonable system of inspection and cleaning of the floors; f. Failing to have in place any or any reasonable system for the collection of used glasses, bottles and other drinkware; g. Failing to warn the plaintiff of the presence of the sloping concrete floor. h. Failing to surface the sloping section of floor with a non-slip product such as a paint containing carborundum; i. Failing to use non-slip mats over the sloping section of concrete floor; j. Failing to use absorbent mats on the surface of the sloping section of concrete floor; k. Failing to apply anti-slip strips to the said section of floor; l. Failing to install handrails. 43I find that there was a risk of injury to the plaintiff by slipping on the ramp in this condition when it was likely to be wet and would be slippery when wet. 44Pursuant to 5B of the CLA, I must find that the risk of harm was foreseeable and not insignificant. Further, that in the circumstances, a reasonable person in the person's position would have taken those precautions, in light of the factors outlined in 5B(2). 45Here, the defendants - in my view appropriately - accept that the risk was both foreseeable and not insignificant. 46Reasonable foreseeability does not require me to find the precise manner of injury that occurs, foreseeable (Doubleday v Kelly [2005] NSWCA 151). The risk of injury is foreseeable if it is a kind that "would be sustained by a member of the class of which the plaintiff is a part and is not far-fetched or fanciful, irrespective of its likelihood as a probability" (Carr v O'Donnell Griffin; Carr v Wagga Mini Mix & Pre-Cast Concrete Pty Ltd [2013] NSWSC 840 at [29]). I find that the risk was foreseeable, namely it was a risk that the first defendant knew or ought to have known. 47"Not insignificant" is to be determined in the circumstances of each case. While I accept that there may not have been any such or similar prior incidents, that does not negate the inference that there was a not insignificant risk of someone being injured - see Jandson Pty Ltd v Welsh [2008] NSWCA 317 at [23]. I find the risk was not insignificant. 48The cleaning system is essentially the first defendant's response to the risk of injury to patrons when exiting the ante-room over a ramp that could be slippery when wet. 49The "evaluative task" of determining the standard of care was identified in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 433: "the standard of reasonableness - and reasonable care - depends upon the facts of each case". 50The fact that there are precautions that could have been taken to prevent the injury is insufficient to establish breach unless a reasonable person would have adopted those precautions (Doubleday v Kelly). I find that a reasonable person would have taken precautions including a risk assessment and those as identified in the report of Mr Adams. 51In relation to the factors under 5B(2), I consider that the probability that the harm would occur if care were not taken and the likely seriousness of the harm as very significant. I do not consider measures such as any of those detailed in the report of Mr Adams to create an unreasonable burden on the first defendant. This is so even in light of 5C(a) and that it may bear such a burden across all of the first defendant's property. The question of the social utility of the activity does not appear to be an issue in this case; the activity of attending a nightclub has a social utility within the community.

[15]

Causation 54The determination of causation in accordance with s 5D of the CLA involves satisfying the tests of "factual causation" which is the statutory statement of the "but for" test for causation and the "scope of liability" (Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182). In applying the later test, I must consider "whether or not and why responsibility for the harm should be imposed on the negligent party" (5D(4)). Strong v Woolworths at [20]: "Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). [Citations omitted]" 55I find that the first defendant's negligence was a necessary condition of the occurrence of the particular harm. In the context of a sometimes busy, dimly lit, nightclub in which alcohol is freely available and there is loud music and dancing, the slip resistance of the ramp fell below the standard required. I find that but for the inadequacy of the surface of the ramp, the plaintiff would not have suffered injury. 56I find it appropriate that the responsibility for the harm suffered as a result of the accident be imposed on the first defendant in this case. Venues such as these premises make money from people drinking alcohol, sometimes to excess, relaxing and enjoying the experience. As a result of the circumstances of their being on the premises, patrons may keep less of a look out and be less careful for their safety. 57Here the breach resulted from the failure to take action to rectify or make safe the smooth, concrete surface, with adhesive strips or a non-slip surface, from the risk of liquids or spillage. As identified in the report of Mr Adams (p 14, 4.8), spillage of drinks is inevitable and predictable in such areas (p 17, 5.2.2). Spillage may not be detected in time to ensure that unknowing guests do not slip and injure themselves. The reasonable measures identified by Mr Adams would have addressed the hazard brought about by the unavoidable spilling of drinks. 58In the case of Strong v Woolworths, the High Court favoured the view that a system of regular cleaning at twenty minute intervals would have, on the balance of probabilities, prevented the injury which occurred. I do not find that such a system would have prevented the injury in this case. That scenario was within a shopping centre, not a venue as here, characterised by dim lighting and profit derived from the service of alcohol. 59This is a situation where direct evidence as to what actual cleaning was done - as distinct from the system in place on the night - is not available. However, because of the underlying structural problems and inadequacies with the ramp and its surface, I do not find that issue as central to my determination of the matter. I make no findings as to when the liquid was spilt, only that it was present at the time of the incident and that it contributed to the plaintiff's accident.

[19]

Damages: plaintiff's case 65Ms Williams claims the following areas of injury in the second further amended statement of particulars filed 13 March 2013: a. Open fracture of the left distal radius and ulna; b. Injury to low back; c. Injury to right ankle; d. Injury to right arm due to overuse on account of restricted use of left arm; e. Scarring in three places on her left forearm; f. Anxiety and depression. 66Ms Williams' case is that her symptoms in relation to her left wrist have worsened over time. This is reflected in the three amendments to the statement of particulars claiming more extensive disabilities and is central to her claims for past and future economic loss. 67Ms Williams did not particularise a claim for the development of diabetes. There is insufficient evidence at the hearing before me to determine the causation of that condition. However, it became relevant to claims of the development of carpal tunnel syndrome and the development or exacerbation of neurological symptoms in her left arm - see below. 68Ms Williams claims the following disabilities: a. Need to undergo open reduction with internal fixation of the left radius and ulna; b. Pain, discomfort and restriction of movement of the right hand and arm; c. Pain, discomfort and restriction of movement of the low back; d. Pain, discomfort and restriction of movement of the right ankle; e. Pain, discomfort and restriction of movement of the right arm; f. Interference with ability to engage in pre-accident employment; g. Interference with ability to undertake tasks of a personal nature; h. Interference with ability to undertake tasks of a domestic nature; i. Interference with ability to engage in tasks that require repetitive pushing, pulling, lifting or twisting; j. Possible need for removal of plates and screws; k. Possible exploration of the sensory and motor branches of the ulna nerve; I. Depressed mood; m. Interference with personal relationships; n. Social withdrawal; o. Social embarrassment due to scarring to the left arm; p. Anxiety; q. Difficulty typing for extended periods; r. Difficulty holding the phone with her left arm; s. Pain, discomfort and restriction of movement in the left arm, left shoulder and left elbow; t. Requirement to take regular pain relieving medication; u. Difficulty driving; v. Difficulty lifting heavy objects; w. Overuse syndrome affecting the right shoulder, hand and arm as a result of favouring the injured left arm; x. Need to undertake typing duties at work almost exclusively with the right hand; y. Difficulty performing work tasks including lifting and filing on account of restricted capacity to perform those tasks with the left hand and overuse syndrome affecting the left arm and overuse syndrome affecting the right shoulder, arm and hand; z. Development of right carpal tunnel syndrome as a result of favouring the injured left arm. The amount claimed by the plaintiff at the conclusion of the proceedings was $756,112.

[22]

Dr Gupta 74According to the report of her treating orthopaedic surgeon, Dr Gupta, dated 30 December 2010, Ms Williams was taken to Royal Prince Alfred Hospital where she remained for two days. She sustained a displaced mid shaft fracture of the left radius and ulna with a grade 1 open wound, meaning the bone had protruded through her skin after the fall. 75Ms Williams underwent open reduction internal fixation that day. Her radius was stabilised with a six hole compression plate and the ulnar was stabilised with a seven hole compression plate. She remained in a cast for six to seven weeks. 76Ms Williams was reviewed by Dr Gupta at the orthopedic outpatient clinic on 4 September 2009 where it was noted that she had some mild paraesthesia in the distribution of the superficial radial nerve. 77On 2 October 2009 she was seen again by Dr Gupta and her x-rays showed anatomical alignment with evidence of healing. Her cast was removed and she was commenced on active range of motion exercises. 78On 4 September 2012, Dr Gupta saw Ms Williams again. She reported "some ongoing pain and weakness, with the suggestion of neuropathic symptoms in the ulnar nerve distribution". She reported concerns "about the hardware, and pain associated with this, however on direct parpation of the region of the internal fixation there was no local tenderness." 79The defendants tendered a letter from Dr Gupta of 4 September 2012 which was not part of the plaintiff's medical reports bundle. The letter states, "I am somewhat unclear as to why Josephine is getting such considerable ulna nerve symptoms, therefore I have organized for her to have a nerve conduction study...Josephine tells me she is now taking legal action against the nightclub in which she slipped. I certainly hope this is not the reason as to why her symptoms have worsened." 80Ms Williams undertook a nerve conduction study which showed no significant pathology in the ulnar nerve distribution and no nerve dysfunction in the left arm. There was reduced conduction in the median nerve distribution of the right hand. That is consistent with the existence of the carpal tunnel syndrome. She was referred to Dr Sungaran at the Royal Prince Alfred Hospital. Dr Gupta recommended no further intervention at that time but stated he would be guided by Dr Sungaran's assessment.

[24]

Dr Blomfield 84The plaintiff tendered two reports of Ms Williams' regular general practitioner of some years, Dr Blomfield. Those were dated 14 October 2010 and 12 September 2012. The defendants tendered the clinical notes relating to Ms Williams up until March 2012. Ms Williams gave evidence of Dr Blomfield being her only GP in the relevant period and having a good relationship with her. 85Ms Williams saw Dr Blomfield on 31 August 2009 following the incident and then on 19 November 2009, when she reported ongoing soreness in the forearm and sharp pain in the area of the forearm scar the previous night. The doctor noted skin of both scars to be very sensitive. Ms Williams saw Dr Blomfield on 24 November 2009, though seemingly not in relation to her injuries. She did not see Dr Blomfield again until 24 August 2010, a consultation which, according to the clinical notes, was not in relation to her injuries but a rash on her legs and diabetes. It appears there was no mention of her wrist or related injuries. 86Ms Williams gave evidence that in this period in which she sought no medical advice, she could not, in her left hand, "hold a plate with a piece of toast on it, couldn't type with it, couldn't steer your [her] motor vehicle with it. Couldn't hold a cup of coffee with it, couldn't hold a bible weighing 200 grams with it" (T 52.23). She also gave evidence that she did not return to Dr Blomfield sooner, because she didn't think "she could do anything else for me" (T 53.19). 87On 7 September 2010 Ms Williams reported back-pain in her left lower back and pain on prolonged standing at times when walking and bending forward. She also reported pain in her right ankle, for which an x-ray was arranged. She felt the pain dated from the time of the accident. On 25 September 2010 the plaintiff's x-rays were reviewed and no abnormality detected. Dr Blomfield recommended physiotherapy, which was not undertaken. Ms Williams gave evidence that she could not afford it (T 54.9). 88On 7 March 2011, Dr Blomfield noted that the plaintiff was having difficulties in the work place. Bullying by her bosses was mentioned. There was mention that she "has been distressed by work stress since September 2009 and feels it has affected sleep and relationship." That may be reference to her return to work after the accident but there is no record to that effect. On 17 March 2011 there was further notation of Ms Williams looking at taking stress leave under Work Cover and workplace bullying. Left shoulder pain was also noted. 89The next attendance related to Ms Williams' injuries was 16 May 2012 when Dr Blomfield noted that she had complained that her left arm was painful at night and when typing at work and there was tenderness along the forearm. Dr Blomfield's report of 12 September 2012 stated that between October 2010 and May 2012 Ms Williams saw Dr Blomfield once in relation to the accident. Her other attendances were not in relation to the injury. 90Ms Williams did not accept in her evidence that, even though she had seen Dr Blomfield some fifteen times after 24 August 2010 until 8 March 2012, she had raised her symptoms relating to the fall infrequently. She could not specifically recall when she reported the problems or sought treatment. She stated that she thought Dr Blomfield knew about her various physical ailments and history. Ms Williams said that she did not feel there was any point making a complaint to Dr Blomfield, notwithstanding her evidence was that her problems with her back, left arm and wrist were matters of overwhelming concern to her. The effect of her evidence was that she had a rapport with Dr Blomfield, which makes the absence of complaint, either contemporaneously or over the sixteen occasions when there was no complaint, surprising.

[27]

Dr Giblin 97Dr Giblin is a consultant orthopedic surgeon with extensive experience. He examined the plaintiff on three occasions and provided reports dated 23 February 2011, 31 May 2012 and 13 February 2013. He observed the surveillance videos taken of Ms Williams prior to giving evidence. His reports reflect the escalation of the symptoms described by the plaintiff over time. 98In his report of 23 February 2011, Dr Giblin described the plaintiff's complaints about her left wrist as, "she says that the hand feels slightly weak and occasionally has cramps. There are some days where her arm is stiff causing difficulties getting dressed and undressed. Both at home and at work she cannot use her arm for lifting heavy weights or doing prolonged repetitive activities. This tends to interfere with typing and associated clerical duties." 99Dr Giblin noted that the "intrinsic muscles in the left hand have a motor strength Grade 4 plus, definitely slightly less than those on the right hand" but noted reasonable grip strength. 100He found that, "Based on her history and examination, she has the provisional diagnosis of a compound fracture of the left radius and ulnar, complicated by a minor sensor involvement of the branch of the ulnar nerve and possibly, a motor branch of the median nerve in the hand as a result of the subject incident." He felt that her condition was stable and "her symptoms will persist indefinitely and be associated with permanent physical restriction." 101In his report of 31 May 2012 he found that her symptomology in her upper left extremity had increased, "There is now the additional complaint of heaviness and weakness in the left arm, and pain in the left shoulder and the left elbow, these joints being involved over the last 4 or 5 months." He could find no signs of adhesive capsulitis on the left shoulder and found the active range of motion satisfactory. Dr Giblin's prognosis was that, "It is likely that she will have a degree of permanent soft tissue symptomatology in her left arm with permanent physical limitation." 102As in his first report, he assessed the plaintiff as "permanently unfit to use her left upper extremity for repetitious impact activities, including pushing, pulling, lifting, twisting" and he added "prolonged periods of typing". Dr Giblin also thought that there would be difficulties for work to her retirement age other than "...in an environment other than very light, non-repetitive duties." 103On 13 February 2013 he reported that, "the left upper extremity symptoms have slowly worsened so that she is favouring it more, using the right arm particularly for housework and office work including typing and lifting. She has noticed that the left shoulder has become progressively stiff and sore. Her left forearm feels as though it is tight with cramps and the scar particularly on the valar aspect is very dysthetic. She still remains numb around the dorsal branch area of the ulnar nerve...Prognosis is guarded insofar as the soft tissue changes in her left forearm and hand are not going to improve." 104Dr Giblin noted that, "Both her hands showed no sign of usage anywhere, good intrinsic muscles, normal fists and good grip strength." He stated that, "The left shoulder has definite adhesive capsulitis, whereas the right shoulder is normal...The left shoulder stiffness will be an ongoing problem for the foreseeable future and may continue to deteriorate." 105Dr Giblin diagnosed her with right wrist carpal tunnel syndrome (impingement of nerves) with an irritable median nerve. He noted that in early 2012 she noticed she was developing pins and needles in her right hand. He felt that "these symptoms are related to the favouring of her left arm, notwithstanding, the acknowledgment of the diagnosis of non insulin dependent diabetes in November 2011." 106Dr Giblin was asked in cross-examination: "Q. Dr Dalton's opinion is that if she was going to develop an overuse syndrome, it would have occurred in a much closer proximity to the accident or the trauma than the plaintiff says 12 months later, Dr Dalton says it was two years later. Do you have anything to say about that? A. Look, I don't have a great disagreement with Dr Dalton's view on that one. It's just a matter of the adjacent co morbidities that are developing from the time after the accident. He says it's a tenuous relationship, but it is a relationship, and I do see it as a direct cause an event from the time that she had the fracture, to the time she favoured the arm, to the time she put the weight on, to the time she developed diabetes. It's all part of the one clinical picture, from my perspective." But for the injury, he thought that Ms Williams would not have developed the syndrome. 107Dr Giblin gave evidence that nerve conduction studies are open to interpretation and are not reliable when it comes to sensory testing (T 196.15). 108In relation to the potential for diabetes to exacerbate the nerve irritation or damage, he gave evidence that: "Diabetes per se is associated with a depression of the immunological system. For a number of reasons, it is also associated with an impairment of nerve recovery. It all adds up to the issue that a nerve may be more readily damaged and have decreased recovery in a diabetic person." (T 187.7)

[28]

Dr Dalton 109Dr Dalton is a rehabilitation physician who has been in practice in that area for 25 years. His reports of 28 September 2012, 22 March 2013 and 4 February 2013 were tendered. 110In his report of 28 September 2012, Dr Dalton accepted that the plaintiff suffered uncomplicated fractures resulting in mild loss of wrist flexion but he felt the fractures had healed. He noted the "vague tenderness over the forearm which extends over the scars and soft tissue but noted there was no localised tenderness, joint swelling or deformity." 111He expressed particular concern about the sensory impairment in the ulnar nerve distribution reported by the plaintiff, her alleged disabilities and functional limitations in light of the absence of records of ongoing, subjective complaints to her GP and her failure to seek medical attention: "it seems surprising that she has not sought medical attention for these symptoms given the degree of functional limitation and disability that she describes." 112Dr Dalton administered a grip strength test using a dynamometer in which he recorded 15kg, 20kg and 20kg with the right had. On the left hand he was unable to record a measurement. He concluded, based on results from manual testing that the plaintiff had self-limited. In his evidence he stated that he had never seen anyone fail to record a measurement in clinical practice, it means "that you almost have no function in your hand". (T 350.3) 113In his report of 4 February 2013. Dr Dalton felt that the results of the nerve condition studies, "do not support a diagnosis of ulnar nerve entrapment syndrome or any structural pathology to account for Mrs Williams subjective complaints. It is a matter of opinion as to whether she is experiencing neuropathic symptoms related to irritability of the dorsal ulnar cutaneous nerve or whether her symptoms are non-organic in nature." 114In his report of 22 March 2013, Dr Dalton stated in relation to the carpal tunnel syndrome that the onset was two and a half years after the fall and, "If the onset of her carpal tunnel symptoms was related to favouring her right arm as a consequence of the injury then one would reasonably have expected the symptoms to have developed at a time that she was unable to use her left arm. It is far more probable that such a situation would have arisen during the initial months after the subject accident when her left arm was in a cast. More importantly this lady was diagnosed with diabetes in November 2011. It should also be noted that median neuropathy is a common condition that can occur spontaneously or in association with a number of medical conditions and is not uncommon in this age group...much more likely to be an unrelated condition which has developed over the last 12 months especially as there is no history of similar symptoms in the 2 ½ years after the subject accident...The relationship between the onset of Mrs William's median neuropathy at the right wrist and the injury to her left arm is, in my view, extremely tenuous to say the least." 115Ms Williams made no complaint to Dr Dalton of a left shoulder problem. In court he stated that adhesive capsulitis is commonly associated with diabetes. Dr Dalton saw no association between whatever condition there was (given the full range of motion in the plaintiff's shoulder at July 2012) and the earlier fracture to the left arm. 116In Dr Dalton's opinion, the fall should not have given rise to any increased risk of diabetes, even if there was a loss of mobility and that lead to obesity. That would not of itself lead to diabetes. It would only be one of the factors. 117Dr Dalton gave the following evidence: "Q. In respect to this individual plaintiff, as you told me before lunch, you accept that she has some ongoing disabilities, don't you? A. Yes. I accept, as I said in my report which I believe was a thorough assessment of the available documentation and her presentation, I accept that there are symptoms there and I accept that those symptoms warranted further investigation. I did not accept that the disabilities that were reported or claimed were consistent with objective clinical findings, but I accept that there is there are symptoms, and I accept that this is some degree of disability in relation to those symptoms" (T 403.12). 118Dr Dalton gave evidence after considering the latest report of Dr Sungaran of 15 March 2013 that it did not alter the evidence he has given previously. He noted that in relation to the aetiology of the carpal tunnel syndrome, Dr Sungaran comments that the injury may have been accelerated or exacerbated by the reliance on the right hand to compensate for the left wrist injury but did not attribute that to be the cause of the carpal tunnel syndrome. 119Dr Dalton also gave evidence that certain activities which increase the pressure on the nerve, such as repetitive bending or extension of the wrist, can aggravate the symptoms of carpal tunnel syndrome. His evidence was that, while repetitive physical activities would aggravate those symptoms, there is no epidemiological evidence that typing causes carpal tunnel syndrome and typing in itself is not an activity that would normally be expected to cause carpal tunnel because it doesn't involve those movements. Relevantly in relation to Ms Williams' employment, he said there was "some indication that even operating a computer mouse or something which involves gripping" is more likely to aggravate carpal tunnel syndrome. He did not think however, that typing in itself would be responsible for a significant increase in carpal tunnel symptoms. 120Dr Dalton gave evidence that nerve conduction studies are not conclusive of nerve damage to small cutaneous branches of a nerve. He stated that no one can say with any confidence whether the symptoms in the left wrist are permanent or not.

[31]

Matters arising from surveillance video 125The surveillance videos (see observations below) depict Ms Williams in a variety of settings. They give a very different picture of the use of the left hand and arm to the complaints of the plaintiff in her evidence, demonstrating that she was significantly exaggerating her disabilities. In her evidence, the plaintiff made a number of assertions about her ongoing disabilities:

"With my left arm I cannot lift very much" (T 36.38)
She hardly uses her left arm at all (T 46.34)
Her left hand cannot take any weight "or very rare, very little" (T 47.10)
She could not carry a plate with two slices of toast on it with her left hand (T 47.25)
She could not carry 150 grams in her left hand without the help of the right one (T 47.41)
She could not carry a cup of coffee in her left arm, "No, because my left hand shakes as well if I try to put it down, I haven't got the strength to carry the cup." (T 48.16)
She denied being able to lift the court bible, "No, it just slips" (T 48.22)
She agreed that she tries not to use her left arm for even the most basic and fundamental things, "well I try not to use it because it makes in worse" (T 49.37)
If she needed to carry an A4 pad she would carry it in her right hand (T 48.45)
She agreed that she would not be able to steer her car around the corner with her left hand. (T 49.48)
She never carries a bag of something in her left hand (T 84.2)
She could only drive with her left hand just resting on the steering wheel (T 84.9)
She cannot hold a vacuum cleaner cord with her left hand in order to vacuum with her right hand (T 140.9) 126This picture of serious disability was put to both experts. Dr Giblin was asked in cross-examination (T 194.4): "Q. If, for example, the plaintiff were to present as being unable to effectively use the steering wheel of the car other than to hold it in the pincer type grip with her left hand, and really rest it on the steering wheel, and perform all real steering functions with her right hand, that would suggest a profound disability? A. It would. Q. That's not the way that you assessed this plaintiff, is it, as having a profound disability? A. No." 127Dr Dalton (T 350.20): "Q. Doctor, if you were to assume that the plaintiff gave evidence in relation to her disability to the effect that since the accident in 2009, since she came out of plaster, she has had a profound disability so far as the use of her left hand is concerned to the extent that she would not be able to hold a dinner plate with a couple of pieces of toast on it, that she would not be able to hold that Bible which you can see on the bench over your right shoulder there without it falling out of her hand, that she could not hold a coffee cup with her left hand because it would shake, and that she in performing functions with her left arm, basically will just hang by her side. With that nature of complaint, would you expect to see some objective signs of disability? A. Well, at that degree of disability you'd expect to see some wasting or or atrophy of the muscles if they're not being used. In some patients you might see there'd be stiffness of the joints because the joints haven't been taken through their full range of motion, but the you would certainly expect to see some some evidence of non use if you I call it disuse."

[33]

Matters demonstrated in surveillance video 130The surveillance evidence was recent, comprehensive and extensive. But for the surveillance video there would have been a misleading impression given of the plaintiff's current position which went beyond any "gilding of the lily". 131The investigator and licensed inquiry agent who conducted the video (exhibits 7 and 9), Mr Kibbel, gave evidence. The surveillance was undertaken over several hours from 15-20 March 2013. The video footage was not edited. 132The video at Sizzler restaurant taken on 16 March 2013 showed the plaintiff at a self-service buffet holding a plate in her left hand and twice loading amounts of food onto the plate. On those occasions her left hand was unsupported by her right hand. She walked with the plate in her left hand, with her right hand free, over a distance of about 10 metres or more. The same movements are evident when Ms Williams returned for another serving of food. There is no evident discomfort or diminution of usage of the left hand. 133At one point, the plaintiff rested her head on her folded hands, including her left hand. At another point she raised her left hand to her head and briefly rested her head on that hand. At another stage she is shown twiddling her thumbs and moving her fingers very quickly. She used her left hand to put food in her mouth. She raised a large, half-full glass to her mouth with her left hand. At another stage the plaintiff used both her left hand and arm to support her weight, which was then in the order of 114 kilograms, as she stood up from the table. 134There are no significant differences in the use of either the left or right arms and wrists, other than what is consistent with Ms Williams being right hand dominant. 135All these actions and activities in the Sizzler restaurant were in the presence or vicinity of Mr Williams. That is of relevance when considering the essentially corroborative nature of Ms Williams' evidence of the impact of the accident on her. 136On 15 March 2013, Ms Williams was shown at a service station, filling up her car with petrol. She used predominantly her right hand but carried her purse, which was about the size of the court bible, and keys in her left hand without apparent difficulty. That included matters of manual dexterity including opening and closing her purse. 137On 16 March 2013 at about 10:54am, Ms Williams was shown carrying a red plastic shopping bag with some weight to its contents, which she holds in her left hand, at a time when there was nothing in her right hand. She then transferred it to her right hand and then over her shoulder. She gesticulated freely with her left hand and it swung freely and appropriately by her side. The bag was then transferred back to her left hand and Ms Williams walked some distance. Ms Williams also drove the car on a number of occasions that day and was able to turn the steering wheel with both hands. She carried out various manoeuvres including driving and reversing out of a car park with the use of her left and right hands, without any apparent difficulty. 138On 20 March 2013, Ms Willams is seen holding keys and papers in her left hand as she looked through the bundle with her right hand. 139Dr Giblin viewed the video footage and considered that she "does tend to favour" her left hand but "otherwise she uses it within a fashion that I think is commensurate with her complaints." (T 189.5) Dr Giblin said that the footage did not affect the opinions expressed in his report. He was not present during the evidence given at the hearing. His evidence was that he would expect that the plaintiff could carry a plate and hold the court bible. I find that the plaintiff's exaggeration of her medical conditions occurred primarily in her evidence in chief and not in the history initially presented to Dr Giblin. 140I do not accept plaintiff's counsel's submissions that Ms Williams was, in her cross-examination, the victim of "an attempt to lead her into mendacity" nor that she was the subject of coaxing questions that led her to exaggerate her symptoms. I observed Ms Williams closely giving her evidence and have re-read the transcript on relevant areas. The clear effect of Ms Williams' evidence was to agree readily to suggestions reinforcing her complaints about her current condition. Those complaints are clearly at odds with the contents of the surveillance video. 141I do not accept the evidence of the plaintiff in relation to her current disabilities, nor the confirmatory evidence of Mr Williams in that respect.

[38]

Findings as to injuries 153There is no doubt that Ms Williams suffered a serious break of her left wrist. It is the consequences said to have occurred which are in issue. Central to those issues are the matters relating to Ms Williams' credit. 154Without contemporaneous medical evidence I cannot find on the balance of probabilities that the alleged injury and related disabilities of Ms Williams' lower back, right ankle, the anxiety and depression were caused by the accident. It is not only the absence of medical evidence to support ongoing complaint but also the failure to seek treatment for these issues which lead me to this finding. 155I find that the carpal tunnel syndrome, which developed two and a half years after the fall, was not caused by the incident and injuries to the left wrist. I accept that the most likely causes were Ms Williams' weight and diabetes. I do not find what adhesive capsulitis there is, which developed five years after the incident, causally related to the incident or the left wrist injuries. I find that the defendant has established that these conditions would have come about independently of the accident. 156I find that although the plaintiff is right handed, she would have compensated for the left hand over time, though not to the extent alleged by the plaintiff because I find the plaintiff has exaggerated her disabilities. The link between the left wrist injury and the symptoms of carpal tunnel syndrome in the plaintiff is confirmed by evidence of Dr Sungaran (report of 15 March 2013) and Dr Giblin. Dr Dalton's evidence accepted the possibility of some aggravation of symptoms through typing or gripping, with qualifications. I accept that the pain and numbness in her left limb will increase the symptoms of discomfort that she is experiencing in her right wrist. I accept that the left wrist injuries have exacerbated, accelerated or aggravated the carpal tunnel syndrome, through compensation for the left arm, to a very limited extent. 157In relation to the medical evidence in assessing the assertions made by Ms Williams, both experts agreed that if her disability was as extreme as to make her unable to use her wrist for a period of years, there would likely be signs of wasting. Both agreed that there was no sign of wasting, atrophy or disuse in the plaintiff's wrist. I agree with Dr Dalton's observations (report 28 September 2012) that, "the symptoms and functional limitations described by Ms Williams appear inconsistent with the objective clinical findings and her recovery and are not supported by the contemporaneous medical records of her treating doctor." 158In relation to the plaintiff's left wrist injury and prognosis I find that the actual position of her injury and ongoing disabilities is in line with the report of Dr Giblin of 23 February 2011. Namely, that she has three scars which she is self-conscious about and that she has permanent weakening in her left hand, pain, nerve irritability causing numbness and changes in sensations in her left wrist and hand at a low level. 159I am not prepared to find that her left wrist symptoms are at the level Ms Williams has alleged in court nor that they have had the alleged impact on her occupational and personal life, to the extent alleged. These findings will be reflected under the heads of damages. The evidence given by Ms Williams as to economic loss and domestic assistance is inter-connected with the claim for back injury, adhesive capsulitis and carpal tunnel syndrome.

[42]

Most extreme case 165The question of the most extreme case is subjective but quadriplegia, for example, falls into that class: Southgate v Waterford (1990) 21 NSWLR 427. In the matter of Doubleday v Kelly, the plaintiff at seven years old suffered a supra-condylar fracture of the right humerus with associated damage to the right medial nerve and right brachial artery by falling from a trampoline. This resulted in permanent loss of sensation in the thumb and two fingers, numbness, paraesthesia and weakness in her dominant hand. That disability meant the plaintiff had difficulty writing after about thirty minutes. The Court of Appeal held that the severity of the non-economic loss as a percentage of the most extreme case was 20%. As permitted under s 17A of the CLA, I take into account the decision of Coleman v Barrat [2004] NSWCA 27 at [45]-[69] per Gzell J. In my view, the injuries and circumstances of Ms Williams are slightly more serious than the overall situation pertaining to the plaintiff in that case. I also take into account those relevant factors specified in Clarence Valley Council v Macpherson [2011] NSWCA 422 per Tobias AJA at [82] which are analogous to this case. The plaintiff's age is also relevant: Reece v Reece (1994) 19 MVR 103. 166In relation to Ms Williams' loss of amenities of life, I take into account her reduced ability to type with her left hand and the impact that the injury would have on the symptoms she experiences as a result of developing adhesive capsulitis and carpal tunnel syndrome, in further restricting her movement and ability for the left hand to bear some of the burden of the other injuries. 167Ms Williams submits that there was significant delay between the accident occurring and surgery, which would have been very painful. The surgery itself took an hour and a half and included significant post surgery swelling. 168Given the pain of the broken wrist, hospitalisation, surgery and recovery, together with the ongoing weakness, pain, altered sensations, discomfort, scarring and potential need for future operations to remove plates or to address the nerve damage, I assess the plaintiff's claim for non-economic loss at 25% of the most serious case, pursuant to s 16 of the CLA. That is an appropriate percentage reflecting the severity of the plaintiff's injuries and their impact on her life as a proportion of a most extreme case. This includes an amount for the minimal or limited aggravation or acceleration I have found that there would be of the carpal tunnel syndrome. That would result in an award of 6.5% of the maximum amount, namely, $35,000.

[46]

Reduction in hours of employment 178Mr Alibrandi stated the plaintiff had reduced her work from five to four days in the middle of last year because she had said she needed three days to rest the left arm. That was because she was having a lot of pain. He said that he would allow her to reduce her hours further if needed in the future. 179Mr Alibrandi made it clear that Ms Williams has secure employment. My overriding impression from his evidence was that arrangements can be, and are, made to accommodate Ms Williams. 180The report of Dr Blomfield of 14 October 2010 indicated that the plaintiff had the capacity to return to her pre-accident employment (exhibit 2). The report of 12 September 2012 refers to the further investigation in relation to nerve conduction studies but does not mention the plaintiff's decision to decrease her workload. It appears that the plaintiff did not seek any medical advice about reducing her working week or alternatives that might have been available to her such as support in the work place, pain management, modifications to her desk or work environment. 181The initial report of Dr Giblin of 23 February 2011 indicated that there was no reason for the plaintiff not to continue working. Dr Giblin saw the plaintiff on 28 May 2012, just prior to her change in workload, and noted, "At work, she has problems with prolonged periods of typing, holding her phone with the left arm, and she studiously avoids lifting weights of more than a few kilos wherever possible." There is no mention of her decreasing her workload: "She remains at work doing suitable duties in an office based environment." 182Counsel for the defendants submits that the evidence establishes that Ms Williams has made a good recovery from the accident, has been able to return to secure employment and has worked full-time for a number of years. Further, that she had little treatment of relevance for more than two years after the accident and the clinical weakening and reduced mobility in the left wrist evident do not corroborate the profound disabilities of which she complains. 183What is clear is that at the time the plaintiff reduced her hours, the plaintiff was experiencing other health issues and possible psychological issues. I do not find on the balance of probabilities that the plaintiff reduced her working week to four days because of the injury to her left wrist. This is because of an absence of contemporaneous medical evidence to support why she took the step. In the light of my findings on credit, I do not accept Ms Williams' evidence as to the need to limit her employment.

[47]

Future economic loss 184In relation to future economic loss, I need to consider the plaintiff's likely future circumstances. Ms Williams gave evidence that she is having difficulty with her current work week because her right hand is getting worse. She said her left hand is also "not very well at all" (T 34.12). She gave evidence that she did not think she could work to retirement age and would like to work one or two days less. She acknowledged that she was not receiving any treatment (T 36). 185The plaintiff has pleaded that she is fit for her current occupation for three days per week. Dr Giblin gave the opinion that: "Whilst she remains fit for her current work environment, it would be my view that her symptoms in both her arms, which merit further surgical considerations will limit her ability to continue to work in an environment other than very light non repetitive duties...Her injuries will be associated with gradual deterioration in terms of the musculoskeletal independence of her upper extremities such that, in my view she will not continue paid employment beyond the age of 62 and will need to take early retirement on those medical grounds." 186Future economic loss is to be determined by s 13 of the CLA: 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. 187Here I accept the evidence that the plaintiff may well, if reluctantly, have an operation to rectify the problems associated with her left wrist. I also accept she would need to take six weeks off work for such a future operation representing $5700 in lost wages. 188I find that the plaintiff's most likely future earning capacity but for the injury will not be significantly different. If she must reduce her workload or retire earlier, it will not be because of the left wrist injury. I do accept that because of her left wrist condition she may have difficulty obtaining other work if she needed to. 189A modest lump sum award as compensation for the chance that a claimant may be disadvantaged in the future because of the injury is not precluded by s 13 of the CLA (Penrith City Council v Parks [2004] NSWCA 201 at [58]-[60]). Under this heading, I award the sum of $20,000. This sum includes the claim for loss of wages from time off for the left wrist operation. This amount also takes into account the possibility that the events might have occurred but for the injury. The factors relevant are her age and the intervening or subsequent medical problems that have developed.

[48]

Past and future domestic assistance 190Ms Williams claims that her husband now undertakes the majority of the housework. The couple have no children. Mr Williams gave evidence that since the fall, he sweeps the veranda, vacuums two to three times a week, helps with the cooking, hangs out the washing and does the shopping. He and the plaintiff gave evidence that he performed no such domestic chores prior to the fall (T 139; 268). 191In assessing the claim for past domestic assistance, I note that the plaintiff claims to suffer serious and painful, supervening physical injuries and shortly after the fall, the plaintiff lost both of her parents and has seen Jayne Wells for her psychological and emotional issues. 192Under s 15 of the CLA: (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. 193The defendants accept the closed period in which the plaintiff received gratuitous attended care after her fall and while she was in a cast of some three weeks. Other than in relation to that period, there is insufficient evidence to establish a claim for gratuitous care and assistance: Miller v Galderisi [2009] NSWCA 353. The plaintiff must also satisfy the threshold for intensity and duration in order to claim for gratuitous attended care services. 194Any award for the care and attention provided by Mr Williams must be reduced to take account of the chance that factors, unconnected with the defendants' negligence, would have necessitated similar care and attention (Malec v JC Hutton Pty Ltd). 195Mr Williams gave evidence that essentially confirmed that of Ms Williams and which was in conflict with her presentation in the surveillance video. I have serious concerns about the evidence of Mr Williams in relation to the care provided. He was unable to indicate when the onset of the plaintiff's right hand symptoms were, evidence which goes directly to whether she could do housework since the incident. 196I agree with the criticisms by the defendants of Dr Giblin's opinion as to the plaintiff's need for future domestic assistance of four hours per week, contained in his report of 23 February 2011, given the lack of consultation on the plaintiff's domestic arrangements. I accept he may have made a general assessment of a typical home. My difficulty with his findings is related to the plaintiff's credibility in the information she has given him. For example, in the report of 31 May 2012, Dr Giblin states that the plaintiff has difficulty turning a steering wheel with her left arm, an assertion that is challenged by the surveillance video. 197There were differences in Ms Williams' description of the distribution of household duties. Mr Williams accepted that he does the majority of the ironing and Ms Williams does some ironing (T 295). Ms Williams gave evidence that Mr Williams does the ironing (T 38). The plaintiff gave evidence that her husband does 99% of the housework (T 67.31) but Mr Williams gave evidence that the plaintiff loads the washing machine, helps wash up plates, prepares the food, hangs out some of the washing and does some ironing (T 294-295). 198Ms Williams gave evidence that her husband drives when they travel together but explained that she was captured driving to Sizzler's by the surveillance video on 16 March 2013 because he had been drinking the night before (T 86.12), "He had a lot to drink the night before and then he decided to have another drink before we left for Sizzlers" (T 114.47). He gave evidence that she drove because he had been drinking that afternoon; he had had two to three drinks at 12.00pm (T 294.5). 199When Mr Williams was questioned about the surveillance video that was shown in court the day prior to his evidence - which included him and his wife - he denied that he knew about it. I find that difficult to accept. He gave evidence that what the plaintiff is able to do with her left arm is "very minimal" and "very minutely" (T 269.38; 289.23) and that she can only carry very light things when shopping. 200The surveillance video contradicts this evidence. It depicts a person who not only uses her left arm for carrying a plate, using a glass, to push herself up from the table, driving, carrying her wallet and keys. She is depicted swinging her left arm with confidence and without appearing to protect it.

[52]

Claim against second defendant/licensee 206The further amended statement of claim filed 25 March 2013 refers to "Brian Vassallop-Knapp" as the licensee of the 202 Broadway Bar and Nightclub. At paragraph 3 there is reference to the "defendant's premises". 207Counsel for the defendants submits that there is no evidence, nor any pleading to indicate how the second defendant was liable in negligence. He submitted that the licensee in this case did not have responsibility for the day to day management of the hotel. 208While there may be no obligation to plead a statutory duty, in my view, if liability is claimed in this matter by virtue of the office of licensee or vicarious liability, that needed to be specifically pleaded. In the originating proceedings, the plaintiff has not described the legal relationship from which the cause of action arises between it and the second defendant - for example, whether it is alleged that the licensee was the occupier of the premises. 209The High Court in CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390, recently expressed the duties owed by a publican in those proceedings: "[31] There is no doubt that the Proprietor and the Licensee owed Mr Scott various duties to take reasonable care - for example, a duty to take reasonable care to ensure that the premises were physically safe, and a duty to take reasonable care to ensure that the equipment in operation, like gambling machines and kegs, did not injure him." 210French CJ, who agreed with the majority but would not enter into the issue of the general duty of care owed, stated: "I express no opinion on more general questions about the duty of care owed by publicans to their customers or to persons other than their customers. The resolution of these questions in future will be likely to require consideration of the liquor licensing laws and the civil liability statutes of the relevant State or Territory." No such material has been placed before me in this hearing. 211Kingi-Rihari v Millfair Pty Ltd t/as Arthouse Hotel was a slip and fall case in which the plaintiff obtained judgment against the hotel and licensee. It appears from that judgment that the defendants agreed that they owed the duty to the plaintiff "to take reasonable care to avoid a foreseeable risk of injury and that the duty could be characterised as a duty to take reasonable care that the premises were safe" at [2]. 212In Freudenstein v Marhop Pty Ltd [2010] NSWSC 724 the licensee was joined as the second defendant with the hotel proprietor. He was the manager of the hotel at the time and afterwards became the licensee. At the time, he had the control of the licensed premises in the sense required under the Liquor Act 1982. Central to the issue of negligence in that case was the service of alcohol to the plaintiff, which is not in issue here. 213Rule 14.14(1) of the Uniform Civil Procedure Rules provides that a plaintiff must plead specifically in a statement of claim any matter that may otherwise take the defendant by surprise. 214As the plaintiff has failed to make out its case against the second defendant, the second defendant should have a verdict in his favour. 215I dismiss the proceedings against Mr Vassallo-Knapp pursuant to 42.20, Uniform Civil Procedure Rules.

Josephine Williams v Landsdowne Partners Pty Ltd t/as 202 Broadway

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