Lewis v Kmart Australia Ltd

The evidence of the plaintiff

1. The plaintiff, who had lived in the Nowra area for over 30 years, was both a very regular Kmart shopper and keen photographer of family events. She visited the Kmart photo lab about two to three times a week in order to make copies of the many photographs she took of her family members, holidays and her personal activities. As a result, she knew the staff well enough for them to greet her by name and was familiar with the layout of the store.
2. As a woman who weighed 63 kg at the time (well below the 100 kilogram chair limit, I note) and worked a 25-hour week as a nursing aide, the plaintiff said she was, despite a history of prior accidents and surgery, in general good health. She demonstrated this to the court by performing a series of what Mr Stone SC (who asked her to do this) called "calisthenics", which demonstrated a good range of movement for her neck, legs and arms.
3. On the day in question, the plaintiff went to the Kmart store in Nowra with her daughter and two grandchildren. She left her daughter with one grandchild and took the other (seated in the front of a shopping trolley) to the photo lab section. She seated herself in front of the available computer screen (later identified as "kiosk 4"), leaving her four-year old grandson sitting in the trolley at the end closest to her, alongside the edge of the desk. The chair she sat down in was the Garden department green plastic chair.
4. The plaintiff then inserted her USB to download all the photographs on it, so that she could pick out the photographs she wanted to print. This was a touchscreen computer, so she had to lean forward in the chair to do it, but she did not lean forward on the two legs of the chair.
5. Just after she had started to perform this task, the plaintiff said, "all of a sudden I went down". This was because the chair had crashed to the floor, taking her with it. She found herself sitting on the floor, still in the chair. She looked behind and noticed that the back left leg of the green plastic chair had torn almost completely from the rest of the chair. She had been unable to stop the fall, and all she could do was try to get up.
6. When she was able to get up, with the help of a nearby customer, she went over to the Service Desk, carrying the broken green chair. There was no one at that part of the Service Desk, so she put the broken chair on top of the desk. At that stage a Kmart employee, Di Gurney, came up to her and observed the chair on the desk. The plaintiff said to her that "this stupid bloody chair" had broken and "caught me on the bum". Ms Gurney replied "I've told them so many times not to bring those darn chairs down" from the Gardening section and use them in the photo lab area.
7. The plaintiff also said that Ms Gurney asked "Are you alright?" The plaintiff replied "I feel like I've been kicked in the bum, I am probably going to have a big bruise".
8. At this stage, a young boy came out from a storeroom behind the counter. Ms Gurney took the broken chair from the desk and said "I'll put this out the back so no one else can hurt themselves". The broken plastic chair was then taken away.
9. The plaintiff said that nobody wrote any of this down. She did not observe Ms Gurney write anything down. She returned to the photo lab section to complete her work, but had to do so standing. She felt too sore to bend over or sit down again to carry out her work so she simply printed out all the photographs without selecting the ones she wanted.
10. The plaintiff continued to feel very sore in her back and buttocks overnight and into the following days. She decided this was an injury which would require her to see her general practitioner, so she returned to the store on the following weekend (18 and 19 January 2014) and went to the front desk, where she asked to speak to the manager. A lady came forward and identified herself as a store manager, but did not give the plaintiff her name at the time. The plaintiff did not know this woman's name but identified her as not being Mrs Whiffen (who is another Kmart manager, and who was called to give evidence by the plaintiff).
11. The plaintiff told this store manager about her accident on 10 January 2014 and then said: "I need to fill in an incident report or something because I want to go to the doctors. I am not sure what to do but I think I have to get an incident report as I have to have some reference to it"
12. The manager was unable to access any incident report and asked the plaintiff to write down what had happened on a notepad. The plaintiff did so while standing at the front desk. She was not given a copy of this document at the time. This document, which has been tendered in these proceedings, is as follows: "Julie Lewis [Street Address Redacted] Basin View [Mobile Number Redacted] Went down to do photos at the photo lab when I sat down the left rear of the chair that was there to sit on snapped and I fell heavily on the ground. The lady on the left of me witnessed the incident and staff at the desk were notified and took the broken chair away." (Exhibit B)
13. The plaintiff said that this manager appeared exasperated that the incident had not been reported, saying "it should have been done on the day", as that was what staff were expected to do when accidents occur. She said that she was going to have a "stern word" to the person on duty because it was her duty to do so. She told the plaintiff that she would "tell her off".
14. A day or two later, the plaintiff went to the Kmart store a further time to obtain a copy of the incident report. She spoke to another store manager who was in charge of the store between Monday and Friday (who identified herself as being a different manager to the weekend store manager).
15. This store manager said "I don't know much about it". The plaintiff replied "I spoke to someone about this on the weekend".
16. Another staff member than came up, and identified herself as the weekend manager to whom the plaintiff had previously spoken. She was holding a yellow form and said that she was in the process of completing this report to be put onto the computer as a record. She said, once again, that Kmart staff would have "a stern word" with the young woman on duty at the time of the accident (Ms Kruger).
17. The plaintiff asked if Kmart still had the chair. The weekday manager said "that must be the one in the lunchroom". The plaintiff said "if it's got three legs with one hanging off, that's it".
18. The plaintiff returned several times to obtain further information about the chair and the incident report. By the end of January 2014, she was sufficiently concerned to consult a lawyer who contacted the store for information on her behalf. He wrote a letter on 31 January 2014 as follows: "Dear Sir/Madam Julie Lewis Fall on 10 January 2014 We advise that we act on behalf of Mrs Julie Lewis. On 10 January 2014 our client entered your premises for the purposes of printing digital photographs. She sat on a plastic chair provided by the store and had commenced using the interactive computer system. Immediately after pushing the start button the chair upon which she was sitting snapped and she was thrown to the ground thereby suffering significant injury, loss and damage. Our client considers that Kmart has breached its duty of care and are negligent in the circumstances and are liable for the damages that Mrs Lewis had suffered. We urgently request you provide the following material: 1. Copy of the incident report; 2. Copy of any witness statements; 3. Copy of the CCTV footage of the incident. We understand the incident occurred sometime after 1pm; 4. Access to the broken chair which we understand is being stored in the staff lunch room. We specifically require access to view and photograph the chair prior to its removal. We note that failure to provide the above material and provide access to the building will be raised in any further litigation in relation to costs and on the primary issue of liability. We look forward to hearing from you. Yours faithfully, Stephen Legzdin Practice Group Leader SLATER & GORDON Encl." (Exhibit E)
19. In cross-examination (which, on the issue of liability, consisted largely of questions which resulted in the plaintiff repeating her evidence) the plaintiff adhered to her evidence. The plaintiff's cross-examination about these events in fact related almost entirely to quantum issues. Those parts of the cross-examination, and the question of her credit as a witness, are set out in more detail in the section of this judgment on quantum. It is clear from the submissions of the defendant that no challenge to her veracity in relation to the circumstances of her injury is made.
20. The defendant called Ms Diane Helen Gurney, the Kmart employee on duty on the day of the accident. Her evidence largely confirmed what the plaintiff had said in relation to the circumstances of the accident. Another Kmart employee, Ms Whiffen, who described Kmart's management structure and operations, was called by the plaintiff but, as Ms Gurney was the employee on duty on the day of the accident, I will set out her evidence first.

The evidence of Ms Diane Helen Gurney

1. Ms Gurney has worked in the Kmart Nowra store for 22 years. For much of this time she has worked in the photo lab section, next to the lay-by section, where she also worked from time to time.
2. Ms Gurney recalled the plaintiff coming to the counter complaining of an injury and a broken chair, but did not see the fall. She said that they were "flat out" on the day because that was the busiest time of year for Kmart. She asked the plaintiff if she was "alright" and whether she wanted to see anyone, but the plaintiff just left the store. She acknowledged that there was a young boy working there, but did not recall what role, if any, he had played in these events.
3. Ms Gurney did, however, acknowledge that, prior to the plaintiff coming to the front desk to complain about the chair, she had observed an obese woman sitting in one of the chairs at the kiosk opposite to where the plaintiff had sat.
4. In cross-examination, Ms Gurney acknowledged that it was common to have more than one person sitting at a particular computer screen, including more than one person sitting on the same chair, but that Kmart's system was to provide only one chair for each computer screen. There had been occasions when all four of the chairs had been used and other people were crowded around the screens. She said that there were no other chairs available in Kmart for them to sit on and that "I just tell them there's not much I can do" because each kiosk had only one chair provided. She was aware that customers obtained chairs from the Garden section, only 50 metres away, "from time to time".
5. Ms Gurney was unaware of the warning labels underneath the green plastic chairs. She had never looked underneath any of the chairs for sale in Kmart. When asked why, if that was the case, she had removed these green plastic chairs, she said that they were removed because they were "not allowed" as the kiosk had to use the designated Hewlett Packard chairs. Additionally, the green plastic chairs were for sale and not to be used for customers to sit in. In particular, Ms Gurney conceded that she knew they were not meant for indoor use by customers in a shopping environment. She agreed that there was often a chair shortage, especially over the post-Christmas sales period.
6. Ms Gurney also accepted, in cross-examination, that one of the reasons why these chairs were not allowed to be used in the photo lab was because they were dangerous and not for indoor use in a shopping environment.
7. Ms Gurney recalled that the Hewlett Packard chair which had to be replaced had developed "a crack" and that a fresh chair had been ordered. However, no replacement chair had been provided prior to the accident.
8. Ms Gurney made a note on the plaintiff's account of the accident, on 19 February 2014, the text of which is as follows: "Happened 10/1/14 Hasn't seen Doctor - Monday X-rays Around 2:30-3pm 14:47 (46) time CCTV" (Exhibit B)
9. While Ms Gurney could not recall seeing CCTV, she acknowledged the contents of the final line of this entry was in her handwriting and that it appeared consistent with an entry of the sort that would be made in those circumstances. No CCTV was produced, although the solicitors for the plaintiff wrote requesting it be retained and issued a subpoena for it.

The evidence of Ms Kim Whiffen

1. The plaintiff called Ms Whiffen, one of the Kmart store managers. Ms Whiffen was absent on annual leave at the time of the accident and her evidence was limited to store procedures for reporting accidents.
2. Ms Whiffen first described the photo lab area and the flow of customers through this area. This was an area where customers often spent some time looking at and adjusting their photographs, or printing off a large number of copies of photographs, so customers would remain there for some time. The facilities for the photo lab had been first provided by Hewlett Packard and, when the contract was changed, by Kodak.
3. The floors in the photo lab area were linoleum tiled flooring, which were cleaned daily with a polisher machine which would also polish once a week. A wax product would be used twice a year. The daily cleaning was part of a general cleaning plan for Kmart and the floors were not all cleaned every day, but on rotation. Nevertheless, this was an area where there were polished linoleum tiles.
4. Ms Whiffen said that when there was an incident in the store, there were protocols for team members to report these and that the staff were trained to do so. There were occupational health and safety issues in relation to keeping a safe workplace and dealing with customer safety issues. There was a responsibility to report any incident and there was a document for the reporting of any such incident. Managers to whom such incidents were reported were obligated to pass these on to the relevant senior members of staff.
5. Ms Whiffen also described the management structure of the store. There were seven managers in total; there was always at least one in the store and sometimes as many as five. This system also ensured that any equipment failure resulted in an incident report and all of these reports were, in addition to being reported, entered onto a computer system.
6. Additionally, there were CCTV cameras. CCTV film was kept for 21 days. Managers were able to view, download and save relevant CCTV footages in relation to any reported incidents of the kind for which CCTV would be useful.
7. One of the items on the incident form which should be filled out is an item relating to whether CCTV has been viewed. Ms Whiffen agreed that if someone from "head office" asked for film to be preserved that it would be preserved. The instruction sheets also set out a provision for managers about downloading footage from the CCTV camera onto a USB when an incident in the store occurred.
8. Ms Whiffen explained that there were rules about suitable office equipment, all of which had to be ordered from Kmart. All products in the store, whether used by customers or staff members, including chairs for customer use, were the subject of such rules.
9. There was an occupational health and safety branch at the head office which issued directives to managerial staff about reporting incidents as well as a safety manual.
10. Kmart was also aware of the kind of customers who used their store. This included a high percentage of families with children, persons with ambulatory problems, and people who were of larger size and likely to be seeking the large size clothing which Kmart stocked. Ms Whiffen agreed that, for example, the menswear store stocked clothing up to size 7XL, which was for persons weighing 150 kg or more. She also agreed that a significant number of Kmart customers who came to shop brought children and, if they were sitting in the photo lab, would be able to put that child on their knee or have them asleep in their arms. Occasionally, teenagers as well as adults sat on the same chair. She agreed that the chairs would have to be sturdy to accommodate both their constant use and the weight of these customers.
11. As to the specific garden chair upon which the plaintiff sat, Ms Whiffen said that this line of chairs was available "seasonally" in Kmart over the summer period. The chair had not been sold for a little while, but that at the time it was sold for $8. During summer there would be stacks of these chairs in the Gardening area. While there was no direction to staff not to use the chairs in the store, there was a general discouraging of customers from sitting in chairs for sale.
12. Ms Whiffen identified the person whom Ms Gurney reported to as Ms Leanne Moon, the General Merchandise Manager (I note no point is taken as to the defendant's failure to call Ms Moon).
13. Ms Whiffen was shown Exhibit B, the note prepared by Ms Gurney on 19 February 2014, which was set out above. When asked if this is a preliminary step in making a report, she said that staff members "may take their own notes" and that, if such a note was made, she would expect it to be entered into the computer and typed in as a report.
14. As to specific issues concerning the use of green garden chairs in the photo lab, Ms Whiffen stated there was no training of staff in relation to ensuring that only approved equipment was used. For example, staff members were not provided with an approved equipment list and, in particular, had no training as to any potential hazard arising from the use of green plastic moulded chairs in the mini-lab facility. Nor were instructions provided to staff to monitor the mini-lab area for the inappropriate use of green moulded plastic chairs or return them to the Garden section.

The report of Mr Contoyannis

1. Mr Contoyannis, a consulting mechanical engineer, prepared a report which is Exhibit C. I am not sure an expert's report is really necessary for me to make findings of fact about such obvious factual questions as I am asked to determine on liability. The parties never referred to it. I have read it, however, and it supports the findings of fact that I propose to make.

Findings of facts as to the circumstances of the plaintiff's injury

1. I am satisfied that, on 10 January 2014, the Kmart store was very busy with post-Christmas sales and there was a crowd at, and waiting to use, the mini-lab. Prior to 10 January 2014, Ms Gurney was aware that patrons of the mini-lab in need of a chair could resort to fetching one from the garden department and that this was dangerous because these chairs were not suitable for such use. There was no system or signs designed to prevent customers from taking chairs from the garden department to the mini-lab.
2. When the plaintiff attended to print photos on 10 January 2014, she sat at the kiosk 4 (Exhibit A) in a green moulded plastic chair. This was unsuitable and a hazard because the store had polished linoleum tiled flooring upon which such chairs should be used, they were not suited to frequent commercial use, and they could only take 100 kilograms in weight.
3. I am satisfied that, shortly after the plaintiff sat on the green moulded plastic chair, the rear left leg cracked, causing the chair to collapse in the manner described. I am also satisfied that Kmart's incident reporting system was not adhered to in relation to the subject incident. Instead, there are handwritten notes provided by the plaintiff (Exhibit G) and Ms Gurney (Exhibit B) with both documents being created at some stage after the accident. The notation on Exhibit G supports the conclusion that CCTV footage of the incident was inspected by a store manager. The inference from the non-production of the footage is that it would not assist Kmart (a Jones v Dunkel inference: Jones v Dunkel (1959) 101 CLR 298), particularly since the solicitor for the plaintiff wrote within the period in which CCTV was still stored.

The relevant legislation

1. Section 5B Civil Liability Act 2002 (NSW) provides: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
2. As to s 5C, the provision of a suitable chair for a customer to sit at a computer screen is essential. No submission was made to the contrary and there are no s 5C issues.

Duty of care

1. The plaintiff relies on Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 to define the duty of care the defendant owed to the plaintiff. More specifically, it is a duty of an occupier of commercial premises to ensure the safety of its entrants. Mr Stone SC defines the scope of this duty to be a duty to take reasonable care to prevent foreseeable and not insignificant risk of harm to persons coming on to the premises. The scope of the relevant risk, at its broadest, as "the provision of unsafe or unusable equipment in the store would lead to injury of a customer", or more specifically "the failure to provide adequate and safe seating facilities in the mini-lab would see unsafe plastic seats used and injury occurring" (written submissions, paragraph 15).
2. The plaintiff submits that the risk is foreseeable, in that: 1. Kmart knew that there were not enough chairs; 2. Kmart knew that more chairs were needed; 3. Kmart knew that green plastic chairs were being brought into the photo lab; 4. Kmart knew that the green plastic chairs were unsuitable for use in the store; 5. If it was foreseeable that the green plastic chairs could fail if misused - the chairs carried the warning.
3. Further, the plaintiff submits that the reasonable precautions were available, in that the defendant should or could have: 1. Supply more chairs in the minilab; 2. Put signs in the minilab and garden department directing that the green moulded chairs not be used in store; 3. Bigger and better located warning signs on the green chairs; 4. Better training of staff - garden chairs absolutely not to be used in mini-lab with proactive policing of prohibition (not just enforcement when the green chairs are unused and staff are not too busy). 5. A mat or rug in the lab area for chairs to sit on.
4. The plaintiff also submits that risk of significant harm is also foreseeable because "collapse of chair self-evidently carries risk of harm".
5. The defendant's definition of the duty of care was not clearly stated. I propose to accept the definitions of duty of care identified by Mr Stone SC.

Was there a breach of duty of care?

1. The plaintiff pleads the following particulars of breach of duty of care: 1. Providing inappropriate seating that was not suitable for use on the polished flooring of the store; 2. Failing to warn the plaintiff as to the risk of using the chair having regard to the floor surface and the advice of the manufacturer that the chair was not fit for commercial use; 3. Failure to adhere to the warning label on the chair in terms of using it for a commercial purpose and placing it on a polished floor; 4. Supplying for use by customers a chair that was not fit for the purpose; 5. Causing or allowing the chair to be used in the photo lab area when it was not safe to do so; 6. Failing to lay a suitable non-slip/carpeted surface to ensure the stability of the chair legs; 7. Failure to supply chairs that were appropriate for the environment and of suitable quality for the range of customers likely to sit upon them.
2. The plaintiff submits that the defendant and its servants or agent knew or ought to have known the following: 1. That the green moulded plastic chairs were not suitable for use inside the Kmart store by customers. (I note the word "dangerous" was used by Ms Gurney). 2. That it was necessary to provide chairs in the mini-lab that were suitable for the variety of customers who would use them. 3. That there were customers who frequented the Kmart store weighing more than 100kg (including large male customers seeking to buy up to size 7XL shirts and, from time to time, the same customers could also be wishing to print photos). 4. That the green moulded plastic chairs were not suitable for use on a polished surface, or by persons weighing more than 100kg or by users who would rock back and forth in the chair or for use in a commercial setting. 5. Ms Gurney (Kmart) knew green chairs were being used by customers in the mini-lab area. 6. Ms Gurney (Kmart) knew the chairs were not safe or appropriate for use in the mini-lab. 7. Ms Gurney (Kmart) knew that more chairs were needed. 8. Kmart should have foreseen the risk of harm
3. The plaintiff submits that Kmart staff knew they had to regulate and control equipment used within the store, both by staff and customers, for the purpose of avoiding accidents in such a busy store, but that did not occur. The system failures identified by Ms Whiffen in her evidence relate to a wide range of problems, but the particular problem giving rise to the breach was that there were insufficient chairs for use by customers and the likelihood of an accident through inadequate or dangerous seating (whether by use of the green garden chairs or otherwise) was highly likely in such circumstances. There was no effort made to furnish the photo lab with extra chairs to accommodate their customers. Mr Stone SC submits, and I agree, that Kmart created a system that encouraged frustrated customers to go looking for extra chairs.
4. With the lab reduced to three chairs during the post-Christmas sales, the store did not close a kiosk or urgently organise a suitable replacement chair. To keep the photo lab (and its income) flowing, Kmart and its staff allowed the development of a haphazard system of customers taking chairs for sale in other departments (itself a breach of store policy) for use in circumstances where those chairs were unsuitable to the point of being dangerous.
5. Counsel for the defendant's submissions on liability were brief. He acknowledged that Ms Gurney gave evidence that there was no system in relation to that the chairs, and that the chairs were not checked for cracks. Staff permitted the use of the green chairs even though they were not allowed to be there, not least because they were for sale. Mr McManus also acknowledged Ms Gurney gave, as one of the reasons for the chairs not being allowed to be in the photo lab, was that they were dangerous and not for indoor use in a shopping environment and that the manager, Kim Whiffen, agreed these chairs were unsuitable for such use. The highest Mr McManus could put his submissions, as he frankly acknowledged, was the question of what he called "timing", in that there was no evidence as to how long the green chair had been there or how many people had sat in it, a submission he acknowledged was difficult to make since Kmart had thrown the chair out.
6. I am satisfied that the plaintiff has established breach of duty of care. The defendant's failure to provide adequate seating for its customers in the photo lab, training for its staff and regulation of equipment use all play a role in relation to the circumstances of the accident.
7. I am also satisfied that the failure of the defendant to supply sufficient number of suitable chairs directly caused the plaintiff's injury. But for the failure, the injury would not have occurred. Therefore, causation under s 5E Civil Liability Act 2002 (NSW) (a sections listed in the defence, but not referred to in the defendant's submissions) is also established.
8. There will be judgment for the plaintiff. This brings me to the issue of damages.

Schedule of damages

1. Each of the parties has provided a schedule of damages. The plaintiff's schedule of damages provides: General Damages (28%) $83,000 Past Treatment $7,438 Future Treatment (Cushion) $10,000 Past Wage Loss ($60,000 - reduced for time off for unrelated surgery) $40,000 Past Superannuation Loss $4,400 Future Wage Loss $127,490 Future Superannuation Loss $14,023 Past Care Nil Future Care (3 hours per week at $45 x 753.6) $101,736 Total $388,087

1. The defendant's schedule of damages provides Non-Economic loss (18-20%) $15,000 - $21,000 Past Wage Loss $0 Past Super $0 Future Wage Loss $0 Past Out-Of-Pocket Expenses $6,000 Future Out-Of-Pocket Expenses $0 Past Domestic Assistance $0 Future Domestic Assistance (Primary position - no entitlement) $17,000 Total $38,000 - $41,000 [sic]

1. As noted above, the mathematics of the defendant's schedule are wrong. The damages the defendant submits should be awarded range from $21,000 (18% plus $6,000, with no allowance for future domestic assistance) to $44,000 (20% plus $6,000 plus $17,000 for the "fall back" position of a small allowance for future domestic assistance).
2. These figures are not the only mathematical errors. There is also a different figure in this Schedule for past out of pocket expenses ($6,000, compared to the plaintiff's figure of $7,348, although the latter is supported by a bundle of tendered receipts for this sum). This is one of the reasons why I decided to require the parties to bring in Short Minutes of Order reflecting the mathematically agreed sum for the judgment awarded rather than calculate it on the figures I have been given.

Damages

1. The plaintiff initially pleaded the following particulars of injury: 1. Lower back injury; 2. Right buttock, hip and thigh injury; 3. Aggravation of pre-existing but previously asymptomatic cervical spine degeneration; 4. Development of Plantar Fasciitis; 5. Aggravation of pre-existing right knee disability (for which the plaintiff underwent total knee replacement in or around approximately 1994).
2. The plaintiff set out the following particulars of continuing disabilities in her pleadings: 1. Persistent, severe back pain; 2. Pain radiates into the right buttock, right groin region and as far as the knee; 3. Pain is easily aggravated and severe if the plaintiff twists or turns; 4. Restricted range of movement. Lumbar flexion, extension and rotation aggravates pain significantly; 5. Tenderness over the lumbar spine; 6. Restricted straight leg raising; 7. Restricted sitting tolerance. Sitting for prolonged periods aggravates the plaintiff's back and right leg pain and produces a sense of burning; 8. Difficulty driving; 9. Difficulty standing for lengthy periods; 10. Altered gait; 11. Loss of strength in the right and left legs, resulting in both legs giving way without warning; 12. Pain and spasm in the right leg; 13. The plaintiff's gait is severely antalgic on the right, and she has difficulty walking on her heels and toes; 14. Pre-existing right shoulder pain (with associated right arm pain and paraesthesia) has been significantly worse since the fall on 10 January 2014; 15. Prior to the date of injury the plaintiff suffered intermittent spasms in the right arm. These escalated in frequency and severity after the fall; 16. Pain and paraesthesia radiates to the right shoulder and elbow, with paraesthesia down into the medial fingers; 17. Loss of strength in the right hand; 18. Tenderness over the cervical region; 19. Requirement for surgery (in April 2014), following which the plaintiff's right shoulder and arm disabilities reduced to some degree, however she continues to suffer generalised pain and restriction, and tremors in the right arm, and ring and little fingers in particular; 20. Generalised weakness in both the left and right arms; 21. Development of plantar fasciitis in the left heel cue to postural changes (as a consequence of back pain); 22. Anger and frustration with her physical limitations and prolonged pain; 23. Difficulty carrying out domestic, personal care needs and home maintenance activities independently; 24. The plaintiff's sleep is disturbed by pain and she is required to sleep with the support of extra pillows and medication; 25. Inability to enjoy pre-injury leisure activities as she did prior to the accident - including scuba diving, and working out with a Wii Fit program; 26. Difficulty carrying out her work duties; 27. Difficulty performing activities of daily living as she did prior to the date of injury; 28. Weakness in her left leg.
3. While I have set these out for completeness, I note that, in the course of the hearing, the plaintiff abandoned any claim for neck injury. The plaintiff's claims are for the four disabilities set out in paragraph 126 below, but the principal problem for her, and the one for which she takes sleeping pills and Endep, is her back.
4. The defendant's submission is that causation is not established, in that the plaintiff suffers from other ongoing disabilities, that her back injury in 2007 accounts for the current 15% assessed by Dr Bentivoglio in 2016 and reliance upon s 5D and causation challenges based on prior litigation. Alternatively (and somewhat inconsistently), the defendant submits that the plaintiff has recovered not only from the 2007 fall but also from her accident in Kmart. The plaintiff's credibility is challenged on the basis of prior statements in litigation and to former employers about her work capacity. These submissions require her prior medical history, which includes work injuries and operations, to be set out in detail.

The plaintiff's prior health issues

1. The principal injuries and illnesses the plaintiff has suffered are as follows: 1. She had treatment in 1984 and 1985 from an orthopaedic surgeon in relation to a repetitive work injury at Coles Supermarket. She accepted a $95,000 commutation in the Workers Compensation Court on 8 October 1987. This has no relevance to her current condition and has completely resolved. 2. She consulted an orthopaedic surgeon about knee pain in 1991, when she had knee pain and subsequent physiotherapy to both knees. She later suffered a work injury in 1996, underwent an arthroscopy in 1997 and, at a later stage, a knee replacement after consultation with Dr Cossetto in January 2011. She was unfit for work for long periods in 2012 due to this knee injury. She ultimately settled her workers compensation claim for $16,500 on 20 December 2013. 3. The plaintiff also consulted Dr Cossetto on 7 August 2011 about ongoing problems with her right elbow. She underwent an epicondylectomy on 27 September 2001 and had a left elbow lateral epicondylectomy by the same doctor on 7 December 2004. The left elbow epicondylectomy was revised in July 2005. She injured her right elbow again in a fall on 18 June 2007. She underwent open repair of her right elbow on 24 January 2008. She suffered some further problems with capsulitis and frozen shoulder in 2012 and was continuing to complain of this pain in July 2013 when she first began to show symptoms of a condition in her left heel (plantar fasciitis). 4. In her fall in July 2007, the plaintiff also injured her back. In a report from Dr Dickson to Carroll & O'Dea Lawyers dated 27 November 2007, he noted she had "pain in the lower back with lumbar stiffness… She reports ongoing pain in her lower back with lumbar stiffness without radicular complaint in the lower limbs. She reports radiation of the low back pain to the right iliac and buttock region… Back pain disturbs her sleep and has been taking Normison as a sedation… She has jarred her back and has aggravated L4/5 spondylosis and has residual right sided lumbar sacral facet arthralgia and right sacral iliac pain". Conservative treatment was advised. A further report of Dr Dickson of 26 February 2009 noted that her fall in June 2007 had aggravated some pre-existing facet arthrosis in her lumbar spine which "has persisted". Nowra Physiotherapy noted the plaintiff complained of right side low back and buttock pain on 15 November 2011 and she underwent physiotherapy for this on 25 November 2011 and several subsequent dates. 5. As noted above, the plaintiff had developed pain in her right heel in about July 2013, which was worse on walking, and was diagnosed after ultrasound with plantar fasciitis on 13 August 2013, for which she underwent physiotherapy throughout 2013. 6. The plaintiff also developed carpal tunnel in her right wrist and hand which was treated conservatively and then by operation from November 2013 onwards. 7. The plaintiff underwent a neck fusion in April 2014. 8. The plaintiff's shoulder injuries were considerably improved after surgery by Dr Cossetto, which occurred in August 2014.
2. The plaintiff acknowledges that, in her 2007 slip and fall, she bruised her back and experienced back pain. Her evidence was that the pain continued because of the awkward posture of her injured elbow, which stiffened her neck and back muscles, and that this was what caused the pain. When the elbow injury was resolved, her back pain abated. She also suffered back pain as a consequence of altered gait from her injured knee which was not fixed by the knee replacement in 2010, but was ultimately resolved by surgery in 2012.
3. The plaintiff's evidence was that she had recovered from all of the other injuries and surgeries which she had undergone, and she demonstrated this by performing some calisthenics in the witness box as noted above.
4. The defendant's submissions to the contrary are based upon three reports from Dr Bentivoglio. The reliability of these reports was challenged on the basis that Dr Bentivoglio was effectively being told what to say by the solicitors for the defendant. I shall summarise the relevant extracts of each of these reports and then consider the submissions of both parties.

Report of 12 February 2016

1. Dr Bentivoglio agrees that the plaintiff's back is "the area that troubles her most of all" and she has "low back pain most of the time" where the symptoms will "fluctuate in severity and are made worse with activity" (p. 2).
2. Dr Bentivoglio made observations as follows: "Back Ms Lewis did have significant paravertebral muscle spasm present. She demonstrated about half normal range of movement present in her lumbar spine. She was capable of walking on her heals [sic] and on her toes with no difficulty. There were no localising motor sensory or reflex abnormalities that I could detect in her lower limbs. She had straight leg raising to about 60º in both lower limbs but this produced some back pain. There was no muscle wasting present in her calves." (p. 4)
3. Dr Bentivoglio's diagnosis and opinion was as follows: "Ms Lewis did have symptoms of a radiculopathy for at least 15 months prior to the specific injury that she described. Following the specific incident the radicular symptoms were continuous and permanent. She underwent surgical treatment on her neck and has obtained a good surgical result. She will never regain full motor power in her right upper limb and the reflexes will never recover. I would anticipate, however, the slight sensory blunting she has at this stage will eventually settle completely. It is likely to take at least another 6 months before it will do so. As far as her back is concerned she has aggravated pre-existing degenerative changes present in her lumbar spine and has sustained discal damage at multiple levels. Due to the number of levels that are involved with her back surgical treatment on her back would give an uncertain result. Treatment of choice for her back complaint at this stage is to continue with an exercise based program in an attempt to build up her core muscle strength." (p. 4)
4. Mr Stone SC submitted that Dr Bentivoglio's report was flawed by reason of his being provided with inaccurate information that the plaintiff suffered from radiculopathy for at least 15 months prior to the accident when this was not the case. The plaintiff did not suffer from this condition when she saw Dr Bodel, as Dr Bentivoglio would have known if he had been given Dr Bodel's report for the purpose of preparing his own report. Dr Bentivoglio was basing his opinion upon reports in 2007 and 2009, not upon her more recent complaints.
5. Dr Bentivoglio considered that only about 20% of her current back disability relates to her pre-existing conditions (p. 6) and concluded (p. 7): "As far as her back is concerned she has become symptomatic in her back secondary to the fall and I would consider it as a considerable proportion of the current symptoms related to that fall."
6. The solicitors for the defendant wrote to Dr Bentivoglio challenging these findings, and stating that the plaintiff had injured her back in her 2007 fall on stairs. This resulted in a supplementary report referring to compensable injuries dated 3 March 2016

Dr Bentivoglio's 3 March 2016 report

1. In his first report, Dr Bentivoglio accepted that the plaintiff had a back problem caused by the accident. In his report of 3 March 2016, he changes his opinion and states that the back problem was attributable
2. Dr Bentivoglio's report is not based on a fresh consultation, but upon the material sent to him by the defendant. It starts with the statement that the plaintiff did not advise him of any injury to her back in the past. He notes that in fact she had "a compensable injury" to her back on 18 June 2007 and plain x-rays taken of her lumbar spine in that same month showed minimal narrowing at the L4/5 level of her lumbar spine, with some marginal lipping at the L4 level, as well as mild degenerative changes in the lower lumbar facet joints. A CT scan taken in November 2015 showed lateral scoliosis with its apex at the L3/4 level and moderate disc narrowing and facet joint degenerative changes at that level. Her solicitors' medical expert gave a 15% figure for permanent impairment of her back. As Dr Bentivoglio had given her the same percentage (15%), that meant that none of it (as opposed to all of it) was attributable to her accident.
3. Dr Bentivoglio also made comments concerning her neck which are no longer relevant because this claim has now been abandoned.
4. Dr Bentivoglio concludes: "Previously I had suggested that Ms Lewis required a significant deduction because of pre-existing degenerative changes present in her cervical spine causing symptoms for which she had seen Dr Brennan in the past. I felt that an 80% deduction was appropriate because Mrs Lewis continued to experience pins and needles radiating down her neck to involve her middle, right and little fingers of her right hand. In light of the further information, and the fact that she had the CT scan taken of her cervical spine a little over one hour before the specific incident she described, I believe a 90% deduction would be more appropriate, rather than the 80% I initially assessed her as having."
5. Dr Bentivoglio also revised his opinion (down to zero) about the need the plaintiff had for domestic assistance.
6. Mr Stone SC drew my attention to the defendant's solicitor's letter of 24 February 2015 to Dr Bentivoglio (Exhibit K). This letter asks Dr Bentivoglio to "reconsider" his opinion as to the plaintiff's back and neck on the basis that he has been "misled", because the plaintiff had brought a claim for compensable injury to her neck and back from her 2007 fall. The solicitor states (under the heading "The Back"): "Does it not therefore follow that the permanent impairment of the back assessed by you pre-existed the incident at Kmart and that therefore the incident at Kmart on 10th January 2014 has not caused any change to her underlying condition?" [Exhibit K]
7. Similar remarks are made about the plaintiff's need for domestic assistance where the plaintiff is asserted to have "misled" Dr Bentivoglio about the cause for her 2009 knee replacement surgery.
8. Dr Bentivoglio is being told to revise his earlier opinion on the basis that the plaintiff has misled him. He is not provided with a set of reports (such as the report of Dr Bodel) but with Dr Dixon's 2007 and 2009 medical reports only (the general practitioner records also supplied are of little significance). It is put to him that because Dr Dixon put 15% in 2007 and 2009, this means there was no change in 2016, seven or nine years later, and thus her back injury percentage should be zero.
9. Mr Stone SC submits, and I accept, that this reasoning is facile. The 15% impairment is a medical opinion, not a scientific result. The x-ray and MRI show degenerative changes rather than trauma. The plaintiff's evidence, and her work history, show that she did in fact get better and return to work and to performing household chores, and Dr Bodel found no evidence of back impairment in 2013.
10. It is important to note that what Dr Bentivoglio found in 2015 was a new tortious injury. If the defendant wished to obtain a change of opinion, all the medical reports should have been provided, including the report of Dr Bodel.

Dr Bentivoglio's 15 May 2016 report

1. Dr Bentivoglio provided a further supplementary report on 15 May 2016 along the same lines, seeking a response to Dr Pillemer's reports and to one visit the plaintiff made to her general practitioner on 17 January 2016 in which she did not mention the Kmart fall. Attention is drawn to the plaintiff's complaint of other medical problems such as neck pain (for which no claim is made in relation to this accident).
2. The solicitor provides notes suggestive that the plaintiff only told her general practitioner of the fall on 25 March 2014 and that while she told her orthopaedic surgeon, Dr Cherukuri (on 17 February 2014) that she had had a fall at Kmart, she did not see him further. The failure to refer to Kmart by this doctor in subsequent entries is seen as evidence that there is no relationship between her complaints and her fall, as is the late claim.
3. This is a misstatement of the plaintiff's injuries. The plaintiff saw a general practitioner, Dr Travis Flynn, on 20 January 2014 in relation to the fall and he had her x-rayed that day and referred for a CT scan two days later; he continued to manage her complaints from that time. Dr Cherukuri is seeing the plaintiff principally for her neck problems, which are no longer claimed as part of her Kmart injuries.
4. The defendant draws a very long bow in accusing the plaintiff of misleading both her medical advisers and Dr Bentivoglio in relation to her disabilities and their cause. In making such an application, the defendant's solicitor should have made all the medical records available

Conclusions concerning Dr Bentivoglio's reports

1. Dr Bentivoglio initially gave a report accepting the plaintiff's medical problems arose from the injuries arsing in this accident. He was then given selected medical reports, told he had been misled, and asked to revise his opinion.
2. It is common, in personal injury cases, for experts to hold differing views from each other and an expert may provide updating reports as a result of reading the opponent's reports or other material either adhering to or changing those views. However, two principles stated in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 apply: the expert must expose his reasoning for changing these views (Hevi Lift (PNG) Ltd v Etherington (2005) NSWCA 42 at [84]) and the changed views will only be persuasive if the accuracy of the facts underlying them can be demonstrated (Makita (Australia) Pty Ltd at [85]).
3. Counsel for the plaintiff also raised credit issues in relation to the plaintiff's knee surgery (and a finding by Dr Bodel that the plaintiff had 40% loss of use of the lower leg concerning her knee problems, which were solved by a knee replacement) and the plaintiff's similar statements to Dr Pillemer. These are discussed in more detail below in relation to the plaintiff's evidence.

The plaintiff's evidence on damages

1. I have set out the contested medical issues ahead of a consideration of the plaintiff's evidence because her evidence on these issues is very straightforward, and best considered after the challenges to Dr Bentivoglio's report.
2. The plaintiff gave a frank and careful history of her previous accidents and surgeries. She said that these injuries had been resolved by surgery. It is important, in the absence of medical evidence to the contrary, to accept evidence that a person who has undergone successful surgery (particularly surgery such as a knee replacement or carpal tunnel release) has recovered their health and is able to carry on more or less as normal. There is no medical evidence before me that, for example, the plaintiff's knee replacement failed, or that she has to walk with a stick, or that the plaintiff's carpal tunnel release failed, and she suffers from the same pre-operation symptoms. The onus in this regard lies on the defendant, who could have obtained reports from, for example, a rehabilitation physician, that the plaintiff's other health problems have not resolved as claimed. No such report has been provided.
3. The plaintiff, who is currently 63, has over 25 years of life left ahead of her. She was looking forward to continuing work to save for her retirement as she did not have enough superannuation. She has separated with her husband (who she described as a "lounge lizard") although he has returned to live in her home due to financial restrictions. She has had some serious health problems in relation to her neck, her shoulder and the carpel tunnel releases in her wrist. However, apart from her back, these have been successfully treated.
4. But for this accident, she could have anticipated a healthy and happy retirement. She could have gone on working until the age of 67. Instead, her back impinges upon her ability to sleep, makes certain household tasks difficult, gives her pain and causes her ongoing difficulties in daily life, including recreational activities. She is dependent on other family members such as her adult son to help with heavy tasks such as mowing the lawn.
5. The plaintiff was cross-examined on issues of credit, relating to her medical history, at some length.

The plaintiff's credit

1. The defendant submits that not only is the plaintiff's credit undermined by her lack of frankness to the court about her prior injuries, but her histories to medical practitioners which failed to set out a full history of all her prior conditions render the contents of those reports valueless.
2. There is no suggestion that the plaintiff did not tell her treating doctors in these proceedings about her past history. This objection was outlined in submissions (at paragraph 60(a)) as "exaggeration or not mentioning relevant matters to doctors" but, upon inquiry by me, those doctors were Dr Harbison, Dr Dixon and Dr Borstein (who saw her before the accident), Dr Bentivoglio (the defendant's medico-legal expert) and Dr Pillemer (the plaintiff's medico-legal expert).
3. The degree of relevance of statements to other doctors is somewhat tenuous, as the explanation may be lost in the mists of time. On occasion, the explanation is clear. For example, when the plaintiff saw Dr Dixon on 26 November 2007 about the fall in which she first injured her back, she is reported as telling him that she had not had any compensable injuries (Exhibit A, p. 175). When Mr McManus made this point, I reminded him that the plaintiff had not understood what a "compensable" injury was when he had asked her this question in cross-examination and the question had had to be rephrased.
4. The same problem arises with the plaintiff's statement to Dr Pillemer that she had no problems with her lumbar spine before falling from the chair. The plaintiff's evidence was that she meant she had no problems at the time she saw him. She did not appreciate that she was supposed to give him a full medical history.
5. In this regard, she was correct. When medico-legal experts are retained for court proceedings, they are sent other reports, investigations and a letter of instructions. All too often the expert not only fails to list these, but to refer to them. Instead, they rely upon what the plaintiff says in the course of the consultation, in circumstances where a plaintiff with a long medical history in relation to other issues (as is the case here) may be unaware of the relevant matters to raise.
6. Mr Stone SC handed up a 31-page chronology of medical opinions, hospital admissions and report summaries. Was the plaintiff obliged, when she attended medico-legal appointments, to provide the doctor with this sort of information? In Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11, the Court of Appeal explained the correct approach as follows: "[84]…. His Honour said: [Dr Summersell's opinion] is also based on his acceptance of continuing symptoms since [the 2005 work incident], which I do not accept. Furthermore he has failed to explain or even consider the effect of the intervening events occurring on or about 22 January 2008 (lifting bearers and joists), late March 2008, (moving furniture and appliances), a second fall in late March or early April 2008, and in late April 2008 (two days sanding on knees), indeed he offered no explanation for [the appellant] ceasing work in March 2008. Therefore, the facts on which the opinion is based do not form a proper foundation for it. (emphasis added) [85] With respect to his Honour, this reasoning is the same reasoning as that rejected by this court in ASIC v Rich. Dr Summersell's opinion did not have to expressly refer to the subsequent non-work related incidents in order for there to be a proper foundation for the opinion expressed in his reports. Rather, what was required for satisfactory compliance with the principles governing expert evidence was for his reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests. [86] Those requirements were all satisfied. In this case, as the appellant pointed out, neither Dr Summersell's field of specialised knowledge, nor his status as an expert, was challenged. Insofar as his opinion was based upon facts "observed" by him, those facts were contained within his examination findings in his report of 29 April 2008 to Dr Barrell and the report of the MRI scan. [87] Insofar as Dr Summersell's opinion was based on assumed facts, those matters were set out in his various reports. In particular, there was a reference in his report of 30 May 2008 to the appellant's knee not being "right" since the incident at work, to it feeling "unstable" and to the knee giving way. In his report of 6 May 2008, Dr Summersell expressed an opinion that a recent fall the appellant had experienced was due to the instability of his knee. [88] The fact that the reports did not refer to the subsequent non-work related incidents did not amount to a failure to satisfy the requirements of expert evidence. As explained above, the principle in Makita do not require that there be an exact correspondence between the assumed facts upon which an expert opinion is based and the facts proved in the case. Accordingly, the absence of any express reference to those specific incidents did not mean that the facts upon which Dr Summersell based his opinion, including falls and instability of the knee, did not form a proper foundation for his assessment as required by the principle in Makita. The extent of correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the reports. Although his Honour dealt with Dr Summersell's reports as a matter of weight, he incorrectly applied the principle in Makita as that principle was explained in ASIC v Rich. That constitutes error in point of law."
7. I am satisfied that the plaintiff provided as much information as she could, as frankly as she could, to all her doctors. The plaintiff's asserted failure to mention "relevant matters to doctors" is not made out.
8. As to "exaggeration" (defendant's submissions, paragraph 60(a), Mr McManus did not give any examples. I am satisfied that the plaintiff gave reasonable and fair description of her disabilities and injuries to doctors. Nor do I identify any lies or dishonest answers in her evidence, and I note that the defendant does not identify what these are (beyond the work relations forms that I next deal with).
9. However, the plaintiff did not reveal, in her 2003 and 2008 work declarations to employers, that she had suffered work-related injuries. The plaintiff admitted this freely. She said she had lied because she wanted to work and that if she revealed her ongoing disabilities her ability to obtain work would be undermined. She loved working as a nursing aide and (as her fellow worker confirmed in his evidence) she performed it with enthusiasm. I do not regard telling these lies as indications that her credit on the issues in these proceedings should not be accepted.
10. The final issue raised in relation to the plaintiff's credit was the quite extreme statements made on her behalf by her former solicitors as to her ongoing disabilities, presumably in order to obtain the maximum possible compensation for her knee injury. Mr McManus submitted that I would not accept that this was done without instructions.
11. The question really is what those instructions were. In personal injury litigation, it is sometimes the case that extreme submissions on quantum to be put by the opposing sides. For example, in in Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203, a decision of such usefulness that it was included in the District Court Law Reports, Letherbarrow SC DCJ noted (at [47]) that the defendant's schedule of damages was approximately 5% of the amount sought by the plaintiff. I noted this practice, and Letherbarrow SC DCJ's remarks, in Murko v Greenfields Narellan Holdings trading as Narellan Town Centre [2015] NSWDC 132 at [95], where the defendant had refused to provide any damages estimate at all (in breach of the Practice Note) and asked me to award zero damages.
12. If, as the plaintiff said when asked about the evidence of disabilities asserted by her former solicitors, she relied on them to act in her best interests, then those exaggerations need to be seen in light of these practices.
13. One matter not directly raised by counsel for the defendant, but which I consider might have been intended to be covered in his submissions, is the fact that the plaintiff did plead and particularise a significant number of other injuries (as set out above), many of which were abandoned, such as her neck claim and past home care claims. The plaintiff's claims now are: 1. Lower back injury; 2. Right buttock, hip and thigh injury; 3. Temporary aggravation of pre-existing cervical spine degeneration and of her plantar fasciitis.
14. However, courts should be cautious about drawing conclusions from the manner in which personal injury frames are claimed. The problems caused when an injury or disability is not particularised are considerable. Most practitioners over-plead their case as a result. That is the case here, and I suspect it was also the case in relation to the inflated claims brought by the plaintiff's previous solicitors in her previous litigation.
15. There are, however, compelling reasons for regarding the plaintiff as a reliable historian: 1. Her version of the accident the subject of these proceedings is essentially unchallenged. 2. Her evidence of her injuries and disabilities is consistent with the objective medical evidence. Her cross-examination did not elicit matters not put to this court. There is no surveillance footage or other evidence of exaggeration, such as adverse comment by medical practitioners as to unlikely limps or unconvincing responses to requests to move around for the purpose of medical examination. 3. In this case, whatever may have been the case in other litigation, there has been full disclosure of everything relevant to the court's determination, including the 31-page medical chronology. 4. The plaintiff made appropriate concessions including admissions as against interest. Mr Stone SC points out that she effectively put an end to her own past claim for home care. 5. The plaintiff sought to return to work after the subject accident and to return to performing such domestic tasks as she is able, which reflects positively on her character. The plaintiff's 30-year work history generally reflects positively on her character and credit. For this plaintiff to not be working at a job she loves, it is likely to be as a consequence of a significant disabling injury.
16. Taking all of the above into account, I accept the plaintiff as a witness of credit.

Non-economic loss

1. As noted above, the plaintiff's principal problem is her back. Mr Stone SC puts the plaintiff's non-economic loss at 28% while Mr McManus puts it as between 18 - 20%.
2. First, the defendant submits that the plaintiff's age means that her non-economic loss must be substantially discounted, relying upon Reece v Reece (1994) 19 MVR 103.
3. The correct approach to the age of a plaintiff was further explained in Varga v Galea [2011] NSWCA 76 at [72]-[73] the court held: "[72] Reece v Reece states the uncontroversial proposition that the plaintiff's age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed). [73] Age, however, is only one of the numerous matters the court takes into account in its assessment of non-economic loss, which is defined in s 3 of the 2002 Act as follows: "non-economic loss" means any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement."
4. The Court of Appeal went on to note at [83]: "[83] As to the future, in particular, her Honour only awarded the appellant future economic loss to age 67 and found he had some residual earning capacity. In those respects her Honour, in my view, clearly accepted the respondents' submissions. The respondents cannot demonstrate error when the primary judge accepted their submissions. I discern no error in her Honour's reasoning as to the past. The appellant's statement about "normal activities" clearly related to life's daily travails, not the hard labour of a bricklayer's toils."
5. The plaintiff has suffered a back injury which is being treated conservatively. The relevant percentage in those circumstances is 26%, which equates to $47,500.

Past and future out of pocket expenses

1. Past out of pocket expenses are noted by the defendant at $6,000 but the plaintiff's schedule (Exhibit N) contains a total of $7,438.33. I have read the invoices attached and consider that sum to be made out, but if the parties have come to some other agreement, that can just as easily be reflected in the mathematically agreed judgment sum to be included in the Short Minutes of Order I have directed the parties to prepare.
2. As to future out of pockets, the defendant submits no allowance should be made while the plaintiff seeks an order for a cushion of $10,000.
3. The plaintiff takes Temaze to sleep and Endep for pain. She may in the future require x-rays. I agree with the submission of Mr Stone SC that a small cushion for future medical treatment is appropriate and I accept his estimate of $10,000.

Past wage loss and superannuation

1. Rather unhelpfully, the defendant submits that there should be no claim at all for past or future wage loss. This effectively means that the plaintiff is not entitled to a single day off work for injuries the defendant acknowledges warrant a non-economic loss award of between 18% - 20%.
2. As Letherbarrow SC DCJ noted in Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203, the obligation of parties to assist the court by providing realistic estimates is vital for the fair hearing of the claim. If the defendant is not prepared to assist the court, then it is not up to the court to take over the defendant's role and to seek to bargain down the plaintiff's claims more than would be the case if some realistic alternative had been provided.
3. The plaintiff's submissions on this head of damage were realistic and within a reasonable compass. She acknowledges that a substantial amount of the time she took off work in 2014 related to non‑accident related surgeries. She attempted to return to work but was unable to do so because of her back problems. The loss that follows in 2015 thereafter is asserted to be solely attributable to the accident. Having calculated that 60,000 is the total loss over the period, Mr Stone SC reduces this amount by one‑third to reduce this to $40,000.
4. The evidence of the plaintiff and her co-worker confirm that the plaintiff, who loved her work, would have continued working if she could.
5. Past economic loss of $40,000 is accordingly awarded. There is also a superannuation component of $4,400, making a total of $44,000.

Future wage loss and superannuation

1. The plaintiff was someone who loved working, enjoyed her job and intended to work to the age of 67.
2. Section 13 Civil Liability Act provides: "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."
3. I am satisfied from the evidence of the plaintiff and her co-worker that but for the accident, her most likely future circumstances would have been to continue in aged care nursing aide work to the age of 67 because she had the economic necessity to do so. Given her long work history and love of her job, I am satisfied she would have continued working in the career she was in; what evidence there is suggests that there is work available in that career (in fact, it is likely to be a growth area, given Australian age demographics).
4. What is the plaintiff's loss? I accept her as a witness of truth, and the medical evidence tendered. I accept the nature of the work in terms of having to stand and steady and hold elderly or infirm people. Mr Stone SC asked me to include my observations of the discomfort the plaintiff was in just sitting in the witness box and then ask myself, "Is that really a lady you'd want caring for your mother or your grandmother".
5. While the Newcastle Court witness box is so uncomfortable that witnesses have been unable to sit in it in the other cases I have conducted, the plaintiff's discomfort was quite marked. In fact, since she was sitting in the public area to give evidence, I could see her much more clearly, full-length, than is generally the case in court proceedings and I observed a number of occasions when she transferred her weight from one foot to the other, balanced one knee on the bench, or had to stand up or twist for comfort.
6. The sum sought is $127,490 together with future superannuation, corrected from the sum claimed in the Schedule of Damages of $20,570 to $14,023. These are the sums that I propose to award.

Past Home Care

1. The plaintiff abandoned this claim during the hearing.

Future Home Care

1. The plaintiff's home care report is supported by an occupational therapist's report. She also gave evidence about her current degree of dependence upon her family (other than her husband) to assist with housework and gardening, and her wish to pay for home care assistance rather than expect family members to help her. As she intends to divorce the husband from whom she is now separated, she will be living alone, and paid assistance is the best way for her to obtain help with the household chores identified as difficult by the occupational therapist report (although the amounts sought in that report are substantially reduced).
2. The defendant submits that no claim should be allowed for future domestic assistance, in part on the basis of her knee injury and in part relying upon the report of Dr Pillemer who stated, in his report of April 2015 that the plaintiff "does not require any domestic assistance at this stage apart from heavier aspects of home care that might be required".
3. There are three problems with Dr Pillemer's conclusions: 1. As the New South Wales Court of Appeal noted in Boral Bricks v Cosmidis [2013] NSWCA 443 at [95], assessments of home assistance fall outside the expertise of orthopaedic surgeons: "[93] … On what basis the orthopaedic surgeon assessed the number of hours per week required to undertake domestic duties and gardening was not revealed. It is not the kind of "expertise" which is normally attributed to orthopaedic surgeons. The evidence was clearly inadmissible, although not objected to, and should be given no weight at all. Why the court was taken to it is obscure." 1. Dr Pillemer does not expose his reasoning process; and 2. Dr Pillemer is not saying that the plaintiff requires no assistance at all, but rather that she requires assistance with the heavier aspects of home care (whatever these may be).
4. In those circumstances, I propose to give this opinion no weight.
5. As to the knee injury, the plaintiff agrees that she has had a knee replacement. It is one of the most commonly performed operations in Australia. This does not mean that persons who undergo such an operation require home assistance. I do not propose to draw any such inference in the absence of medical evidence and a report from an occupational therapist identifying the home tasks to which her knee and not her back are referable.
6. Alternatively, the defendant asks me to accept that at least part of the need is due to her other injuries and to discount the need for future care to take into account that the plaintiff is now 63 and has had a knee replacement and a series of other problems as set out on pages 13 - 14 of Mr McManus' written submissions. However, as Mr Stone SC pointed out, I cannot do that in the absence of expert reports identifying these problems and directing me to the appropriate deductions. The onus in this regard lies on the defendant. In particular, I note that the plaintiff did not need help before.
7. However, there is another way to approach this problem. I drew to Mr McManus' attention the approach taken to the aging process generally by the New South Wales Court of Appeal in Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95 at [81], where Basten JA explained how judges should take into account the aging process when determining future care: "[81] … If that calculation were accepted, there must be a significant reduction for vicissitudes, both to take account of normal ageing processes and to take account of the significant likelihood that the appellant would have required domestic assistance at an earlier stage because of his existing injury. The adjustment is appropriately undertaken by way of a proportionate reduction in accordance with the principles identified in Malec v JC Hutton Pty Ltd…"
8. The deduction made in those proceedings was 40%.
9. The plaintiff's age (63) and other medical problems as a result of injuries make a calculation along the same lines a reasonable way of achieving some balance between the plaintiff's prior injuries and her injuries as a result of this accident. The question is how to achieve this. If I were to reduce the $101,736 by a percentage such as 20%, I would arrive at a figure of $81,000; if I were to shut off all care entitlement at the age of 80 and change the multiplier I would come to the sum of $87,900; if I were to reduce the figure by one third and allow only two hours with the same multiplier of 753.6 I would arrive at a figure of $67,824.
10. All these methods seem arbitrary. Mr Stone SC submitted that I could made a cushion award aimed at assuring that the plaintiff receives home care for the back, which has the lion's share of her medical problems. Mr McManus agreed but submitted that the cushion should be $17,000, a figure I consider manifestly inadequate on the evidence referred to above.
11. Taking all of the above into account, I propose to award a cushion of $85,000 for future care, noting that the plaintiff's claim of 3 hours a week (totalling $101,736) would result in care provisions substantially overlapping with future medical problems the plaintiff will have.
12. Accordingly I will award a cushion of $85,000 for future home care.

Orders 1. Judgment for the plaintiff. 2. Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed sum for judgment. 3. Defendant pay plaintiff's costs. 4. Liberty to apply in relation to costs. 5. Exhibits retained for 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2016