On 27 March 1999 the plaintiff was a guest at a wedding reception at the club conducted by the defendant in Franklin Street, Forrest. As she was leaving the reception to go home at the end of the evening, she lost her footing and fell, suffering personal injury. Her claim is for damages for negligence.
The plaintiff was born in 1967. She was thirty-one at the time of the accident, and is now forty-three. She is a married woman with three children, boys born in 1989 and 1993 and a daughter born in 1997. She was carrying the daughter, then about fifteen months old, when she fell.
My conclusion is that the plaintiff's injury was not the result of any negligence on the part of the defendant so that her claim must fail. These are my reasons.
[2]
The plaintiff and her family had attended a wedding at a church at Queanbeyan during the afternoon. The groom was a cousin of hers, and her husband was the driver of one of the cars which had been hired for the bridal party. It was a wet and windy day. The plaintiff's evidence was that the rain became heavier as the day progressed.
The reception began at the club at 6.00 pm. Because her husband was acting as a chauffeur, the plaintiff drove the family car to the club with her children and parked it in a parking area adjacent to the club. Her evidence was that when they arrived it was raining quite heavily and was windy. The family walked from the car to the front entrance of the club. She noticed that the tiles outside the front door were wet. The plaintiff's recollection was that she was wearing comfortable shoes with a medium-height heel. Her recollection was that the shoes had rubber soles but she was uncertain about this, making the point that the wedding had been nine years earlier by the time she gave her evidence. She went into the club without incident.
About an hour later she went back out to her car to get her camera. It was still raining, and she said that as she walked out she had to correct her balance because she "nearly had a slight slip". This occurred "just out onto the tiled area as you step out".
The bride and groom left the reception at about midnight, and the guests went downstairs to the foyer to farewell them. The plaintiff's husband went outside to get the bridal car and drive it to the entrance of the club to collect the bridal party. The plaintiff said that she took about three paces out on to the tiles when she slipped and fell on to her back. She did not remember which foot slipped. The plaintiff fell in such a manner that her daughter's foot was crushed behind her back. The plaintiff said that she felt instant pain and throbbing on both sides of her back, although it is apparent that her major concern immediately after the fall was for the little girl, who turned out to have fractured a bone in her foot.
Counsel for the plaintiff asked her whether she noticed anything about the tiles when she fell. Her answer was "just that they were slippery".
The plaintiff conceded in cross-examination that she knew that the tiled area outside the front doors outside the club, although covered by a portico structure, was not protected from wind and rain. She knew that the area was wet on the night. She agreed, from her own experience, that virtually any floor surface was more slippery wet than dry. She agreed that she was probably a little unbalanced by reason of the fact that she was carrying her daughter on her hip.
As the cross-examination proceeded, the plaintiff described the tiles as "wet and greasy". She said that the tiles had felt greasy when she had slipped earlier in the night. She conceded that she had not observed any foreign substance on the tiles, and did not feel the tiles with her hand. Her description of the tile being wet and greasy was solely based on the sensation of her foot slipping on it.
The plaintiff's husband gave evidence generally consistent with that of the plaintiff. He said that on the day of the wedding it had started to rain lightly at about 11.00 am and had gradually got heavier. The rain was lighter when the bridal party arrived at the church. It had become heavier at the end of the church service as they were leaving. It was raining so heavily that photographs which were to have been taken outside the church were taken inside. He said that he had arrived, driving one of the bridal cars, between 6.00 and 6.30 pm at the club. He said that "it was pelting down and it was still raining heavily". It was also windy. He volunteered that he needed to have the windscreen wipers on even when the bridal car was stopped under the portico. He described water coming from the portico "sort of like a little waterfall" on to the roof of the car. He described water as gushing out of downpipes in the portico roof. It was his responsibility to escort one of the bridesmaids in to the club. He described the tiled surface under the portico as "very greasy and slippery". He and the other drivers had taken the hired cars to the airport to return them, and come back to the reception between 7.00 and 7.30 pm. He said that it was about midnight when they left. He asked the plaintiff to wait near the front door with the children and not to go out because it was still raining, while he collected the family car from the parking area. It was raining at that time and the windscreen wipers were on. He stopped the car under the portico, and looked up in time to see the plaintiff fall. He said that as he got out of the car he "sort of had to hang on to the bonnet in order to come around because it was wet and slippery". In the course of his evidence, Mr De Marco volunteered information, non-responsively to the questions he had been asked, that the conditions were wet and slippery. He appeared at considerable pains to help his wife's case, and came over to me as something of an advocate for her.
Supporting evidence was given by a number of others who had been at the wedding. The groom said that he and the bride left the reception between 11.00 pm and midnight, and that it was raining fairly heavily at that time. He walked to his car in the car park and drove to the club entrance to collect his new bride. He opened the car door and got out. He said, "I noticed my foot kind of slipped from beneath me while I was sitting down: it was slippery because it had been raining and there was a lot of water." He agreed in cross-examination that he had made no record of the events at the time and had been asked to recall the incident only about three weeks before the hearing.
The plaintiff's sister had also been at the wedding. She recalled the weather as wet and windy. In response to a question whether she had made any observation of the paving tiles outside the front doors of the club, she responded, "I just remember it being slippery when walking in and out of the club, and I remember my husband grabbing me, because I was pregnant, to make sure I didn't fall."
Another guest at the wedding gave evidence that as she was leaving the reception, she saw an elderly lady almost lose her footing on the tiles outside the front doors. It was raining heavily and very wet. The elderly lady did not actually fall, perhaps because she was steadied by a person who was accompanying her.
A friend and work colleague of the plaintiff's husband gave evidence about two incidents which he observed in 2003. He had not been at the wedding. The incidents he recalled happened at a subsequent wedding on another wet day. He said that he observed a woman slip as she came out the front doors of the club on to the tiled surface. She grabbed on to her companion and stopped herself from falling.
About ten minutes later, the witness saw another woman walk out with the partner, and virtually the same thing happened to her. Again she did not fall to the ground. The witness agreed in cross-examination that his perception was that the area became slippery when it was very wet. He was careful when walking on it, and he warned his own wife about it. Counsel for the defendant put to him that his wife did not lose her footing or fall over. His answer was "No, because I made her aware that to be careful" [sic]. It was put to him that he had been careful himself and had not fallen over. He answered, "No, because I saw two people fall so I didn't want to break my leg as well." There had in fact been no suggestion that either of the other people had fallen at all, let alone that either of them had broken a leg.
Garry McLaughlin was secretary-manager of the club from about 1997 to 2001, a period including the date of the plaintiff's injury. His duties included managing the staff of the club, of whom there had been about fifteen when he started there. He was responsible for the supervision of the cleaning of the club and its grounds. When he started, the cleaning was carried out by contractors, but during his term of office this was changed and cleaners were employed by the club. The arrangement was that the tiled area outside the front doors and under the portico was either swept or hosed every day. Mr McLaughlin came in and out the front doors at least once and sometimes two or three times every working day, and would direct that the area be cleaned immediately if he saw any need for that course.
As part of the club's general systems, a book was kept for the recording of serious incidents including, for example, injuries at the club. Additionally, a duty manager's diary was kept as a handover record between shifts. Mr McLaughlin inspected both books almost daily. He was asked whether there had been any report of a slip and fall in the tiled area under the portico during his time at the club apart from the plaintiff's fall. His answer was that he was 99.9% sure that there had been no other incidents. He said that the plaintiff's fall would have been recorded in the incident book. He had become aware of the incident either the next day, a Sunday, or on the Monday morning. He had never found the tiled area to be slippery when wet. Nor had anyone ever complained to him of the surface being slippery.
Apart from routine cleaning, no maintenance work to his knowledge had been carried out on the tiled area during his time at the club. The only incident during that period involving the portico was an occasion when a truck caused some collision damage to the side of the portico. He was unaware of any problems during his time with the drains or gutters on the roof of the portico.
[3]
Expert evidence was called by both parties in relation to liability. A building consultant, Mr Peter Enders, was qualified by the plaintiff's solicitors. Mr Enders has many years of experience in the building industry. He has a builder's licence but no formal academic qualifications.
Mr Enders attended at the club premises in July 2001. He reported that there was a substantial roof structure covering an area extending out from the front of the building to provide undercover double car alighting space and pedestrian access to the front entrance. The area was paved with tiles measuring about 200 by 200 millimetres, apparently bedded on concrete, with a comfortable gradient extending about one quarter of the distance out from the front entry doors and the remainder with a slightly steeper gradient to the edge of the portico. Both gradients were shallow by approximately half than the maximum permitted gradient for disabled access, which he said was the only applicable criterion. He had not measured the exact gradients but was able to say from his experience that they were well within standards.
He also reported that, although he had not carried out any testing, it was likely that the minimum wet and dry coefficients of friction of the surface of the tiles would accord with the applicable Australian standard. He noted that roof water from the portico would discharge from its gutters through outlets near its outer end (furthest from the club building). There were no downpipes. The outlets would discharge water on to the tiled surface, the volume of discharge depending on the intensity of rainfall. He referred to the possibility of oil spillage from cars as a risk factor.
Mr Enders produced a more detailed report for the purposes of the case following a further inspection in February 2006. This time he measured the tiles at 310 by 310 millimetres. He confirmed that they were bedded on concrete and said that they were generally undamaged and firm, with normal grouted joints. The area under the portico roof was paved with these ceramic tiles, which had a lightly patterned surface, except for a semi-circular doormat equal in width to the double front entry doors of the building and immediately outside them.
The roof of the portico was flat except for a triangular glass dome which occupied about half of its area. In wet and windy conditions it was possible that the whole of the tiled area would become wet. This was regardless of any roof leakage. Mr Enders said that he found indications of roof leakage on his inspection. He said that means of increasing the coefficient of friction of the areas commonly used for personal access to the front entrance would include rubber-backed matting, friction strips and scoring of tiles.
Mr Enders agreed in cross-examination that he did not observe any marks of oil or other spillage on the tiles. He also conceded that he had not been informed of the precise location on the tiles where the plaintiff had fallen.
Dr JR Cooke was qualified by the solicitors for the defendant to provide an expert opinion. Dr Cooke has been a qualified architect since 1966 and has lectured at a number of universities, most recently the University of New South Wales. He holds the degrees of Master of Science (Building) and Doctor of Philosophy, conferred by the Architecture Department of the University of Sydney. He also holds a law degree and is admitted as a solicitor in New South Wales. He has some two years experience in the construction litigation division of a national law firm.
Relevantly for the present case, he is an acknowledged expert in slip resistance of pedestrian surfaces, having represented the Royal Australian Institute of Architects on the Standards Australia Slip Resistance Committee, responsible for a number of Australian standards in this area. He has been a member of the Committee for about eight years. He has given expert evidence in more than a thousand actions, in relation to slip testing and evaluation of the slipperiness of pedestrian surfaces.
Dr Cooke attended the club site in July 2007. He noted that the main entrance area of the club was covered by a portico with open sides. He measured the covered area as about 4.8 metres wide and 8.64 metres long. The outer section of the portico was open to cars and was 5.66 metres wide. Cars were prevented from driving closer to the doors by columns on each side of the portico 2.98 metres out from the building.
There was a recessed semi-circular mat in a well immediately outside the doorway. The remainder of the covered area was tiled. The tiles were generally square (310 by 310 millimetres) with a textured surface and buff in colour, with the exception of a border of black rectangular tiles around the mat well. The tiles were designed for exterior pedestrian areas and it was apparent that the textured surface was designed to provide suitable slip resistance. The tiles had been laid in 1988 or 1989 at which time there had been no Australian standard as to slip resistance.
The area including the recessed mat in front of the doorway was approximately horizontal. Beyond this area the tiles had a slight downward slope which Dr Cooke measured with an electronic inclinometer as 2.4%. They then sloped more sharply downwards towards the driveway at a gradient which he measured at 7.8%.
The tiles were not particularly dirty on the day of his inspection, though some ingrained dirt was evident. Dr Cooke explained that the slip resistance of a pedestrian surface depends on the degree of roughness. Ingrained dirt tends to fill up some of the spaces between the surface asperities and tends to cause a reduction in the slip resistance compared with the resistance of newly laid tiles. Weathering and wear of the surface from pedestrian traffic may also tend to reduce the surface roughness over time. The measurements carried out by Dr Cooke were accurate in 2007 but could give only a guide to the slip resistance of the tiles when newly laid some nineteen years earlier and at the time of the plaintiff's fall some eight years earlier.
Dr Cooke could not be sure from the information provided to him whether the plaintiff had fallen on an area of the tiled surface with the lower gradient of 2.4% or the steeper gradient of 7.8%. He explained that the slip resistance of a pedestrian surface is affected by slope. In his opinion the slope of the tiled surface was not excessive. The maximum slope prescribed by the Building Code of Australia as in force at the time of his inspection was 12.5%, and both gradients were well within this.
Dr Cooke's opinion was that the tiles has been suitable by reference to building practice at the time they were laid. His opinion was supported by the absence of any reported slip incidents.
He conducted a test of the coefficient of friction of the tiles using a pendulum friction tester. He measured the dynamic coefficient of friction of the tiled surface as an average of 0.41, the equivalent of a British Pendulum Number of 40. This would be regarded as slip resistant when horizontal under the applicable Australian standard, which came into force in 1993. This coefficient of friction, when combined with the gradients at which the tiles had been laid, provided results which were marginally below the minimum reading presently required for the surface to be described as slip resistant. For the steeper gradient, the surface was not slip resistant within the standard. However, taking into account the fact that both gradients were well below the maximum permitted ramp slope of 12.5% under the Building Code of Australia, the risk of slipping was in his opinion not very high. He described the tiles with the lesser slope as non-slip at involuntary pace, and safe for moderate stride and pace with moderate attention. He described the steeper slope as detectably slippery, marginally safe, safe for normal stride, pace and attention, and non-slip with reasonable care.
In summary, Dr Cooke's opinion was that by 2007 standards the ramped tiled surface at the front entrance to the club posed a marginal slip hazard but not a hazard to pedestrians taking reasonable care. The risk of slipping was greater for pedestrians wearing slippery-soled shoes as opposed to shoes with good grip. The slip resistance of the tiles could have been slightly improved by steam cleaning, but this would not have had any significant effect on the level of risk.
He noted that it was not possible for vehicles to cross the tiles in the area where the plaintiff fell, because of the side columns. Water would tend to run off the surface rather than pool on it, and the quantity of water on the surface was unlikely to have contributed to its slipperiness. Dr Cooke also expressed the opinion that the level of slip resistance of the surface was not affected by intensity of rain. He concluded that the tiles chosen were in accordance with accepted practice at the time of the construction of the building and that they did not pose a hazard for pedestrians taking reasonable care. In the absence of any history of slip incidents reported, other than the plaintiff's fall, his view was that remedial action was not required.
Dr Cooke obtained rainfall data from Canberra Airport for the month of March 1999 which confirmed rain on the day of the wedding, including moderate intermittent rain at about 6.00 pm, but no rain by midnight. In the absence of meteorological evidence, I can take judicial notice of the fact that the Canberra Airport weather station is the closest one to the club but that it is some five kilometres away, and there can be considerable variations in rainfall within such a distance on the same day and even at the same time. On the whole of the evidence I think it more likely than not that it was raining at the club at the time of the plaintiff's fall.
Dr Cooke disagreed with Mr Enders that external matting would be an improvement on wet days. His experience was that matting became saturated with water and ineffective, and was at risk of being kicked up or moving underfoot. He also had reservations about adhesive strips, which he said needed to be extremely close together to be effective, and which wear away quickly and need to be replaced frequently.
Dr Cooke is an acknowledged expert in the field of slip resistance of pedestrian surfaces, whereas Mr Enders is an experienced builder but with no specialist qualifications or experience in the area. I prefer the evidence of Dr Cooke to that of Mr Enders where there is an inconsistency.
[4]
The plaintiff grew up and went to school in Canberra. She left school after year 10 and worked as a shop assistant. She was married at seventeen. The following year she and her husband moved to Griffith, New South Wales, which was his home town. They set up a pizza bar and worked in it together. The venture involved both in long hours of hard work.
In 1987 they returned to Canberra. The plaintiff found work again as a shop assistant.
Over the years, the plaintiff suffered a number of relatively minor injuries. She was involved in a car accident in 1983, and made a claim for damages for low back injuries. In 1989 she slipped on a wet floor and fell in a supermarket. She had surgery for an abscess on her buttock in 1994. In 1997 she fell off a chair while pregnant with her daughter. She complained of back pain a number of times during her pregnancies. I am satisfied that she was generally well at the time of her fall in 1999, though her earlier back injuries, particularly the one she suffered in the motor accident in 1983, may have left her more vulnerable to subsequent back injury.
Her evidence was that her fall at the club in March 1999 caused immediate back pain. She said that the pain had continued until the hearing. She saw her general practitioner soon after the incident, and was referred for six weeks of physiotherapy at Calvary Hospital. Her general practitioner also prescribed painkillers and anti-inflammatories. She had some chiropractic treatment at the suggestion of her employer, but this did not relieve her pain. She used heat and cold packs. By the time of the hearing she was still taking Voltaren Rapid medication.
She said that for several months she was unable to do much around the house. Before the fall she had been responsible for all of the household duties, because her husband was working long hours as operations manager for a transport company. After the accident her husband had to do everything around the house, and she had some help from her sister also.
At the time of the fall the plaintiff was not in paid employment. She started casual work in August 2001 as a teachers' aide at a childcare centre, working eight hours a week. In 2003 this increased to fourteen hours a week, spread over three days. In 2005 the childcare centre moved and the plaintiff increased her hours to nineteen.
By the time of the hearing, the plaintiff said that she tried to do things around the house but there were still a number of jobs she could not cope with, in particular tasks involving bending over. She was still in pain and had put on weight over the years. Her back seized up from time to time, causing her to be unable to walk for two or three weeks. During this period she was unable to work at the childcare centre.
Counsel for the defendant showed some film taken by investigators of the plaintiff during September 2007, which showed her arriving at and leaving the childcare centre. She conceded that the film showed her to be walking normally and without restriction. She said that on some days her condition was worse than on others.
She agreed that after seeing her general practitioner during 1999, after the end of that year she did not make any complaint to him of any low back problem for eighteen months, although she saw him from time to time for other reasons. She complained to her general practitioner of back pain on one occasion in June 2001, and on another in February 2002, but not again until February 2004, and subsequently in January 2005. The plaintiff said that she was continuing to suffer from back pain over the whole of this period but was treating herself with non-prescription medication.
The plaintiff's husband gave evidence about the effect of the accident on her. As with his evidence about liability, I formed the view that he was doing his best to support her case. He painted a picture of a woman in constant pain, which had if anything become worse in the last year. He said that he had to do virtually all of the work around the house, and estimated that he spent between four and six hours a day, seven days a week, doing housework which his wife would normally have been expected to do. He minimised any problems the plaintiff had had with her back before her fall. I formed the view that his evidence, in particular about the amount of time he spent doing housework, was greatly exaggerated. He conceded in cross-examination, as did the plaintiff, that they had continued to fly to Queensland for holidays with their children after the accident, although both, I thought, tried to give the impression in chief that this was an activity that they had enjoyed before the fall which they had not been able to continue afterwards.
Ms Sally Gibson, the owner of the childcare centre, gave evidence in the plaintiff's case. She was generally supportive of the plaintiff and confirmed that from time to time she had needed to time off complaining of back pain. She had at some point in the past asked the plaintiff whether she would like to increase her hours to full-time but the plaintiff had declined, saying that her back had got progressively worse and she would be likely to let Ms Gibson down. She said that the plaintiff was a good employee and she would employ her full-time if she could. She agreed that she was a friend of the plaintiff and had come to help her in her case.
[5]
Reports were tendered in the plaintiff's case by her general practitioner, Dr Southi, her chiropractor, Dr Hiew and a clinical psychologist qualified by her solicitors, Mr Nomchong. Mr Nomchong saw the plaintiff in April 2007. He took a history from her from which he concluded that she was suffering from a chronic pain syndrome with major depression, caused by her fall. He thought that she would benefit from twelve monthly sessions of psychological counselling including pain management counselling.
Oral evidence was given by Dr Geoffrey Speldewinde, a consultant in rehabilitation, pain and musculoskeletal medicine. Dr Speldewinde was engaged by the plaintiff's solicitors. He saw the plaintiff on one occasion in May 2006. She gave him a history of her fall and said that she had had no previous significant back complaints. On physical examination she displayed considerable reduction in range of movement of the low back. Dr Speldewinde accepted the plaintiff as genuine. He thought that her condition had stabilised but that there was a prospect of further improvement with treatment. She had a significant residual disability which he estimated at 10% whole person impairment. He thought it worth carrying out further diagnostic measures in the form of injections to the lumbar facet joints and if necessary a lumbar MRI scan. He recommended that she engage in a lumbar spinal fitness program in conjunction with pain management assessment and psychological counselling.
The defendant's solicitors arranged for her to be seen by Dr Iain Kelman, a consultant orthopaedic surgeon. Dr Kelman is one of a number of medical specialists who are contracted through Australian Medico Legal Services Pty Ltd throughout Australia. His report was not accompanied by a curriculum vitae and it is not clear from the evidence where he practises his profession, or indeed whether he is still engaged in surgical practice. He is a fellow of a number of medical specialist colleges. Dr Kelman was given a history that the plaintiff fell while walking down a staircase. He conducted a physical examination. He diagnosed the plaintiff as suffering from what he called mechanical backache. He thought it possible that she suffered from an unrelated generalised rheumatological condition, for which she had not been assessed. She also appeared to be suffering from mild depression. He expressed the opinion that the plaintiff's complaints, when he saw her in April 2006, were not directly related to the injury she had sustained in her fall. He accepted that she was genuinely incapacitated and that she was incapable of working more than her then nineteen hours a week.
After his first report, Dr Kelman was provided with an MRI scan and report by a radiologist. He accepted that the films showed minor changes in the facet joints at L3-4 and L4-5 but he thought that these were more in keeping with degenerative change due to the natural process of aging rather than being a result of the plaintiff's fall in 1999.
In January 2008 Dr Kelman provided the solicitors with another report, in the form of a response to the report by Dr Speldewinde. Dr Kelman expressed the view that if there had been any significant injury at the time of the fall, there would have been evidence on it on the CT scan of 1 July 1999 of the lumbar spine (which detected no abnormality). It was therefore unlikely that the fall had caused any long-lasting injury.
He disagreed with Dr Speldewinde's recommendation of diagnostic injections to the facet joints with a view to possible radiofrequency neurotomy. His experience was that such procedures were unlikely to be beneficial. Further, he considered that the symptoms of which the plaintiff complained would have developed in any event regardless of the fall. He repeated his opinion that the plaintiff might be suffering from some undiagnosed rheumatological condition.
This report was provided to Dr Speldewinde for comment. He said that, without being critical, many orthopaedic surgeons were unaware of the success of radiofrequency neurotomy. Dr Speldewinde's own experience, practising regularly in the field of pain management, was that the technique had been highly successful in many cases. He would not have expected the CT taken a few months after the accident to have had any diagnostic value. Dr Speldewinde adhered to his original opinion.
Both Dr Speldewinde and Dr Kelman were cross-examined by telephone. Senior counsel for the defendant put to Dr Speldewinde the various incidents in the plaintiff's past in which she had suffered back injuries. He conceded that he had not been given such a history. He did not accept the proposition put by counsel for the defendant that the effects of the fall had probably run their course within three years. He generally agreed that the diagnosis depended on the acceptance of the plaintiff's complaints.
Dr Kelman when cross-examined also adhered to his view that the plaintiff had recovered reasonably quickly from a painful exacerbation or recurrence of backache at the time of the fall, and that this had entirely resolved by the time of the hearing.
The defendant's solicitors had the plaintiff assessed by a psychiatrist, Dr Mickleburgh in October 2007. They did not serve his report. I draw the available inference that his evidence would not have assisted the defendant's case.
[6]
I accept that the plaintiff suffered a painful back injury when she fell. Although she has been able to cope without frequent visits to the doctor or prescriptions for painkillers over the years, I think it likely that the fall has remained a cause of her continuing symptoms, in the absence of any subsequent traumatic incident of similar severity. I accept that she had generally recovered from her various accidents and falls by the time of the wedding in March 1999. In those circumstances the fall must be regarded as causally linked to her continuing symptoms.
I thought that the plaintiff and her husband rather exaggerated the effect of the symptoms and the level of her pain. Certainly they exaggerated to a considerable degree the amount of time the husband has spent and continues to spend on housework. I nevertheless accept that the plaintiff still suffers from back pain from time to time, and there are periods when she needs to take some time off work and to take painkillers and anti-inflammatories. Bearing in mind that this has been continuing for eleven years since the accident, it seems to me likely that the pattern will persist indefinitely.
I prefer the opinion of Dr Speldewinde to that of Dr Kelman. However, it does not seem to me that the plaintiff's symptoms are sufficiently severe for her to take up Dr Speldewinde's recommendation of diagnostic injections followed if indicated by radiofrequency neurotomy. It seems to me that her level of her symptoms is such that they will continue to be able to be controlled with medication from time to time.
The plaintiff did not suggest that she has any intention of undertaking twelve months psychological counselling as suggested by Mr Nomchong, or participating in a pain management program as recommended by Dr Speldewinde.
I invited counsel to submit ranges for general damages. Senior counsel for the defendant suggested a range of $35,000.00 to $40,000.00 if I accepted that the plaintiff had generally recovered from her injuries within three years of the fall. Otherwise, he suggested a figure of the order of $65,000.00. Counsel for the plaintiff put a range of $75,000.00 to $90,000.00.
In the light of my findings and my assessment of the impact of the injuries on the plaintiff, it seems to me that an appropriate figure for general damages would be $70,000.00. I would apportion $50,000.00 of that figure to the past, and allow interest of $14,000.00, which would take account of the weighting of the past amount more heavily towards the period immediately after the accident.
I allow $3,750.00 for past treatment expenses. There was also a claim for a special bed or mattress in the sum of $1,439.00 but the plaintiff did not give any evidence about it and it was not seriously pressed. The treatment expenses have been paid and I would award interest of $1,500.00. I would award $3,000.00 for future treatment expenses.
As to the claim for loss of earnings, I am not satisfied that the plaintiff would have worked full time if it had not been for the fall, having regard to the ages of her children. I accept that she has lost some income, and that she might have chosen to exercise her earning capacity to a greater degree in the past if she had not been injured. It seems to me that an appropriate figure to compensate the plaintiff for impairment of working capacity for the past would be $40,000.00, plus interest of $10,000.00. I would award a further $30,000.00 for loss of earning capacity for the future.
It is agreed between counsel that I should allow 9% of the sums for past and future loss of earning capacity by way of compensation for loss of superannuation benefits. Those figures will be $3,600.00 for the past and $2,700.00 for the future.
Having regard to my findings about the amount of housework the plaintiff has been unable to cope with, and which has been done by her husband, I find it inappropriate to attempt a mathematical approach to the quantification of the Griffiths v Kerkemeyer component. Adopting a broad approach, I would award $45,000.00 for the past, plus interest of $22,000.00, and $30,000.00 for the future.
[7]
The total of the individual components of the assessment is:
[8]
That figure, upon consideration, appears to me to represent an appropriate reflection in monetary terms of the impact of the fall upon the plaintiff.
[9]
The defendant conducts a licensed club on its premises, which were remodelled and extended in 1988 so as to add a porte-cochere over the front door, and extending over the one-way driveway, so as to allow passengers to be dropped off from cars under cover. The porte-cochere was attached to the front of the building over the front doors. It was supported by a pillar on each side some 2400 centimetres out, and extended for a further 5100 centimetres without support, that is by way of a cantilever-style construction. The whole of the area under the roof was tiled with tiles which, I accept, were selected and laid in accordance with accepted practice at the time of construction. The tiles slope downwards away from the building, at a gradient of 2.4% closer to the building, steepening to 7.8% a little further from the building, and thence down to the area traversed by vehicles.
I accept the evidence of Dr Cooke, the architectural expert, to the effect that the tiles and gradients do not pose a hazard for pedestrians taking reasonable care, even in wet conditions.
I accept that at the time of the plaintiff's fall, it was raining, although not as heavily as the plaintiff and some of her witnesses said that it was in their evidence. If the tiles had been laid at the same gradients after Australian standard 3661.1: 1993 came into effect in that year, they would have been required to have had a more resistant surface. However, the introduction of a new Australian standard does not require existing building work to be replaced consistently with the new standard: see, for example, in relation to glass doors, Jones v Bartlett[2000] HCA 56; (2000) 205 CLR 166; Ridis v Strata Plan 10308[2005] NSWCA 246; (2005) 63 NSWLR 449; and in this Court, Sauer v Australian Capital Territory(2007) 209 FLR 371; [2007] ACTSC 18, in which I distinguished Cardone v Trustees of the Christian Brothers [1994] ACTC 85.
I accept the unchallenged evidence that there had been no previous falls on the tiles reported to the club, or complaints of a formal nature to the club about the safety of the tiled surface in wet weather. I also accept Mr McLaughlin's evidence that he had never found the surface slippery or been aware of any problem in that regard about it.
The duty of the defendant to the plaintiff was that of an occupier to an entrant, namely to take such care for her safety as was reasonable in the circumstances, and to protect her from risks of injury which could be foreseen and avoided: Australian Safeway Stores Pty Ltd v Zaluzna(1987) 162 CLR 479 at 488; Hackshaw v Shaw[1984] HCA 84; (1984) 155 CLR 614 at 663. The standard or content of the duty is to be determined according to what the reasonable person would have done in response to a foreseeable risk, including consideration of the probability of the risk being realised, the magnitude of the consequences, and the cost or inconvenience of remedying the risk: Wyong Shire Council v Shirt[1980] HCA 12; (1980) 146 CLR 40 at 47-48 per Mason J. An occupier of premises is required to take only such care as is reasonable in the circumstances, not to make the premises as safe as reasonable care and skill on the part of anyone can make them: Jones v Bartlett, above, at 193 per Gaudron J. It is incumbent on the Court to identify with precision what would have been a reasonable response, in accordance with Wyong Shire Council v Shirt considerations, to a foreseeable risk of harm: Graham Barclay Oysters Pty Ltd v Ryan[2002] HCA 54; (2002) 211 CLR 540 at 611-612 per Gummow and Hayne JJ. These questions must be considered from the defendant's perspective, with its state of knowledge prior to the incident, to assess whether the defendant acted as a reasonably prudent person would have done: Woods v Multi-Sport Holdings Pty Ltd[2002] HCA 9; (2002) 208 CLR 460; Neindorf v Junkovic[2005] HCA 75; (2005) 222 ALR 631 per Hayne J at [93].
Applying these principles, I conclude that the plaintiff has not established that her injuries were caused by any negligence on the part of the defendant.
Senior counsel for the defendant submitted that in the event of a finding of negligence against his client, I should find that the plaintiff had been guilty of contributory negligence. I might have been persuaded to do so if I had accepted her evidence about her realisation, well before she fell, of how slippery the surface was. As I have said earlier, I did not accept her evidence in that regard. I am sure that she was doing her best to give honest and truthful evidence of events of nine years earlier, but I think that there was a strong element of reconstruction about that part of her evidence. In the absence of actual knowledge that the tiles were slippery and dangerous, I cannot see anything in the plaintiff's behaviour capable of amounting to contributory negligence and I would have found none.
There will be judgment for the defendant with costs.
[10]
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
[11]
Solicitors for the plaintiff: Romano Satsia Kordis Legal