Manmi v Manmi

Manmi v Manmi - [2019] NSWDC 96 - NSWDC 2019 case summary — Zoe

[3]

The pleadings

The plaintiff relied on a Statement of Claim filed on 3 March 2017. The plaintiff claimed as follows: 1. The defendant was the registered proprietor of premises in Middle Hope Street Bonnyrigg Heights in Sydney in New South Wales; 2. In about May 2012 the defendant granted the plaintiff the right to lodge at the premises under an oral agreement. The plaintiff claims that it was agreed that he would pay the defendant $410 per month for the right to lodge at the premises; 3. On 10 August 2014, the plaintiff was walking in the bathroom of the premises when he slipped on a mat that was situated on the floor of the bathroom. As a result of slipping on the mat on the floor of the bathroom, the plaintiff claims that he fell and sustained injury (paragraphs 4-5); 4. The defendant owed a duty of care to the plaintiff and breached that duty. Numerous particulars of negligence are relied upon. Essentially it is alleged that the defendant placed a mat on the bathroom floor that was slippery and that the defendant knew or should reasonably have known that the mat on the floor of the bathroom was a slip hazard and was unsafe. It is particularised that the defendant should have ensured that the mat on the floor of the bathroom was a non-slip mat and also should have warned the plaintiff of the presence of the slippery mat; 5. The plaintiff's injuries particularised include injury to the back of the head, injury to the neck, left shoulder and left arm as well as severe dizziness and headaches. Ongoing disabilities are pleaded but, as indicated above, the only restrictions relied on at trial were an exacerbation of a pre-existing soft tissue injury to the plaintiff's neck and severe dizziness; 6. An alternative claim for breach of contract through the breach of implied terms is made.
In paragraph 11 of the Statement of Claim, it is asserted that the plaintiff is entitled to aggravated damages based on the fact that the defendant had actual knowledge of the danger by the plaintiff informing the defendant of the slippery nature of the floor when a mat was placed on it. No evidence was given by the plaintiff orally in support of this matter. It was not pressed in submissions.
The plaintiff filed a Statement of Particulars on 3 March 2017 which was generally consistent with the injuries particularised in the Statement of Claim.
The defendant relied on a Defence filed on 25 October 2017. In the Defence, the defendant: 1. Denied the relief claimed by the plaintiff; 2. Denied that there was any agreement between the plaintiff and the defendant for the plaintiff to pay rent to the defendant and said that the plaintiff contributed to the payment of utility bills on a pro rata basis only; 3. Disputes the particulars of negligence; 4. Asserts that the risk of slipping on the bathroom mat and falling in the bathroom was insignificant in all the circumstances, the defendant was not reasonably required to take the precautions alleged by the plaintiff in the Statement of Claim, says that any breach did not cause the plaintiff's loss and asserts that the plaintiff had been diagnosed with limb-girdle muscular dystrophy which affected his mobility and balance. It was alleged that this was the cause of any fall; 5. Pleads that the risk of injury is an obvious risk within ss 5F and 5G of the CLA and that it was not reasonable to require the defendant to warn the plaintiff of the presence of the risk; 6. Asserts contributory negligence by the plaintiff failing to take care to avoid, inter alia, an obvious and inherent risk.

[17]

Medicolegal report of Dr D O'Sullivan, neurologist

The plaintiff relied on a medicolegal report of Dr Dudley O'Sullivan, neurologist, dated 26 June 2017.
Dr O'Sullivan recorded the history of the accident as follows: "As documented he had this fall on 10 August 2014 in the bathroom of his brother's house where he lives. He told me that he slipped on a mat and went backwards, hitting the edge of the bath tub. He landed on the back of his neck and the back of his head. There was no loss of consciousness. He was dazed and was in a state of shock and became very anxious and shaky. His neck was very painful. In fact he could hardly move the neck. In addition, he was aware almost immediately of what he describes as "dizziness". It was not true vertigo. … Because of his neck pain he took Voltaren before going to bed. It transpires that he had been taking Voltaren and other non-steroidal anti-inflammatory drugs since 2007 to 2008 when he had a fall in a nightclub, injuring his neck and back. He was having physio as well for the neck and back injury."
Dr O'Sullivan sets out in some detail the plaintiff's medical examinations relating to his dizziness including with Dr Neil Griffith, neurologist, Dr Jonathan Ell, neurologist, Dr John McGuinness, ENT surgeon, Dr Andrew Duggins, neurologist, Professor Roy Bernan, neurologist and Associate Professor Welgampola, neurologist. It was noted that the audio diagnostic tests were normal as were the balance studies and they revealed no vestibular abnormality. A precise diagnosis could not be given. It was noted that the plaintiff had difficulty with his balance and his gait. Dr O'Sullivan reviewed the radiological evidence. Dr O'Sullivan expressed the following opinion: "As far as his cervical spine is concerned, I can only conclude that he has sustained some soft tissue muscle and ligamentous injury to the cervical spine. There is no evidence to indicate that he suffered any cervical cord damage or any evidence to indicate radiculopathy. His MRI scan of the cervical spine and brachial plexus as documented were normal. Concerning his dizziness I would have to conclude that he most likely has some dysfunction in the vestibular mechanisms despite the testing all being negative. I fully appreciate two experienced neurologists, namely Dr Jonathan Ell and Dr Miriam Welgampola indicate that he does not have any vestibular disorder. … There is no doubt that he is suffering from a disturbance regarding his balance as he described … I cannot go past the story that he gave me which would imply that this is where the abnormality lies despite the negative investigations. … Therefore with the superimposed injury that is following the fall of 10 August 2014 causing his recurrent dizzy episodes, I do not think that he is capable of returning to the workforce."
Dr O'Sullivan did not think that the plaintiff needed past or future domestic assistance as he was living with his family and was able to cope with the help of his family. A guarded prognosis was given. Dr O'Sullivan added the following: "There is no doubt that his autosomal recessive proximal myopathy will probably progress as is the nature of such illness and he will develop increasing muscular weakness secondary to the myopathy. As far as the prognosis of his dizzy episodes is concerned, I can only conclude that in view of the fact that it is now three years after the head injury that these will be persistent … There is no real medication that is suitable for this condition."

[18]

Clinical notes

The plaintiff tendered extensive clinical notes from his three relevant general practitioners covering the period from 2007 to 2017.
Considerable weight was placed on these clinical notes by both parties, particularly the defendant. Some caution must be exercised in relying on what appears in general practitioner medical notes for the reasons given by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2] which has been followed in numerous later appellate cases. The plaintiff's first language is not English, having been born in Iraq. This adds to the caution which must be exercised. However, the plaintiff appeared to have a good understanding of English in the course of his oral evidence.
The general practitioner notes also show that the plaintiff had extensive neck, back and leg problems prior to the date of the fall as well as his diagnosis of muscular myopathy.
The notes include the following relevant entries: 1. 1 September 2010 - Dr Werdi: "pain at the back of neck and L arm pain at both thigh at the back not getting better since the injury seen in pain clinic not helpful … Tender at the back of neck"; 2. 21 February 2011 - Dr Werdi: "lower back pain and neck pain chronic pain after a fall investigated nil significant finding"; 3. 28 February 2011 - Dr Werdi: "fall at club 07 still persistent type of lower back pain and neck pain investigated nil significant"; 4. 7 November 2011 - Dr Haddad: "Back pain"; 5. 5 March 2012 - Dr Haddad: "still has pain in the back"; 6. 5 April 2012 - Dr Haddad: "pain right side cannot move nor radiate right foot numbness lower leg … Back pain"; 7. 15 May 2012 - Dr Haddad: "back pain or referred pain with many physical activities with standing for about 15 minutes and with sitting or driving for about 20 minutes"; 8. 23 July 2012 - Dr Haddad: "Leg pain"; 9. There are references to back pain in consultations with Dr Haddad on 8 October 2012, 3 December 2012 and 14 February 2013; 10. 15 March 2013 - Dr Haddad: "cannot go out home pain uncontrollable back, neck, shoulders today gone out now cannot go out cannot go up stairs"; 11. 20 May 2013 - Dr Haddad: "shoulder girdle pain weakness"; 12. 11 August 2014 - Dr Haddad: "dizziness loseof [sic] balance few days and dizziness … Back pain … walking difficult"; 13. 19 August 2014 - Dr Jirjis: "dizzy feeling not getting better with stemetil"; 14. 26 August 2014 - Dr Haddad: "legs not lifting him … neck Pain ?dizziness"; 15. 1 September 2014 - Dr Jirjis: "discussed results of test, adviced [sic] low vit d, otherwise well still feeling dizzy, serc is not helping, adviced [sic] and ent for mri brain lower back pain and lom, feels weakness in the legs, post fall…previous history of lumbar disc prolapse"; 16. 16 September 2014 - Dr Jirjis: "discussed results of mri brain and lumbar spine, adviced [sic] nad still feels weakness and lack of power, adviced [sic] and referred to see neurologist"; 17. 2 December 2014 - Dr Jirjis: "still have problem with vertigo, no response from Dr Griffith … discussed results of test adviced [sic] all good"; 18. Other references to dizziness were in consultation notes on 9 December 2014, 23 December 2014 and 3 March 2015. There were later complaints of dizziness in 2015; 19. 13 April 2015: "…early August fell at home in the bathroom. neck pain and low back pain. seen by dr ell, griffiths for dizziness, also seen by prof gigennis. suffers from musculay [sic] dystrophy"; 20. The plaintiff then attended the Valley Plaza Medical Centre. There were complaints of dizziness to various general practitioners in late 2015. On 16 February 2016, Dr Sorani noted that the causes of the plaintiff's problem were still not diagnosed. Similar problems with dizziness and balance are referred to in consultation notes in 2016 and 2017. In a consultation with Dr Sorani on 17 January 2017 the following is noted: "ongoing pain and balance problem almost all reports from different specialists were noted the causes and diagnosed not confirmed that explained to patient wanted EPC ref to see a physiotherapist + repeat scripts"; 21. In a consultation on 14 March 2017 the plaintiff is recorded of complaining of ongoing back pain.

[19]

The Plaintiff's oral evidence

The plaintiff gave extensive oral evidence.
The plaintiff gave evidence that he was born in Iraq in March 1979 and was 39 years old at the date of the final hearing. He identified the defendant as his brother, Rang. The plaintiff said that he was educated in Iraq at university but did not complete his course in translation. It should be noted that the plaintiff's command of English in his oral evidence appeared to be reasonably good.
The plaintiff said that his whole family migrated to Australia in September 2004.
The plaintiff gave evidence that he commenced work as a security guard in Australia in around October 2005 and worked for several months in that position part-time. He said he stopped work due to pain in the lumbar region and has not been in employment since. He said he was not working at the time of the accident on 10 August 2014.
Prior to the accident in August 2014, the plaintiff stated that he had been injured in an accident in 2007 at the Marconi Club where he had slipped on a bottle and fallen down the stairs, hurting his neck and back. He said he had made a claim in relation to this matter which was settled.
The plaintiff gave evidence that his discomfort in his neck became worse after the 2007 accident: T9.45. He also said that he had been diagnosed with myopathy in late 2011: T10.1. He denied other medical symptoms including suffering any dizziness prior to the accident on 10 August 2014: T10.17.
It appears from the evidence that the plaintiff's family were renting a townhouse before moving into a house purchased by his brother, the defendant, at Bonnyrigg Heights in Sydney. The plaintiff said that he moved into this house in May 2012 and paid a rent of $410 per month to his brother as well as contributing to outgoings: T10.30. The plaintiff said that the persons sharing the house were his older brother, his brother's wife and his mother. The defendant was a younger brother.
The plaintiff said that prior to the accident his problems with his neck and lower back and his myopathy prevented him doing some domestic tasks including some lifting. He said he was required to stop and rest and he had noticed some weakness: T10.41-.49. See also T75.36-.50; T92.46.
The plaintiff gave evidence that on 10 August 2014, the day of the accident, he went into the main bathroom at the house at about 7:30 to 8:30pm to go to the toilet. After going to the toilet he proceeded to walk to the basin in the bathroom to wash his hands. He said he placed a foot on a mat which was on the floor and the mat slipped under his foot, he fell backwards and hit his head and neck on the edge of the bath tub. He fell to the ground: T11.13.
The plaintiff stated that he believed he took the photograph in Exhibit A page 1 in 2017 and this was a photograph of the bathroom in which the accident occurred. He confirmed the accuracy of the labels on the photograph. The location of the mat in the photograph was, according to the plaintiff, almost exactly in the same location as the mat on which he slipped on the day in question: T12.30. He said the mat on which he slipped was red. The plaintiff gave evidence that the mat was no longer in his possession and when he asked his brother where it was in June or July 2017, he said that he had thrown it away: T13.4. The plaintiff said that he had not seen the mat prior to the accident and had not inspected it at any time: T13.10. This evidence was later changed in cross-examination in the light of Exhibit 2.
The video which was part of the evidence in Exhibit A was, according to the plaintiff, taken by him in May 2015. The plaintiff said in the evidence on the voir dire, which became part of the evidence in the proceedings, that the red mat in the video was the mat which he slipped on and the person whose feet were shown in the video were the plaintiff's including the leather shoes which he was wearing which were the same as those worn by him on the day of the accident: T15.
The plaintiff said that on the day of the accident when he was walking towards the basin, he was proceeding at his normal speed prior to slipping: T24.8. The plaintiff confirmed that he had placed all of one of his feet on the mat before slipping: T25.10; T26.16. The plaintiff stated that after putting his foot on the mat that the mat slipped forward causing him to fall backwards: T26.17.
The plaintiff said that following the fall he immediately felt discomfort including that his neck was very painful on the left side. He said he also had a "sore head": T26.28. The plaintiff stated that the discomfort which he felt in his neck following the slip was much worse than his pain in the neck prior to the fall and that was still the position at the time of giving evidence: T26.34-.40. The plaintiff said that the pain in the neck gave him restrictions around his home including in sitting and watching television: T26.44.
The plaintiff said that the problems with his neck had made tasks more difficult including preparing food, showering, washing clothes and shopping for groceries and that all movements had become more painful: T27.2. The plaintiff gave evidence that the other change following the accident was his dizziness. He said that he felt dizzy immediately after hitting his head and the dizziness has not gone away in the four years since the accident: T27.11. He said following the accident he was shaking, he got up slowly and he went to his room where he stayed on his bed.
The plaintiff said that he took pain killers and attended at his general practitioner, Dr Haddad, for treatment, the next day or the day after. The plaintiff also gave evidence in chief that his brother came to see him after the fall but he did not have a conversation with his brother: T27.35-.45. He denied in cross-examination that the brother asked him if he was "okay".
The plaintiff said that he thereafter suffered from the dizziness frequently including many times during the day and night. He said he also suffered from dizziness if he turned over at night and during activities. He said if he had an episode of dizziness he would stand still, hold onto objects for a few seconds to a minute and he was assisted by holding on to a rolling cabin bag and a stick or umbrella: T28.1-.14.
The plaintiff gave evidence that the dizziness made tasks more difficult including preparing food, washing the dishes, showering, shaving and washing his face. He said he relied on a crutch while showering and shaving as the dizziness could come on without warning.
The plaintiff gave evidence that he moved out of the defendant's house in August 2017 into a public housing unit. He said that he had paid for a cleaner once or twice since moving in and had paid between $60 and $70 for two hours work: T28-29. He said he had not received any other assistance in relation to cleaning. The plaintiff said he had also paid for a handyman to assist him with various tasks on two occasions and paid the handyman between $100 and $120. He said he had not received any more assistance from a cleaner or handyman as he could not afford it: T30.1.
The plaintiff gave evidence that his dizziness affected all aspects of his life including his activities of daily living and his social life. He said he had taken Serc and Stemetil for the dizziness which had helped a little and that these had not been taken by him prior to the accident on 10 August 2014. For his neck, he said he was taking painkillers but he had been taking the painkillers for his neck prior to the accident on 10 August 2014: T30.32.
Other than his medication, the plaintiff said that he had seen a physiotherapist between July and September 2016 concerning his dizziness which had been helpful at the beginning and that if he had funds he would want to see a physiotherapist again: T31.11. He said he was on a waiting list for a hospital physiotherapist.
The plaintiff also said that if he had the funds he would retain a cleaner and a handyman to assist him in maintaining his house and keeping his backyard tidy. The plaintiff said he had his own backyard although he was living in a unit.
The plaintiff was subject to extensive cross-examination.
The plaintiff confirmed that as a child he was slower than other children in using his arms on the monkey bars as he was not as strong. He said he could undertake other sporting activities, including playing soccer and swimming, normally.
The plaintiff was asked numerous questions about his 2007 fall at the Marconi Club. He readily conceded that as a result of the fall he suffered severe pain and discomfort in his lower back, to the right side of his backside, to his neck which included restriction of neck movements, headaches, stiffness, loss of strength in his left arm and pain to his left hand (including in relation to the strength of gripping objects), pain to his left leg and difficulty with walking and standing for long periods of time. The plaintiff also agreed that after the fall in 2007 he had muscle weakness in his arms and legs and was diagnosed with myopathy in 2011. He agreed that he commenced District Court proceedings which were settled in 2010 with judgment in his favour for $150,000. Mr Manmi also agreed that some of his symptoms became worse after the settlement with increased muscle weakness: T37.42.
The plaintiff was then taken through a number of entries in the consultation notes of his general practitioners from 2010. He agreed that in 2010 he complained to his general practitioner, Dr Werdi, in relation to pain in the back, neck and legs. The plaintiff agreed that he had continuing pain and disability resulting from the 2007 fall, up to 2012. He also accepted that symptoms such as muscle weakness from which he suffered were unrelated to the Marconi fall and were as a consequence of the developing myopathy: T42.1-.7.
The plaintiff was then asked questions in relation to his living circumstances at the Bonnyrigg Heights home. Prior to that, he agreed that he lived with his family in rented accommodation in Fairfield Heights. He agreed that expenses of the family were shared equally in this period. He also agreed that in 2012 his brother Rang, the defendant, bought a house. While agreeing that he was not close to Rang and that he wanted to live by himself, the plaintiff confirmed that he moved into the house bought by his brother in 2012 but said that he wanted to move out. The plaintiff said that following the diagnosis of myopathy it was not easy for him to move out. He claimed that he offered to pay rent and asserted that he paid rent from the moment he moved in as well as sharing the bills of the house. He rejected the suggestion that he did not pay rent for staying at his brother's house: T44.12, .29. The plaintiff said that there was "a big…argument" with his brother as he refused to sign a Centrelink document saying that the plaintiff was paying rent to him. He agreed that while staying at the house he did not talk much with his brother, the defendant. In particular, he confirmed that he did not inform Rang in relation to his medical problems or that he had been granted a disability pension as he regarded these as private matters: T45.
The plaintiff was taken through documents in the defendant's tender bundle, Exhibit 1, in relation to consultations with Dr Haddad in 2012 concerning pain and weakness in his lower legs and referrals to specialists for examination. The plaintiff confirmed that the symptoms of his myopathy were becoming worse over time but only slowly. He said that they had not changed much since diagnosis in 2011. The plaintiff in general terms confirmed the history set out in the report of Dr Gotis-Graham dated 27 February 2013 (Exhibit 1 page 14) that he had suffered from spinal pain over five years, that he had pain in his neck and thoracic and lumbar spine regions, that he had noted progressive weakness in his hands and legs and that he had difficulty lifting a laptop computer and walking upstairs and down ramps: T48.
The plaintiff was then asked questions in relation to his fall in August 2014 in the bathroom. He confirmed his evidence in chief that he had slipped on the mat in the bathroom whilst walking from the toilet to the bathroom basin. He denied that he did not have a clear recollection as to how the fall occurred. The plaintiff was taken to the history set out in a number of medical reports including that of Dr Beran (Exhibit A page 26) which suggested that the plaintiff had slipped on the mat as he was washing his hands and his face and that, accordingly, he was at the sink when he fell. The plaintiff denied that he had told Dr Beran that and said he was not at the sink washing his hands and face when he slipped: T50.20 cf T49.36. He did however confirm that Dr Beran dictated his report whilst in his presence (Exhibit A page 29). The plaintiff was asked questions about the second paragraph in the report of Dr Beran dated 26 November 2015 where it is recorded that he was not involved in a court case and nothing would involve Dr Beran in a court case. It was then pointed out to the plaintiff that he had made the video which was part of Exhibit A in May 2015. The plaintiff said that he had not made a claim at that stage but was thinking and talking about making a claim depending on the progress of his condition. He confirmed that he did not tell Dr Beran that he was thinking of making a claim. The plaintiff said that he did not go to his solicitors Brydens in relation to a claim until September 2016: T51.49.
The plaintiff was taken to the history recorded in Dr Sutton's report dated 15 November 2017 where it is stated that having washed his hands he turned and slipped on a mat causing him to fall backwards and hit his neck and head on the bath. The plaintiff said this was incorrect and that he was going to the sink to wash his hands when he fell but had not reached the sink. The plaintiff expressly rejected the suggestion that what occurred was that he lost his balance due to the weakness in his legs and fell: T54.43. He said he had not fallen due to balance issues previously. However, the plaintiff confirmed that at this time he had a history of weakness in part of his legs, more in the left leg: T55.4-.19.
The plaintiff confirmed that after his fall his brother Rang saw him. He rejected the suggestion that Rang said to him "are you okay" and that he replied "I'm alright, I just fell over": T55.27. The plaintiff said that his brother came to him after he had fallen and saw him but did not say anything to him. When it was suggested to the plaintiff that he did not tell the defendant that he had slipped on a mat, he agreed with this: T56.8. He said he was still shaking and was dizzy and in much pain when his brother saw him.
The plaintiff was taken to his evidence in chief where he stated that he had not seen the red mat before on which he allegedly slipped on 10 August 2014: T60.23. The plaintiff said that he recalled there being a brown mat in the bathroom used most of the time. He corrected his evidence in chief by saying that he was not intending to suggest that the red mat was used for the first time on the day of the accident. He said he had seen it used before but only for a period of about 10 days to two weeks prior to the accident: T60.33. The plaintiff said he was not sure of the period during which the red mat had been used prior to the accident but said it had been used only for a short time: T62.5. The plaintiff agreed that he must have used the bathroom a number of times whilst the red mat in question was on the floor: T62.14. See also T61.18 and T61.49-T62.38. The plaintiff described the red mat as the "new mat" in part of his evidence: T61.44.
It should be noted that the defendant tendered as Exhibit 2 in the proceedings correspondence between the solicitors for the parties concerning the red mat. In a letter dated 11 August 2017 from HWL Ebsworth solicitors to Brydens Lawyers the defendant's solicitors asked the following question: "17(a) Please specify how long the mat had been situated (i) in the bathroom; (ii) at the site of the incident."
The response from the solicitors for the plaintiff in a letter dated 27 September 2017 was as follows: "(a) (i) One to two weeks. (ii) The plaintiff does not know."
The plaintiff accepted that as at the day of the accident he had been using the main bathroom in the Bonnyrigg Heights house for more than two years and had walked on bath mats in that bathroom for the whole of the period. The plaintiff agreed that in the period between May 2012 and August 2014 there was a mat on the floor of the bathroom but it was usually a brown mat: T62.16-.45.
When asked to confirm that the fall occurred on 10 August 2014, the plaintiff said that it occurred on about that date. It was put to the plaintiff that he said that because he had seen the entry in Dr Haddad's consultation notes on 11 August 2014 referring to dizziness and a loss of balance for a "few days". The plaintiff denied that and said that he had only seen Dr Haddad's notes recently: T63.4. He gave evidence that he saw Dr Haddad on the first day that his surgery was open after the accident as he regarded the accident as being a big accident which had caused pain and dizziness to him: T63.17.
It was put to the plaintiff that at the consultation on 11 August 2014 he did not tell Dr Haddad that he had injured himself in a fall (see the notes at Exhibit A page 49). The plaintiff denied this and said that he did inform Dr Haddad of the fall. The plaintiff denied that all he told Dr Haddad was that he had had a loss of balance and had felt dizziness for a few days. The plaintiff said that he told Dr Haddad that he had fallen and that he was feeling dizzy. He said he specifically told Dr Haddad that the dizziness was due to the fall. It was put to the plaintiff that he had been experiencing dizziness and loss of balance before the fall which the plaintiff strongly denied. The plaintiff said that the dizziness only came after the fall and that he had given greater details to Dr Haddad in relation to what had happened at his next consultation. The plaintiff agreed that it was important information that he had had a fall and he confirmed that he had told Dr Haddad that and that the fall had resulted in a loss of balance and dizziness.
The plaintiff agreed that he had two more consultations with doctors in August 2014 being on 19 and 26 August 2014. It was put to the plaintiff that he did not inform Dr Jirjis on 19 August 2014 that the dizziness was due to a fall. The plaintiff agreed with that. He said he told Dr Jirjis that he was dizzy and said that he felt "still the same". He said he did not tell Dr Jirjis in relation to the fall as he had told Dr Haddad. He found out later that Dr Jirjis did not know about the fall. The plaintiff denied that he did not tell Dr Haddad in greater detail in relation to the fall at the consultation on 26 August 2014. The plaintiff denied that the first mention of a fall was to Dr Jirjis on 1 September 2014 (Exhibit A page 50).
The plaintiff agreed that after August 2014 he saw a series of specialists in relation to his condition. He said his legs were very weak in the first few weeks after the fall. The plaintiff confirmed that he saw Dr Griffith, neurologist, in October 2014 and had given a history of the fall to him. He also agreed that he told Dr Griffith that he had difficulty negotiating stairs (Exhibit 1 page 19). The plaintiff denied that he had any balance problem before the accident but accepted that he had told Dr Gotis-Graham that he had difficulty walking upstairs in February 2013. He said he had not mentioned any difficulties with balance to Dr Gotis-Graham. Similarly, he had not mentioned any problems with dizziness.
The plaintiff agreed that he discussed Dr Griffith's report with Dr Jirjis (Exhibit A page 50). He also agreed that Dr Griffith had advised that his sense of off-balance and dizziness was probably a combination of his muscle weakness making him unsteady and his background anxiety syndrome. The plaintiff agreed that he was unhappy with the advice from Dr Griffith as he knew what had happened to him. He said he wanted another referral which Dr Jirjis gave to him to see Dr Jonathan Ell. The plaintiff agreed that Dr Ell stated that there was no clear medical explanation for his dizziness and that he told Dr Ell that he did not agree with him. In his report dated 17 February 2015 Dr Ell stated: "I cannot find any neurological or vestibular explanation for his problems with balance and I told him that it was my opinion that the major problem here was one of anxiety. He was unable to accept this view. I told him that if he wanted to take the matter further I would suggest he see a clinical psychologist or psychiatrist."
The plaintiff confirmed that he went back to Dr Jirjis and told him that he was not happy with Dr Ell and thereafter saw a number of other neurologists seeking further specialists' opinions. These included Drs Duggan, Dandie, Beran and Welgampola.
The plaintiff confirmed that the red bath mat on which he had slipped and which was shown in the video was used in the main bathroom in the period from August 2014 to at least May 2015 as it was shown in the video which the plaintiff said he took in May 2015: T70.24. The plaintiff said that the red mat was only used in the bathroom when other mats were being washed: T70.40.
The plaintiff confirmed that his brother Rang saw him on the night of the accident after he had fallen. The plaintiff confirmed that he did not tell Rang that he had slipped on the red mat. However, he claimed to have told Rang about the unsuitability of a mat used in the kitchen. The plaintiff confirmed that after the fall he believed the red mat was a slippery mat but gave no evidence that he had told anyone else in the house including the defendant that he had slipped on it. The plaintiff said that the red mat was only there when it was needed but that he had told the other members of the family about the slippery kitchen mat.
When asked by the court why the plaintiff had not told the defendant in relation to the alleged slippery nature of the red bath mat, the plaintiff said that it was only there occasionally when the brown mat was washed and the brown mat was used most of the time. However, the plaintiff confirmed that after August 2014 the red mat was still used in the bathroom from time to time and was still being used in May 2015: T72.12-.31.
The plaintiff asserted that he had told the defendant about the accident by May 2015. He denied that he did not tell his brother about the fall on the mat until shortly before litigation was commenced. However, he confirmed that he had approached the defendant about whether he had insurance in relation to the house.
The plaintiff confirmed that prior to 10 August 2014 he did not undertake household duties in the Bonnyrigg Heights house such as cleaning and mowing and installing items due to the injury which he had: T75.39. He said that his injuries prevented him from undertaking tasks which included heavy lifting: T76.3.
The plaintiff confirmed again that he had never suffered dizziness prior to the accident: T76.13.
In re-examination the plaintiff said that his abilities in relation to stairs were much worse after August 2014. That was because he had difficulties with his balance and felt like someone who was drunk: T77.1. He also confirmed that the brown mat which he had described in his evidence was on the floor in the main bathroom for most of the time prior to the accident: T77.9.

[21]

Oral evidence of the defendant

The defendant, Rang Manmi, gave oral evidence at the hearing. This evidence was given partly through an interpreter where necessary.
The defendant also gave evidence that he came with his family to Australia from Iraq in 2004.
Prior to moving to the Bonnyrigg Heights house, the defendant said that his family lived at a house in Fairfield. He said that this was a rental house and all of the members of the family shared the rent and bills. The defendant said that he bought the Bonnyrigg Heights house in 2012 and he, his mother and his two brothers and a sister-in-law moved into the house where he still lives.
The defendant said that he did not have a strong relationship with the plaintiff at either the Fairfield house or the Bonnyrigg Heights house and they did not get along. He said he invited the defendant to move into the Bonnyrigg Heights house as he had nowhere else to go and he wanted to help him. The defendant said that the plaintiff told him that he would come for a couple of months and then move and he agreed to that. Thereafter, he said he had numerous discussions with the plaintiff asking him when he would move out as he needed the extra room. The defendant claimed that the plaintiff said on a number of occasions that he was not yet ready to move out.
The defendant asserted that the plaintiff offered to pay rent but he told him that he did not want it; he just wanted him to move out of the house. Contrary to the plaintiff's evidence, the defendant said that the plaintiff did not pay any rent to him: T84.41. The defendant agreed, however, that the plaintiff together with everyone else in the house contributed to the cost of bills which were equally divided by the five members in the house.
The defendant gave evidence that there were two bathrooms in the house being the main bathroom and an ensuite bathroom. He said he understood that the plaintiff's case was that he fell in the main bathroom. The defendant confirmed that from the time the family moved into the house in 2012 that bath mats were used around the toilet and under the wash basin. He said that his mother bought the bathroom mat sets: T86.3. The defendant said that the same mats were not used all the time and that there were two or three different ones which were changed when the mats were washed and dried. He also said that when the mats were worn he would inform his mother to throw them away and buy new ones: T96.38-.50. There was no evidence the defendant told his mother to buy a particular type of mat.
The defendant gave evidence in relation to his recollections of the occasion when the plaintiff fell. The defendant said that the event occurred at night time after 7pm. He said he was in his room and heard a loud noise. He said he ran from his room to the bathroom and saw the plaintiff trying to stand up from the floor. He said that he asked the plaintiff whether he was okay and he replied that he was okay and the defendant said he returned to his room: T87.5-.32.
The defendant said that the plaintiff did not inform him when he arrived at the bathroom that he had slipped on a mat: T87.32. He said he did not recall the mat being used in the bathroom at the time: T87.36. Having seen the video tendered by the plaintiff which became part of Exhibit A, the defendant said that he saw the red mat in the video and recalled that that red mat had been used in the main bathroom: T87.46. He could not recall how often the red mat was used but said that it was not used in the house today as his mother had thrown it away: T88.16. He could not recall when that had occurred.
The defendant said he was not aware prior to the incident of there being any problems with people slipping on bathmats in the main bathroom or any concerns being expressed about the slipperiness of the red mat. He also said that he did not have any concerns in relation to the mat, including that it was slippery: T88.24-.43. The defendant said that between 2012 and 2014 the main bathroom was used by himself, his mother, the plaintiff and his brother.
The defendant gave evidence that floor mats were used in other rooms in the house but these were bigger mats which were brought out in winter. These were used in the hallway and in some of the other rooms. In the kitchen, the defendant said there was a small carpet not a mat. The defendant denied that prior to the accident the plaintiff had complained about the kitchen carpet being slippery: T90.20. Similarly he said that no other person had made any complaint about the kitchen carpet being slippery at any other time: T90.24. The defendant confirmed that prior to the accident he was not aware of anyone slipping on any mats or carpets in the house: T90.28. He also said that after the accident he and the plaintiff did not speak in relation to what had occurred in the bathroom on the night of the accident. However, the defendant did confirm that the plaintiff asked him about his insurance with reference to the fall in the bathroom. He said that he wished to make a claim and the defendant confirmed having home insurance. The defendant said he could not recall when this discussion occurred but it was a long time after the fall and was the first time that the plaintiff had raised the topic: T91.3-.11.
The defendant said he had no idea what had caused the plaintiff to fall in the bathroom (T91.17) and was not aware that the plaintiff was receiving the disability pension at the time (T91.23).
In cross-examination the defendant confirmed that while he was not aware that the plaintiff was on a disability pension he was aware that he was receiving Centrelink benefits but did not know what they were called. The defendant confirmed that his relationship with the plaintiff was strained prior to the fall and that they did not get on. However, he rejected the suggestion that this was because the plaintiff did not work. He said he did not mind that the plaintiff was not working as it was his life.
The defendant confirmed that the plaintiff did not help around the house (T92.45), that they did not speak regularly and that they did not discuss matters relating to day to day issues or relationships. He agreed that if something happened between them they would not seek out the other to tell them of it.
In cross-examination the defendant confirmed that on the night in question he heard a loud bang, was worried, ran to the bathroom and saw the plaintiff getting up from the floor. He said he did not recall anything else in relation to what he saw on arriving at the bathroom: T93.45-94.28.
Although the defendant said he was the owner of the house, the furniture in the house had been bought by all the inhabitants. He confirmed that his mother did not work and received Centrelink benefits and helped pay the bills in relation to the house and look after the house. He also confirmed that his mother did small shopping for the purposes of the house including purchasing mats which he regarded as part of her household duties: T96. There was no evidence the defendant directed the purchase of a particular type of bathroom mat to his mother.
The defendant confirmed that he used the bathroom in question and that the mats were changed when they became old. He also agreed that he would ask his mother when to buy new mats and that there were two to three mats which were rotated as they were washed. The defendant said he recalled between two to three mats being used in the two year period prior to the accident. The defendant said he could not recall the age of the red mat at the time of the accident. The defendant also confirmed that he did not recall the mat that was being used in the bathroom at the time of the accident: T97.29.
In relation to the kitchen, the defendant said that the kitchen floor was tiled and that there was a carpet under the sink. He denied that the kitchen mat would shift somewhat underfoot when someone walked on it. In relation to the bathroom mats, the defendant confirmed that he walked on them regularly as he used the bathroom every day. This included in the period 2012 to the time of the accident. When it was put to the defendant that if the mat shifted underfoot in the bathroom that that might cause a person to fall the defendant denied that: T99.24.
In relation to the video, the defendant confirmed seeing the red mat in the video but did not recall the mat being used in the bathroom at the time of the accident. However, the defendant said that the red mat was used from time to time in the house and could have been in the bathroom. The defendant said he recalled using the red mat himself but could not recall when: T100.5-.9.
The defendant said that the plaintiff moved out from the Bonnyrigg Heights house in August 2017 to his own residence and that he had had nothing to do with him since. He could not recall the plaintiff complaining that he was suffering from dizziness: T100.47.

[26]

Medicolegal report of Dr I Sutton, neurologist

The defendant tendered a medicolegal report of Dr Ian Sutton, neurologist, dated 15 November 2017. The assessment was made on the day of the report.
Dr Sutton set out in some detail the plaintiff's background history including that the plaintiff has not worked since developing lumbar back pain in 2006. His fall at the Marconi Club in 2007 is referred to where the plaintiff sustained injuries to his neck and back. Reference is made to the plaintiff being diagnosed with a myopathy in November 2011. The history set out by Dr Sutton of the accident is as follows: "Mr Manmi indicates that on 10 August 2014 he used the family bathroom at about 7.30 to 8pm. Having washed his hands Mr Manmi turned and slipped on a mat causing him to fall backwards and hit his neck and head on the bath. According to Mr Manmi there was possible brief loss of consciousness. Mr Manmi indicated that he saw Dr Dawood Haddad on 11 August 2014. The consultation note provided indicates "dizziness. Lose of loseof [sic] balance few days and dizziness".
No trauma is stated to be referred to in the GP notes.
Dr Sutton refers to the various reports of Dr Ell, Dr Duggins, Professor Beran and Associate Professor Welgampola. He referred to Professor Beran's 26 November 2015 report where Dr Beran concluded: "My provisional diagnosis in this case would be that of a functional illness rather than anything more sinister."
Dr Sutton noted that Mr Manmi did not complain of any issues other than dizziness in the consultation. The examination revealed wasting and weakness of the trapezius muscles and proximal shoulder girdle with proportionate weakness. Dr Sutton referred to the various radiological investigations showing no significant abnormalities other than a reversal of the normal cervical lordosis and minor spondolytic changes. It is also noted by Dr Sutton that vestibular function tests were unremarkable as were audiology and auditory evoked brainstem responses.
Dr Sutton expressed the following opinion: "Mr Manmi has a hereditary myopathy which causes proximal limb weakness. Provided correspondence from the general practitioner indicates longstanding issues with pain and mobility. The assessment with Dr Haddad on the day after the fall indicates that symptoms of dizziness had been present for "a few days" and no mention is made of the fall at this time. While Mr Manmi clearly has proximal muscle weakness due to his myopathy I do not think any injury was sustained in the fall to account for the reported ongoing symptomatology. The symptomatology is consistent with a functional illness. Extensive investigations have failed to reveal any significant intra-cranial or vestibular pathology."
Dr Sutton noted that the aetiology of the plaintiff's reported dizziness "remains undefined". He expressed the opinion that there were no abnormalities on examination that could be attributed to the injury. Dr Sutton referred to the plaintiff's myopathy and preceeding history of longstanding neck and back pain. He expressed the opinion that the plaintiff did not need any domestic assistance in the past or future but that the limb girdle myopathy could potentially impact on the ability to perform domestic activities and the activities were likely to be impaired if the myopathy progresses. However, Dr Sutton emphasised that there would be no future requirement for domestic assistance or self-care as a result of the injury. In conclusion, Dr Sutton provided the following opinion: "However no causal effect of the alleged injury to the reported symptoms can be inferred from the examination or investigations ... Mr Manmi reports symptomatology which is consistent with a functional disorder. Mr Manmi has a limb girdle myopathy … I do not think there is any disability arising from the alleged incident that would preclude employment."
Dr Sutton was required for cross-examination by the plaintiff. In his evidence in chief, Dr Sutton stated that he adhered to the opinions expressed by him in his report dated 15 November 2017. In cross-examination, Dr Sutton agreed that not everything in relation to a patient could be explained by a precise diagnosis and with some presentations a precise diagnosis could not always be made. Dr Sutton said a lot of patients have unexplained symptoms. The aim of the doctor was to exclude sinister pathology but this still left many non-verifiable complaints particularly where investigations were negative. Dr Sutton said the plaintiff's complaints here could not be verified through testing. He agreed that the plaintiff had made a number of reports of symptoms of dizziness which in his view were unverifiable.
Contrary to Dr Sutton's conclusions in his report, he was asked to assume that on 10 August 2014 the plaintiff had slipped and had struck the back of his head and the left side of his neck, had not experienced episodes of dizziness prior to the fall and following the fall had immediately experienced regular episodes of dizziness to the present date. With these assumptions, Dr Sutton said that he did not accept that the fall complained of contributed to the plaintiff's dizziness on the basis of any physiological mechanism which he could identify: T20.28.
While it was accepted by Dr Sutton that a fall involving the striking of the head and the left side of the neck could lead to episodes of dizziness because of benign paroxysmal positional vertigo or concussion, the former had been excluded and the concussion was non-verifiable and it would be expected that the dizziness would improve in time following the concussion which had not occurred here: T21. The other medical tests undertaken did not reveal verifiable aetiology.
Dr Sutton was asked whether it was possible that dizziness caused by concussion in a fall would not improve with time. Dr Sutton said this was not the case in his experience: T21.25.
It was suggested to Dr Sutton that the probable cause of the plaintiff's episodes of dizziness was the fall where he struck his head and neck in August 2014. Dr Sutton expressed the opinion that that was not necessarily correct and that there was no evidence in his opinion on examination or in the investigations which supported that conclusion: T21.37. He emphasised that whilst he was reliant on the plaintiff's veracity he also took into account his examination, the plaintiff's history and the testing which had occurred. Dr Sutton stated that in his opinion there was no plausible mechanism to explain the episodes of ongoing symptoms of dizziness and such findings were inconsistent with the other findings which he had made on examination: T22.15.

[27]

Submissions for the parties

Counsel for the parties made extensive oral and written submissions. The submissions made on behalf of the plaintiff were, in summary, as follows: 1. From May 2012 until about August 2017 the plaintiff resided at the defendant's house at Bonnyrigg Heights and contributed at least to the costs of running the household; 2. The defendant has admitted being the occupier of the premises in question and therefore owed the plaintiff a duty to take reasonable care to ensure the safety of entrants, provided those entrants are themselves taking reasonable care for their own safety; 3. The plaintiff's evidence of the circumstances of the accident should be accepted. He would impress the court as an honest witness. It was largely corroborated by the more limited evidence of the defendant; 4. The video which was part of Exhibit A clearly demonstrates the ease with which the mat moved across the tiled surface of the bathroom floor. The court should find that the force used in the video was less than the force applied by a person walking onto the mat in the course of its ordinary use. It was indeed minimal force (written submissions paragraphs 13 and 16-17); 5. The relevant risk of harm was the risk of personal injury, caused by falling after coming into contact with a slippery or unstable object (written submissions paragraph 18); 6. The risk was foreseeable and a person in the position of the defendant ought to have known of the risk of the harm. The defendant used the bathroom and knew that there were "less than able bodied people residing in the house"; 7. The risk was not an inherent risk within s 5I of the CLA as the risk could have been avoided by the exercise of reasonable care and skill by removing the mat or by the provision of a non-slip mat; 8. The risk was not an obvious risk within ss 5F and 5G of the CLA. The plaintiff could not see the underside of the mat and it had only recently been placed on the tiled floor of the bathroom; 9. There was a breach of the duty of care owed by the defendant to the plaintiff. The mat was slippery. This is established by the plaintiff's oral evidence and the video evidence. The defendant should have inspected and removed the mat, warned the plaintiff as to it or not allowed it to be placed on the floor of the bathroom in the first place. The mat was simply not appropriate to be used in the bathroom. The risk materialised causing the plaintiff to fall and injure himself. The case was similar to Dillon v Hair [2014] NSWCA 80 at [51] where the Court of Appeal upheld a finding of negligence where a plaintiff slipped on an unsecured small mat on a polished floor. The risk of harm was clearly foreseeable to a reasonable person in the position of the defendant; 10. The breach caused the fall and the aggravation of the pre-existing neck injury: Dr O'Sullivan's report and the plaintiff's oral evidence. On the evidence, the plaintiff struck his head and neck in the fall; 11. The dizziness was caused by the fall. The medical records reveal no reported dizziness prior to the fall. Whilst some specialists could find no objective reason for the plaintiff's dizziness, others saw the fall as one possible reason for the dizziness: Dr McGuiness; Dr Dandie, Dr O'Sullivan, Dr Sutton. In applying s 5D of the CLA, the court should draw an inference that the fall caused the dizziness even if there is no scientific evidence establishing this to be the likely cause: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 at [93]-[94]; [143]. This pays proper regard to the fact that the dizziness only commenced shortly after the fall. Causation should be held to be established; 12. If the court found that the plaintiff walked on the mat prior to the accident and contributory negligence is found, it should be limited to a 15% reduction. The defendant, as owner, was in control of the house including the bathroom where the mat was (oral submissions). See also T96.41-.50; 13. The injuries as a result of the fall caused an increased need for commercial care compared to the plaintiff's pre-accident position (written submissions paragraph 70; oral submissions).
The submissions made on behalf of the defendant were, in general summary, as follows: 1. While the fact that the plaintiff fell in the bathroom is accepted by both parties, there is no satisfactory evidence of the precise circumstances of the fall or that it resulted from any negligence of the defendant; 2. It should be found that the plaintiff did not pay rent to the defendant whilst he was residing in the Bonnyrigg Heights house; 3. It should be found that the defendant did ask the plaintiff if he was alright when he arrived at the bathroom after hearing the fall. The plaintiff's evidence is implausible on this issue even if they did not get along; 4. It should be found, contrary to the plaintiff's evidence, that the plaintiff was at the sink washing his face when he fell. This is supported by the histories set out in reports of Drs Baran and Sutton; 5. The plaintiff gave inconsistent evidence about the time the red mat was used in the bathroom before the fall (written submissions paragraph 51); 6. It should be found that the parties' mother purchased the mat set of which the red mat was a component. It was a normal bath set of mats. She was not the agent of the defendant in doing so but bought for all the people in the house who pooled money to give to her for bills. There is no evidence that the defendant gave any precise direction as to the type of mat to purchase. There is no evidence the defendant had any greater familiarity with the red bath mat prior to the fall than did the plaintiff. Rather, the defendant worked long hours, the plaintiff did not work and the plaintiff likely walked on the mat more often whilst it was being used as he was at home (oral submissions); 7. The Court should not be satisfied that the plaintiff has a clear recollection of the precise circumstances and mechanism of his fall. His evidence on the issue given orally thus should not be accepted (written submissions paragraphs 52-54); 8. An occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as reasonable care and skill on the part of anyone can make them. The measure of care is reasonableness, not elimination of risk: Swain v Waverley Municipal Council (2005) 220 CLR 517 at [5]; 9. The risk of harm here was the risk of a bath mat slipping underfoot when a person stepped or walked on it. The plaintiff's formulation of the risk of harm was too wide; 10. Negligence cannot be established by asserting the mere fact of a slip and fall on a bath mat: see Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [32]; 11. Negligence is not established under s 5B of the CLA. The plaintiff's case required inspection by the defendant of the red bath mat and to make qualitative findings in relation to it. There is no satisfactory evidence that the bath mat had "slippery characteristics" (written submissions paragraphs 64-72): see also Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [46]. The circumstances of the fall were not satisfactorily established. There is also no evidence of the force or pressure applied, or likely to have been applied, to the mat by the plaintiff. Inferences cannot be drawn in the light of the plaintiff's established myopathy. A plausible account of what occurred is that the plaintiff lost balance or was unbalanced due to weakness in his legs; 12. The video does not assist the plaintiff. The court cannot find that the mat could be moved with minimal force or with ease. The matter of the pressure or force applied in the video is a matter for expert evidence. Demonstrating in the video that the mat was capable of being moved proves nothing in this case; 13. It cannot be found that a reasonable person in the defendant's position would have inspected the red bath mat purchased by the mother or judged that the mat was unsuitable for use in the bathroom. The evidence also does not allow the court to conclude that the risk was not insignificant. It has not been established by the plaintiff that a reasonable person in the defendant's position would have taken the precautions it is alleged should have been taken: Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [49]. On that basis the action in negligence must fail; 14. Dillon v Hair, above, is clearly distinguishable. The evidence there established that the mat was worn and the bottom of it hard and had lost its elastic properties. The floor there was a polished floor: at [7], [12], [35]-[36], [48], [49], [57], [61]-[64]. Here, the floor was tiled. The mat appears to have been recently purchased: T61.8, T61.43. There was no evidence as to its bottom surface. It was very unlikely to be worn. There was no reason here, unlike in Dillon, why a reasonable person in the position of the defendant would have inspected the mat and the mat revealed its alleged undesirable qualities: cf Dillon at [62]; 15. Causation has not been established. The "but for" test has not been satisfied. The evidence does not justify an inference of probable as opposed to possible connection. There is no satisfactory medical evidence that the plaintiff's existing neck condition was made worse by the fall. There is no satisfactory and objective evidence that the plaintiff's dizziness was caused by the fall in the bathroom (written submissions paragraphs 80-84). A mere temporal connection may be mere coincidence in the absence of some identifiable medical link. It is not enough by itself: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 at [95]; 16. The plaintiff's damages to which he is entitled if breach is established are very limited. They do not include an amount for commercial care where no further need has been established (written submissions paragraphs 85-95).

[29]

Factual findings

Taking into account the submissions made by the parties and the evidence, I make the following factual findings: 1. The plaintiff was born in March 1979 and was almost 39 years of age at the time of commencement of the final hearing. The plaintiff was born in Iraq, had partly completed tertiary studies as a translator and had proceeded with his family from Iraq to Australia in 2004 because of the worsening conditions in Iraq. 2. After some time, the plaintiff obtained work as a part-time security guard. After several months in that position he suffered a back injury to his lumbar region and stopped work as a security guard. He has never worked since and is currently on a disability pension. 3. In 2007, the plaintiff suffered a fairly serious fall down some stairs at the Marconi Club. He commenced proceedings in the District Court for damages in negligence and the matter was settled with the plaintiff receiving a fairly substantial sum in damages. 4. As a result of the 2007 accident, the plaintiff had ongoing pain and restrictions in his back, neck and his legs, particularly on the left hand side. The plaintiff complained about his ongoing problems over a number of years to his general practitioner and was referred to a specialist, Dr Ian Gotis-Graham in February 2013. Dr Gotis-Graham noted that the plaintiff had suffered from spinal pain for the last five years following the fall down stairs. Dr Gotis-Graham also noted that the plaintiff complained of pain in his neck and thoracic and lumbar spine regions and had also noted a progressive weakness in his hands and legs which resulted in difficulty walking upstairs and down ramps and the need to hold on to the rails. The plaintiff had significant wasting in his shoulder girdle muscles in February 2013. 5. The plaintiff was diagnosed with muscular myopathy in 2011. This meant that the plaintiff had continuing weakness in his muscles as well as his injuries in the 2007 accident. 6. In May 2012, the plaintiff's family moved from rental accommodation to a house at Bonnyrigg Heights which had been purchased by the plaintiff's younger brother, the defendant. There was differing evidence from the plaintiff and the defendant in relation to the terms on which the plaintiff had moved and was residing in the Bonnyrigg house, but it seems clear that at least there was an agreement for the plaintiff, whilst he was residing there, to share equally in the bills for the house. The plaintiff claims that he also paid rent to the defendant which the defendant denies. I think it is unnecessary to determine this factual question as nothing turns on it. However, if necessary, I would prefer the plaintiff's evidence on this issue as he was able to give clear evidence and to specify an amount. Overall, the plaintiff impressed me as being an honest witness. Despite this finding, the arrangement was a purely private and domestic one between family members. There was clearly no intention to create formal contractual relations between the parties. 7. The plaintiff remained living in the Bonnyrigg Heights house from May 2012 until he left the house to move into a public housing flat in August 2017. During that time, the plaintiff did not work because of his injuries and no doubt his muscular disorder. I find from the evidence that the plaintiff undertook no domestic tasks in the house due to his physical problems and that they were undertaken by others: T92.45. It also appears from the evidence that the parties' mother undertook all, or at least most, of the domestic tasks including the shopping and the purchase of smaller household items where necessary. 8. I find on the balance of the evidence that at least between May 2012 and May 2015 mats were used in the main bathroom of the house around the toilet and on the floor immediately in front of the hand basin. From the evidence I find that a number of mats were used which were alternated as they were washed and dried. One of the mats which were used in front of the hand basin in the main bathroom was the red mat shown in the video which became part of Exhibit A. 9. On the evidence, it seems unclear for how long prior to the accident in question, the red mat had been used in the bathroom. The plaintiff says that it was for between one to two weeks (Exhibit 2). The defendant was not able to provide clear evidence on this issue. The plaintiff described the red mat as a "new mat'. On the whole of the evidence, I think that the plaintiff was not certain for how long the red mat had been used in the main bathroom prior to the accident but I find that it had only been used for a period of one to two weeks prior to the accident. I also find it likely that the red mat had been newly purchased by the parties' mother not long before it was placed in the main bathroom. 10. Having regard to the fact that the plaintiff and the defendant used the main bathroom in the house, it seems clear that both would have used the bathroom daily in the period prior to the accident when the red mat was used in the bathroom. Having regard to the fact that the plaintiff did not work in that period, it seems likely (and I find) that he would have used the bathroom and therefore walked on the red mat in question on a number of occasions on each day. He therefore had some degree of basic familiarity with it: see T61.14. The defendant probably used the bathroom when the red mat was there prior to the fall less than the plaintiff as he was working long hours and the plaintiff did not work. 11. The plaintiff relied on the appearance and qualities of the red mat as shown in the video which was admitted over the defendant's objection. The video shows the red mat being able to be moved around with the use of the toe of the plaintiff's foot or with a hiking stick. It seems clear from the video that the red mat in question was not a mat which had a suction base as is often used to avoid slipping in showers or bathtubs. It also seems clear that the mat did not have a completely effective nonslip bottom surface as it was able to be moved around to some degree. However, that is a different thing from establishing that the mat was dangerous or involved unreasonable risks of slipping. 12. The plaintiff's evidence was effectively that he placed a foot on the mat and that it slipped from underneath him with him falling backwards. No evidence was placed before the court about the floor of the bathroom other than it was tiled. There was no expert evidence in relation to the slipperiness of the floor or the slipperiness of the bottom of the mat. The mat was not considered by an expert and had been thrown out and was not available at the time of the proceedings. It was available to the plaintiff when he took the May 2015 video. There was no evidence the mat was worn or old at the time of the accident. I have found it was reasonably new. 13. The court had no expert evidence to assist it in relation to the mechanism or pressures of walking forward onto the mat as opposed to the moving of the mat with a toe or a hiking stick as appeared in Exhibit A. The evidence, which I accept from the defendant, is that he was not aware of any concerns in relation to mats in the bathroom or the red mat in question or any falls or slips on the mat prior to the accident in question. The defendant did not recall whether the red mat shown in Exhibit A was in the bathroom at the time of the plaintiff's fall. I find that on the evidence nothing had occurred which would have led a reasonable person in the defendant's position to have closely inspected the mat in the short period after it was placed on the bathroom floor and prior to the fall. 14. I accept the plaintiff's evidence that he went to the toilet in the bathroom and then turned around and walked towards the hand basin for the purposes of washing his hands and he placed one foot on the mat and then it slipped under his foot and he fell backwards. Although there are different accounts in some of the medical reports, and there is no reference to a fall in Dr Haddad's initial medical consultation notes, later medical reports including in 2014 contain a history of the fall. Having seen and heard from the plaintiff, I formed the view that he had a reasonably good memory of the incident, and I accept that the fall occurred as he was walking towards the basin not when he had already arrived there and was washing his hands and face. 15. In relation to Dr Haddad's notes, some caution should be exercised in adopting the notes uncritically for the reasons given in Mason v Demasi, above. It is true that the August 2014 consultation notes do not refer to a fall. However, in my view that is not decisive as doctors often do not include all the details of the history provided to them. I accept the plaintiff's evidence that the fall occurred primarily as he indicates. 16. However, I am not satisfied on the evidence that the red mat in question which the plaintiff states was used in the bathroom on the night in question and which is shown in Exhibit A, was unreasonably or dangerously slippery. The fact that the mat could be moved with the toe of a foot or with the use of the hiking stick does not, in my opinion, show that it was unreasonably or dangerously slippery when used in normal day to day activities in the bathroom. It seems to have been newly purchased and there is no evidence it was worn. It was purchased as part of a bathroom set. 17. I am satisfied that the plaintiff gave evidence which was sufficiently detailed to establish a mechanism whereby he slipped because of the nature of the mat as opposed to a combination of his existing injuries and myopathy. However, I am not satisfied, having heard all the evidence, that there is sufficient evidence to establish that the bath mat was slippery, dangerous or represented an unusual or clearly unreasonable hazard to users of the bathroom. There was no evidence of any similar incidents in the house relating to the red mat in the bathroom, or indeed other mats in the bathroom. In relation to the alleged complaints concerning the kitchen carpet, I accept the evidence of the defendant that the floorcovering used for the kitchen was of a different type to the red mat and was more of a carpet rather than a mat. In any case, the nature of the mat used in the kitchen is not relevant to the proceedings. 18. In my view, it is unnecessary to resolve the difference in the evidence about whether there was a complaint about the carpet used in the kitchen. I accept the defendant's evidence that he was not aware of any complaint being made by the plaintiff concerning the kitchen floor covering. 19. In relation to what occurred in the accident in terms of the interaction between the plaintiff and the defendant, there is little difference in the accounts. I accept that the defendant heard a large noise coming from the bathroom and ran to it and saw the plaintiff getting himself up from the floor. The plaintiff says that there was no conversation between him and the defendant and the defendant merely returned to his bedroom. In my view, the defendant's account is far more likely to be correct. Even though the plaintiff and the defendant were not on good terms, I think it highly likely and I find that the defendant asked the plaintiff if he was okay and the plaintiff replied that he was. Both parties' evidence is that there was no reference to the plaintiff having fallen on a mat. I accept that evidence. 20. The plaintiff says that he did not have dizziness prior to the accident. I accept that evidence. There is no reference to the plaintiff suffering dizziness in the medical reports or consultation notes prior to the accident. The entry prepared by Dr Haddad in my view is not decisive. I accept the plaintiff's evidence that although he told Dr Haddad what happened, he had not experienced balance or dizziness problems prior to the accident. However, I do accept that the plaintiff had suffered weakness in his muscles due to his ongoing myopathy problem. 21. I accept the plaintiff's evidence that domestic duties were undertaken for him at the Bonnyrigg Heights house. The plaintiff has given evidence that after he moved out from the house to the public housing unit in August 2017, he has had to undertake his own activities and he has had difficulties and relies on a crutch with some activities. I accept that evidence. However, the plaintiff has been able to do most of his self-care activities apart from, it appears, heavier cleaning and work in the backyard. The plaintiff gave evidence that he had used a cleaner once or twice and a handyman twice but could not afford to continue to use them but would use them if he was provided with funds. 22. A claim is only made in relation to an aggravation of the plaintiff's soft tissue injury in his neck and in relation to the severe dizziness. I will consider these two aspects in my medical findings. 23. I find that the plaintiff lives by himself in his public housing property and that he undertakes all domestic and self-care activities without assistance.

[30]

Medical findings

At the commencement of the hearing, counsel for the plaintiff made clear that the plaintiff's case was limited in relation to the injuries alleged to have resulted from the fall to an aggravation of a pre-existing soft tissue injury to the plaintiff's neck and to the severe dizziness and balance problems of which the plaintiff has complained.
On the whole of the evidence, I accept the plaintiff's account that he slipped on the mat on the floor of the bathroom on 10 August 2014 and struck the back of his head and the side of his neck.
Both the plaintiff's evidence and the medical evidence clearly establish that the plaintiff had pre-existing problems in relation to his neck arising from his 2007 accident at the Marconi Club. This is clear from the plaintiff's oral evidence, the first paragraph of the report of Dr Gotis-Graham dated 27 February 2013 (Exhibit 1 page 14) (which the plaintiff did not dispute), the history provided to the plaintiff's medicolegal expert Dr O'Sullivan in his report dated 26 June 2017 (Exhibit A page 16) and the consultation notes of the plaintiff's general practitioners for the period 2010-11 (Exhibit A page 65).
I also accept the plaintiff's oral evidence that his neck was considerably more painful following the fall on 10 August 2014. This seems to be supported by the medical evidence: see the reference to neck pain in the notes of Dr Haddad of 26 August 2014, the history he provided to Dr O'Sullivan (Exhibit A page 16) and the opinion of Dr O'Sullivan that the plaintiff sustained some soft tissue muscle and ligamentous injury to the cervical spine (Exhibit A page 18). Although Dr Sutton said that no reference was made to the plaintiff's neck condition by him, the balance of the evidence supports the conclusion that there was an aggravation of the soft tissue injury to the plaintiff's neck. I accept the evidence of Dr O'Sullivan that there is no evidence to indicate that the plaintiff suffered any cervical cord damage or any evidence to indicate radiculopathy: Exhibit A page 18. Dr O'Sullivan noted that the MRI scan of the plaintiff's cervical spine was normal (Exhibit 1 page 30 and Exhibit A page 18). The CT scan of the cervical spine also does not show any clear injury: Exhibit 1 page 31.
Accordingly, on the medical evidence I find that the plaintiff aggravated his soft tissue injury to his neck in the accident on 10 August 2014.
The next issue to be considered is whether the plaintiff's balance and dizziness problems, as articulated in his oral evidence and in the significant medical evidence, were caused by the fall.
I accept that the medical reports and medical notes, other than those of Dr Haddad, do not suggest or establish that the plaintiff had balance issues and dizziness problems prior to his fall in 2014. Although reports prior to the accident suggest that the plaintiff had progressive weakness in his hands and legs, there is no suggestion of balance or dizziness issues: see the report of Dr Gotis-Graham dated 27 May 2013 at Exhibit 1 page 14.
The defendant points to the consultation notes of Dr Haddad of 11 August 2014 which refer to the plaintiff having issues with his balance and dizziness for a "few days": Exhibit A page 49. There is no reference to the plaintiff having a fall in the notes until Dr Jirjis' notes on 1 September 2014: Exhibit A page 50. Clearly, as I have outlined above, appellate authorities have indicated that some caution should be taken with consultation notes which are brief. The plaintiff was cross-examined extensively on this issue and was adamant that the balance and dizziness issues only commenced after the fall. Having considered the evidence on the issue, and in particular the plaintiff's oral evidence, I accept the plaintiff on that issue having regard to the vagueness in the Haddad notes.
Accordingly, I find that the plaintiff's balance and dizziness issues only commenced after the fall in 2014.
On the whole of the evidence, and after considering the plaintiff's submissions on the issue, I exclude the likelihood that the loss of balance and dizziness problems are the result of the soft tissue injury to the neck. As indicated, the radiological reports do not suggest any vertebral injury. It also seems to be inconsistent with the medical opinion: see the report of Dr Dandie at Exhibit A page 34 and the report of Dr McGuinness dated 18 May 2015: Exhibit A page 35.
Can the loss of balance and dizziness be attributed to the plaintiff striking his head and neck and thus due to concussion or benign positional vertigo?
The overwhelming evidence rejects the loss of balance and dizziness being due to benign positional vertigo. The overwhelming evidence, despite numerous tests, is that there is no objective evidence to support such a condition: see the reports of Dr Griffith, Dr Ell and Associate Professor Welgampola. Dr Duggin's report does not assist the plaintiff. Although he suggests that it is most likely that the plaintiff has benign paroxysmal positional vertigo, he said that the plaintiff was relatively asymptomatic upon review (Exhibit A page 37).
Dr O'Sullivan seems to conclude that it is most likely that the plaintiff has some dysfunction in the vestibular mechanisms despite the testing all being negative: Exhibit A page 18. Dr Sutton rejects this on the basis of the evidence: Exhibit 1 pages 5-7. Although Dr Sutton's view was based, it appears, on assumptions that the plaintiff had been feeling dizzy prior to the fall, the alternative assumptions relating to the plaintiff only experiencing the dizziness and loss of balance after the fall were put to Dr Sutton in cross-examination and he did not change his opinion.
I accept and find that there is no objective medical evidence that the plaintiff has the dysfunction suggested by Dr O'Sullivan. Dr O'Sullivan himself notes that experienced neurologists have indicated that there is no objective evidence of the plaintiff having any vestibular disorder: Exhibit A page 18. Other specialists such as Dr Beran had a similar view: Exhibit A pages 27-28. Dr Beran had as a provisional diagnosis that the plaintiff's case involved functional illness "rather than anything more sinister": Exhibit A page 28.
In his oral evidence, Dr Sutton expressed the opinion that a concussion should have resolved and the plaintiff should not have had a loss of balance or dizziness for years after the accident.
Taking into account all the evidence, I accept that there is no objective evidence of the plaintiff having a vestibular disorder or a vertigo disorder. Extensive testing has not objectively established either disorder. The plaintiff points to the fact that the loss of balance and dizziness only commenced immediately after the accident. However, while I accept this to be the case, I prefer the view of Dr Beran and Dr Sutton that the balance and dizziness problems are not connected to the accident. The mere fact that the problem started at or soon after the accident is in my opinion not sufficient. It merely establishes it was a possible cause. I accept the opinion of Dr Sutton, having heard him give oral evidence, that there was no objective evidence of injury causing the dizziness and loss of balance and that a concussion giving rise to dizziness would have resolved well before now.
For the above reasons, I am not satisfied on the balance of probabilities that, as alleged by the plaintiff, the loss of balance and dizziness were caused by the accident. I prefer the views of Dr Sutton and Dr Beran on this issue which in my view were well reasoned and are convincing.

[31]

Duty of care and breach of duty of care

As indicated above, this claim by the plaintiff has to be determined under the CLA. The CLA does not provide any general statement as the circumstances in which the relationship between a plaintiff and a defendant will give rise to a duty of care being owed to the plaintiff. That is to be determined according to the common law.
The evidence establishes that the defendant owned the house where the accident occurred. The plaintiff was permitted to stay in the defendant's premises on the basis of at least sharing bills. I have accepted the plaintiff's evidence that he also paid a form of rent. However, the circumstances between the parties were domestic and a family relationship. Accordingly, the plaintiff staying in the house was in my view pursuant to an informal domestic and family relationship. I note the contract claim was not pressed by the plaintiff in his written or oral submissions.
The scope of the duty of care alleged to be owed to the plaintiff by the defendant was not stated in the Statement of Claim filed on 3 March 2017. A duty of care is not admitted in the Defence filed on 25 October 2017: paragraph 7(c). However, the defendant pleads that to the extent any duty of care was owed, it was fulfilled. In my view, a duty of care was owed by the defendant to the plaintiff as the defendant was the owner and occupier of the premises where the bathroom was situated and the plaintiff was a person who he had invited to reside, at least in the short-medium term, in the premises. The defendant was clearly aware that the plaintiff would use the bathroom on a daily basis.
It is accordingly necessary to consider the duty of care that is owed by an occupier of premises. In Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [7]-[8], the Court of Appeal stated the duty as follows: "[7] It was common ground that McDonald's owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury to him arising from the physical state of its land, on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7 ; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42 ; (2007) 234 CLR 334 (at [45]) per Gummow J. The appellant submitted that Holistic's duty was relevantly identical with McDonald's, a proposition Holistic did not dispute insofar at least as liability to the appellant was concerned. [8] Gleeson JA (with whom Emmett JA and Tobias AJA agreed) addressed the content of the assumption that an entrant uses reasonable care for his or her safety in his pellucid judgment in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (at [159]) as follows: [159] The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, "the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case": Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42 ; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35]."
See also Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 at [91] and Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [18]-[20].
In my view, the risk of harm in the present case was that of the plaintiff slipping on a mat in the bathroom upon the plaintiff stepping onto it and suffering injury as a result. The plaintiff's formulation of the risk of harm was too general in the circumstances: plaintiff's written submissions paragraph 18 cf defendant's written submissions paragraph 62. The duty owed by the defendant was only to take that degree of care which was reasonable in the circumstances in the light of the risk of harm: Swain, above, at [5]. The steps which constitute compliance with the duty of care will depend on all the circumstances of each case: Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32]; Dillon, above, at [30].
The defendant gave evidence that he was not aware of anyone slipping on the red mat in question or of the mat being slippery. I accept that evidence. The bathroom was used by several members of the family on a daily basis. The red mat had been used for at least one to two weeks prior to the accident. There was nothing to suggest from the evidence that the defendant knew or had any reason to believe that the mat was unduly or dangerously slippery or posed any degree of risk of slipping to a person exercising reasonable care. The mat was purchased by his mother, not him. There is no evidence that he gave her any directions as to the type of mat to be purchased for the purposes of use in the bathroom.
In paragraph 13 of the Defence filed in the matter, the defendant states that the plaintiff is not entitled to the relief claimed by virtue of ss 5B, 5C, 5D, 5F, 5G, 5H and 5I of the CLA.
Sections 5F, 5G, 5H and 5I of the CLA are as follows: "Division 4 Assumption of risk 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk."
In my view, the risk of slipping on the mat was an obvious risk within s 5F of the CLA. The floor was tiled. The mat in question was placed on the tiled floor. The plaintiff had used the bathroom while the red mat was in it on a number of occasions prior to the accident, as had other members of the family. Under s 5F(3), a risk of something occurring can be an obvious risk even though it has a low probability of occurring. Under s 5F(4), a risk can be an obvious risk even if the risk is not prominent, conspicuous or physically observable. In my view, a risk of slipping on a mat in a bathroom is a clear and obvious risk. A reasonable person in the position of the plaintiff when entering the bathroom would have seen the mat on the tiled floor and have exercised caution due to the potential in the bathroom for the floor to be damp or wet. The plaintiff must, in my view, have been aware of that potential risk. It was obvious to any reasonable person in the position of the plaintiff.
In my view, s 5G is applicable as the plaintiff suffered harm and is presumed under s 5G(1) to have been aware of the risk of harm as it was an obvious risk. In my view, the plaintiff has not proved on the balance of probabilities that he was not aware of the risk as the risk is clear to anyone using a bathroom where there is a mat. Accordingly, the plaintiff would be aware of the type or kind of risk being of slipping within s 5G(2) of the Act.
As the risk was an obvious risk, under s 5H of the CLA the defendant did not owe a duty of care to the plaintiff to warn him of the obvious risk. Accordingly, it was not necessary for the defendant to inform the plaintiff of the obvious risk of slipping on the mat or of constructing some sign or other form of written warning.
In my view, s 5I of the CLA is inapplicable in the present case. That is because the harm in my view to the plaintiff did not result from the materialisation of an inherent risk. That is because within s 5I(2) of the CLA, the risk, being that of the plaintiff slipping on the red mat, could have been avoided by the exercise of reasonable skill and care by placing a non-slip or suction type mat on the floor of the bathroom. I accept the plaintiff's submissions on this issue.
However, that does not mean that there has been a breach of the duty of care found in the present case. It is necessary for the court to consider ss 5B and 5C of the CLA: Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752 at [105]-[107]; [2015] NSWCA 320.
Sections 5B and 5C of the CLA provide as follows: "Division 2 Duty of care 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. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
As stated above, the defendant was not aware that the red mat in question was slippery.
In Hodgson v Sydney Water Corporation [2016] NSWDC 361 I stated the following at paragraph 139: "[139] Whether the defendant in the present case breached its duty of care owed to the plaintiff depends upon a consideration of the matters set out in s 5B. That is a question to be determined prospectively by reference to the evidence: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [30]-[31]; Takla v Nasr [2013] NSWCA 435 at [71]. In Takla, McColl JA at [72]-[73] stated as follows: [72] The breach inquiry required the primary judge to identify accurately the actual risk of injury the appellant faced as it was only through the correct identification of the risk that his Honour could determine what a reasonable response to that risk would be: Dederer (at [18], [59]) per Gummow J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 (at [192]) per Gummow and Hayne JJ. His Honour identified that risk (at [57]) as MTK's insolvency preventing her from getting her money back. The appellant did not cavil with that aspect of his Honour's reasons. [73] Section 5B(1) of the Civil Liability Act required the primary judge to consider the issue of whether the respondent had breached his duty of care in failing to take the precautions for which the appellant contended by determining whether the risk was foreseeable, was not insignificant, and was such that in the circumstances, a reasonable person in the person's position would have taken those precautions."
Accordingly, it is necessary to undertake the analysis in ss 5B and 5C of the CLA: 1. In my view the risk was not foreseeable in the present case being the risk of which the defendant knew or ought to have known. No concern had been expressed to the defendant that the mat was slippery by anyone who would use the bathroom where the mat was located. The defendant himself did not have any concern in relation to the mat. Whilst there is always a risk of a person slipping in a bathroom, there is no evidence that the mat in question posed a risk of which the defendant knew or should have known; 2. In my view, the plaintiff has not established that the risk was not insignificant. In my view, the risk was insignificant. No slip had occurred previously; no suggestion had been made that the mat was slippery; the mat was not worn and was probably recently purchased and no complaint or report had been made to the defendant that the mat was slippery. There was no expert evidence that the mat was unduly slippery or posed a real risk. The risk was insignificant of slipping to a person exercising reasonable care in the bathroom; 3. In my view, a reasonable person in the defendant's position would not have taken the precautions referred to in the particulars to paragraph 6 of the Statement of Claim including removing the mat, placing a mat that was a non-slip mat, warning the plaintiff of the mat or preventing the plaintiff from using the bathroom and thereby walking on the mat. In my view and I find, no reasonable person in a domestic situation where a bathroom mat as shown in the video was used would have taken the precautions particularised. There was also no reason in the short period the red mat was used in the bathroom to cause the defendant to closely examine or review the mat. I find a reasonable person in the defendant's position would not have done so. The case is different to Dillon at [62] where the mat was worn, had been used outside and had lost some of its qualities; 4. On the evidence, the probability that the plaintiff would slip and injure himself on the mat was slight; 5. While the seriousness of the harm that someone could suffer if they did slip was significant, this was but a factor to take into account; 6. The burden of taking precautions to avoid the risk of harm by replacing the mat was not significant; 7. There was no social utility of the activity in question which was relevant; 8. Within s 5C(a) the burden of taking precautions to replace the mat was not significant. However, even if the risk of harm could have been avoided by using a different mat, that does not of itself give rise to or affect liability for the way in which the thing was done by the defendant within s 5C(b) of the CLA.
In my view, taking into account all these matters there was no breach of duty of care by the defendant. The risk was not foreseeable within s 5B, the risk of slipping on the bathroom mat and falling was insignificant in all the circumstances and a reasonable person in the position of the defendant would not have taken the precautions suggested.
Accordingly, there was no breach of duty of care by the defendant in the present case.

[33]

Causation

The relevant principles to apply in relation to issues of causation are set out in ss 5D and 5E of the CLA which are as follows: "Division 3 Causation 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
Therefore, the plaintiff in the present case has the onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings.
The relevant principles in relation to s 5D of the CLA are set out in Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [18], Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19] and in Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22].
The determination of factual causation under s 5D(1)(a) of the CLA involves the application of a "but for" test of causation. That is to say, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: Strong v Woolworths Limited, above, at [18]. This involves in the present case a determination of whether but for any breach of duty of care found, any loss or damage suffered by the plaintiff would not have occurred.
I have found that there was no breach of duty of care in the present case. If, contrary to my view, the defendant maintaining the red mat on the floor in question did constitute a breach of duty of care as the mat was unreasonably slippery then causation would, in my view, have been established in the present case as I find that the plaintiff slipped on the mat as he alleges. In that scenario I do not see any reason under s 5D(2) of the CLA why responsibility for any harm which the plaintiff has suffered should not be imposed on the defendant. Also, in my view, it is appropriate for the scope of the defendant's liability to extend to the harm caused in that situation under s 5D(1)(b) of the CLA.
However, in accordance with my medical findings, only the aggravation of the plaintiff's soft tissue injury to his neck was caused by the slip.
In paragraph 13 of the Defence it is suggested that the plaintiff's muscular dystrophy caused muscle atrophy which affected mobility and balance and this was the cause of the accident. I am not satisfied on the evidence that that is the situation. I accept the plaintiff's evidence that he slipped on the mat. There was no clear medical evidence that the plaintiff was suffering from particular problems relating to his muscle weakness condition in the period shortly before the fall. I have already set out above my findings in relation to the contents of Dr Haddad's clinical notes.

[34]

Contributory negligence

The defendant asserts in paragraph 15 of the Defence that the plaintiff's damages should be reduced due to contributory negligence. This was further outlined in the defendant's written submissions: paragraphs 93-94.
Sections 5R and 5S of the CLA provide as follows: "Division 8 Contributory negligence 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
In Jay v Baker [2018] NSWDC 270 I stated as follows at paragraphs 561-563: "[561] In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (with whom Barrett and Gleeson JJA agreed) stated as follows at [161]-[162]. [161] The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of ss 5B and 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. [162] As has been remarked in various cases in this court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable "by such percentage as the court thinks just and equitable in the circumstances of the case". [562] The decision of the Court of Appeal in Grills was quoted with approval by Gleeson JA (with whom Leeming JA and Davies J agreed) in Boateng v Dharamdas [2016] NSWCA 183 at [129]. See also the analysis of Meagher JA in the Court of Appeal in Davis v Swift [2014] NSWCA 458 at [23]-[29]. [563] Following these principles, in applying s 5R of the CLA, a court considering contributory negligence is required in determining whether a person has been contributorily negligent to apply the provisions of ss 5B and 5C of the CLA which I have set out above."
I have set out ss 5B and 5C of the CLA above.
In my view, there was no contributory negligence shown by the plaintiff in the present case applying these principles: 1. In my view, the risk was not foreseeable in the sense it was a risk of which the plaintiff knew or ought to have known; 2. The risk of slipping on the mat was insignificant in all the circumstances; 3. In my view, a reasonable person in the position of the plaintiff exercising due care for his own safety would not have conducted himself in any different way; 4. There was no suggestion that the plaintiff or the defendant had formed the view that the mat in question was slippery previously. In my view, there is no evidence that the plaintiff failed to take reasonable care for his own safety.
I am entitled in considering the allegation of contributory negligence to have regard to the plaintiff's age and physical infirmities at the time of the accident: Smith v Zhang [2012] NSWCA 142 at [21]-[22]; Serrao v Cornelius (No 2) [2016] NSWCA 231 at [61]. The plaintiff had problems with his back and neck at the time and also had weakness in his legs due to his myopathy. Having regard to these matters, in my opinion there was no evidence of contributory negligence in the present case.
If an appellate court finds that I am in error on the breach issue, then in my view there is some force in the defendant's written submissions on contributory negligence. This is particularly the case if it is found that a reasonable person should have been aware that the mat posed an unacceptable risk. Taking account all the evidence, the plaintiff was in at least as good a position as the defendant to assess the characteristics of the mat. He did not work and was home more often. He thus was very likely to have used the bathroom more often. He could readily have removed the mat or avoided walking on it. The plaintiff submits that if I find that the plaintiff must have walked on the mat prior to the accident (which I do) and he had the same opportunity to inspect the mat as the defendant, then it is open to me to reduce the plaintiff's damages by 15%. I would reduce any damages awarded by 30% for contributory negligence if a breach is found. The plaintiff could have examined the mat and moved it aside. He must have used the bathroom with the red mat more often than the defendant. As he did not own the house or have any control over the bathroom, I would reject the defendant's suggested reduction of 50%.

[36]

Non-Economic loss - General Damages

Section 16(1) of the CLA provides as follows: "16 Determination of damages for non-economic loss (1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case."
The relevant maximum amount that may be awarded for non-economic loss in a most extreme case is currently $635,000 for 100% of the most extreme case. Applying s 16(3) and (4) of the CLA: 1. The plaintiff claims 15-18% as a proportion of a most extreme case for the aggravation of the neck injury and 30% ($146,500) of a proportion of a most extreme case if the neck injury and dizziness are taken into account. As the defendant submits, the correct amount appears to be $146,000 (written submissions paragraph 87 and CLA s 16(4)); 2. In accordance with the medical findings which I have made above, in my view only the neck injury was caused by the accident. In relation to the percentage of 15-18% as a proportion of a most extreme case, this is the plaintiff's submission. The defendant submits that it should be 2% percent. I accept the plaintiff's evidence that the injury resulted in a serious aggravation of his neck injury which has caused significant additional pain. In my view, contrary to the defendant's submissions, the report of Dr O'Sullivan supports this. The evidence of how the injury occurred is also relevant. Taking the plaintiff's evidence into account and accepting that the neck injury is an aggravation of a pre-existing soft tissue injury of the cervical spine not shown in radiological evidence, I think the figure of 15% is appropriate. The higher percentage does not properly take into account that the injury was only an aggravation of an existing soft tissue injury which was still causing the plaintiff problems at the time of the accident. This equates to 1% of $635,000 equalling $6,350. Under s 16(4) of the CLA, this is to be rounded up to $6,500; 3. In relation to the claim of 30% if the dizziness/loss of balance is included, the defendant submits that the amount of 15-17% percent only should be awarded depending on the findings as to the alleged neck injury. I have found above that the loss of balance/dizziness is not caused by the accident. If I am wrong on that issue, then clearly the dizziness and loss of balance issues have caused significant and ongoing problems for the plaintiff. However, he is able to get around with the use of an umbrella and a cabin baggage bag in the other hand. He is able to live alone and generally look after himself. Although in my opinion the balance/dizziness is severe, taking into account all the evidence I would only allow 27% of a most extreme case which amounts to $63,500 or 10% of $635,000.
For all of these reasons I would have allowed the amount of $6,500 under s 16 of the CLA.

[41]

Future commercial assistance

The plaintiff claims the amount of $42,393.75 (1.5 hours x $35 x 950 x 85%), alternatively $40,000) as a buffer, for future commercial assistance on the basis of 1.5 hours per week. The plaintiff relies on his evidence in relation to his difficulties with cleaning and home maintenance tasks. It is submitted that the further injuries have increased his need for assistance.
Dr Sutton expresses the view that the plaintiff does not need any domestic assistance in the future. He also notes that the plaintiff's myopathy could potentially impact on his ability to perform domestic activities and that self-care activity should not be impacted at present: Exhibit 1 page 7. The defendant's medico-legal expert, Dr O'Sullivan, expresses in his opinion in his report that the plaintiff did not need any past or future domestic assistance as he was living with his family and was able to cope with the help of his family: Exhibit A page 19.
The evidence establishes that the plaintiff moved out from his family home in 2017 and lives by himself. He gave evidence that he undertook domestic activities himself now but was limited in undertaking cleaning and maintenance duties. He referred to the fact that he had paid a cleaner once or twice and a maintenance man twice but could not afford to keep paying them.
It is clear that in order for a person to claim an award, whether by way of buffer or not, for future paid commercial assistance, a need for that assistance arising from a breach of duty of care must be established: Smith v Alone [2017] NSWCA 287 at [73]-[77].
I accept that the plaintiff's family is no longer providing him the domestic assistance which they had previously provided to the plaintiff.
A minimum number of hours need not be established for the purpose of establishing the need for future commercial assistance.
The plaintiff and defendant gave evidence that the plaintiff did not undertake domestic duties when he lived in the house at Bonnyrigg Heights due to his prior injuries and restrictions.
This was the case both before and after the accident.
Although I accept that the plaintiff suffered an aggravation of his injury to his neck in the accident, I am not satisfied on the balance of probabilities that this caused any need for future commercial assistance which did not already exist. The plaintiff did not undertake any domestic activities prior to the fall due to his pre-existing injuries to his back and neck.
In relation to the issue of dizziness, in my view the need for future commercial assistance would exist anyway because of the plaintiff's prior injuries and his myopathy.
In summary, in my view the plaintiff has not established any increased need for future commercial assistance arising from either the aggravation to the neck injury or through balance/dizziness issues. The need for domestic assistance existed in any case due to the plaintiff's other conditions which he had prior to the accident. This claim is accordingly rejected.

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