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[2026] ACTSC 131
Supreme Court of the ACT
2026-05-08
Ainslie-Wallace AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Manuel v Hellenic Club of Canberra Citation: [2026] ACTSC 131 Hearing Date: 5-7 May, 29 July, 20 November 2025 Decision Date: 8 May 2026 Before: Ainslie-Wallace AJ Decision: (1) There will be a verdict for the Plaintiff (2) The parties are directed to prepare a minute of orders reflecting the findings in the judgment to be made in chambers without the necessity of a further appearance. Catchwords: CIVIL LAW – NEGLIGENCE – Personal injury – injury suffered in foyer of building – whether plaintiff tripped on cracked tile – where plaintiff a reliable witness – whether defendants are liable for the injury suffered by the plaintiff – consideration of damages CIVIL LAW – CIVIL PROCEDURE – Expert evidence – where expert evidence based on assumptions not proved – extent of reliance on expert evidence Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44, 45, 100, 168, Ch 4 Cases Cited: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Parties: Maria Manuel (Plaintiff) Hellenic Club of Canberra Ltd (Defendant) Representation: Counsel S Onitiri (Plaintiff) S Glascott (Defendant) Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number: SC 423 of 2023 AINSLIE-WALLACE AJ: Introduction
Background
The Plaintiff was born in the Philippines on 30 December 1958. She immigrated to Australia in 1995 and married her present husband, Erwin Manuel, in February 2001. She has four children, all of whom are adults.
While living in the Philippines, the Plaintiff worked as a secretary and in 1985 obtained a degree in Business Management from the Adamson University in Manilla. Later she opened a small grocery shop with her mother, closing it when she left the Philippines to live in Australia.
Between 2006 and 2015 the Plaintiff ran a childcare business from home but stopped that work to care for her own family.
In October 2018 the Plaintiff commenced casual work at Australia Post as a mail sorter, becoming full time in 2020. The Plaintiff continues to work there.
On 21 January 2004 the Plaintiff broke her right ankle while crushing boxes. She underwent an open reduction with internal fixation. Following the operation, the Plaintiff had physiotherapy.
On 11 September 2017 a heavy gate fell on the Plaintiff and she injured her left chest area. She suffered a fractured left rib and had pain in moving her left shoulder.
Both of these injuries had resolved before the Plaintiff’s fall in November 2020.
The Accident
On 1 November 2020 the Plaintiff’s husband dropped her off at the Hellenic Club at about 9am. The Plaintiff planned to have coffee with friends before Bingo started at 11am. The plan was to meet these friends upstairs where the Bingo was to be held. In the foyer of the Club there was both a lift and a flight of stairs to the first floor. They were beside each other. The Plaintiff said she was intending to use the stairs rather than the lift to get to the first floor for the exercise.
The Plaintiff said that after entering the Club she walked through to foyer and “struck” her right foot and after stumbling, fell heavily on her left side and on her right knee. The Plaintiff said her knee and left rib were very painful and she found it hard to stand up.
After she fell the Club manager Michael Kirkham came and brought a chair for her to sit on. He asked what had happened and she said she pointed back to the spot on the foyer floor where she had tripped.
CCTV footage of the Plaintiff’s fall shows her pointing back behind and to the right of her position. On looking at the footage, Plaintiff said she was pointing back to the rough surface on which she tripped. It was suggested to her that she had not looked at nor seen the cracked tile after she fell, and that it was not until she returned to the foyer with her husband later that day that she first saw the tile. She said that she pointed to the tile while she was sitting on the chair in the foyer immediately after she fell because it was close to her.
Some confusion attended this evidence, however on consideration of the whole of the Plaintiff’s evidence on this point, it seems that she agreed that before she came downstairs at 5pm with her husband, she had not seen the cracked tile but had pointed to where she tripped while she was sitting in the foyer. There is no doubt that the CCTV showing her fall and the aftermath shows her speaking to a man and pointing back and to the right of where she was sitting. I accept her evidence that she was showing where she fell.
The Plaintiff described the tile on which she tripped as being uneven with a crack in it that was lifted a little from the surface of the tile. The Plaintiff said it was lifted about half the width of her fingernail which was agreed to be about 8mm (the width of her fingernail being 16mm).
After recovering for a while in the foyer, the Plaintiff went upstairs and played Bingo until 5pm when her husband returned to collect her. She said that the pain in her chest was “ten” during this time coming and going and the pain in her knee was hurting and was scraped. She said it was hard to walk.
The Plaintiff’s husband, Erwin Manuel, met her in the foyer. He asked her what had happened and she took him over to where she had tripped and showed him the cracked tile. The Plaintiff said that she went directly to the cracked tile she said she fell on.
Mr Manuel said that the surface of the tile was uneven and a part of it had lifted, he estimated about three to five mm. Mr Manuel took two photographs of the tile showing the uneven surface and the lifted crack.
The Plaintiff and her husband then saw the Club Duty Manager, Chris O’Neill, and completed an incident report in which the Plaintiff wrote: At 9.00am I was walking inside Hellenic Club and I tripped over a cracked tile and I went flying and I landed on the floor.
The Plaintiff said by “went flying” meant that she was “stumbling and holding on my balance”.
The Plaintiff said her husband asked Mr O’Neill why the Club had not fixed the tile because elderly people may trip on it. The Plaintiff said Mr O’Neill replied, “because it would cost them heaps to fix the tile”. It was suggested to the Plaintiff that these words were not said, but she insisted that she had heard them, as did her husband who was with her.
When challenged about this conversation in cross examination, Mr Manuel said: … he said it would cost a fortune and a lot of money to fix just one tile. You can’t fix one tile, but fix the whole tiles, so it’s going to cost a lot of money, so that’s why he said to me that he didn’t sort of bother doing it, and it was left like that for a long time.
It was suggested to Mr Manuel that he had fabricated this evidence of the conversation to support his wife’s claim, which he denied. It is to be observed that it was not suggested to the Plaintiff that she had fabricated the conversation.
While Mr O’Neill had no recollection of where or at what time the Plaintiff completed the incident report nor could he recall having a conversation with Mr Manuel, he nonetheless denied he would have said it would cost too much to fix the tiles.
I accept the Plaintiff and Mr Manuel’s account of the conversation. I reject the suggestion that Mr Manuel, and by inference, the Plaintiff, concocted this conversation.
The Plaintiff’s fall
The Plaintiff was shown the CCTV footage of her fall, and it was suggested to her that she was running towards the lift when she fell. She denied that she intended to take the lift. A letter written by the Plaintiff’s solicitor providing particulars of the accident said: The plaintiff entered the defendant’s premises via the Main Entry and was travelling directly towards the elevator.
Strictly speaking, since the elevator and the stairs were beside each other, the account is correct. However, the Plaintiff’s evidence that she was going to use the stairs for exercise and her evidence that she used the lift only when she was with her friend “grandma’ who was very old, is entirely credible and the solicitor’s letter does not cause me to discount her evidence in this regard.
The Plaintiff denied she was running and said that what is shown on the footage is her stumbling from the trip. The Plaintiff agreed that the footage showed the three steps of her stumbling just before she fell. The Plaintiff said: When I struck my feet there, I hold on and start to stumble like, it looks like I’m running but I’m not. I’m just holding on my balance. …I didn’t run
She also said that she: … stumbled really fast … I start myself to stumble, like holding my balance, to really stand up but I cannot anymore …
The Plaintiff could not recall how many stumbling steps she took before she fell.
After having trouble sleeping, the Plaintiff and Mr Manuel, went to the hospital and although waited to be seen for some time, left at approximately 6am the next morning and returned later that afternoon. On each occasion the hospital recorded the Plaintiff’s account of her accident and on each it was said that she stumbled “two to three metres” before falling. A letter written to the Defendant by the Plaintiff’s solicitor also asserts that she stumbled for approximately two to three metres.
The Plaintiff could not recall giving that account to the hospital nor could she remember how far she stumbled, but the contemporaneous account given to the hospital is, in my view, likely to be an accurate one, it being recorded hours after the accident and while the circumstances were fresh in the Plaintiff’s mind.
There was a further very short piece of footage from a CCTV camera in another part of the Club foyer. The Plaintiff when shown that clip again denied that she was running in this clip and said that she was “stumbling there holding my balance”.
I accept the Plaintiff’s evidence that she did not run across the foyer nor did she intend to take the lift to the first floor.
The state of the tile
The Plaintiff said the tile surface was uneven with a crack. She estimated that the crack was elevated about 8mm. The Plaintiff denied the suggestion that the tile was not uneven and the crack was not lifted and said: When I look at it it’s uneven and it’s cracked. It’s a little bit lifted.
Mr Manuel too said that the tile had a cracked tile which had lifted by about three to five mm.
When considering the photographs of the cracked tile taken by him, Mr Manuel did not agree that but for the raised part, the balance of the tile where cracks could be seen was an even surface. He said it looked uneven to him.
He said: Those cracked tiles, they’re on the corner that actually sunk – was sinking down a little bit. That’s how that – that tile, part of that tile was lifted because of this crack on the bottom, the corner was sinking.
Mr Manuel said that where the surface of the tile had sunk was the darker portion of the tile depicted in the photograph.
Callum Dillinger is the Facilities Manager of the Club. He said that on being informed that someone had recently tripped in the foyer, he went to the foyer and looked and found nothing he considered to be a trip hazard. The following day, using a torch and running his hand over the tiles, looking for something on which someone could trip, he found what he described as a “very small hairline crack” in one of the tiles. He thought it was a good idea to fill up the crack with some epoxy which he did. He said he made the same repair to other tiles in the area at the same time. The time to repair the tile was less than 5 minutes and the cost negligible using Araldite, an epoxy filler. He identified that tile he repaired as being the tile depicted in the photograph of where the plaintiff tripped.
Although he described the crack in the tile as “hairline” he agreed that if water from a cleaning machine got underneath it, it could cause the tile to lift. The foyer area is cleaned daily by machines that use water and cleaning liquid.
He knew before the Plaintiff’s fall that there were cracked tiles in the foyer of the Club. He had not taken any steps to repair them because he had not been informed of an accident there before.
Michael Kirkham was the Duty Manager present on the morning of the Plaintiff’s fall. He said he was told of the accident and went to the foyer where the Plaintiff was sitting on the floor. He believed she said she had “slipped over” in the foyer. He prepared an incident report in which he said that he was told that the Plaintiff had “slipped … and slid along the tiled floor”. The report continues and notes that the tiles were inspected and found to be dry and there were no signs of water.
Mr Kirkham said that he was concerned that there may have been water on the tiles left by the cleaning machines. He was not looking for cracks in the tiles. He agreed when shown the photograph of the tile on which the Plaintiff said she tripped that there was a crack and that there was further cracking at the intersection of three adjacent tiles. He said that had he seen the cracks in the tiles, but he still would regard them as being in good condition because the crack is not raised. He said that before the accident he knew that there were cracks in the tiles, but no action was taken to repair them because they were not deemed to be unsafe.
I am satisfied that the Plaintiff identified the tile on which she tripped and that its surface was uneven because of a cracked tile.
Expert opinion
Both the Plaintiff and Defendant qualified an expert to consider whether the Plaintiff tripped or slipped in falling and whether, if she tripped, it was on the cracked tile. Dr Robert Anderson was qualified for the Plaintiff and Dr Shane Richardson for the Defendant.
Seminal to most of the expert opinion were the two pieces of footage from the CCTV cameras in the foyer and the opinions of the two experts who gave evidence in the proceedings. The first piece of footage (the long clip) shows the Plaintiff stumbling into view and falling. The second piece (the short clip) is of a few seconds duration, was taken from a different camera angle and shows the Plaintiff before the first footage. In the first instance, both experts assumed that the two camera’s time indication were synchronised. There was no evidence that this was, in fact, the case.
Slip or trip
Neither expert considered there to be sufficient information to suggest that the Plaintiff slipped on the floor causing her to fall. Dr Anderson then considered the incident report of the accident in which it was said that the Plaintiff had “slipped” and said that the footage of the Plaintiff’s fall is more consistent with a trip than a slip.
Dr Richardson, while admitting of the possibility that the Plaintiff fell having tripped on the cracked tile, offered an alternate possibility that the Plaintiff had tripped herself up.
This offered possibility is readily dismissed. First, it was never suggested to the Plaintiff that she had tripped herself up. Secondly, the long clip shows the Plaintiff falling and immediately pointing behind herself and she said in her evidence she was pointing to where she fell. Thirdly, as Dr Richardson conceded, there was no evidence at all to support that hypothesis. The cracked tile as a trip hazard
Both experts were provided with photographs of the cracked tile. Dr Richardson said that a difference of 3mm to 8mm could provide a trip hazard. Dr Anderson said that the defect in the tile was sufficient to constitute a trip hazard.
Dr Richardson was critical of Dr Anderson’s opinion about whether the uneven surface of the cracked tile was a trip hazard because he had conducted no measurements of the difference in the tile surface.
To the extent that this was an issue, the unchallenged evidence of both the Plaintiff and her husband was that the difference in height in the cracked tile was about 3 to 8mm which on the evidence of both experts was sufficient to constitute a trip hazard.
Mechanism of the Plaintiff’s fall
Dr Anderson was asked to consider the mechanism of the Plaintiff’s fall by reference to the long clip of CCTV footage. Dr Anderson said that the footage appears to show that before coming into view the Plaintiff had already lost her balance and her posture is consistent with her trying unsuccessfully to regain her stability. The long clip shows her taking three stumbling steps before falling down.
Dr Richardson agreed that is what is seen but said, in effect, that had the Plaintiff tripped on the cracked tile she would have had to have taken eight stumbling steps before falling. He said the description of the Plaintiff stumbling and falling is “not consistent” with her having taken six prior stumbling steps, then another two steps to fall, because of his analysis of the Plaintiff’s movements visible in the long clip.
However, in the same report Dr Richardson concludes by saying it is “possible” that the Plaintiff tripped on the cracked tile and stumbled taking eight steps, and changing direction in the course of her stumbling, before falling.
On this point Dr Anderson said that the footage showed the Plaintiff stumbling over a distance of five footfalls: three footfalls which can be seen in the long clip, and two which he extrapolated before the Plaintiff’s feet came into view but while her upper body can be seen. In his opinion, while eight stumbling steps before falling seemed “high”, it was not unreasonable to assume three earlier footfalls from the cracked tile making in total eight stumbling steps. He said that there were no studies about how many stumbling steps before falling was “too many”. Change of direction
Dr Richardson further discounted the likelihood of the Plaintiff tripping on the tile and stumbling into view as shown because it would involve her changing direction during her stumbling.
Dr Anderson did not accept that the Plaintiff’s line of travel was necessarily linear nor did he consider the proposition that the Plaintiff changed direction during stumbling to be unreasonable.
This is resolved by the Plaintiff’s unchallenged evidence about her fall. She was asked while watching the long clip: Can you see where you were headed in that video? --- I was headed, like when I’m stumbling, keeping my balance, and I went to the left. Was the plaintiff walking, running or stumbling
There was also a very short clip, some few seconds, from another CCTV camera in a nearby area (the short clip). The short clip shows an oblique view of the Plaintiff moving away from the camera. The Plaintiff is shown moving from behind a pillar into view for a very short time before she is out of sight. The short clip records the Plaintiff’s movements before those shown in the long clip.
The short clip was provided to Dr Richardson and the solicitor for the Defendant asked him to consider whether the Plaintiff was walking or running. Whether the Plaintiff was walking or running had not before been raised with either expert. In the same letter of instructions, the solicitors for the Defendant asked Dr Richardson to express and opinion having regard to the short clip, whether the Plaintiff’s movements were controlled or uncontrolled.
Dr Richardson said that the Plaintiff’s movements as shown in the short clip were “controlled” and that she lost control immediately before she was shown in the long clip.
Dr Anderson took a rather more cautious approach and said that since the view of the Plaintiff in the short clip was from the back, he was reticent about concluding that her movements were in control because the back view may not show a forward loss of balance.
As to the question of whether the Plaintiff was walking or running through the foyer, Dr Richardson determined that the short clip showed the Plaintiff at the point of the cracked tile and that she was running through the foyer. Based on his estimation of the distance between the cracked tile and where the Plaintiff eventually fell, he concluded that she was running at 18kph.
Dr Anderson too extrapolated the rate of the Plaintiff’s movement from the first clip to the second at 8.8kph, which he said was a typical running speed. Dr Anderson considered that, based on his calculations of distance and speed, the short clip does not in fact show the Plaintiff near the cracked tile, but instead shows her having already passed over the cracked and stumbling.
Eventually, after conferring, Dr Richardson agreed that his estimated speed of 18kph was improbable although he adhered to the basis on which he made that calculation. He said that 18kph was a fast pace and conceded that the average cyclist travelled at about 20kph.
In the result, the experts settled on a speed for the Plaintiff running through the foyer of between 8.7kph and 10.3 kph.
Dr Richardson revised his opinion that the short clip shows the Plaintiff at the cracked tile and said that she was “aligned” with that position but had not travelled over the cracked tile.
At this point Dr Anderson considered there to be a discrepancy in Dr Richardson’s calculations. He considered that the cameras were not exactly synchronised, leading him to conclude that when the Plaintiff is depicted in the short clip, she had not yet passed over the cracked tile, and was in fact about five metres away from passing over the cracked tile. Dr Anderson said his estimated the Plaintiff’s speed in the short clip was 8kph and was consistent with the speed at which a person may move while stumbling.
After conferring, Dr Anderson then revised his opinion again, concluding that the cameras may in fact have been synchronised, and that therefore Plaintiff must not have passed over the cracked tile in order to be visible at the relevant times in the short and long clips.
It was generally assumed that the cameras were exactly synchronised but there was no evidence that they were, and Dr Anderson’s original review of Dr Richardsons calculations tends to the view that they were not.
The Plaintiff’s clear and unequivocal evidence was that she was not running, and her evidence is entirely consistent with the objective evidence. She arrived at the Club shortly after 9am and the Bingo game was not due to start until 11am. She planned to go upstairs and meet some friends and then come down to the foyer for coffee. I do not accept the suggestion that she was running. It is more probable than not that in the short clip what was thought by the experts to be her running, is her stumbling having passed over and tripped on the cracked tile.
Finally, and tellingly in my view, when being examined Dr Richardson was asked At any time in your consideration of this, did you take into account that the plaintiff says she was not running? I hadn't taken that into full account. I probably would say that I haven't, … What reliance can be placed on the expert evidence
Perhaps there is no better place to commence the discussion than with Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [64] where Heydon JA said: The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. … One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.
The excursus engaged in by both experts whether the Plaintiff was running through the foyer and the speed at which she was travelling was conducted in a vacuum of her evidence that she was not running. Accepting her evidence that she was not, then the suggestion by the experts that she was running, no matter what speed, is irrelevant to the issue to be decided.
That is not to say that the whole of the experts’ evidence must be rejected. The issue of whether the uneven surface of the tile created a trip hazard is clearly relevant. Both experts regarded a raised surface of the tile more than 3mm as creating a trip hazard.
There seemed to be a consensus at least that when seen in the long clip, the plaintiff had already lost her balance and was stumbling eventually to fall. Dr Anderson did not think it unreasonable to assume that she had stumbled for 8 paces before falling. The Plaintiff’s evidence, which I accept, was that what is seen in the short clip is her stumbling, having already tripped.
To that extent that the question of the Plaintiff’s speed as she crossed the foyer is significant, Dr Anderson’s evidence that what is seen of the plaintiff in the first clip could be consistent with the Plaintiff’s evidence which was that she tripped on the cracked tile and stumbled from that point until she is depicted falling over. It is more probable than not that what is seen in the first clip is the Plaintiff having already tripped and stumbling trying to regain her balance. I am fortified in coming to that view having taken into account her, again unchallenged, evidence that she stumbled for 2 to 3 metres before falling.
I thus conclude that the Plaintiff in walking through the foyer tripped on the raised, uneven surface of the tile, stumbled and fell. Liability
These proceedings are governed by Chapter 4 of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act).
The relevant sections of the Wrongs Act are as follows: 42 Standard of care For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose. 43 Precautions against risk–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 deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions 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 creating the risk of harm. ... 45 General principles (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’); (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability). ... 168 Liability of occupiers (1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of— (a) the state of the premises; or (b) things done or omitted to be done about the state of the premises. (2) Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following: (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge the occupier has or should have about the likelihood of people or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; (g) the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. ...
As to how these sections relate, in Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 at [51] - [52] Mossop M (as his Honour then was) concluded that the provisions of chapter 4, in which ss 42 to 44 are included, is relevant to assessing whether there had been a breach of duty. His Honour said at [52]: … I proceed on the basis that the provisions of chapter 4 of the Civil Law (Wrongs) Act need to be applied, in addition to s 168, in determining whether or not the second defendant breached its duty of care: s 41. Therefore ss 42, 43 and 44 are relevant to assessing whether or not there has been a breach of the second defendant’s duty of care and the test of causation in s 45 must be applied.
Here the Plaintiff contends, and there is no dispute, that the Defendant was the occupier of the premises on which the Plaintiff was injured nor was there any dispute that the Plaintiff was a lawful entrant on the premises.
There was a cracked tile in the foyer
The evidence established that there was a cracked tile in the foyer which was immediately identified by the Plaintiff as being where she tripped. The evidence also establishes that the surface of the tile was raised, by between 3 and 8mm, sufficient to create a trip hazard.
As discussed at [39]-[41] above, Callum Dillinger, the Facilities Manager of the Club was notified of the Plaintiff’s fall shortly after he occurred and he went to inspect the tiles in the foyer. While at first he did not see the crack when he returned the next morning, with the aid of a torch, ran his hand over the tile and feeling for what he described as “something someone could have tripped on”. He found what he described as a “hairline” crack. It is a reasonable conclusion from the evidence of both the Plaintiff, her husband and Mr Dillinger that the surface of the tile was raised.
Mr Dillinger said that the crack was capable of being lifted up if water got underneath it. He said that before he was informed of the Plaintiff’s fall, he knew that there cracks in the foyer tiles but had not taken any action about them because there had not been an accident before. Every day the foyer tiles were cleaned by machine using water. Mr Dillinger agreed that if water penetrated the cracked tile, it could cause the tile to lift.
Having felt the crack Mr Dillinger filled it using Araldite, and also filled in other cracks in the tiles in the foyer. The time taken and the cost of the repairs were minimal.
The cracked tile caused the Plaintiff’s fall
What was the risk and was it foreseeable?
It is essential first to identify the risk of harm without which there cannot be a proper assessment of a reasonable response to it.
Here, the risk was that people walking across the foyer tiles could trip and fall because of the cracked tile creating an uneven surface.
The Defendant knew or ought to have been aware that the tiles in the foyer were cracked. Certainly Mr Dillinger, the Facilities Manager was aware that the foyer tiles were cracked before the Plaintiff’s fall and further knew that the cracks, if water penetrated them, could rise up presenting a trip hazard. The tiles were cleaned each day by machine using water but there was no system of inspection of the tiles to determine whether any of the cracked tiles had a raised surface.
The risk was not insignificant
The risk of a person being injured by falling onto a hard surface is not insignificant. Dr Richardson observed that older people were more prone to tripping, and the evidence of the Plaintiff establishes at least that she and her friends who attended the Club to play Bingo were older. The burden of removing the danger or risk of harm
Mr Dillinger’s evidence established that the cost and time taken to fill the cracked tiles was minimal.
Would a reasonable person in the Defendant’s position have taken precautions against the risk?
Given the seriousness of the risk if it eventuated and that the burden of addressing the harm was minimal, I find that a reasonable person in the Defendant’s position would have taken steps to obviate the risk.
I thus find that the Defendant’s negligence caused the Plaintiff to trip and fall and injure herself.
Contributory Negligence
Damages
Non-economic loss
The Plaintiff said that after her fall, her chest was very painful, as was her knee which was grazed. She rated the pain at 10 out of 10. The night of the incident, the plaintiff tried to sleep but said that as she was unable to do so due to the pain, she attended the emergency department. Although the Plaintiff was taken to hospital the following morning of 2 November 2020 at about 1am, after waiting until about 6am not having been seen, she returned home. The Plaintiff then returned to hospital later that day and she was admitted, staying three nights and given morphine for pain relief. She was discharged on 5 November and on 6 November attended her general practitioner for pain relief. The general practitioner prescribed Nurofen which the Plaintiff continues to use three times per week.
The Plaintiff said that she treats the pain in her chest by using a massage chair that she has at home and with hot packs. She uses the massage chair every day after she works.
At the date of the hearing, the Plaintiff said that her knee remained painful for about 5 months after the fall. She said her ribs still cause her pain and discomfort and her chest hurts when she bends to pick things up and when she lifts heavy things both at work and around the house. When she sleeps or lies down, she cannot lie on her left side due to pain. It affects her sleep. The Plaintiff said that she experiences this pain about three times a week.
While her symptoms persist, the Plaintiff said she has had no physiotherapy nor seen a specialist because she cannot afford to go.
She was assessed by Dr Negus, an orthopaedic surgeon qualified by her lawyers and by Dr Mourad, an orthopaedic surgeon qualified by the Defendant. They reported her continuing complaints of pain and restriction. Dr Negus considered her complaints of pain and restriction consistent with the injury. Dr Mourad said that he would have expected the Plaintiff’s pain to have settled by the time of his examination and could not find an organic basis for it. It is to be observed however that Dr Mourad did not suggest that the Plaintiff was exaggerating her symptoms.
I accept that the Plaintiff still experiences intermittent pain from her rib injury and that it causes her restrictions in her daily life. She said she would accept assistance from a pain specialist and said that she has not before sought it out because she could not afford it.
The Plaintiff said that before the accident she went out with friends and to social events. She described herself as “very happy”.
The Plaintiff said that her mood was affected by her pain and restriction. She described changes in the way she socialised. She said that she felt sad and cried. Mr Manuel’s evidence was that she had changed in her mood and had changed the way she socialised.
Dr Takyar, a psychiatrist, who examined her at her solicitor’s request, said that she had an adjustment disorder with mixed anxiety and depression. When the Plaintiff say Dr Gunapu, a psychiatrist qualified by the Defendant, he observed her accounts of herself and her mood to be different and improved from the observations made by Dr Takyar. He said the Plaintiff had a residual adjustment disorder stemming from the pain and limitations caused by her injuries. He attributed the difference in the account of herself as reflecting her adjusting to her present state.
Dr Takyar was cross examined to suggest that the history given to Dr Gunapu of the Plaintiff being concerned and sad about her son’s separation and inability to see his child in some way supplanted pre-existing sadness. He said that he would not expect her distress as expressed to Dr Gunapu to remove the effect on her of the injury and its sequelae. He said that her son’s predicament had arisen before Dr Gunapu’s assessment so it was probably more on her mind. He said however that other contributing factors do not replace other causes. While Dr Takyar considered the Plaintiff would be assisted by some psychological support for cognitive behavioural therapy, Dr Mourad did not consider it necessary.
The Plaintiff has had no counselling for pain management for her mood because she cannot afford it but would if there was money available to pay for it.
I find that the accident and injuries have caused the Plaintiff the pain and difficulties that she described and has impacted both her mood and her social life. Her husband’s evidence is supportive of her account of how her social life and mood have changed.
I assess non-economic loss at $100,000.
There will also be interest on 50% of that figure at the rate of 2% per annum.
Economic loss
The Plaintiff was working at the date of the accident and following it had nearly four months off work. She said she could not work because of the pain. While she initially took time off using her sick leave, once that was expended, after about three months, she had time off work without payment. The Plaintiff estimated that it was about three pay periods for which she received no money. She was paid fortnightly.
The Plaintiff returned to work in February 2021 working part time and on limited duties. It was not until 6 months after the fall that she returned to working full hours.
Following her return to work, for the next six months, the Plaintiff said that she still experienced pain in her ribs but it “comes and go”. She estimated she experienced pain about three days a week. She said that she still experiences pain at that level.
The Plaintiff said however, that while she was now working full days, the work she can do is limited. While before the fall she was able to lift tubs and sort heavy parcels, she cannot lift heavy parcels, and sits down to sort letters. Now, at the end of her shift she needs to rest and sleep.
The Plaintiff has assistance at work from co-workers to help lift heavy things although she said that help was not available every day. Even though she has that assistance, the Plaintiff said that she wants to retire both to spend more time with her husband but also because so far as work is concerned, it is hard for her to bend or carry heavy items and she does not want to have to ask her co-workers everyday for help.
The Plaintiff had thought that she might work until she was 69, however felt that with her present symptoms, she could not manage to work that long. The Plaintiff was aged 62 at the date of the accident and 67 at the time of the hearing. She did not think she could do other work such as childcare which she did before working at Australia Post because the work would be too hard.
In terms of remuneration, the Plaintiff agreed that since 2023, she has earned more per week that she did before the incident because of an awarded pay rise.
Past economic loss
The Plaintiff claims $20,000 for past economic loss reflecting the time off work for which she was not paid and that following her return to work she was no longer able to take up as much offered overtime. The Defendant argued that while the Plaintiff lost income from having time off without pay, that amounted to about $3,000 net, and after she returned to work her pay increased. The Defendant argued that damages for past economic loss could also take into account the difference between her pre accident earnings until August 2021 when she salary sacrificed $300 per week to her superannuation, which amounted to some $2,000 making a total of $5,000. It is not clear whether and to what extent the Defendant’s calculations take into account the fact that notwithstanding that the Plaintiff’s salary increased, she was not taking up the opportunities for overtime as she had in the past.
I propose to address that issue by making an award of $10,000 for past economic loss. Interest will be awarded on past economic loss. There must also be an award of damages reflecting past loss of superannuation.
Future Economic loss
Domestic Assistance
For the first couple of months after discharge from hospital, the Plaintiff said she needed a great deal of help from her husband both in relation to household tasks but also for her personal care. She could shower but could not dress herself. The Plaintiff thought that it was about a year before she could.
Around the house, before the accident, she shared the cooking with Mr Manuel who cooked a couple of times a week. For the first eight weeks after her discharge from hospital, her husband did all of the cooking although she helped by chopping onions and garlic. The Plaintiff said that at present her husband cooks most of the meals and she cooks twice a week. The Plaintiff said that she cannot reach the pantry nor reach down to get the plates. The Plaintiff agreed that she had help from her husband in the past for cooking and shopping stemming from her injury in 2017 when she was crushed by a fence and her ribs were fractured but said that her past fracture does not give her any present trouble.
In terms of vacuuming and other housework, after she was discharged from hospital her husband did that work and she had not returned to doing it because it hurts her to bend.
Equally for the laundry, before the accident the Plaintiff said that she washed and hung the clothes on the line. Now her husband does that although she separates the clothes to be washed. She cannot take the clothes out of the machine or hang them on the line. While the Plaintiff cleans part of the bathrooms the parts that required reaching were done by her husband.
Her restrictions in doing these are because she has pain in her ribs.
The Plaintiff said she loved gardening, weeding and cutting fruit and vegetables. She has not done any since she was discharged from hospital.
The Plaintiff freely conceded that while there were tasks that she could no longer manage there were chores around that house that she could still do such as making light meals, tidying up the bathroom and vacuuming if it did not involve bending. She can weed in the raised garden bed close to the backdoor of her house.
Equally while the Plaintiff said she no longer cries every day, she still cries from time to time because of pain and because she can’t do her work properly. She agreed that she does some socialising, but the clear thrust of her evidence was that it was not to the same extent as before the accident.
The evidence the Plaintiff’s husband was entirely consistent with her account of the restrictions she had arising from the accident as he observed them from time to time. He agreed that he had assisted her around the house before the accident and said that at that time she did, perhaps 70% of the work. Presently some tasks are shared with Mr Manuel doing what the Plaintiff finds difficult, and for other jobs like the meal preparation, both the Plaintiff and Mr Manuel participate.
The Plaintiff was assessed by Occupational Therapists, one arranged by her lawyers and the other by the lawyers for the Defendant.
The first assessment in time was on behalf of the Plaintiff, Ms Seema Arora. Ms Arora noted that the Plaintiff: presented with high pain levels in her left ribs, demonstrated by reduced tolerances for sitting and frequent shuffling to become comfortable, frequent holding of her breath to relieve her pain, slow guarded gait and facial grimacing. Ms Manuel's presentation suggested that she was affected by low mood. She cried a few times during the assessment, expressing her sadness at her situation. It appeared however that she was well supported by her husband.
Ms Arora estimated that Plaintiff’s past need for domestic assistance which she reasonably required in two parts: (a) from 1 November to 27 December 2020, that is 8 weeks following the accident at 25.5 hours per week; and (b) from 28 December 2020 to 31 December 2023, a period of 126 weeks at 17 hours per week. From the start of the second period to the date of hearing is 242 weeks.
In relation to future domestic assistance, Ms Arora estimated the following: (a) 2 hours per week commercial domestic assistance; (b) 3 hours per fortnight gardening services; (c) 1 online shopping delivery per week; (d) I car cleaning service per month; and (e) Provision of physiotherapy treatment for a three to six month period.
When the Plaintiff was examined by the Occupational Therapist engaged by the Defendant, Ms Sharon Leahy, it was noted that the Plaintiff demonstrated full range of movement with no discomfort or pain reported or grimaces or other evidence of her experiencing pain.
The reporter concluded: In my opinion Ms Manuel’s has chosen not to perform her preinjury domestic chores and is reportedly unable to lift six kilograms at work as a result of being deconditioned. She has adopted a self-limiting fear of movement to avoid pain.
Ms Leahy recommended that the Plaintiff required 37 hours and 20 minutes of past personal care assistance, over a period of eight weeks immediately after the incident.
In relation to past domestic assistance, Ms Leahy also broke the Plaintiff’s past need for domestic assistance in two parts: (a) from 5 November 2020 to 31 December 2020, being a period of eight weeks, at 3 hours and 55 minutes per week, being a total of 31 hours and 20 minutes; and (b) from 1 January 2021 to 28 February 2021 being a period of eight weeks, at 1 hour and 47 minutes per week, being a total of 14 hours and 16 minutes.
For both personal and domestic assistance, Ms Leahy considered that the Plaintiff required no assistance in the future.
Ms Leahy agreed that the “self-limiting fear” she described in the Plaintiff was as a result of the pain she had experienced from her injuries. She also agreed that it would be of assistance to the Plaintiff to have some pain management treatment to address it.
Ms Leahy further agreed that if, despite her assumption that the Plaintiff’s rib fractures took more than 8 weeks to heal, then it would not be unreasonable for her to require assistance longer than 8 weeks because the assistance she required would be dictated by the pain from her injuries.
She conceded that where she had observed that Mr Manuel continued to assist with jobs in the house it was because he wished to but agreed that it does not mean that the Plaintiff did not require the help.
In short, she agreed that if the Plaintiff was still experiencing the pain and restriction from her injuries at the date of the assessment by Ms Leahy, then it would not be unreasonable for the Plaintiff to have assistance with tasks that caused her pain.
Finally, she agreed that people with injuries such as those sustained by the Plaintiff can have “good days and bad days”. Ms Leahy said she did not enquire of the Plaintiff what kind of day the Plaintiff was having.
The Plaintiff was asked about the apparent discrepancy in her presentation and it was suggested to her that she had exaggerated her complaints of pain and restriction of movement for the benefit of the assessment by the Occupational Therapist engaged by her solicitor. The Plaintiff denied she had exaggerated her pain and restrictions and said that on the day Ms Leahy came to her house she had “just finish[ed] taking her Nurofen”.
Given that suggestion, it is necessary to consider the Plaintiff’s credibility, that is the accuracy and honesty of her evidence. Her evidence was consistent and coherent. She made appropriate concessions, for example and relevant to the issue of her present restrictions, about what she can and cannot do without assistance. There is nothing in her evidence nor the way it was given that would cause me to doubt her credibility. Her evidence was supported by that of her husband. My conclusion is further supported by observing that if the Plaintiff was going to exaggerate her claims to pain and restriction, it seems odd that she would do that during the assessment by the Occupational Therapist qualified by her lawyers and not do the same thing when assessed by the Occupational Therapist qualified by the Defendant.
I accept the Plaintiff’s evidence that at the time she was assessed by Ms Leahy, she had taken Nurofen and that accounts for the discrepancy in the observations.
I accept the Plaintiff’s account of her present pain and restrictions and the way the accident has affected her mood. I accept that in the past, the pain and restriction from the accident caused her to need significant help from her husband that she had not needed before the accident and that this need will continue into the future.
Section 100 of the Wrongs Act requires a consideration of the loss of capacity to perform domestic services which the person would have been expected to perform for themselves. Before the accident, the Plaintiff’s husband had assisted her in domestic chores and they shared cooking and other tasks, albeit not on a 50/50 basis. To that end, Ms Arora’s estimates of the amount of assistance the Plaintiff required may not reflect chores that she would otherwise have performed for herself.
There is no doubt on the evidence that for the first 8 weeks following the Plaintiff’s injury she required considerable assistance both in her activities of daily living such as showering and dressing and in domestic chores and that assistance has continued to a lesser degree.
The parties agreed that the hourly rate for domestic assistance is $48.20.
For the Plaintiff a figure of $80,000 for past domestic assistance was sought which in my view is a reasonable approach to this issue and taking into account s100. This figure broadly reflects the Plaintiff’s need for greater assistance shortly after her accident to date where her evidence was that while there are tasks that she cannot do, they are mainly limited to bending and stretching.
Interest on that sum will be awarded.
Future domestic assistance was agreed to be $40,000.
Out of pocket expenses
Costs
There was no argument that costs should follow the finding of a verdict for the Plaintiff. Orders
The orders of the Court are: (1) There will be a verdict for the Plaintiff (2) The parties are directed to prepare a minute of orders reflecting the findings in the judgment to be made in chambers without the necessity of a further appearance.
I certify that the preceding one hundred and fifty-six [156] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: N Gannon Date:
Manuel
Hellenic Club of Canberra