Merle Marie McMorrow v Todarello Pty Limited trading as The Fruit House Faulconbridge

Merle Marie McMorrow v Todarello Pty Limited trading as The Fruit House Faulconbridge - [2014] NSWDC 75 - NSWDC 2014 case summary — Zoe

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Layout of premises: route followed by Mrs McMorrow 9After returning to the store and claiming the refund, Mrs McMorrow went to leave the store. Her recollection was that the area she walked through was clear. Her route out of the store involved going past a bread stand adjacent to a pallet near the exit. There were sacks of potatoes on about half of the surface area of the pallet. 10Photographs (exhibit 3A) were tendered, including those of The Fruit House, pallets and a bread stand. These photos were taken by Mrs McMorrow in February 2010, about one to two months after the accident. Mrs McMorrow's recollections of where she was in relation to the other items on the photos were also marked - exhibit 3B. 11Photo 4 of exhibit 3A showed a bread stand in a similar position to where it was positioned at the time of the accident. The items depicted in the photographs were very similar, if not identical, to the way they were at the time of the incident. However, the colour of the pallets in the photos in the exhibits produced by both sides was not identical to the various hues of colours of the particular pallet on which Mrs McMorrow actually tripped. Mrs McMorrow said that pallet on which she tripped was an old pallet which had no particular colour - other than that of grey weathered timber. She said it was very similar in colour to the concrete floor. 12The photo demonstrates approximate distances between the bread stand, the adjacent pallet supporting the sacks or plastic bags full of potatoes and the counter of the fruit market. 13The doors she used for her entry and exit to the store were marked (exhibit 3B: photo 2). The passageway she used was also marked (exhibit 3B: photo 4). 14The bread stand was inside the shop on the right hand side of the door. The stand was about six feet high. The stand was on an angle on a path from the cashier's counter. 15The defendant also tendered a photograph of the entrance to The Fruit House (exhibit 10) which was taken a few weeks prior to the hearing.

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Psychiatric/psychological injuries 33Part of Mrs McMorrow's claim is for damages for ongoing anxiety as a result of the accident. Mrs McMorrow had had psychological problems following the birth of her third child. Her oldest child was then aged three and a half. She was subsequently diagnosed with post-natal depression and prescribed Zoloft in 2002, which made her feel better. She took it for two years after her child was born and had weaned herself off it before the accident. 34Mrs McMorrow was prescribed Zoloft again in 2004. In 2005, in the context of the burden of caring for her ill father and the diagnosis of her mother with leukaemia, she recommenced taking Zoloft which she did until approximately 2006. 35In 2007, Mrs McMorrow attended her general practitioner, Dr Valliappan. He outlined a mental health care plan to treat depression and anxiety (exhibit 15). She does not recall signing these care plans. 36Mrs McMorrow had also had a fall in 2007 which led to a notation (30 January 2007) of "recurrence of depression and anxiety, constant stress as carer for 3 children...low back pain...onset after fall three weeks ago...anhedonia, tearfulness, irritability, guilt, not coping, insomnia c/w major depression." She was prescribed Zoloft again, although by March 2007 she reported that she was not using anti depressant medication as she felt better. It appears that Mrs McMorrow had taken Zoloft on and off prior to the accident -see below [41]. 37Mrs McMorrow agreed that she had suffered anxiety and panic attacks in the past, with the worst stress she experienced being around the stock market collapse of 2008 (T 273) and the consequential impact on her financial position and that of the small family business she and her husband operated. There is an entry in the medical notes (exhibit 15: 14 October 2008) that she "...has been depressed in the past and now denies depression although her business closed 2 months ago." 38Mrs McMorrow had, in the years prior to the accident, accepted responsibility for the ongoing care of her mother during her chemotherapy treatment and later, her 95 year old father, who, for a period, lived with Mrs McMorrow and her family. Her father died some four months prior to the accident. Those arrangements led to on-going stress for her.

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Preliminary issue: use of medical file; statements made to treating psychiatrist 44Mrs McMorrow had been to see Dr Champion of Idamenio Medical Practice. A file of those medical notes was produced on subpoena. 45The defendant sought to rely on those notes to establish what Mrs McMorrow said to treating doctors, her observations and opinions. The defendant submits that Mrs McMorrow did not give details of those injuries or what she had said to her treating doctors about her depressed condition to the psychiatrist relied on by the plaintiff, namely, Dr Klug. Accordingly, the defendant submits that the factual bases on which Dr Klug gave his opinions was wrong and, consequently, his prognosis was fallacious. 46The defendant submits that the report of Dr Klug should not be admitted. Dr Klug was not required for cross-examination. 47Mrs McMorrow and her lawyers had seen and inspected that medical file. Notice was given on 31 January 2014 by way of service that the defendant intended to rely on the subpoenaed material. 48In opposition to the tender, Mr McCarthy for the plaintiff, relied on rule 31.28 of the UCPR. He submitted that notice was given late and that there was no detailed or specific indication of what was being relied on by the defendant. He submitted that, had that indication been given, a supplementary report would have been obtained from Dr Klug. 49The defendant had not sought nor obtained a countervailing expert as to psychiatric matters. 50The report was admitted over opposition on the basis that what discrepancies there were between the history given to the treating doctors, and the opinions expressed, went to the weight to be given to the opinions rather than its admissibility. 51I also ruled that extracts of the notes could be tendered (exhibits 13, 14 and 15) which related to what was said by Mrs McMorrow to her various treating doctors. 52I permitted (also over opposition) Dr Klug to be called to give evidence, and the admitted extracts of those notes were given to him. He said that the contents of the medical notes would not have altered his opinions. 53Dr Campion was not required for cross-examination. Matters relevant to the consideration he may have given are set out below (paragraph 62).

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Report of Dr. Klug 54Dr Klug said that apart from Mrs McMorrow's post-natal depressive episode from about 2002 to 2004 there have been no other depressive episodes. and that there is "no other psychiatric history" (report page 6). Mrs McMorrow's evidence was that that description was given in the context of there being no further instances of post-natal depression. Indeed Mrs McMorrow said that she has been depressed since that time in 2002-2004 and, upon her own self-diagnosis of depression, sought medical help for it. Further, Mrs McMorrow also said that she had experienced panic attacks in the past, contrary to the history outlined by Dr Klug. She also agreed that the limited history - being the two years she suffered post natal depression - she gave to Dr Klug was incorrect (T 273). 55Dr Klug's report was to the effect that, at the time of his consultation a year ago (that is, in February 2013), Mrs McMorrow continued to suffer from various physical and psychological symptoms. From a psychiatric perspective, she continues to suffer from a depression of mood, anxiety about dental appointments, partial anhedonia, social withdrawal, self-consciousness about her teeth, hyper-vigilance regarding herself and her family, a preoccupation with the experience of the fall, diminished libido and irritability. Dr Klug recorded that "her symptoms had fully reduced years prior to her fall" (report, page 6). It appears to have been a mixture of both anxiety based and depressive symptomology. 56Dr Klug considered that Mrs McMorrow suffered from a chronic non-specific anxiety disorder, falling short of post-traumatic stress disorder. Further, that she was in a state of partial remission from a prior chronic major depressive disorder. Mr Klug characterises this as a major mood disorder in the context of both the fall and her extensive physical problems and treatments. Dr Klug was of the view that her previous history of post-natal depression did not bear upon the consequences of her current state, which he said was wholly caused by the accident. 57Dr Klug recommended that Mrs McMorrow attend a psychiatrist fortnightly for three months, monthly for another six months and on a two to three monthly basis for a further twelve months. It is recommended that that should be supplemented with a regime of anti-depressants and that Mrs McMorrow should also attend approximately twelve to eighteen cognitive behaviour therapy sessions. 58In his oral evidence, Dr Klug said that having read exhibits 13, 14, and 15, his opinions in his report (exhibit 16) were unchanged. He had not had the opportunity to check the contents of the exhibits with Mrs McMorrow nor her ongoing use of Zoloft. He relied on the history he had been given, the references in exhibit 14 to her reports of Dr Campion to suicidal ideation, panic attacks and depression in about January 2007. Mrs McMorrow denied any suicidal ideation nor any suggestion of panic attacks. 59It does not appear that Mrs McMorrow has complied with those recommendations other than in a very limited way by occasionally taking Zoloft. There is no objective indication of any disease of the mind.

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Company Structure 65Mrs and Mrs McMorrow operate a company called S&M McMorrow Pty Limited. That company contracts to real estate agent agencies. S&M McMorrow invoice real estate agencies for a commission of a sale of a property. It is in effect an income splitting arrangement. The company currently conducts business with a real estate agent (called Goodyr) but also with other Sydney eastern suburbs agencies such as McGrath Partners, Di Jones, Ray White Double Bay and Raine & Horne Coogee/Randwick. 66Mrs McMorrow performed most of the bookwork, paperwork, incomes tax and BAS returns for the real estate business she conducts, and conducted, with her husband. Those duties extended to house inspections or opening of houses, taking calls, marketing and correspondence and all paperwork associated with the business. 67Bell Partners (the McMorrow's accountant) recommended the company open a family trust. This occurred and a company was established called S&M McMorrow Pty Limited as trustee for the McMorrow family trust. Another company operated as trustee of their Marvick super fund. 68Prior to the establishment of the family trust, Mr and Mrs McMorrow were paid a wage by their company. A few months after the family trust was established, the McMorrows each began to draw a monthly distribution in lieu of a wage. This was, and is, Mrs McMorrow's form of income. The level of distribution is set. Currently that is of the order of $8,000 per month to Mr McMorrow and $5,000 per month to Mrs McMorrow. While there have been different amounts of distribution in the past, it does not waver to reflect varying work levels or changed personal circumstances. The McMorrow's can, and do, draw an additional distribution at any time if they require additional funds. 69Mrs McMorrow obtained a certificate of registration as a real estate agent in January 2014. She could not obtain that registration any earlier because she lacked confidence after the accident. She obtained the certificate for a number of reasons including keeping the McMorrow name as part of all publicity for the agency and, for example, as the contact points within the family group.

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Stephen McMorrow 71Mr McMorrow is married to Mrs McMorrow and has been a real estate agent since 1991. He said that after the birth of their third child, Mrs McMorrow became increasingly irritable and upset. He said that his wife had never been like that before. After taking Zoloft, she returned to normal. 72In 2005 when Mrs McMorrow's mother had leukaemia, she became upset and there were difficulties in the personal care needed by her father. 73There were further stresses in 2008 when the family lost money. Mrs McMorrow was stressed rather than depressed. She was her "normal bubbly self" other than those incidents. There was also a previous incident with her back in 2007 which caused problems. 74In 2008 the McMorrows decided that Mrs McMorrow would work full time in their business. Their children were all full time at school and Mrs McMorrow wanted to work. 75Mr McMorrow gave evidence on the impact on the family business of Mrs McMorrow's absences after the accident. Mr McMorrow would not have employed Mr George had Mrs McMorrow not been injured in the fall. 76Mr McMorrow said that Mr George left the business in the context of his performance review. Mr McMorrow thought that Mr George had deleted company files and client records. This was confirmed to Mr McMorrow by the IT department. The material was returned. It was an unhappy situation. They have not employed other staff to replace Mr George. 77Mr McMorrow said he always took about 30% more than Mrs McMorrow by way of distribution. 78Mr McMorrow's recollection of the accident is that he heard a scream and returned from the car to the shop where he found Mrs McMorrow on the floor crying. There was blood around. She told him that she had tripped over the pallet. Mr McMorrow saw a nearby pallet which was old, not painted and grey in colour. He picked up some potatoes from the floor. 79Counsel for the defendant submits that the evidence of Mr McMorrow ought to be treated with some caution so far as it corroborates Mrs McMorrow's evidence. This is so because of the evidence that Mr and Mrs McMorrow discussed Mrs McMorrow's evidence in cross-examination immediately prior to Mr McMorrow giving evidence. I found Mr McMorrow to be a truthful witness who gave independent evidence. I did not see any evidence of concoction nor collusion in their respective accounts - to the contrary there were some slight, but immaterial, differences in their accounts.

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Mr Todarello 90Mr Antonio Todarello was the proprietor and principal of The Fruit House at the relevant time in 2009 and remains working there. It is a family owned business. Mr Todarello is aged 65 and worked as the business supervisor every day, seven days a week. The day before Christmas was a very busy time of year. About 700 - 1000 people -"possibly more" - went through the business that day. The business had 13 or 14 staff. 91Mr Todarello said that the practice of placing fruit and other vegetable produce in the store was to bring it up from the cool room in the early morning and place it on pallets. There were three cash registers, sometimes four, on busy days such as the Christmas Eve. The cash registers formed the egress point from the store close by the area where Mrs McMorrow tripped and fell. 92The pallets came from the cool room and stayed where they were placed for the remainder of the day. They had to be moved by a forklift or pallet mover. Produce was topped up on the pallets from a trolley. The pallets were blue with a white "CHEP" marking or logo. There were some other plain pallets from other suppliers but the blue pallets were the kind on which the potatoes were stored. The pallets often remained in circulation for about 10 - 15 years in a variety of fields of endeavour. Exhibit 12 showed pallets stored on the business' property. 93Mr Todarello thought that the relevant pallet in the immediate area where Mrs McMorrow tripped was about half full of potatoes. The adjacent bread stand was locked such that it couldn't move into the formed walkway. The potatoes were in 5 kilogram red plastic shrink-wrapped covers. About 160 bags of potatoes were placed on the pallets in layers from which customers helped themselves when they had bought a minimum quantity of produce. 94Mr Todarello became aware of Mrs McMorrow's fall 10 or 15 minutes after it occurred when he was informed of it by a staff member. He said, when informed of it (and when the location of the fall was pointed out) that "there was nothing in the road. How could she trip?" Mrs McMorrow was no longer in the shop by the time he arrived. 95Mr Todarello had no further notification of the accident for some years after the initial comments were made.

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Defendant 111The defendant disputes that liability is established, submitting that, if there was a defect or obstruction in the walkway, it was obvious and foreseeable. The defendant submits that s 5B, 5F, 5G and 5H of the Act have not been established. Accordingly, the accident happened as a result of the plaintiff's own negligence. Specifically, Mrs McMorrow could have been expected to look down to see what was protruding or in her way when rounding the corner after the bread stand and that in fact she did know that a pallet of potatoes confronted her around the bread stand. It would have been prudent for her to look down to see the edge of the pallet. Particular emphasis is made on the evidence that Mrs McMorrow did not look down but, if she did, she would have seen the pallet. The defendant submits that all the evidence here should be a finding of contributory negligence "well in excess of 50%". 112The defendant argues that even if liability is established, the plaintiff's cognitive abilities were not impaired and there neither were, nor are, injuries warranting an award of damages under that heading. There was no impairment to Mrs McMorrow remaining in her job or position carrying out the duties she had previously performed. Further, that the business owned and operated by the plaintiff and her husband continued to prosper and that there is no basis for any claim for future economic loss. 113The defendant also submits that Mrs McMorrow "will be returned to a position of relative normality" and that "while initially she undoubtedly suffered severe pain and shock, that has been arrested over the period whereby she has returned to a relatively normal and productive life." 114The defendant's counsel also stresses that the medical/clinical notes make it clear that, whatever Mrs McMorrow's psychological or psychiatric condition is, that she does not regard it as interfering with her quality of life. Further, that she has only made two attempts to see a psychologist. 115It is also submitted that attempting to value Mrs McMorrow's earnings from the real estate business and, accordingly, her loss of income, is not represented by a simple half share of the business. That is because the real value should reflect Mrs McMorrow's efforts in the business.

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Duty of care 116The defendant's duty is to those coming onto premises to ensure safe walkways, including adequate egress and ingress unencumbered by inappropriate or encroaching items - Australian Safeways Store Pty Ltd v Zaluzna [1987] HCA 7. The duty extends to protect entrants from the risks of injury which could be foreseen and avoided - Hackshaw v Shaw [1984] HCA 84. 117The relevant liability issues arising from the Act in this case include whether: (1)The risk of Mrs McMorrow tripping on the pallet was foreseeable and not insignificant (s5B(1)(a) and (b)); (2)The defendant, in those circumstances, could or should have taken precautions to avoid risks of harm flowing from the placement of the pallet (s 5B(2)), including: (3)The probability that the harm would occur if care were not taken; (4)The likely seriousness of the harm; (5)The burden of taking precautions to avoid the risk of harm; and (6)The social utility of the activity that creates the risk of harm. 118Any negligence was a necessary condition of the occurrence of the harm (s5D); 119The risk of tripping on the pallet was obvious or inherent (ss 5F, 5G, 5I); and 120Any negligence was on the part of Mrs McMorrow (s 5R). 121There are a number of authorities with similar factual circumstances concerning the likelihood of the risk of harm (s5F). In Ryde City Council v Smith [2003] NSWCA 57 the plaintiff, walking straight and looking forward, tripped and fell on the raised edge of a drain at a shopping mall. The edge was protruding approximately 3cm after a council inspection. The trial judge had regard to the length, colour and uniformity of the grates and found it was a protrusion in the nature of a trap. While the plaintiff could have avoided the protrusion by walking a different way, it was not reasonable to expect pedestrians to traverse the drain that way. The Court of Appeal dismissed the appeal and was critical of the finding of contributory negligence. 122In Angel v Hawkesbury City Council [2008] Aust Torts Reports 81-955; NSWCA 130 the plaintiff tripped on a 4-5 cm raised lip of a concrete footpath. The location was shadowed by adjoining trees and was quite dark. The Court of Appeal found that due to the deep shadow, the raised concrete ceased to be obvious. Beazley and Tobias JJA said at [66]: "It is true that a pedestrian is required to take reasonable care for his or her own safety. But that does not require that a person must walk along a footpath with their eyes continuously glued to the area immediately in front of them. In our view, and as the appellant submitted, there was nothing unreasonable in the appellant's failing to notice a defect in the footpath of the nature of that in the present case when such a defect only became apparent when the appellant was within "a couple of feet" of it". 123The Court of Appeal rejected the Council's argument that to avoid a finding of a risk being obvious, it must be obscured to the point of invisibility. 124In CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [173 -175], Bryson JA emphasised that the particular risk must be obvious and not a more generalised possibility of injury. 125While those cases are informative, the reasonableness of the apprehension of a person in the circumstances and position of the plaintiff is a central consideration.

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Findings: Premises and pallet 127The accident occurred at a commercial set of premises where goods and produce were displayed on what is probably the busiest day of the trading year. The passage of shoppers and customers in those numbers flowing through that area was an integral and expected part of the defendant's business. The increased flow of customers at that time of year led to greater amounts of produce on display throughout the store compared to other times of the year. The particular pallet on which Mrs McMorrow tripped contained the gratuitous potato offerings, which could be expected to be the focal point for customers. 128The store was crowded with as many as 700 to 1000 customers at varying times during the day making their way through the walkways particularly in the vicinity of the cash registers. The likely focus of attention of customers was on the produce - relevantly here the bags of potatoes - rather than on the floor. That was the special offer being made by the shop in the pre-Christmas rush. The narrowness of the walkway was not much more than that of a shopping trolley (see exhibit 3B photo 4). Mrs McMorrow and Mrs Toft (who said that she was being careful where she walked that day) both tripped over the same pallet in the same area. 129On the evidence of Mrs McMorrow and Mrs Toft, I find that the walkways through which pedestrians and customers, such as Mrs McMorrow, were channelled through the premises, were formed in the particular area where the accident occurred by the pallets and the bread stand. The evidence of Mrs McMorrow was that the pallets in those photographs were in a reasonably similar position. Mr Todarello said the pallet was located exactly where it was as displayed in exhibit 3B photo 4. I find that the walkway through which Mrs McMorrow was guided to walk was obstructed by the intrusion of the pallet at floor level. 130That narrowness of the aisles and the foreseeable impact on pedestrian traffic through the passages available to persons walking through The Fruit House is most likely to have occurred as a result of the increased display of produce - particularly in an area close to the counter and cash registers where the accident occurred. 131The narrowness allowed for pedestrian passage but there was little room or opportunity to see any protrusion on the floor below. Mrs McMorrow did not see the pallet.

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Findings: Psychiatric/psychological injuries and damages 151The burden of proving on the balance of probabilities that the incapacity was caused by the accident always rests on the plaintiff: Purkess v Crittenden (1965) 114 CLR 164 at 168. Subject to that, where the plaintiff establishes a prima facie case that the incapacity has resulted from the injuries sustained in the accident, the defendant has the burden of adducing evidence to show that the incapacity would have come about independently of the accident, for example, by reason of a pre-existing degenerative condition: Purkess v Crittenden at 167-168; Ridolfi v Hammond [2012] NSWCA 3 at [86] - [87]; Malec v JC Hutton Pty Ltd (No 2) [1990] HCA 20; 169 CLR 638. Watts v Rake (1960) 108 CLR 158 per Dixon CJ at 159: "If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred." 152I accept that, while Mrs McMorrow suffered from post-natal depression, her symptoms from that had disappeared in the years prior to the fall. However, I consider that, apart from her episode of post natal depression, she had been depressed before the accident - for example in 2005, 2006 and in 2007 when she was prescribed a mental health care plan (see exhibit 14). 153Mrs McMorrow herself said she had been depressed for a long time. She did not want to take Zoloft previously - although she recently had her prescriptions filled - as she "...didn't want to go down that path again". She preferred to take a herbal remedy. This was not apparently the approach advised to her by her medical professionals. Mrs McMorrow said "I've been depressed since I had my accident but I don't want to take medication for my depression." (T 265). 154Given the prior post-natal depression and other instances of psychiatric or psychological problems experienced by Mrs McMorrow, the issue of the impact of those matters is analogous to how a pre-existing condition is dealt with in the context of a later injury. 155Absence of evidence from defendant on claim for psychiatric injuries 156Dr Klug's evidence was that "her current state is wholly caused by her accident and its consequences". The defendant decided not to file psychiatric evidence on the basis that, firstly, Dr Klug's report was prepared a year ago and, secondly, that the factual basis of the reports was at odds with the contemporaneous reports Mrs McMorrow had made to other doctors, particularly Dr Champion. 157The defendant's reliance on Dr Champion's clinical notes should be considered in light of what Basten JA said in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2] that a trial judge is entitled to discount inconsistencies for a number of commonplace reasons. Those considerations are appropriate here, particularly given the time intervals and Mrs McMorrow's emotional condition and the various contact she had had with doctors and dentists in all the varied circumstances over the years. 158Any history-based errors in Dr Klug's report seem to have been overcome by his oral evidence. Dr Klug's view that she should be under the care of a psychiatrist is predicated on his opinion that "from a psychiatric perspective, her long-term prognosis is fair rather than good or very good" (report page 7). Dr Klug's supplementary report of 8 February 2013 says that "her symptoms had fully reduced prior to her fall". Mr McCarthy submits on behalf of Mrs McMorrow that there was a total cessation of her symptoms prior to the accident in December 2009; further, that there was no evidence contrary to that of Dr Klug called by the Defendant. 159Here the defendant decided not to file psychiatric evidence. However, I am required to consider the evidence as a whole, including the evidence of Mrs McMorrow and other contemporaneous documentary medical evidence (exhibits 13, 14 and 15) to determine how that evidence is related to that of Dr Klug.

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Findings: psychiatric claim 160I have had the opportunity to observe Mrs McMorrow when she gave her evidence. I have re-read the evidence of Dr Klug and the medical and other reports. Dr Klug's opinion (page 6 of report - exhibit 15) was that "she suffered from a chronic non-specific anxiety disorder along the spectrum towards a post-traumatic stress disorder". That is a very broad classification which is of limited assistance in coming to a finding on Mrs McMorrow's position. 161A matter of considerable contest in the hearing was whether Mrs McMorrow's condition was either a result of the accident and, if so, whether any condition was ongoing to any compensable extent. In that regard, the defendant's counsel refers to the fact that Mrs McMorrow was being "counselled" as late as 12 August 2009 (exhibit 15 page 7) that is, a few months before the accident. She was also being prescribed Zoloft as at 18 August 2009. On the totality of the evidence, there is little real evidence of any attempt by her to obtain or pursue psychiatric or psychological treatment or counselling. 162I find that Mrs McMorrow's emotional and psychiatric condition was such that she was vulnerable at the time of the accident by virtue of her father's death some four months previously, her mother's ongoing medical treatment, including chemotherapy, the demands associated with having a family with three young children and the demands associated with running a family business with her husband. This is outlined in the clinical notes reporting her various visits to doctors over the years and the various prescriptions of anti-depressant medication and referrals to psychologists, which were either not fully pursued or were steps (such as taking medication) which were not undertaken by Mrs McMorrow. 163Absent any other evidence, I also accept that as at February 2013 the injury affected Mrs McMorrow's capacity to work partly due to her physical symptoms but also, to some degree, her lack of confidence in social and business settings and, to some extent, her associated emotional vulnerability by virtue of what she considered to be her appearance. There is a mix of factors at play which are difficult to disentangle on the evidence. While the defendant has not refuted the plaintiff's evidence on this point, I do not find that any adverse psychiatric or emotional condition on Mrs McMorrow's part - to the extent that there is any consequence of the accident which is likely to continue for longer than the period estimated for the completion of dental treatment, namely, until the end of 2014. 164Doing the best I can with the available evidence and having regard to the normal or expected vicissitudes in life for a woman of those years and circumstances, an appropriate buffer would be 6 months of her net salary.

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Most extreme case 169The question of the most extreme case is subjective. In Southgate v Waterford (1990) 21 NSWLR 427. In the matter of Doubleday v Kelly, the plaintiff at seven years old suffered a supra-condylar fracture of the right humerus with associated damage to the right medial nerve and right brachial artery by falling from a trampoline. This resulted in permanent loss of sensation in the thumb and two fingers, numbness, paraesthesia and weakness in her dominant hand. That disability meant the plaintiff had difficulty writing after about thirty minutes. The Court of Appeal held that the severity of the non-economic loss as a percentage of the most extreme case was 20%. 170As permitted under s 17A of the Act, I take into account the decision of Coleman v Barrat [2004] NSWCA 27 [45]-[69] per Gzell J. In my view, the injuries and circumstances of Mrs McMorrow are slightly more serious than the overall situation pertaining to the plaintiff in that case. I also take into account those relevant factors specified in Clarence Valley Council v Macpherson [2011] NSWCA 422 per Tobias AJA at [82] which are analogous to this case. The plaintiff's age - here 50 - is also relevant: Reece v Reece (1994) 19 MVR 103. 171There was significant delay between the accident occurring and surgery. The surgery was very painful. It took an hour and a half and included significant post surgery swelling. 172Given the pain of the broken teeth, surgery and recovery, together with the ongoing weakness, pain, altered sensations, discomfort, and potential need for future operations to remove plates or to address the nerve damage, grief and embarrassment about her appearance, as well as any psychological or emotional upset surrounding those matters, I assess Mrs McMorrow's claim for non-economic loss at 25% of the most serious case, pursuant to s 16 of the CLA as an appropriate percentage reflecting the severity of the plaintiff's injuries and their impact on her life as a proportion of a most extreme case and the ongoing pain and suffering as well as inconvenience which will be caused by her ongoing treatment and the impact on the rest of her family and personal circumstances. That would result in an award of 6.5% of the maximum amount, namely, $36,000.00.

[50]

Future economic loss 193The plaintiff has claimed $115,285.50 for future economic loss. The defendant submits that the claim for future economic loss was not pleaded - even to the extent of pleading a diminution of earning capacity. An application for leave to amend the statement of particulars to include this claim as a particular was refused. 194In the event that this matter is reviewed elsewhere, it is appropriate to set out the matters advanced. The plaintiff submitted that the claim was particularised in Part 15 particulars and that I should take into account the following factors which may lead to significant future losses including: (1)A deterioration of her psychiatric condition; (2)A decline in the profitability of the family business; (3)A risk of the breakdown of her marriage to Mr McMorrow; and (4)A deterioration of Mrs McMorrow's health. 195S 13 of the Act provides that: (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted. 196An assessment needs to be made of the plaintiff's most likely future circumstances but for the injury. It is for the plaintiff to produce evidence of the real possibility that some capacity as yet unexploited would have emerged to be exploited in the future but for the accident: Mann v Ellbourn (1973) 8 SASR 298 at 306. 197It is important for the plaintiff to lead accurate evidence about the range of employment and wages which would have been available but for the accident and the range of employment still available to the plaintiff. An important consideration is whether the plaintiff has pursued employment opportunities or imposed any unreasonable limitations upon the type of work accepted: Ahmedi v Ahmedi (1991) 23 NSWLR 288. Here, Mrs McMorrow said that she is completing all the tasks she did before the accident (T 209). Now that she has her real estate certificate it could be expected that her earning capacity will improve. 198The approach should be that employment capacities will be used reasonably but not excessively. The assessment of damages, particularly for future earning capacity, is a pragmatic exercise. It can never be absolutely correct but it should aim at producing a realistic and fair result: Gillan v Brannan [1991] Aust Tort Reports 69,294 (¶81-136); Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388. 199The plaintiff has not demonstrated any loss of future earning capacity other than in the immediate period to undergo dental and related treatment. The factors outlined by the plaintiff do not demonstrate the most likely economic consequences that will probably flow from her accident as to include losses to her earning capacity through the business: Husher v Husher at [7]. 200For the purposes of s 13 of the Act, I find that the most likely assumption for the future is that: (1)Mrs McMorrow would have continued to work as a real estate agent at the rate disclosed in her tax returns; and (2)That, post-accident, she can continue to work without any diminution in her earning capacity save and except for the purposes of her attendance for dental work and associated periods of recuperation. It is not possible to be precise about this, the time involved and the income lost for her attendance on dentists and other specialists given the fluctuating nature of work in the real estate industry and therefore the income lost and associated losses such as superannuation. Therefore, the most appropriate way to deal with this is by way of a buffer.

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