Neil Carpenter v Damian James Russell

EXPERT EVIDENCE

1. The plaintiff qualified Ms Sharon Todd, Certified Professional Ergonomist, and her reports of 13 November 2019 and 20 April 2021 were initially marked as MFI 5, and then tendered and marked Exhibit B.
2. The defendant qualified Mr Carl Strauntins, Certified Occupational Hygenist, Certified Materials Professional, and his report of 13 February 2021 initially was marked as MFI 4, and was then tendered and became Exhibit 31.
3. A joint expert report from Ms Todd and Mr Strauntins dated 24 May 2021 was initially marked MFI 6, and was then tendered and became Exhibit C.
4. The issues to be addressed and a Statement of Instruction was given to the experts for the purposes of the conclave and joint report as follows: 'The parties now put to you the following questions to be included in your joint report: Upon what matters do the experts agree? Upon what matters do the experts disagree? In respect of the matters upon which the experts disagree, what are the reasons in support of each expert's position? Should there be any relevant matters which are not covered by the questions referred to above, but you think are relevant to the proceedings, you should provide details of those matters and the basis upon which you determined their relevance.'
5. The experts agreed that the surface had a slip resistance value that was reasonably safe.
6. The experts agreed that at the time of the construction of the stairs, no handrail was required. However, Mr Strauntins stated as follows (page 4): 'The stairway retains tapered winders (wedge shaped step). This is significant as the going is variable in nature and the closer that a person steps to the inner edge of the winder, there is a greater risk of an overstep. This is an obvious risk in my opinion which a fall may result from inadvertence and in my opinion in consideration of the factors presented and my inspection it is more probable than not that this is the explanation as to the cause of the fall.'
7. Ms Todd opined that whilst a handrail was not required by the National Construction Code, the provision and use of a handrail could further minimise the risk of a slip and fall, and that a handrail can aid in the arrest of a fall where a slip has occurred.
8. The experts agreed that it is impossible to completely remove the risk of persons slipping on pedestrian surfaces. They agreed that where pedestrians are not aware a surface is wet, they are less likely to reduce their frictional demands, and that intrinsic and biomedical factors can be contributing to falls.
9. Mr Strauntins opined that the presence of any salt water on the stairs would not make any meaningful difference in the slip resistance, as the viscosity of the liquid would not significantly be different in context of the effect of slipping.
10. Ms Todd raises the question as to the contamination, if any, at the time of the accident and the time of the testing, which I accept must be of some significant relevance in this instance.
11. Further, Ms Todd opines as follows (page 6): 'As the cause of slips and falls are multifactorial so must be the controls. A suitable surface slip resistance on its own does not prevent a slip and fall. As the plaintiff was not familiar with the stairs, the application of additional controls can aid in his situational awareness and perception of the risk and can further minimise injury.'
12. The experts do not agree on the most likely cause of the alleged fall.
13. Mr Strauntins states there is nothing remarkable about this stair that has contributed a greater risk compared with the inherent risk attributable to stairways when constructed to the National Construction Codes. He further states (page 7): 'In my opinion, it is more probable than not that the fall occurred due to a misjudged overstep on tapered winder (going); I do not agree that the alleged fall was initiated by a slip from the defendant's negligence because the stair meets the requirements of the NCC, the slip resistance of the surface was sufficiently high and the effect of salt water would not have made any measurable difference in the risk of slipping.'
14. Ms Todd states that it is a matter for evidence as to whether the fall occurred due to an overstep on the tapered winder (going). She states as follows (page 7): 'Where the plaintiff's frictional demands were higher than the available friction on the subject tread a slip is likely. Where the available friction of the first tread or nosing below the landing was lower than the landing service over which the plaintiff had been walking, there is an increased risk of a slip (Christina 2002).'
15. The experts considered that there were no other matters significant to the proceedings.
16. Both experts agree that it is very difficult, if not impossible, to determine the cause of the plaintiff's fall. Both agree that it could have been an overstep. I accept that a person using stairs may misjudge their footing and slip or trip (see Stannus v Graham [1994] Aust Tort Reports 81-293). I also accept that it may be categorised as an everyday risk that members of the public avoid by taking care for their own safety.
17. Section 5B of the CLA states: '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.'
18. Under s 5B of the CLA, I must first determine what the relevant risk of harm was in these circumstances. I find that the relevant risk was that of a person slipping or falling on external helical stairs where no handrail was present.
19. The defendant concedes that the risk of harm was foreseeable within the meaning of s 5B(1)(a) of the CLA.
20. I find that the risk was significant. External uncovered helical stairs at the rear of a property which is close to the beach, and which could well be coated or contaminated with sea spray, or moss, as noted by the plaintiff are, in my view, likely to accumulate such contaminations, and should a person, unfamiliar with the stairs attempt to descend them, they could easily fall which may well, and in this instance did, have serious consequences borne out by the injuries sustained by the plaintiff.
21. The evidence of Mr Walsh was that he had slipped on some decking the previous day, but not where the plaintiff fell, is significant. Whilst there is no evidence that the decking Mr Walsh fell on was the same or similar to the decking the plaintiff fell from, I think it would be reasonable for me to assume that more likely than not it was similar.
22. Whilst Mr Walsh did not depose to the materials being the same, criticism is made by the defendant as to his evidence, and it is suggested by the defendant that it cannot advance the plaintiff's case. However, the defendant chose not to cross-examine Mr Walsh. As such, the defendant cannot advance a case contrary to Mr Walsh's evidence: Browne v Dunn (1893) 6 R 67.
23. I accept that Mr Walsh was a frank and honest witness. He did not try to gild the lily to support the plaintiff's case. His evidence was clear, concise and uncontested. The previous evening to the plaintiff's incident, he slipped on some external decking at the same property, and nothing further.
24. The experts gave evidence together.
25. Both experts conducted slip tests on the material of the stairs. Ms Todd did so through a sample provided to her by the plaintiff. Mr Strautins performed a site visit.
26. Both experts agree a number of factors are relevant as to whether a surface is likely to result in an accident through either slipping or falling. Mr Strauntins believes that an overstep is more likely on helical stairs. Little more can be gained from their oral evidence, in addition to the joint report.
27. The pleaded particulars of negligence are as follows: 1. Having on the premises, stairs constructed of material with inadequate slip resistance; 2. Having on the premises stairs constructed of material liable to become excessively slippery when covered with salt spray and other contamination, in circumstances where salt spray from the nearby coastal waters would inevitably accumulate on the stairs; 3. Failing to have cleaned the stairs to limit the slipperiness of the stairs as aggravated by the presence of the salt spray; 4. Having on the premises, stairs constructed without non-slip tread and nosing surface; 5. Having on the premises, constructed of material with lower slip resistance than the slip resistance of the balcony adjacent to it such that the frictional demands the plaintiff was likely to place on the stairs were likely to exceed the friction available; 6. Failure to provide any [sic] or any sufficient warning that the stairs were slippery; 7. Failure to provide the stairs with a handrail to assist and mitigate the consequences of any slippage; 8. Having constructed stairs on the premises with a helical design liable to increase the risk of slipping and tripping; 9. Having constructed on the premises stairs with risers of uneven height; and 10. Failure to block access to the stairs in the event the danger could not otherwise be significantly mitigated.
28. In circumstances where expert witnesses cannot agree as to how the incident occurred, I accept the plaintiff fell in the manner he described and on the balance of probabilities that occurred because the steps were inherently unsafe, unguarded and no railing was available to arrest his fall.

LEGAL PRINCIPLES

1. The defendant owes the plaintiff a duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. The obligation to exercise reasonable care to prevent injury extends to an entrant who uses reasonable care for his or her own safety: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45] (Gummow J); applied in Laresu Pty Ltd v Clark [2010] Aust Torts Reports 82-068 at [38] (Macfarlan JA, Tobias JA and Handley AJA agreeing).
2. Any person using stairs may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety: Stannus v Graham [1994] Aust Torts Reports 81-293 at 61,566 (Handley JA); Wilkinson v Law Courts Limited [2001] NSWCA 196 ('Wilkinson') at [32] (Heydon JA, Meagher JA and Rolfe AJA agreeing).
3. In applying s 5B of the CLA, I must determine what the relevant 'risk of harm' to the plaintiff was in a particular case, in order to assess what precautions a reasonable person in the position of the defendants should take - that is, was it foreseeable?: Uniting Church of Australia Property Trust (NSW) v Miller (2015) NSWLR 752 at [106] (Leeming JA); Port Macquarie Hastings Council v Mooney (2014) 201 LGERA 314 at [52]-[54] citing Bellingen Shire Council v Colavon Pty Ltd (2012) 188 LGERA 169; Roads and Traffic Authority (NSW) v Dederer (see [52]); Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151.
4. Section 5B(1)(b) of the CLA requires that the risk must be 'not insignificant'. This inquiry primarily involves an assessment of the probability of the occurrence of the risk. This must also be judged from the perspective of a reasonable person in the defendant's position, and in prospect not retrospect: Benic v State of New South Wales [2010] NSWSC 1039 at [93] (Garling J), citing Stojan v Kenway [2009] NSWCA 364 at [136] (McColl JA).
5. In terms of s 5B(1)(c), the CLA speaks in terms of what a person would have done to take precautions for their own safety. Although the judgment as to what the reasonable person would have done to avoid what is known at trial to have occurred must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of the injury: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126] (Hayne J); applied in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [31] (French CJ, Gummow, Hayne, Heydon and Crennan JJ).
6. Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome: Mobbs v Kain (2009) 54 MVR 179 at [92] (McColl JA, Macfarlan JA agreeing); see also Marien v Gardiner (2013) 66 MVR 1 at [13] (Meagher JA, Macfarlan and Emmett JJA agreeing).
7. The test for negligence is always 'whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care': Derrick v Cheung (2001) 181 ALR 301 at [13] (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ).
8. A failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. Rather, it is necessary to determine what a reasonable response to that risk was: Tame v NSW (2002) 211 CLR 317 at [99] (McHugh J) cited in New South Wales Department of Housing v Hume (2007) Aust Torts Reports 81-879 at [91] (McColl JA). This is particularly so when dealing with stairs that are inherently but obviously dangerous: Hilas v Todbern Pty Ltd (t/as Hurstville Supercentre) [2007] NSWCA 315 at [10] (Hislop J, McColl JA and Handley AJA agreeing) citing Wilkinson at [32].
9. Section 5E of the CLA provides that in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving causation. To satisfy s 5D(1) of the CLA the plaintiff must satisfy the Court on the balance of probabilities, any fact relevant to the issue of causation. To satisfy s 5D(1) of the CLA, the plaintiff must satisfy the Court that on the balance of probabilities, had the precautions been implemented prior to the incident, the risk of harm would have been avoided: Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [95-[96] (Leeming JA, McColl and Basten JJA agreeing).
10. The plaintiff's case, in summary, is that the plaintiff slipped and fell on stairs that were helical, external and slippery, due either to sea spray or moss on the stairs, or a combination of both. Further, they submit that there was a number of reasonably practical measures that could have been taken to ensure that the stairs were safe for use by persons such as the plaintiff.
11. Those measures have been described above, and discussed by the experts, also above. Primarily, the steps that could have been taken, as asserted by the plaintiff, and to some extent, recommended by Ms Todd were: 1. Cleaning and/or washing of the steps so as to eliminate any sea spray or moss; 2. Installation of a railing so as to arrest a person who may have slipped on the stairs, and to act as a visual cue; and 3. Signage to indicate that there were stairs that may have been dangerous.
12. I accept that s 5D(1) of the CLA requires that the plaintiff must satisfy me that if the precautions that have been asserted ought to have been implemented, and had been implemented, the risk of harm would have been avoided.
13. The defendant's case is that the accident occurred as a result of an overstep by the plaintiff. They assert that there is no evidence, including the photographs tendered (Exhibit A) to establish that there was any sea spray or moss on the stairs. Further, the defendant submits that a consideration of the reasonable steps that the defendant could have taken includes physical amenity and aesthetics of the area.
14. Having regard to the evidence and the principles set out above with regard to liability, I make the following findings: 1. The defendant owed a duty of care to the plaintiff as an invitee to the property and as a consumer of services pursuant to the rental contract. 2. The duty of care included an obligation to ensure that the premises were safe and free of hazards. 3. The obligation in relation to safety was an obligation to ensure that persons present could engage in ordinary social discourse and move around the premises freely and without encountering undue hazard. 4. If the stairs in question were unsafe due to slipperiness caused by the accumulation of sea spray, or moss, or a combination of both, the defendant is in breach of their duty of care regardless of whether the accident eventuated. 5. Accepting as I do that the plaintiff fell as described including his description of the stairs being slippery, the defendant is liable for any injury and damages caused by the fall. 6. The stairs at the premises were slippery at the time of the fall in the way described by the plaintiff in his evidence, either due to the accumulation of sea spray, or moss, or a combination of both. 7. Stairs, and in particular helical and external stairs, are inherently dangerous. 8. The witness, Mr Walsh, slipped on the deck at the back of the property and observed it was very slippery. 9. The deck out the back of the premises was more probably than not made of similar materials as the stairs the plaintiff slipped on. 10. The frictional co-efficient of the material used for the stairs is about 43-45 measured across the grain pattern but a lot less running along it. 11. The frictional co-efficient of the rounded edge of the step was not measured by the pendulum machine used by the experts. 12. It is not possible to say what the amount of friction on the edge might be except that generally a higher profile surface will produce a higher co-efficient of friction than a lower surface. 13. The experts could not agree on how the plaintiff in fact fell, Ms Todd suggesting a slip, and Mr Strauntins suggesting an overstep. 14. The stairs did not have a handrail and a handrail could have assisted in either preventing or mitigating a fall. A handrail would have provided a useful visual cue as to the curvature and the course of the stairs. 15. The Building Code of Australia did not require the stairs to have a handrail when built but when used for commercial purposes SafeWork Australia Code of Practice says they should have a handrail. 16. There were reasonably practicable and inexpensive steps that the defendant could have taken to avoid the risk of someone falling.
15. I therefore find that the plaintiff's fall and the injuries he sustained in the fall on 13 April 2018 was as a result of the defendant's negligence. There are no grounds for a deduction for contributory negligence.

ASSESSMENT OF DAMAGES

1. Having found the plaintiff is entitled to a verdict against the defendant, I will now assess damages, and make the following findings: 1. The plaintiff suffered an injury to his back in the subject fall. The injuries are documented in, and described by his treating medical practitioners. 2. He was certified as unfit for work between 16 and 23 April 2018, and took further leave between 23 and 26 April 2018. 3. Prior to the accident, the plaintiff was employed by Redfern Flinn as an electrical fitter in crane maintenance and earned approximately $1,400 per week. 4. When the plaintiff returned to his job at Redfern Flinn he struggled with the duties involved due to his back injury. 5. The plaintiff suffered a further injury at Redfern Flinn when he was required to lift a ramp. 6. He remained off work until November 2018. This was an aggravation of his previous injury at the golf weekend. 7. The plaintiff was required to pass a medical fitness test before he could return to his pre-injury duties. In order to pass this test, the plaintiff denied any previous injuries and to mask his pain, took Endone before the assessment. 8. The plaintiff was cleared to return to work, and wanted to do so as he needed an income. 9. On his return to work, he was bullied and belittled by his former workmates which upset him greatly. 10. He attempted to perform the work allocated to him but was unable to continue due to his back pain. 11. The plaintiff remained at Redfern Flinn for about 7 months and then applied for work with a dairy transport company, McColls. He underwent a health assessment as part of the interview process and lied about his generalised health and need for medication. 12. Despite passing the assessment, the plaintiff declined the job as he felt he was unable to do the work. 13. The plaintiff organised for himself an interview with Linfox as a truck driver, and in preparation for the interview withdrew himself from his opiate and narcotic medicine, as he knew he would be tested for these drugs. He continued to suffer significant pain. 14. He again lied in the medical examination at Linfox, as he was desperate for work. 15. The plaintiff had two further incidents at Linfox, and ultimately was unable to cope with the rigors of truck driving, would end each day in pain, and self-medicate with alcohol. 16. The plaintiff was a witness of truth, who often gave evidence against his self-interest. I accept he told lies in order to secure employment. He kept trying to get work despite his considerable pain and disabilities, as a consequence of the golf weekend accident. 17. The plaintiff has been completely incapacitated for work since 8 December 2020 as a result of the injuries suffered in April 2018. 18. Despite being motivated to return to work, the plaintiff does not have any capacity for his pre-injury employment, being either electrical fitting and maintenance or truck driving. 19. The plaintiff is totally unfit for his pre-injury duties, despite him trying to do so.
2. There were strong and genuine reasons which I accept motivated the plaintiff to lie. He was injured, unemployed and needed money. He wanted to get his life back to normal. I find that he had always been a hard worker, and after the golf weekend accident, he did whatever he needed to do to return to the workforce, often working in significant pain. He had never been in receipt of unemployment benefits, up until the accident.
3. The medical evidence demonstrates evidence of degenerative change to the plaintiff's spine, which I accept was as a consequence of having done heavy work for many years, that the plaintiff was unlikely, but for the accident, to continue doing heavy physical work until his statutory retirement in 15 years' time.
4. I accept the plaintiff would have managed truck driving until retirement if there was minimal heavy lifting, but may well have looked for other more suitable employment. However, I do accept he would have worked until the statutory retirement date.
5. The Amended Statement of Particulars claims future loss of earnings at $600 per week, which is a concession as to having a residual earning capacity of about half for the balance of working life, with the addition of a buffer. I accept that the plaintiff has had an ongoing problem with his lumbar spine since the injury sustained on the golf weekend. I also accept that he has had aggravations of the lumbar spine, and other injuries to his arm and psychological sequelae, it is difficult to calculate future economic loss with any real precision.
6. I accept the figures and calculations as the plaintiff's past loss of earnings at $96,451 and loss superannuation of $11,197, and I propose to make those awards.
7. The defendant submits that the views of Dr Smith (Exhibit 34) should be preferred, and the opinions expressed in Dr New's report (part of Exhibit E) ought be disregarded as they were based on an incorrect history.
8. Dr Smith was qualified by the defendant to examine the plaintiff and provide a report. He diagnosed the plaintiff as having sustained a likely aggravation to the cervical and lumbar degenerative disease as a result of the incident, from which he has long since recovered and further opines that the plaintiff's complaints of becoming worse with the passage of time, as somewhat unphysiological. He went on to say there is nothing wrong with the plaintiff, there is no objective evidence of any ongoing incapacity and he is therefore fit to engage in his pre-accident activities and has no need for any care and assistance.
9. In my view, Dr Smith cannot say, based on the histories given, and does not say, what injuries the plaintiff sustained in the accident. I disagree with his expression that the plaintiff's complaints of worsening are unphysiological. On the contrary, I accept that once pain is elicited in the spine, and activities by the plaintiff continue, the area continues to degenerate and thus causes a worsening of symptoms, consistent with the plaintiff's evidence.
10. It is clear that the plaintiff suffered injuries to his back in the subject accident. It is clear that he has made many attempts to return to the workforce, but he is totally unfit to do any of the jobs he had done prior to the accident. There can be no question that he is highly motivated to return to the workforce, but it is his injuries sustained in the accident that are preventing him from doing so.
11. Necessarily, future loss must be estimated and the figure arrived at is a matter of judicial impressions and experience. The plaintiff submits that the final determination is for the Court, but suggests that a buffer of $75,000 is appropriate noting that a significant cushion can be awarded: State of NSW v Moss (2000) 54 NSWLR 536 at [87] (Heydon JA); Jopling v Isaac [2006] NSWCA 229; and Black v Young (2015) MVR 174.
12. I accept that his pre-injury earnings were approximately $1,400 per week and it has been conceded that his residual earning capacity is about $600 per week. If one was to multiply that out for 14 years on the 5% tables (multiplier 529.3), it would come to a figure well over $300,000. Given the vagaries of what might occur in the future and the uncertainty of whether the plaintiff would remain as a truck driver until retirement age, I propose to allow a buffer for his future loss of earning capacity in the sum of $75,000.
13. The plaintiff makes a claim for general damages for the loss of enjoyment of life and pain and suffering. His evidence was that after the accident on the golf weekend, he could only pursue golf at a much reduced level, and cannot play without taking some narcotic medication.
14. The defendant cross-examined the plaintiff with regard to his participation in golfing competitions. The plaintiff's evidence was that sometimes his brother played golf on the plaintiff's golf membership, and that explains the number of golf games the plaintiff has played since the accident. The cross-examination did not shake the plaintiff at all, and I accept that a fair number of the golf games recorded against the plaintiff's number were actually played by his brother, who did not have sufficient funds to maintain his own membership. The plaintiff's capacity for golf was clearly diminished, despite his love of the game, and his brother was the beneficiary of the membership.
15. The plaintiff's evidence about the effect that the accident has had on him was very sad. It was clear to me that the plaintiff loved his golf before the accident and enjoyed the competitive side of the game. It is plainly obvious that his enjoyment of life has been diminished, and he gave compelling evidence that he continued to play golf despite his physical limitations because it was all he had in life, and he had been advised to do whatever movement he could. He said that he did not play social golf as he was unable to cope.
16. Whilst there was no evidence as to why social golf might be more arduous than competition golf, I accept that the golfing competitions do not require any qualifying level of ability to play.
17. The plaintiff's evidence of pain and abandonment of pre-accident activities was not embellished. To the contrary, he was willing to describe the limits of what he could do and the lengths, in terms of painkillers, he went to do it. His living circumstances have also been negatively impacted by his injuries and his lack of income.
18. In all the circumstances, and having accepted the plaintiff as an open and honest witness, I find that the plaintiff is 25% of a most extreme case pursuant to s 16 of the CLA, which equates to $44,500.
19. There is no claim for past domestic assistance under s 15A of the CLA.
20. With regard to future assistance, the plaintiff spoke of the domestic tasks that he cannot do, such as mow the lawns. That is not required of him at present as he lives in a caravan. Sadly, his evidence was that he did not know where he would be living after he has to leave the caravan park at the end of the year. In those circumstances I propose to allow one hour per week of paid care for the balance of his working life, which equates to $46 per hour for 14 years, on the 5% table of multipliers (529.3) = $24,347.80.
21. The vast majority of the plaintiff's medical expenses to date have been met by Medicare. The plaintiff has given evidence that he has had a number of injections to his lumbar spine, been under the regular care of his general practitioner and continued to take strong opiate medications. The plaintiff has completed a Medicare list of benefits, using his unusual style of ticking boxes which would represent a charge of $1,217.75. I note that the defendant does not concede anything after 1 May 2018, however, the plaintiff concedes that an apportionment of half to the subject accident and half to other conditions is reasonable, and I will allow that.
22. A claim is also made for an allowance of $1,987.50 for over the counter pain killers, travel to and from medical appointments and prescription medications. Whilst the receipts are not available, given the very modest sum, balanced against the plaintiff's evidence as to the medications that he was taking and the medical appointments he was attending, I will allow this figure.
23. A claim is made for future medical treatment as a buffer of $30,000 noting the ongoing requirement to consume analgesics and the possibility of a spinal fusion. The plaintiff gave evidence that he continues to take Endone, will have further physiotherapy, and intends to have the spinal fusion if that is recommended to him by his medical practitioners. I will allow that sum.
24. Thus, damages are assessed as follows: Non-Economic Loss $ 44,500.00 Past Out-of-Pocket Expenses $ 2,596.38 Future Out-of-Pocket Expenses $ 30,000.00 Past Loss of Earnings $ 107,648.00 Future Economic Loss $ 75,000.00 Future Commercial Care $ 24,347.80 Total: $ 284,092.18 Plus costs as agreed or assessed

ORDERS:

1. I make the following orders: 1. Judgment for the plaintiff in the sum of $284,092.18. 2. Defendant to pay the plaintiff's costs as agreed or assessed. 3. Leave to the parties to approach my associate within 14 days if an alternate costs order is sought.

Amendments 31 August 2021 - Correct spelling of the name Redfern Flynn to Redfern Flinn DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2021