Oakley v Collins & Anor

District Court of NSW|2018-05-31

Introduction

The plaintiff attended an 18th birthday party at the suburban home of the defendants. There was a fire pit in the backyard and a barbeque serving sausages, salad and buns. Inside some of the guests played pool and some were entertained by a Playstation. The stereo played ACDC all night long. All of the 35 or so people who attended the party were having a good time, until the plaintiff fell over.
By an Amended Statement of Claim filed on 5 February 2018 the plaintiff sued the defendants as the occupiers of a property upon which she was a lawful entrant. The defendants by a Defence filed on 9 October 2017 denied negligence and alleged contributory negligence. The defendant also pleaded that the risk to which the plaintiff was exposed was an "obvious risk" and an "inherent risk", within the meaning of the Civil Liability Act 2002 (the Act). All liability issues were governed by the provisions of the Act.
The plaintiff gave evidence and called two other witnesses. The defendants gave evidence and called two other witnesses.
At the outset I record that all seven witnesses struck me as people who were doing their best to give their recollection of what was a sudden and unexpected event. Both sides not only called oral evidence from the witnesses but tendered statements made in the past. In large part, these simply provided material upon which those persons could be cross-examined concerning the fallibility of their memory. While there was a degree of animosity between the plaintiff and the defendants I formed the view that this had not infected the evidence of any witness.

Liability Evidence for the Plaintiff

The plaintiff gave evidence that she was injured in a fall at the defendants' home on 5 July 2014. At that time she was employed as a disability support worker at Westlakes Accommodation Services. She was living in a domestic relationship with Mr Anthony Redding. Mr Redding's two sons and the plaintiff's daughter Amy lived in the same house.
The plaintiff took six beers to the party. The plaintiff drank one beer when she first arrived and started a second beer later when she was eating, although she did not finish it. She also drank two jelly shots which she thought contained vodka. She ate food at the party.
Around 9.30pm the plaintiff went from the backyard of the house, where she had been socializing, and into the back room. This was a large room with a tiled floor which adjoined the kitchen area. A pool table was in the centre of this back room, which I will call the pool room. The plaintiff said that she came in through a sliding door on the exterior wall at the back of the house, walked through the pool room and went to a toilet which was off a corridor, which commenced on the wall of the pool room opposite the exterior rear wall. She went to the toilet and walked back down the corridor to enter the pool room. She said that she stopped at the last room in the corridor before the pool room, which was the bedroom of one of the defendants' daughters. She said hello to the girl, who was in her bedroom.
The plaintiff gave evidence that she walked back into the pool room and past Mr Stewart Collins (the male defendant) and another man who were playing pool. She saw her partner Mr Redding in front of her and saw a Mr and Mrs Hulse who were near Mr Redding.
She said that she was just walking along past the pool table and she slipped and fell hard onto her right-hand side. Her feet came out from under her. She said she was just walking at a normal pace. She said that music was playing and she was swinging her arms across her body in time to the music as it was one of her favourite ACDC songs.
The plaintiff said that she had not observed Mrs Karen Collins (the female defendant) cleaning up anything from the pool room floor and was not given a warning of any sort that the tiled floor in the vicinity of the pool table was slippery. She had noticed that people in the pool room were talking and laughing about dog excrement having been tracked across the floor. She could not recall whether that was before or after her fall.
The plaintiff denied that she was doing a dance at the time she fell. She denied that she heard Mrs Collins say anything about cleaning or that she saw Mrs Collins cleaning.
The plaintiff said that as soon as she fell she was laughing out of embarrassment, but she quickly felt pain. She was taken to Belmont Hospital by Mr Redding and her daughter.
The plaintiff was initially cross-examined regarding histories she had given to expert witnesses. She acknowledged that she told Mr Adams (an ergonomist) that she did not have a clear recollection in relation to either where she was coming from or where she was going when the incident occurred. She acknowledged that she told Ms Whitmore (an occupational therapist) that she could not recall the events of the fall, but recalled finding herself lying on her back on the right side of her body.
It was suggested that the plaintiff lost her footing after performing a dance which involved a vigorous high kick, which caused her to fly upwards and land on her right shoulder. She said that that did not happen. What was put to her in cross-examination was that she had been performing a sort of a can-can dance, which involved lifting her legs high out in front of her. She denied that.
The plaintiff was shown a copy of a printout from Facebook, which was in the form of a conversation between herself and a Ms Shaye Avis. The tone of the Facebook exchange is clearly one of jocularity. Much of it dealt with how the plaintiff was recovering from her injuries. At one point Ms Avis made a reference to the plaintiff performing "the dog shit dance". When the entire Facebook exchange was put to the plaintiff, her response was: "This was a comical conversation between three people [the third was Mrs Collins] who were just making up - excuse my words - shit at the time".
The plaintiff was then cross-examined at greater length about what happened in the pool room. She recalled that the ACDC song "You Shook Me All Night Long" was playing, and she was walking along at a normal pace moving her shoulders and arms in time to the music. The plaintiff denied hearing Mr Redding stopping a fellow guest walking further across the pool room when he had tracked dog excrement in on his shoe. The plaintiff denied seeing Mrs Collins do anything to clean up the contaminant on the floor. The plaintiff denied that she kicked her legs up in the air dancing vigorously and that that was when she had her fall.
The plaintiff was cross-examined about a visit she made to the defendants after her fall where she asked for details of their insurance. She said that she had consulted a solicitor who advised her to try to find out the defendants' insurance details. The situation between the plaintiff and the defendants became strained as a result of this conversation.
It was suggested to the plaintiff that she thought it was funny when people were talking about the dog excrement being on the floor and that she got carried away and decided to perform "what seems to be described as the dog shit dance". The plaintiff denied this.
Mr Anthony Redding, who was the domestic partner of the plaintiff, gave evidence. He was at the party and was not drinking as he was the designated driver. At about 9.30pm he saw a young man walk through the pool room towards the corridor and the bedroom. He talked to him to alert him that he was tracking dog excrement through the room. Mr Redding said that he saw Mrs Collins obtain a paper towel and a mop to clean up the affected area. She used the paper towel to pick the contaminant off the tiles and mopped the area which had been affected. He said that the plaintiff was not inside when all this was going on.
Mr Redding said that he saw the plaintiff afterwards come inside from the backyard and walk towards the toilet which was down the corridor on the opposite side of the pool room to the back door. He later saw the plaintiff walk from the toilet across the pool room around the pool table. He said that the plaintiff's feet went from underneath her and she fell heavily on her right side. Mr Redding went over to the plaintiff and tried to pick her up off the floor. He said that she been crossing the room walking and not dancing. He said that when he saw Mrs Collins clean the floor with the mop she did not say anything about staying off the area or give any warning about being on that area.
In cross-examination Mr Redding agreed that he was not with the plaintiff for much of the night and that she was outside for most of the time. When the incident occurred he was standing at the doorway between the pool room and an adjacent lounge room, talking to Mr and Mrs Hulse. He was facing the kitchen so he was looking across the pool table with the back door on his right and the corridor to the bathroom on his left. He recalled Mr Collins playing pool with another guest at the time.
In cross-examination he said that he had seen Mrs Collins get a paper towel but he did not observe her picking the contaminant up with it. He saw a mop as well as a paper towel. He did not know what kind of mop it was. He did not observe what Mrs Collins was doing with the mop. He denied that the plaintiff was behind Mrs Collins when Mrs Collins approached to clean the area. He said that the plaintiff was not in the room at that time.
He denied that the plaintiff had performed a can-can dance, reiterating that she was not in the room. He denied that she jumped up and down in a dancing motion waving her arms and yelling "It didn't come from me, it didn't come from me". He denied that she had been saying words "I'm doing the dog shit dance". Again he said she wasn't in the room.
Mr Redding said that he did not know if there was any water on the floor. He recalled ACDC playing, because he had put the music on, making a selection from Mr Collins' extensive collection of ACDC music. Mr Redding thought that it was 10 minutes between Mrs Collins cleaning the floor and the plaintiff falling over. He acknowledged that in a prior statement he has said that the difference in time was a couple of minutes.
The plaintiff's daughter Ms Amy Kuczynski gave evidence. At the time of the incident on 5 July 2014, she was 17 years old. She too went to the party. She did not drink. When the events happened she was sitting on a small table in the lounge room adjacent to the pool room. That table can be seen in one of the photos taken from the pool room and looking through the archway towards the lounge room. She said that she heard the back door open and she looked to see who was coming in. The back door is quite close to the table in the lounge room, although the back door is part of the pool room not the lounge room. She said that her mother walked to the hallway that leads to the toilet, passing the pool table.
Ms Kuczynski said that she saw her mother come back five minutes later and "she was just walking slowly and dancing a bit", moving her arms around in time to the music. She did not see the start of the fall. She heard a loud gasp from everyone to her left and she turned and saw her mother in mid-air falling rapidly to the floor.
She did not hear any conversation about a contaminant on the floor. She did not hear Mrs Collins say anything, she did not see her mother following Mrs Collins, and she did not hear her mother saying anything about doing a dance.
She walked over to her mother who was laughing at first, but then assisted her because she was in pain.
In cross-examination she was challenged about seeing her mother walking in through the back door. She said that the door was loud and that it was right next to her. She was firm in her evidence about what she had seen.

Expert Evidence on Liability

The plaintiff tendered a report from Mr Neil Adams who is a safety management and ergonomic consultant. He was not required for cross-examination. Mr Adams inspected the pool room floor on 18 August 2017 and conducted scientific testing. He was clearly qualified on the basis of training, study and experience to offer expert opinion on the matters contained in his report.
He made measurements of wet slip resistance on the tiles in the pool room. This test was conducted in accordance with an Australian Standard. When the tiles were wet they gave a result indicative of a surface which is "very slippery". Such a result would be likely to make a high contribution to the risk of slipping. The average co-efficient of friction on the tiles when wet was 0.11. It is scientifically accepted that for safe pedestrian movement in level conditions the dynamic co-efficient of friction should be 0.40. A co-efficient of friction of 0.11 indicates that the tiles in the pool room were not adequately slip-resistant for normal pedestrian purposes in wet conditions.
The tiles when uncontaminated with water would have provided adequate slip-resistance. However it would have been possible for a person to slip in the presence of even a very small amount of water. Mr Adams said that slips most commonly occur when there is a mismatch between expectations about the level of friction likely to be available on a given surface and the level of friction which is actually available. Thus a person who did not know that tiles were wet, who walked from a dry area to a wet area, could well slip.
Mr Adams addressed the reasonable preventative measures which could have been implemented by the defendants. These included: 1. removing the contaminant using dry cleaning processes such as paper towels, thus eliminating the original hazard without introducing a new hazard; 2. any wet mopping that was undertaken could have been followed immediately by a process of thorough dry mopping or the use of towels to remove the water; 3. temporary matting could have been placed on the sections of the floor which were wet; 4. a suitable barricade could have been deployed to prevent people walking on those sections; 5. a person could have been positioned to provide warnings to people of the wet and slippery conditions; 6. the plaintiff could have been directly instructed not to walk on any of the wet tiles until appropriate actions had been effectively implemented to remove the hazard.
I accept the expert opinions offered in the report of Mr Adams.

Evidence for the Defendant

Mrs Collins gave evidence that she and her family had lived in the house since 2007. She cleaned the house once a week and usually vacuumed and mopped the tiled floor in the back room on that basis. For regular cleaning she used a mop and a bucket with detergent in the water. The plaintiff and her daughter had lived with the family between October 2012 and April 2013 (the plaintiff was a cousin of Mr Collins). When Mrs Collins had cleaned the floor on a regular basis she had walked upon it and never had any difficulty in terms of traction on the floor. She had never seen anyone else have any difficulty walking on the floor either dry or after it had been cleaned.
There were about 35 people at the party. At one stage Mr Redding stopped a young man tracking dog excrement through the pool room on his shoe. Mrs Collins went and retrieved the mop from the laundry. She wet the mop and wrung it out and walked back to the pool room. She said that as she went back into the room the plaintiff was leaning against the wall near the opening to the corridor off the pool room. This was near the door of her daughter's bedroom. She saw a few spots of contaminant on the floor. She walked in with the mop and said "Beep beep, out of the way, coming through". She then proceeded to spot mop the floor. She thought that the plaintiff was close behind her at that stage, but she did not see her.
After she cleaned the floor Mrs Collins turned around and walked back into the laundry to put the mop back there. She rinsed the mop in the laundry. She then went to her daughter's doorway to see if any contaminant had been tracked onto the carpet. She heard a commotion in the pool room and looked over to see the plaintiff lying on the floor with people around her. She went over to the plaintiff. The plaintiff complained that she hurt her shoulder.
Mrs Collins recalled the later visit to the house by the plaintiff and Mr Redding, when the plaintiff asked for their insurance details. She had no further conversations with the plaintiff after that day.
In cross-examination Mrs Collins acknowledged that she might have used a paper towel to clean up the contaminant but she could not recall. She said that the mop was wet and that she had squeezed it out and made it as dry as she could. She did not use a dry mop to dry the floor after wetting it. She did not put a towel down. She did not put a chair over the mopped areas to barricade them. She did not make a general announcement that people should avoid going onto that area. She did not say anything after she mopped up.
Mrs Collins acknowledged that on the occasions when she had walked on the wet pool room tiles after she had cleaned them, she had adjusted her gait to accommodate the fact that the tiles were slippery. She said that she did not have the chance on the night to actually go and get anything to dry the floor, but she did not give evidence that she had any intention of doing so. Mrs Collins disputed the suggestion that the plaintiff was not in the room when she did the cleaning. She said that after she finished her cleaning she turned around and nearly ran into the plaintiff on her way back to the laundry. She recalled about 8 or 9 people being in the pool room at the time.
Mrs Collins accepted that the floor was wet when she left the pool room and that when the floor was wet it was slippery.
Mr Rhys Collins, the brother of the defendant Mr Stewart Collins, gave evidence. He was at the party. He was a non-drinker. He was in the pool room and heard Mr Redding speak to the young man who had tracked the contaminant into the room. He saw Mrs Collins go and get a mop to clean it up. He said that the plaintiff was in the room. After Mrs Collins left the room he said the following concerning the plaintiff: "Yeah, Cathy basically came back across the room kicking her heels in the air sort of singing a little song that 'didn't come from me, it didn't come from me' and basically showing her heels - the heels of her shoes to - to prove it. As she walked across pretty much where the end of the pool table was in an area where Karen had just finished mopping, slipped on the floor and landed on her shoulder."
He recalled Mrs Collins bringing the mop into the pool room and saying "I'm just about to mop the floor where the dog poo is. Just stand back and be careful".
In cross-examination Mr Rhys Collins said that he thought that Mrs Collins wet-mopped the floor. He agreed that when the floor is wet-mopped it is hard to see the water. He said he saw the plaintiff over near the back door (it is to be noted that this is the opposite side of the pool room to where Mrs Collins said she saw the plaintiff). He said that the plaintiff was there while Mrs Collins was cleaning up and that she then moved towards the pool table where she performed the actions he described. He was asked about using the word "walking" in his evidence-in-chief to describe the motion of the plaintiff, and he said it was more of a jig, and that the plaintiff was kicking her heels in the air. He said it was almost like a skip, skipping across the floor kicking her feet in the air. Doing a skip across the floor her heels were flicking up behind her.
Mr Rhys Collins said that at the time all this went on he thought that his brother Mr Stewart Collins was "in the other room" and not in the pool room.
The defendant Mr Stewart Collins gave evidence. He said that he was in the pool room when someone tracked a contaminant on their shoe across the floor. He heard Mr Redding pull that person up. He said that his wife asked for everyone to stand back and she went and got the mop from the laundry down the hallway. He saw the plaintiff over near Mr Redding, near the back door. He remembered his wife saying "Everyone out of the way, I'll clean it up".
Mr Collins saw his wife go back to the laundry and he then walked over to his daughter's room to see if there was any contaminant on the carpet. He thought he heard the plaintiff say: "Not on my shoes". He said that everything went quiet and when he turned around he saw the plaintiff on the floor. He did not see the fall.
Mr Collins gave evidence about the visit of the plaintiff to talk about insurance. He offered the plaintiff a drink and she said "No, every time I have a drink, I end up hurting myself". I regard this as a jocular comment on her part. In that conversation he asked the plaintiff what would happen if he was not covered by insurance, and the plaintiff told him that a lawyer had informed her that if that were so, they could take the house. He said that he did not feel threatened by that but he was upset by the comment. By that I take it that he understood that this was not something which the plaintiff intended to do under any circumstances.
In cross-examination he agreed that the tiles could be slippery when they were wet but he had never had any trouble. He acknowledged that you can adjust your gait when they are wet to avoid a problem and that if a person did not know they were wet they could be very slippery.
Mr Travis Hulse gave evidence. He was a family friend of the defendants. His parents were talking to Mr Redding at the time of the incident. He was playing pool at the time. He recalled the guest tracking the contaminant into the pool room and being stopped. He saw Mrs Collins go and get a mop. He did not see the plaintiff in the room at that time. He saw Mrs Collins use the mop to clean the floor and then take it back out of the pool room.
He then saw the plaintiff come over to the spot which had been cleaned and start to dance. He described her as "just flailing around, kicking her legs up, moving her arms". He said she was saying loudly "I'm doing the dog shit dance". He saw the plaintiff slip. She kicked her legs and lost her footing and fell onto her shoulder. He was about two metres away.
In cross-examination Mr Hulse said that his partner Ms Shaye Avis was in the vicinity as well. Ms Avis was the person involved in the Facebook conversation a few days later, but she was not called to give evidence. He thought that about 30 seconds elapsed between Mrs Collins mopping the floor and the plaintiff falling. He said that he thought that the mop was dry and that the floor was not wet.

Factual Findings on Liability

It is very difficult to find facts in a case such as this, where there are seven versions put forward of what happened on the night, and no version is completely congruent with any other. The key issues are: 1. whether the plaintiff was in the pool room when the contaminant was tracked across the floor and Mrs Collins mopped it up; 2. whether the plaintiff slipped and fell when she was simply walking across the pool room floor or whether she was doing a dance of some sort; 3. whether the plaintiff knew that the floor was wet and thus was slippery.
On the first issue of whether or not the plaintiff was in the room at the relevant time, the plaintiff and Mr Redding say that she was not. Mr Rhys Collins, Mrs Collins and Mr Stewart Collins all say that she was in the room. However, Mr Rhys Collins and Mr Stewart Collins say that the plaintiff was over against the back wall of the house. Mrs Collins says that she was on the opposite wall near the corridor which led to the bathroom and the laundry. Ms Kuczynski could not say whether she was in the room at the relevant time. Mr Hulse did not see the plaintiff in the room at the time.
As to the second issue of whether or not the plaintiff was walking or dancing, the plaintiff and Mr Redding say that she was walking. Ms Kuczynski, Mr Stewart Collins and Mrs Karen Collins were all out of the room at the time and thus cannot say one way or the other. Mr Hulse and Mr Rhys Collins both say that the plaintiff was dancing after a fashion. However, each gives quite different descriptions of the "dance" which the plaintiff was doing and each give quite different versions as to what the plaintiff was saying or singing while dancing.
To add to the difficulty in fact finding, it cannot be forgotten that the plaintiff had told Mr Adams and Ms Whitmore that she had difficulty in remembering some of the facts surround the fall. Further, the statements of each witness contain discrepancies compared to their oral evidence.
As previously recited, the slip and fall was an unexpected event for everybody. There is no reason why anyone should have been paying close attention to what was going on before the fall.
On the third issue, as to whether the plaintiff knew that the floor was wet and therefore slippery, it is to be noted that no-one except Mrs Karen Collins knew that the mop was wet. No-one saw any water on the floor, and in any event any coating of water would have been very thin, as Mrs Collins squeezed the mop out before she wet mopped the floor. However, even a thin transparent coating of water would have made the floor slippery.
On the question of whether or not the plaintiff was in the room, I prefer the evidence of the plaintiff and Mr Redding. Mr Redding is no longer the partner of the plaintiff, although they remain on civil terms. It is to be expected that on the night in question he, as the domestic partner of the plaintiff, would have had his attention drawn to her and where she was, from time to time. Mr hulse could not recall the plaintiff being in the room. While Mr Rhys Collins, Mr Stewart Collins and Mrs Collins all put the plaintiff in the room at the relevant time, there were significant discrepancies in their recollections. The two men thought that the plaintiff was over against the back wall of the pool room, but Mrs Collins thought that the plaintiff was on the opposite side of the room. Mr Rhys Collins thought that his brother Stewart was not in the room. The memory of Mrs Collins that the plaintiff was in the corridor near her daughter's bedroom does tend to corroborate the plaintiff's version (supported by Mr Redding and Ms Kuczynski) that she had gone to the toilet and called into say hello to the young daughter in her bedroom (both rooms were off the corridor) immediately before the fall in the pool room. There was no particular reason for any of these witnesses to even notice the plaintiff in the pool room before her fall. It is for those reasons that I find that the plaintiff was not in the pool room when the dog excrement was tracked across the floor, or when Mrs Collins cleaned up with a wet mop.
On the question of whether or not the plaintiff was walking or dancing when the slip and fall occurred, I find that she was doing a dance of some sort at the time. All witnesses described the plaintiff as an ebullient or boisterous person, who could be described as a "life of the party" guest. The plaintiff herself says that she was moving her arms as she was walking across the pool room, in time to the music. Mr Rhys Collins says that the plaintiff was in effect skipping across the room, clicking up her heels behind her and saying words to the effect that the contaminant was not on her shoes and it was not her who was responsible. Mr Stewart Collins heard words to similar effect, even though he was out of the room at the time. Mr Hulse gave evidence that the plaintiff was performing a dance at the time, although for reasons set out below I do not accept his recollection of what the plaintiff was saying at the time. I therefore find that the plaintiff was not walking when she slipped and fell, but was performing a movement of the kind described by Mr Rhys Collins an attempt to be humorous.
These findings on the first and second questions have involved accepting the evidence of certain witnesses while rejecting other parts of their evidence. In making the findings I have looked at all of the evidence and the surrounding circumstances, and decided these questions on the balance of probabilities.
On the question of whether or not the plaintiff knew or ought to have known that the floor was wet and therefore slippery, all the evidence points to the plaintiff being unaware of these things.
I make the following findings of fact.
The plaintiff arrived at the party at the defendants' house at about 8.00pm.
During the course of the next hour and a half, the plaintiff drank one beer and part of a second beer. In addition, the plaintiff consumed two jelly shots which were said to have contained vodka. The plaintiff was not unduly affected by alcohol.
About 9.30pm a young male guest at the party tracked dog excrement on his shoes from the backyard through the pool room and deposited matter on the floor.
He was stopped in his tracks by Mr Redding, and the young guest then went back outside.
The contaminant being on the floor, and the smell it created, was the subject of some comment and hilarity generally in the pool room.
The plaintiff was not in the pool room when the material was tracked across the floor.
Mrs Collins went to the laundry and got a mop which she immersed in water and then squeezed, although leaving the mop wet.
Mrs Collins then came back into the pool room and mopped several spots on the pool room floor to remove the contaminant.
In doing so she deposited a film of water on those areas on the pool room floor.
These spots were adjacent to the long side of the pool table next to the kitchen and the short side of the pool table nearest to the back wall of the pool room and the house.
The plaintiff was not present in the room when Mrs Collins wet mopped the floor.
Mrs Collins left the pool room with the mop to go back to the laundry. She did not take any steps to deal with the water left on the floor nor did she have any intention of coming back later to do so.
The plaintiff performed a kind of dance which involved her moving to the area near the pool table, being an area which Mrs Collins had just mopped.
She was performing some sort of movement with her feet which involved kicking them up and making verbal reference to the fact that her shoes did not have any contaminant on them.
At the time she was performing her dance the plaintiff was saying words to the effect of "It wasn't me, it wasn't me". I find this because Mr Rhys Collins recalls her saying those words and Mr Stewart Collins also heard such words.
The plaintiff was not saying "I'm doing the dog shit dance". I reject this piece of evidence from Mr Hulse, as no other person heard or recalled the plaintiff saying this, although it would have been a memorable turn of phrase, if said. This phrase first turned up in the Facebook post, and was a comment made by Ms Avis, who was apparently present in the pool room but who was not called as a witness. Ms Avis is the partner of Mr Hulse, and I find that somehow this phrase, used as part of an exchange in jest, has become known to Mr Hulse and embedded itself in his memory.
It was while the plaintiff was performing her manoeuvre that she traversed from the dry part of the tiles to the wet part of the tiles and slipped on the wet tiles.
The plaintiff did not know and could not have known that water was left on the floor or that the floor was thereby made slippery.
The slip and fall was sudden and the plaintiff fell heavily to the ground landing on the point of her right shoulder.
In the pool room were a number of bar stools adjacent to the kitchen, which could have been placed in positions to effectively barricade the wet area.
Either Mr Stewart Collins or Mrs Collins could have stayed in the pool room and provided a warning that the floor was wet and people should not walk or dance upon it.

Inherent Risk

I will consider the pleaded defence of inherent risk first, since if it is made out, it could be a complete answer to the claim.
Section 5I of the Act provides: "No Liability for Materialisation of Inherent Risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk."
In Wyong Shire Council v Vairy [2004] NSWCA 247 Justice Tobias said at [164]: "An inherent danger is a danger (or risk) attaching to a condition or activity that cannot be removed by the exercise of due care… that is, by exposing oneself to a condition or activity involving an inherent danger one has thereby become subject to the possibility of the danger crystallising."
His Honour made reference to Prast v Town of Cottesloe (2000) 22 WAR 474, where the court said that the risk of being dumped by a wave while body surfing was not only obvious, but was inherent. Even the exercise of reasonable care would not remove the danger. Another example given by Justice Tobias was the medical case of Rogers v Whitaker (1992) 175 CLR 479. That case involved eye surgery, which carried the inherent danger of the patient's other eye become blind due to the sympathetic ophthalmia. That danger was not one which could be completely eliminated even by the best surgeon in the world. It was an inherent danger of the operation. Thus there was a need for the surgeon to warn the patient of that inherent risk.
In Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167 the Court of Appeal said that a finding under s 5I did not merely deny s 5D causation but provided a complete answer to any claim falling within Part 1A of the Act. If s 5I is made out, there will be no liability for a failure to exercise reasonable care and skill and the entire inquiry under Part 1A comes to an end.
For that reason I will consider the notion of inherent risk at the outset.
The risk of a person slipping on a wet floor surface is, on the facts of this case and the expert evidence of Mr Adams, something which can be avoided by the exercise of reasonable care and skill. I deal with this more fully later in this judgment. Thus the risk in this case is not an inherent risk within the meaning of s 5I of the Act. Section 5I of the Act does not provide a defence to the defendants.

The Liability Issues

The court must deal with the following liability issues under the Act.
The court must make findings as to the nature of the duty of care, if any, the defendant owes to the plaintiff, the extent of the duty, breach and damage. This is because the "constituent elements of the tort of negligence - duty, breach and damage - considered seriatim, progressively increases the specificity of the inquiry into how the incident occurred and the way in which damage was sustained": Neindorf v Junkovic [2005] HCA 75.
The court must find the facts and "draw from them the inference of fact whether or not the defendant had been negligent": Benmax v Austin Motor Co Limited [1955] AC 370 at 373-374.

Duty of Care

The occupier of premises owes a duty to take reasonable care to avoid a foreseeable risk of injury to the claimant, arising from the physical state of its land, on the assumption that the claimant used reasonable care for their own safety: Australian Safeways Stores Pty Limited v Zaluzna [1987] 8 CA 7; (1987) 162 CLR 479 at 488; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42: (2007) 234 CLR 334 at [45].
Gleeson JA in Reid v Commercial Club (Albury) Limited [2004] NSWCA 98 said at [159]: "The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, 'the weight to be given to an expectation that potential plaintiff's will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case': Roads & Traffic Authority of NSW v Dederer at [45]. This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; 221 CLR 234 at [35]."
Schultz v McCormack [2015] NSWCA 330 was a case involving a slip and fall at a suburban home. McColl JA formulated the duty in the following terms at [73]: "As occupiers, the respondents owed the appellant, as an entrant to their home, a duty to take reasonable care to avoid a foreseeable risk of injury to her, on the premise that she was exercising reasonable care for her own safety. The duty included the obligation to take precautions a reasonable person in the circumstances would have taken by way of response to the risk that a person may slip on tiles…".
I find that the defendants owed a duty of care to avoid a foreseeable risk of injury to the plaintiff, arising from water being on the tiled floor of the pool room in their house, upon which guests might slip and fall, upon the premise that the plaintiff was exercising reasonable care for her own safety.

Breach of Duty of Care

Foreseeability of risk of injury is not determinative of breach of duty of care: Francis v Lewis [2003] NSWCA 152 at [40]. The occupier's obligation is that of reasonable care. Its duty is not to make the premises as safe as 'reasonable care and skill on the part of anyone can make them': Jones v Bartlett [2000] HCA 56: (2000) 205 CLR 166 at [92]. It is not an insurer of entrants: Kocis v SE Dickens Pty Limited [1998] 3 VR 408 at 429. What constitutes the exercise of reasonable care depends on the circumstances of each case: Wilkinson v Law Courts Limited [2001] NSWCA 196 at [32].
The question whether the defendant breached its duty of care to the plaintiff is governed by Section 5B of the Act which provides: "(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."
Section 5B can be seen to reflect the common law as to the standard of care (that is, the measure of the discharge of the duty of care) applicable to an occupier which is what, if anything, a reasonable person in the occupier's position would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662-663; Australia Safeway Stores [at 488]; Neindorf v Junkovic at [8].
Section 5C is also relevant, in particular, Section 5C(b) which provides that "the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done".
So far as the various elements of Section 5B are concerned, I make the following findings: 1. The risk of a guest slipping on a wet tiled floor was foreseeable, in that it was a risk which the defendants knew. Both gave evidence that they had experience walking on the tiled floor when it was wet after it had been mopped as part of the weekly household cleaning process, and both had to adjust their gait to cope with traversing the wet floor. Further, the risk was foreseeable in that it was a risk of which the defendants ought to have known; 2. The risk was not insignificant. Mr Adams said that falls on a wet floor are common; 3. The probability that harm would occur if care was not taken was quite a high probability. The evidence of Mr Adams showed that water on tiles poses a hazard because a person traversing the floor moves from a dry area to a wet area without any warning; 4. The harm which could happen was quite serious, as an unexpected and sudden fall could result in a serious injury; 5. The burden of taking precautions to avoid the risk of harm was slight, in that it merely required the floor to be dried, or for the floor to be barricaded, or for a suitable warning to be given, all of which could have been accomplished at no cost in a matter of seconds; 6. The social utility of the activity that created the risk of harm is not an important factor. While the floor certainly needed to be cleaned, this was not an activity which was being conducted in an emergency or where there was any need to take a risk to achieve an aim; 7. In the circumstances, a reasonable person in the defendants' position would have taken precautions against the risk of harm.

Proving Breach of Duty

The conduct relevant to the breach inquiry is the "foreseeability of harm resulting from the acts or omissions of the defendant, or its servants, proved to have occurred": Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 639-640. At the stage of breach, the court must identify "with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk": Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54: (2002) 211 CLR 540 at [192].
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 injury: Vairy v Wyong Shire Council [2005] HCA 92; (2005) 223 CLR 422 at [126]; applied in Adeels Palace Pty Limited v Mourbarak [2009] HCA 48; (2009) 239 CLR 420 at [31].
As is apparent from Section 5C(b) of the Act, whether reasonable care has been exercised is not determined by asking if different conduct would have produced a different outcome: Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 at [92]. 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] HCA 48; (2001) 181 ALR 301 at [13].
The plaintiff bears the legal (and evidential) burden of proving on the balance of probabilities on all the evidence at trial that the defendants owed her a duty of care which had been breached in a manner which caused her injuries; if the plaintiff calls evidence "sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in [her] favour", the defendants bear an "evidential burden in the sense of a provisional or tactical burden" such that if they fail "to call any or any weighty evidence, [they ran] a risk of losing on the issue": Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [46], [50], [53].

The Risk of Harm

The breach inquiry requires the primary judge to identify accurately the actual risk of injury the plaintiff faced, as it is only through the correct identification of the risk that the trial judge could determine what a reasonable response to that risk would be: Roads & Traffic Authority of NSW v Dederer at [18], [59].
In Jackson v McDonald's Australia Limited [2014] NSWCA 162, the Court of Appeal identified the relevant risk as that "a person would slip on the wet floor or soon after walking through it".
In the present case I find that the relevant risk is that a guest would slip on the wet tiled floor in the defendants' pool room.

Did the Defendants fail to take precautions against a risk of harm which a reasonable person in their position would have taken?

I find that a reasonable person in the position of the defendants would have taken one of the reasonable preventative measures set out in the report of Mr Adams, save for his matting option.
I do not think that temporary matting is a realistic precaution as such matting would not be available in a suburban home. I find that any or all of the other actions set out by Mr Adams should have been taken.
In particular, when the wet mop was applied to the floor, the next step should have been to dry mop the floor or at least use a towel to remove any residual water on the floor. This would have completely removed the risk. Further, the chairs adjacent to the breakfast bar area, seen in the photographs, could have been put on the wet areas to prevent people walking upon them. Finally, some warning could have been given to the guests not to walk on the tiles until they were dry. A warning would have been a "second best" alternative, and the appropriate precaution would have been to remove the water (thus removing the risk) immediately after the wet mopping operation.

Causation

Section 5D(1) of the Act provides: "A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."
In Strong v Woolworths Limited [2012] HCA 5; 246 CLR 182, the effect of Section 5D(1)(a) was stated thus: "The determination of factual causation under Section 5D(1)(a) is a statutory statement of the 'but for' test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence. … Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W."
Section 5E of the Act provides: "In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
In order to establish that the harm the plaintiff suffered was referrable to the negligence of the defendant, the plaintiff has to prove, on the balance of probabilities two discrete yet inter-related propositions: first, that there was a substance under her shoes when she fell; and secondly, that the presence of that substance caused her to fall: Jackson v McDonald's Australia Limited [2014] NSWCA 162 at [112].
Both defendants agreed in evidence that when the floor had been made wet on past occasions during household cleaning, they had adjusted their gait to cope with walking across the floor. Both defendants conceded that the floor was slippery in those circumstances.
I have already found that there was water on the tiled floor where the plaintiff fell and that the presence of water on the floor and under her shoe caused her to fall. Those matters mean that the "but for" test is satisfied.
I have already found a breach of duty of care by the defendants and thus found negligence. I find that such negligence caused harm to the plaintiff because: 1. the breach of duty of care by the defendants was a necessary condition of the occurrence of the harm; 2. it would be appropriate that the scope of the defendants' liability extend to the harm so caused.

Obvious Risk

In the Defence filed on 9 October 2017 the defendant pleaded that the defendant dancing and kicking her legs on a tiled floor was an "obvious risk" within the definition of s 5F of the Act and therefore there was no duty to warn of that risk pursuant to s 5H of the Act.
Section 5F is in the following terms: "(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstances that gives rise to the risk) is not prominent, conspicuous or physically observable."
The principles concerning the determination of what constitutes an "obvious risk" for the purposes of s 5 of the Act were set out in Collins v Clarence Valley Council [2015] NSWCA 263, which in turn was approved in Schulz v McCormack [2015] NSWCA 330.
I find that this defence fails on the facts. There was no particular risk involved in the plaintiff dancing and kicking her legs on a tiled floor (which is the pleaded risk). In fact the plaintiff kicked her legs up without incident when she was on the dry part of the tiled floor. The particular risk in this case was traversing, in any fashion including even walking, the tiled floor where it was wet and thus slippery.
Even if the allegation in the Defence can be read as an allegation that it was an obvious risk to dance or kick one's legs on a wet tiled floor, that fails on the facts as it was not apparent or obvious to the plaintiff, and indeed to others, that the floor remained wet after it had been cleaned by Mrs Collins.
In the light of that finding s 5H of the Act, which provides that the defendant does not owe a duty of care to the plaintiff to warn of an obvious risk to the plaintiff, does not arise, as there was no obvious risk.

Contributory Negligence

The defendant pleaded contributory negligence. By s 5R(2) of the Act the standard of care required of a person who suffered harm is that of a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at that time.
The particulars of contributory negligence are set out in paragraph 7 of the Defence filed on 9 October 2017. I will deal with each of these below. Firstly, it was pleaded that the plaintiff failed to take care for her own safety. This is no more than re-stating the allegation that there has been contributory negligence.
Secondly, the defendant pleaded that the plaintiff failed to exercise precautions in circumstances where the plaintiff knew that the floor had recently been cleaned. I have already found that while the plaintiff was not in the room when the floor was wet mopped, she did not know that the mop was wet and nor did others in the room such as Mr Hulse. Any water deposited on the floor was invisible. In those circumstances, I find that the plaintiff was not guilty of contributory negligence in moving onto, or even on dancing on, the recently cleaned wet tiled floor.
Thirdly, the defendant pleaded that the plaintiff acted in a manner which was unsafe. Fourthly, the defendant pleaded that the plaintiff behaved recklessly. If these are allegations that she should not have engaged in the dance or manoeuvre she performed, I reject them. In circumstances where the plaintiff did not know and could not know that the floor was wet and slippery, there is nothing unsafe or reckless about dancing at a party on a tiled floor. The plaintiff managed to perform part of her dance or manoeuvre quite safely, on the dry part of the floor, before she reached the wet part and slipped.
Fifthly, the defendant pleads that the plaintiff drank alcohol to excess. There is no evidence whatsoever to support this and I reject it.

Intoxication

In paragraph 11 of the Defence filed on 9 October 2017 the defendant pleads that the plaintiff's capacity to exercise reasonable care and skill was impaired by reason of her intoxication, that the accident would not have occurred had the plaintiff not been intoxicated, and that in the circumstances the plaintiff is not entitled to recover damages in respect of the injury from the defendants, pursuant to s 50 of the Act. In the alternative, it is pleaded that damages should be reduced by the operation of s 50(3) and s 50(4) of the Act.
This allegation fails on the facts. The plaintiff consumed a moderate amount of alcohol and there was no evidence that she was unduly affected by what she consumed.

Conclusion on Liability

I find that a reasonable person in the position of the defendants ought to have taken precautions against the risk of harm, which was that a person might slip on that part of the tiled floor which was left wet after the cleaning operation. The defendants failed to take suitable precautions and breached their duty of care to the plaintiff by reason of that omission. I find that the defendants were negligent and that such negligence caused the fall. The defences of inherent risk, obvious risk and contributory negligence have not been made out. The plaintiff is entitled to a judgment against the defendants.

Damages - Lay Evidence

The plaintiff was taken to Belmont District Hospital by Ambulance. She complained of pain in the right shoulder and said she could not lift her arm because of pain. She was given analgesic medication.
In a day or two she went to her general practitioner Dr Arnold. He prescribed the analgesic Endone and sent the plaintiff to radiology.
An x-ray of the right shoulder showed an undisplaced fracture of the blade of the scapula. At a consultation with the GP on 9 July 2014 the plaintiff reported ongoing significant humeral neck pain and quite limited movement. The plaintiff was given a sling for her arm and a certificate to be off work.
The plaintiff then started to consult her regular GP Dr McCarthy, who was at the same practice as Dr Arnold. On 25 July 2017 he diagnosed a right rib fracture and prescribed more Endone. The plaintiff was still in a sling and in obvious pain if she moved. She had difficulty sleeping at night. She was still off work.
By 25 August 2018 Dr McCarthy had changed the analgesia to Panadeine Forte and noted that the plaintiff was having physiotherapy and performing her own exercises.
When the plaintiff consulted Dr Coleman at the same practice on 22 September 2014 she reported that she was very uncomfortable with the pain in her right shoulder and was attending the fracture clinic the next day. Her range of movement was getting worse. She was having physiotherapy.
Consultations at the practice of Dr McCarthy continued during October, November and December 2014. During that time the plaintiff was also seen by an exercise physiologist at the same practice.
By July 2015 the plaintiff was consulting Dr McCarthy for hyperparathyroidism and right knee swelling and pain. The plaintiff was sent for x-rays of the right knee in September 2015. By March 2016 the plaintiff was consulting Dr McCarthy reporting that she had emotional issues and was considering splitting up from Mr Redding. She still reported pain at the back of the right scapula. The plaintiff had a steroid injection to her right knee performed by Dr McCarthy on 19 April 2016. In May 2016 she was referred to Dr Grant, a specialist, in relation to her hyperparathyroidism. By that stage her knee was much better after the steroid injection but the improvement was wearing off after two weeks. Her right shoulder was stable but still a problem. She had back pains and knee pain with mild osteoarthritis.
The plaintiff separated from Mr Redding in about August 2016 and for six months lived on the road with her daughter. They camped and slept in a tent.
By December 2016 the plaintiff was reporting to the GP that she had limited rotation in her left shoulder and pain across the deltoid on the left side. There was also left elbow pain. The pain was worse with increased use. The impression of the GP Dr Cleinig was of a rotator cuff injury and tennis elbow.
The plaintiff gave evidence that the acute pain in her right shoulder reduced after about two and a half months. From that point on it slowly got better, but it never went away.
The plaintiff returned to doing some housework within two and half months of the accident. She could cook with assistance, do some light sweeping, tidy up the kitchen and do dishes. She could do small loads of washing. The plaintiff said that she could really do no household duties for two and half months, and after that she could do light household duties. She could still not use a vacuum cleaner or clean the bathroom or make the beds. She did the shopping in small quantities.
In the first two and a half months her daughter helped her with putting her clothing on, brushing her hair and washing her hair. She thought that her daughter spent about 10-15 minutes a day assisting her in those personal matters. She could perform those tasks for herself after two and a half months using her left arm.
Straight after the accident she said that Mr Redding and her daughter spent about half an hour every day helping by doing housework and cooking. After two and a half months she thought that they gave her about 10 minutes of help each day in relation to housekeeping and cooking. The plaintiff said that Mr Redding was working 12 hour days so he could not do much to help. She thought that he spent about 5 minutes a day.
By the time of the trial the plaintiff was living out of a campervan. Her daughter had moved into a house, and the plaintiff was living by herself in the van. There was very little assistance provided to her while she was living in the van.
The plaintiff gave evidence that in future there would be no-one living with her who could help her with household duties and she would have to hire somebody, if she had the money.
As at the date of trial the plaintiff still felt a burning pain in her back between her shoulders. The rib fracture had healed completely and caused no problems. The left shoulder was a bigger problem than the right shoulder. The plaintiff said that she had been using her left arm more than her right arm, because of ongoing problems with the right shoulder. This included picking up heavy grocery bags, and laundry bags, and putting things in the back of her trailer.
The plaintiff said that at the time of the accident she was working with Westlakes Accommodation Services. She started there on 18 November 2013 and worked between 25 and 30 hours a week. It was casual employment. Her work involved taking care of people with disabilities and mental health issues. She helped with the housework and did sweeping, mopping, dusting and spring cleaning. She also did the shopping. The plaintiff said that she could not do that work now because it would cause too much pain in her shoulders and her back (meaning that part of her back between her shoulders). The plaintiff said that she could not lift up anything too heavy with the right shoulder and could not work with her shoulder elevated. She also said that she could not do much nowadays with her left arm. She could not pick up a vacuum cleaner as it would be too heavy.
Prior to her employment with Westlakes Accommodation Service, she had worked as a childcare support worker, in aged care in nursing homes, in traffic management for local councils and doing gardening work. She said that she had done "a lot of physical-type work". In the 10 years prior to the accident she was regularly in employment, with occasional periods when she was unemployed.
The plaintiff said that she tried to go back to work at Westlakes but could not do the work and resigned. Westlakes had told her they would not hold the position for her and they asked her to write a resignation letter. She did so. The Westlakes employment came to an end in September 2014.
The plaintiff tried to obtain work with another disability company Subbee Pty Limited. She was taking care of an elderly man in Toronto who was bedridden. She had to use a lifter to get him out of bed and into the shower. She had to wash him. She did that work for a week or two in about March 2015 and found that it was aggravating her right shoulder and her back.
The plaintiff had obtained work as a call centre operator with Simplicity Home Improvements in late 2015. She did four weeks work and was then put off. She found that sitting for longer periods aggravated her back.
The plaintiff did two days of work at the Newcastle Easter Show, collecting tickets and allowing people to come in through the gates. The plaintiff had regularly sought employment between late 2015 and April 2018. She had been attending appointments with an employment provider and had been looking for work online. Through these means she did obtain a small cleaning job, but she could only do it for two and a half days before pain prevented her from continuing. The pain was in her right shoulder and in her back between her shoulder blades. There was some casual work at a festival in Cessnock for five hours and the Gosford Show for about nine hours.
In May 2018 she obtained a role as a volunteer with the Hunter Volunteer Association. This was not paid work. She assisted staff with activities for the elderly including arts and crafts. She took on this volunteer role in the hope that it would eventually turn into some sort of paid employment.
She had attempted to obtain a merchandising job. She said that she obtained a merchandising job with a company called Extrovert, but she had not yet started as she was waiting for the court case to finish. She did not know what salary she would be paid. It was a job attending supermarkets and promoting food products and makeup products. She had never done that work before but thought that she could do it.
The plaintiff was cross-examined on damages. She accepted that she had surgery for her hyperparathyroid condition and that it was no longer a problem. She also accepted that she had been taking a drug for her arthritis. The knees had been quite a problem and she had trouble walking distances and travelling on stairs. She agreed that the knee problem had been an issue in terms of what she could do around the house and that the knee problem inhibited any heavy cleaning or getting on her knees to clean. She could not carry things up and down stairs and cleaning in high places would be a problem if she had to climb to do it.
The plaintiff accepted that she could do washing if she did small loads at a time. She cooked and shopped for herself.
The plaintiff's daughter Ms Kuczynski gave evidence that in the first two or three months after the accident her mother did not resume her usual domestic chores. These were largely done by Ms Kuczynski and included cooking dinner for everyone, doing the dishes, cleaning the house, mopping, vacuuming, making the beds and doing all the laundry. She also helped her mother get undressed and shower. Ms Kuczynski estimated that she was helping for about an hour or more each day. After that acute phase she still provided some help to her mother with the laundry and lifting heavy things into the trailer. She estimated that she spent between an hour and an hour and a half each week helping with these tasks.
Ms Kuczynski gave evidence that she did not wish to continue to assist with domestic chores as she said "I'd like to be able to live my own life and not really have to worry about my mum".
Mr Redding gave evidence that before the accident he maintained the outside of the house and the plaintiff maintained the inside of the house. She did all the internal cleaning and the washing and the cooking. After the accident he said that he helped Ms Kuczynski as much as he could. He spent 10 minutes a week cleaning the bathroom and spent about half an hour cooking and cleaning up some nights of the week.
He and the plaintiff had been together for just over 12 months before the accident. After the accident the plaintiff was in pain and was cranky and upset. She couldn't sleep. The couple separated on 12 August 2016. The plaintiff and her daughter moved out of the house. The plaintiff had complained of pain "all the time" in her shoulder and her back.
In cross-examination Mr Redding agreed that an incident occurred when one of the plaintiff's dogs needed cancer treatment and he declined to pay for it as he could not afford it. He agreed that the relationship never recovered after that.

Damages - Expert Evidence

The plaintiff tendered two medico-legal reports by Dr Bodel, an orthopaedic surgeon. He first assessed the plaintiff on 18 April 2016 and wrote a report dated 8 June 2016. He noted certificates from the GP stating that the plaintiff was restricted in her working capacity. These certificates were put into evidence.
When the plaintiff saw Dr Bodel she was complaining of pain in the front of the right shoulder, pain when she attempted to use the arm or lift it overhead and pain in the upper part of the back in the periscapular region. Dr Bodel found a restricted range of movement of the right shoulder. He said that there was impingement in the right shoulder but no instability. He diagnosed an injury to the rib cage on the right side of the chest wall, a rotator cuff injury to the region of the right shoulder and a fracture of the blade of the right scapula. He thought that there would be ongoing discomfort in the right shoulder and that the condition had stabilised. Further treatment would be conservative with rest and analgesic medication and exercise. There could be a need for intermittent physiotherapy. He thought that the plaintiff could not do heavy work of the type she had pursued prior to the accident and she would need to re-train into alternative lighter duties.
The second consultation with Dr Bodel was on 19 December 2017, resulting in his report dated 27 December 2017. The plaintiff by that time reported left shoulder girdle pain and produced an ultrasound which showed a tear in the rotator cuff on the left side. There was now a restricted range of movement in both shoulders. Dr Bodel found the plaintiff to be "incapacitated by both her right and left shoulders and her knee in addition to the psychological issues".
He found that there was a significant impairment in earning capacity.
The plaintiff also tendered an occupational therapy assessment report by Ms Katherine Whitmore dated 27 October 2017. She visited the plaintiff at her then residence for three hours to assess her. The conclusion of Ms Whitmore was that the plaintiff then relied on about one hour per week of gratuitous care and support which was provided by her daughter.
Ms Whitmore provided her opinion as to the level of reasonable past assistance. I will deal with this later, but in my view such a theoretical assessment must yield to the actual evidence regarding the assistance which was provided by Ms Kuczynski and Mr Redding.
Ms Whitmore proposed that for the future care on a commercial basis should be provided for 2.5 hours per week. She broke this down to be 1.5 hours per week of weekly assistance with cleaning and spring cleaning tasks, 0.75 hours per week for gardening and 0.25 hours per week for handyman tasks such as changing light globes and repairs. Ms Whitmore costed commercial care at approximately $45 per hour which gave an annual cost of $5,947.86.
The defendant tendered a medico-legal report from Dr Bruce an orthopaedic surgeon, dated 6 November 2017. He saw the plaintiff on 31 October 2017, so in between the consultations with Dr Bodel.
The plaintiff reported to Dr Bruce that she had pain and stiffness of her left shoulder over the last 12 months. She said the symptoms started spontaneously although she believed it was due to increased use of her left arm because the right arm had reduced function.
Dr Bruce found tenderness over the blade of the right scapula at the fracture site. Movement was uncomfortable and cautious. He measured restriction of movement in the right shoulder generally. Tests were suggestive of impingement in the right shoulder.
Dr Bruce took a history that the left shoulder was much more painful than the right shoulder. Movements were very limited and very painful. He said that the appearance of the left shoulder was of adhesive capsulitis.
Dr Bruce said that the adhesive capsulitis, commencing two years after the accident, had arisen spontaneously and there was no evidence of association between the problems with the left shoulder and the accident in 2014. He said that the adhesive capsulitis was "a naturally occurring condition that has occurred independently of the accident". Dr Bruce found that the changes on ultrasound in the left shoulder were longstanding.
Dr Bruce said that adhesive capsulitis in the left shoulder has a significant chance of improving with the passage of time. However the incapacity due to the right shoulder was due to chronic tendinopathy and was unlikely to recover. He thought there was no indication for surgical treatment and that mobilization and hydrotherapy would be enough to deal with the right shoulder.
Dr Bruce thought there was an ongoing need for gratuitous care at the rate of four hours a week for a further six months.
The plaintiff tendered a report from a treating psychologist Ms Hart dated 31 January 2018. Ms Hart reported to the GP that she had seen the plaintiff three times in January and February 2018. It was noted that the plaintiff was taking prescription medication for depression. The plaintiff was assessed as suffering from symptoms of depression, anxiety, stress and chronic pain. The complaints were of low mood, anxiety, stress, financial discourse, financial hardship and current legal matters. I find that it is likely that the plaintiff's psychological condition will improve consequent upon the conclusion of these proceedings.

Findings on Damages

I accept the plaintiff's evidence concerning her pains, problems and restrictions since the accident. The plaintiff's theory that she has been overusing her left arm and thus she has developed a problem in her left shoulder is rejected. On this topic I prefer the opinion of Dr Bruce that the problem in the left shoulder is adhesive capsulitis which is a spontaneous condition unrelated to the accident. I also accept his opinion that this condition is likely to remit in the near future.
I find that the rib fracture has healed completely.
I find that the injury to the right shoulder is as described by both Dr Bodel and Dr Bruce. It is an injury which is permanent. It is an injury which restricts the plaintiff's ability to pursue her pre-accident employment and which restricts her to a modest degree in performing household tasks.
Damages for non-economic loss are governed by s 16 of the Act. No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. If that condition is satisfied, then the task of the court is to fix a percentage to reflect the severity of the non-economic loss as a proportion of a most extreme case.
I find that the plaintiff, before the fall at the defendants' premises, was a relatively fit woman who could pursue a number of physical occupations without any significant problems. She also performed most of the domestic work in her home.
I have already set out my findings on damages. In the light of those findings I assess the plaintiff's non-economic loss at 26% of a most extreme case. In dollars that is $49,000. That is the award for non-economic loss.

Damages - Out-of-Pocket Expenses

Past out-of-pocket expenses were agreed at $3,195.
There will be a need for future conservative treatment. To a large extent the plaintiff will be able to perform her own exercises. She will need some analgesic medication. She may need some physiotherapy during any acute periods of pain.
There was no evidence of the present level of spending, if any, upon treatment. I will award a lump sum of $4,000 to cover future treatment. In addition, Ms Whitmore suggested that the plaintiff required equipment which would enable her to perform more household tasks than she presently can. She suggested a long-handled sponge, a lightweight microfiber mop, a clothes airer and a lightweight upright vacuum cleaning. I will allow $2,000 for this equipment, which should enable the plaintiff to perform more domestic tasks than she can presently do. The total award for future out-of-pocket expenses will therefore be $6,000.

Damages - Gratuitous Attendant Care Services

This head of damages is governed by s 15 of the Act. The services provided to the plaintiff by her daughter and Mr Redding (to a much lesser extent) in the two and half months after the accident were services provided for approximately one hour a day or seven hours a week. However, after that initial period of two and half months, the level of service has dropped down to about one or two hours per week.
By s 15(3) of the Act, no damages may be awarded for gratuitous attendant care services unless the services are provided for at least six hours per week and for a period of at least six consecutive months. The evidence does not satisfy this threshold and thus there will be no award for gratuitous attendant care services.

Damages - Future Commercial Care

The plaintiff has very little present need for care, because living in a campervan, she has very few domestic chores. Those which she has such as shopping and washing, she can do. The plaintiff is living in a campervan because she has not been able to obtain employment and has no funds to live in a conventional building. She now has the prospect of starting a new job and she will have funds from this judgment. I find that once the plaintiff is in funds she will cease living in a campervan and she will live by herself in a small dwelling such as a home unit. When that occurs there will be no need for any outside maintenance. However, the plaintiff will still need, on her evidence and on the evidence of Ms Whitmore the occupational therapist, about 1.5 hours per week of paid commercial care. This level of care seems sensible and moderate, and is a reasonable level of assistance which the plaintiff will require because of her permanent disabilities caused by the accident.
Ms Whitmore gave evidence that commercial care costs $45 per hour. The cost of commercial care for 1.5 hours per week is therefore $67.50. The appropriate multiplier is 893.6. The award for future commercial care will therefore be $60,318.

Damages - Past Economic Loss

Up until the day of the accident the plaintiff was in long term but casual employment earning $556 nett per week. I find that the injuries suffered in the accident caused her to lose that employment. I find that the injuries suffered in the accident have caused her to be unable to return to employment of the nature she performed before the accident. Evidence shows that she has had only sporadic employment earning $4,876 in the 2015 tax year and about $600 nett from work in April 2018, a total of $5,476. I am satisfied that the plaintiff has actively sought work of lesser physical nature than that which she performed for many years before the accident and I am satisfied that she has been unable to find such work despite genuine attempts. I find that she would have remained in her casual physical work but for the injuries suffered in the accident.
From the date of the accident to the date of this judgment, is 204 weeks. The calculation for past economic loss is: $556 x 204 = $113,424 - $5,476 = $107,948. There will be an award for past economic loss of $107,948. Given the plaintiff's pre-accident level of earnings she would have been paid superannuation by her employer. I will add a figure for past superannuation calculated at 11% of $11,874. The total is $107,948 + $11,874 = $119,822.

Damages - Future Loss of Earning Capacity

I have already found, accepting the evidence of Dr Bodel and Dr Bruce, that the plaintiff has a permanent disability in relation to performing the quite hard physical work she was doing up to the time of the accident. The plaintiff has tried similar physical jobs since the accident and has been unable to perform them. She has been able to perform lighter type of work. She now has the prospect of a job doing lighter work, but the income she can earn is presently unknown.
Even though the plaintiff has a capacity for lighter work, she has a permanent loss of earning capacity, in the sense that she can no longer perform the work she was doing for many years up to the date of the accident. The plaintiff was never a full-time employee in those years, but I accept that she regularly worked 25-30 hours per week as a casual. She had some short periods of unemployment from time to time. The pre-accident figure of $556 I take as an appropriate measure of her uninjured earning capacity. She has lost some but not all of that capacity.
I select a figure of $300 per week to reflect her loss of earning capacity. The appropriate multiplier is 579.5 and there should be a discount for vicissitudes of 15%. The calculation for future loss of earning capacity is as follows: $300 x 579.5 x 0.85 = $147,772. To that will be added future superannuation calculated at 13% which gives a figure of $17,733. The total is $147,772 + $17,733 = $165,505.
I find that the plaintiff's present problem with the left shoulder is transient and not permanent. I find that it would interfere with her long term earning capacity. I find that her hyperparathyroidism would have no effect on her long term earning capacity. I find that her arthritic knees would have some effect on her future earning capacity, although I note that this problem did not cause her to lose any time away from work prior to the accident. She has had one steroid injection to her knee which provided symptomatic relief for a time. She has not pursued other treatment.

Conclusion

There will be judgment for the plaintiff. I summarise the findings I have made above as follows: HEADS OF DAMAGE AMOUNT Non-economic loss $49,000 Past out-of-pocket expenses $3,195 Future out-of-pocket expenses $6,000 Future commercial care $60,318 Past economic loss $119,822 Future loss of earning capacity $165,505 TOTAL $403,840

Orders

My orders are: 1. Judgment for the plaintiff against the defendants for $403,840. 2. Order the defendants to pay the plaintiff's costs. 3. Grant liberty to the parties to apply to my Associate within 7 days, if any different costs order is sought.

Amendments 16 November 2018 - Amended pursuant to slip rule and by consent of the parties, to correct mathematical error. 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: 16 November 2018

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (28 paragraphs)

Parties

Cases Cited (32)