Pamela Spencer v QLSL Pty Ltd

Pamela Spencer v QLSL Pty Ltd - [2017] NSWDC 26 - NSWDC 2016 case summary — Zoe

[3]

INTRODUCTION

The Plaintiff, Ms Pamela Spencer, brought proceedings against QLSL Pty Ltd trading as Supply-Linq Pty Ltd [1] as First Defendant; CBRE Pty Ltd trading as CB Richard Ellis [2] as Second Defendant; and Jones Lang LaSalle (NSW) Pty Ltd [3] as Third Defendant in respect of a claim for personal injury damages arising from an accident on 18 August 2011.
CBRE was the onsite agent responsible for the management of the premises where the accident is said to have occurred between 2009 and 2010. Proceedings against it were resolved by Consent Orders at the commencement of the hearing. The Plaintiff thereafter maintained proceedings against Supply-Linq and JLL.
The Plaintiff was granted leave to rely on a Second Further Amended Statement of Claim filed 6 September 2016. [4]
Supply-Linq relied on its Amended Defence filed 30 August 2016 and a Cross-Claim brought against JLL dated 9 February 2015. The Defence to this Cross-Claim was filed on 22 August 2016. JLL relied on a Defence filed on 13 August 2015 and a Cross-Claim brought against Supply-Linq dated 14 January 2016. No Defence to this later cross-claim was filed as it was effectively confined to seeking a contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). [5]
At the time of the accident, the Plaintiff was employed by YL Business Solutions Pty Ltd, an employment agency that placed her with Supply-Linq as a picker, packer and processor. As part of her duties she was required to attend a premises located at 19 - 23 Seville Street, Fairfield. [6]
The Second Further Amended Statement of Claim alleged that on or about 18 August 2011, the Plaintiff stepped into a drain due to the fact that a grate over the drain was not properly positioned leaving a gap between a section of the grates. [7] The Second Further Amended Statement of Claim further alleged that the duty of Supply-Linq corresponded to the duty of care of an employer by virtue of the fact that the Plaintiff was required to work at Supply-Linq's premises under Supply-Linq's control and direction and in the company of the servants and agents of Supply-Linq. [8]
It is not in issue that JLL was the managing agent of the premises pursuant to a Managing Agency Agreement entered into on 1 March 2011 between itself and the owner. [9] Nor was it in issue that the owner was Perpetual Trustee Company Ltd.
The Second Further Amended Statement of Claim asserted that pursuant to the said agreement, JLL was required to undertake regular inspections of the property whilst it was the on-site managing agent of the premises between 2010 and 2011. [10] Supply-Linq admitted this in its Defence. [11] Neither Defendant admitted that they were vested with care, control and management of the premises. [12] Both Defendants denied negligence and in the alternative alleged that any injuries were the product of the Plaintiff's contributory negligence. [13] Both Defendants also alleged that any damages payable to the Plaintiff were liable to be reduced on account of the negligence of the Plaintiff's employer, YL Business Solutions Pty Ltd, pursuant to the provisions of s 151Z of the Workers Compensation Act 1987 (NSW). [14] Both Defendants pleaded reliance on obvious risk under s 5F of the Civil Liability Act 2002 (NSW) [15] although neither ultimately advanced this during final submissions. [16]

[4]

The Plaintiff

The Plaintiff gave evidence that she arrived in Australia from the United States of America in 2006 but did not work until she registered with an employment agency called YL Business Solutions Pty Ltd in August 2008. YL Business Solutions Pty Ltd placed her with Supply-Linq. She stated that she worked on the premises. [17] Her work was described as a picker, packer and processor and her evidence was that her job involved "… paperwork that told you locations to go to pick a customer's order, push a trolley, pick the quantity, take it back, put the stuff on the table, check the orders, make sure they're correct, pack them, then process them." [18] Her hours were specified to be between 6am and 2pm. [19]
The Plaintiff stated that when she arrived at the premises it was usually always closed and she would wait until someone with a key would come and open the gate. She would then drive in and park her car. [20] According to the Plaintiff the person opening the gate would always be "Supply-Linq people." [21] She also stated that at this time in the winter, illumination was by street lighting as it was still dark. [22]
The Plaintiff stated that whoever unlocked the gate, would unlock the door of the warehouse and they would go in. [23] After collecting and picking up orders, she would then cut the cardboard boxes and put them in a cage. [24] On Thursdays at around 6am, a truck would arrive to empty the cardboard cages. [25] The Plaintiff accepted that by the time the truck arrived, the cages were brought out to the forecourt by the forklift driver. The place she would take them was where the truck would be. [26]
Prior to the accident, the Plaintiff gave evidence that she noticed a drain which ran in front of the warehouses on the forecourt. [27] She accepted that she had to walk over it all the time because it ran across the main big warehouse doors [28] and the smaller office style doors. [29] The Plaintiff's evidence was that before the day of her injuries, she had not seen a gap in the metal grate grilles over the drain [30] nor had she been called to an occupational health and safety meeting where the drain covers or grates over the drains had been discussed. [31]
On the day of the accident, she recalled arriving at 6am. After the gate was opened, she had coffee inside and then stood outside in the forecourt area waiting for the cardboard collection truck to arrive. She accepted that her co-worker brought the cages outside the warehouse door [32] and she thought the truck had arrived at around 6:10am. [33]
The Plaintiff described her task as being to throw the cardboard from the caged bin [34] to a yellow bin, [35] which would then be emptied into the truck. [36] She stated that after emptying the caged bin, she proceeded to walk back towards the warehouse, to pick up the cage door to put it back on the cage. She stated that the door was located just on the outside of the large warehouse door, [37] between the warehouse door and a smaller door. [38] At the time, she described it was dark. [39] She stated that as she went to pick up the door, her left foot wobbled and then she "fell straight down." [40] She described it as:- "It just fell, just went down this hole, this crate, and stopped at my knee." [41] She said that her knee stopped her going through [42] and she felt pressure on the inside and outside of her knee. [43]
Her co-worker and floor supervisor, Mr Andrew Boyle [44] came to her assistance. The Plaintiff thereafter continued to work and reported to "Marissa". [45] The Plaintiff stated that she filled out an incident and hazard report [46] that describes the incident in the following terms:- "Walking back in dock 2 after dumping cardboard foot (left) fell threw [sic] crate stuck to knee. Left arm landed on crate. Left leg bruised & left arm. 6:15am." [47] The Plaintiff stated that when she said "crate" she meant "grate." [48]
The Plaintiff took a photograph of the area where the accident occurred. [49] The Plaintiff's evidence was that around 8:30 - 9:00am, she met Enzo Cordi when he first arrived. [50] She stated that when she told him "Enzo I just fell in the crate" and he replied: "Well, we've been trying to get that fixed for months." [51] At around 11:30am, the Plaintiff noticed that her leg was swollen and showed Enzo, who told her to go to the doctor. [52] The Plaintiff stated that over the course of the rest of the day she saw supervisor, Enzo put a bit of plywood and a cone over the top of where the accident happened. [53] A photo of the area taken the following day with the plywood and cone was also taken. [54]
The Plaintiff stated that approximately eight months after the accident, some metal railings were placed around the area "to block it off to where no-one could walk on [the area] again." [55] This was depicted in a further photograph. [56]
In cross-examination by Counsel for Suppy-Linq, the Plaintiff conceded that whilst working at the subject premises, somebody from her employer would attend from time to time, but it would be a different person every week. [57] She stated that the person would come up and say "hi" and ask how it was going, to which she would respond "Yeah, good." [58] The Plaintiff stated that she would not know if they carried out any inspections [59] nor did she know how long they had been at the premises. [60] She stated that her interactions would be "maybe two minutes." [61]
The Plaintiff also stated that in the event that she encountered a hazard in the workplace, she was told to "tell someone else in charge." [62] She did not recall being told to ring her employer for instructions. [63]
The Plaintiff conceded that when she went to work at Supply-Linq's premises, she thought she underwent an induction process and was told what to do. [64] She conceded that she was instructed as to safety matters and to look out for tripping and falling hazards. [65] The Plaintiff's evidence was that prior to 18 August 2011, she was not aware of a gap between the metal grates outside dock 2. [66]
The Plaintiff marked on Exhibit D1.3, the location where the cage door was against the warehouse's outer wall. She also marked the location of the cage where she was unloading the cardboard. She conceded that the roller door at the main entrance was open at the time, but denied that she could see what she was doing. [67] The Plaintiff stated that there would be lights from the truck [68] that illuminated the area where the cage was located. [69] The Plaintiff stated that once the smaller cage had been emptied into the larger bin, the truck would back up. [70] The Plaintiff rejected the proposition that there was sufficient light from the inside of the warehouse to see around. [71] She stated that after the truck left she would walk over, pick the cage door up and put it back on the cage. [72] The Plaintiff stated that she could see the cage door because of the reflection from the warehouse, and because she knew it was there every week. [73]
The Plaintiff stated that she was looking to see where she was placing her feet before she walked over. However, she could not see where her feet were because there was not much light. [74] She stated that she always looked down when she walked, however she did not see a hole. [75] It was then put to her that she could not see the hole because she was not looking, she responded: "I was looking." [76] The Plaintiff stated that she stepped on the grate and fell into the gap, [77] she conceded that there was no movement in the grates. [78]
In cross-examination by Counsel for JLL, it was put to the Plaintiff that twilight started at 6:07am and the sun rose, on that day, at 6:33am. The Plaintiff appeared to accept this but stated: "it was still dark" but could not say until what time it was dark. [79]
The Plaintiff stated that when unloading the bins, light came from the truck. She conceded that these would have been the headlights although the lights were not pointing down towards the warehouse but down the driveway. [80]
The Plaintiff stated that the cage door folded in half and was only complete when it was inside the cage and you locked the door. She stated that the door was elbow height when standing up. [81]
The Plaintiff's job was to take the door back to the cage and put it on the cage so it could be taken back inside the warehouse. She stated that the work was done in a production line format. She did not measure the size of the opening in the grate area and the size of the steel-capped boots she was wearing that she conceded she normally wore. [82]

[5]

Damien Beck

In Supply-Linq's case, Mr Damien Beck was called. He was the warehouse manager for Supply-Linq as at August 2011. His role involved day-to-day running of the warehouse, including looking after clients and staff. [83] He was also a point of contact between the building managers and owners on behalf of Supply-Linq. That included contact between Supply-Linq and CBRE and JLL. [84] He stated that CBRE, for a period of time, were property managers [85] and he assumed that that involved looking after the building structure outside and any internal issues. [86] He acknowledged that the external areas referred to the common areas. [87] He stated that he thought JLL took over management of the premises towards the end of 2010. [88] Mr Beck's responsibilities as warehouse manager related to half of the building, which included dock 2. As the point of contact between Supply-Linq and JLL, he stated that the latter would "would come in and do site inspections maybe three or four times a year." [89] He stated that he would also call them if they had an issue. [90] He stated that he would contact JLL to discuss "… leaking roofs, lighting issues, concrete - there's holes in the concrete, which needed to be replaced - that sort of general stuff." [91] He was asked in evidence-in-chief about the grates outside dock 2. The exchange was as follows:- "Q. Can you tell me what you meant about issues with the grates? I think that was the word you used. A. They were unsafe. Q. In what way were they unsafe? A. They were at all different levels. They were a tripping hazard, basically. Q. And you raised those concerns with JLL, did you? A. I can't recall if I did or not. Q. When JLL took over management of the premises, you'd seen them walking around the premises, hadn't you? A. Yep. Q. You accept that the issues with the grates were something that they would have observed. A. I would assume they would have. Q. The problems with the grates were readily visible, weren't they? A. Yes. OBJECTION (WELSH). QUESTION REJECTED Q. The changes in level of the grates, that was something that you observed? A. Yes. Q. Had any requests been made to JLL -- OBJECTION (GRUZMAN). LEADING Q. The problems with the grates that you've just described - what, if any, steps were taken by Supply-LINQ in relation to the grates? A. Since 2009, it has been brought up to our building managers as a potential safety issue, and we continued talking to each and every building manager who came into the place that it was an issue. Q. When you say "building manager", do you mean JLL? A. I mean CBRE and - I can't recall specifically telling JLL, but I would have because we'd been through so many different people." [92]
Mr Beck stated that in 2012 he became the site manager for the premises and nothing had been done about the drainage grate. He said that he had more control over the budget than previously and put temporary barriers across the exits and entrances, and mesh across the gates to funnel people out and around the grates. [93] He stated that the rails that he put up were yellow ones found in Exhibit E and the silver rails were put up in 2013 - 14 by the building manager subsequent to JLL. He stated that he put up the yellow railings between July and December 2012. [94] He said that he expended about $2000 - 2500 "to get the railings done and the mesh in" for the "totality of the building." [95] However, the particular section, including labour, cost "maybe five, six hundred dollars." [96] He said that he always felt that the grates had been a safety issue and that having more access to the budget he could do it without asking for permission from the directors. [97] He stated that he did not leave this to the property manager because "we've been asking for this to be done since 2009 and nothing had been done, so I thought I had better do something." [98] He acknowledged that he "basically" got "fed up." [99]
In cross-examination by Counsel for JLL, Mr Beck acknowledged that there was something raised between the occupational health and safety committee of Supply-Linq to the property manager at CBRE concerning the safety of the grates in 2009 and 2010. [100] He accepted that JLL took over as building managers in about March 2011, but stated that he "thought they started earlier than that …" [101] Mr Beck emphasised that he had no contact with the owners. [102]
Mr Beck reiterated that if there was a problem with the roof leaking or the doors not working, or something breaking, he would first contact the building managers, and then would pass the information on to the directors of Supply-Linq. [103] He stated that if he contacted the building managers in relation to anything outside inspection times, it would be by telephone at the beginning and then the process had changed from time to time, and he would email them. [104] He acknowledged that there were emails he was copied into, with requests to CBRE in relation to the fixing the concrete and the grates. [105] This was in 2009 or thereabouts. [106] However, he acknowledged that CBRE did not do anything about fixing the grates. [107]
Mr Beck was shown a document from QVS Property Maintenance Pty Ltd, dated 14 October 2009 [108] which he acknowledged being a quote for yellow rails to be put up to prevent trip hazards. He stated that this came from CBRE. [109] The quotation was for an amount of $4895.
Mr Beck stated that he forwarded the quote onto Supply-Linq's occupational health and safety committee and it would have gone to the directors. [110] He acknowledged that as far as he was aware, it was the directors' obligation to decide whether or not the plan was instituted and the money expended. [111]
Mr Beck's attention was also drawn to an email dated 17 September 2009 that was sent by the Plaintiff's supervisor Mr Enzo Cordi to Ms Laura Sandersan from CBRE. [112] The email was also copied to the various persons in Supply-Linq including himself and a director, being Mr Brian Dixon. [113] He did not recall any response from the directors or instructions to carry out the works about installing railings. [114] The email refers to Ms Sandersan having stated:- "Regarding the grates around the pedestrian area, I will speak with Greg Davidson the Building Supervisor to arrange a quote to repair." [115] Mr Cordi responds saying:- "These were also measured and mapped over 6 weeks ago, you may already have a quote." [116] Mr Beck stated that stated that so far as he was aware Mr Davidson was not a person in Supply-Linq. [117]
Mr Beck stated that he was not aware of any reason why Supply-Linq did not erect the yellow railings during 2009 - 2010. [118] He acknowledged that the grates were in a "concrete channel covering a drainage pit" [119] at the "back of the building." [120] He acknowledged that vehicles drove over these and to his observation, the damage to the grate arose because they had become depressed. [121] He assumed that this was because of point loading from the trucks or forklifts driving across it [122] which bent them down in the middle and thereby raised the longitudinal edges above the level of the concrete. [123] He acknowledged this as the trip hazard. [124] He also stated that the grate across the roller door was thicker and sturdier, and there was a step down to the drainage grate. [125] He acknowledged that in appearance, there was a long continuous drainage grate along the back of the building made up of sections of drainage grates. [126] He acknowledged that the grates adjacent to the openings to the warehouse docks were of a thicker construction than the ones adjacent to the walls near the entrance doors; and that there was a difference in height. [127] Mr Beck also acknowledged concerns that if someone was walking along the line of the grates they would not notice and they could trip. [128] Further, they could trip if they walked across the grates from the outside to the inside of the warehouse or vice versa, because they would not notice the difference in height where the grate had become bent. [129]
Mr Beck stated that apart from this issue, there was also a problem with the gap. [130] He stated that the gaps were apparent some of the time and changed. [131] He said that he could only guess that the grates came to be moved by the trucks and the forklifts. [132] He stated that he instructed senior supervisors to tell staff to watch out for the gaps and periodically, he would get staff to try to push them in together. [133]
In cross-examination by the Counsel for the Plaintiff, Mr Beck stated that before the accident, he did not notice the particular gap in the grates before the Plaintiff's accident, but was aware of gaps along the length. [134] He acknowledged that the gap in question was 10 cm between the two panels [135] and as at July 2012 when a photograph Exhibit K was taken, the area was covered by a board and witch's hat. [136] He acknowledged that the reason why the board and witch's hat remained in place for the best part of nine to ten months was because the location where the panels of grates were located, were not easily "banged together to get rid of the gap" [137] and that the banging of the panels together to get rid of the gaps would have only created a gap somewhere else. [138] He acknowledged that the staff were supposed to use the smaller door [139] and this another exit was potentially "just as bad." [140]
JLL also tendered were two invoices for management fees for 7 March and 7 April 2011. These were payable to JLL by Perpetual Trustee Company Pty Ltd, the owner. [141]

[7]

Liability of Supply-Linq

The Plaintiff's claim was that Supply-Linq owed her a duty of care corresponding to the duty of care of an employer. [142] Although not admitted in its Defence, Supply-Linq did not dispute that it owed the Plaintiff a duty of care [143] nor did it seek to describe it differently to that submitted by the Plaintiff.
Supply-Linq, as the host employer, clearly treated the Plaintiff in an analogous way to an employee requiring regular attendance, set hours of work and duties performed, and instructing her to work under a supervisor, being Mr Enzo Cordi. The Plaintiff's evidence was that when she went to work for Supply-Linq, she had an induction and she was shown what to do. [144] Overall the Plaintiff accepted that by the time of the accident, she had worked for Supply-Linq for about three years. [145] The circumstances place Supply-Linq in the position analogous to that of an employer in regards to a non-delegable duty of care owed to the Plaintiff. [146]
The responsibility extends not only to the safety of the worksite but the premises used in furtherance of the employment. [147] The risk of harm for the purposes of s 5B of the 2002 Act was described by Supply-Linq as the risk of a person suffering injury by reason of falling into the gap in the metal grates outside the warehouse premises. The Plaintiff described it as the risk of injury due to the presence of a hole or gap between the grate covers.
The principles relevant to determining risk of harm was summarised in Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council. [148] Whilst it is conceded that the risk of harm may be differently described, the two formulations provided do not specifically account for the visibility of the relevant gap. Although this may vary at different times of the day, the gap itself was narrow and at a location where pedestrian access could be expected. An appropriate formulation may be: "a person might step into a gap located between two grates and fall into an unguarded gap between the grate covers over a drainage tunnel."
Supply-Linq argued that in light of the Plaintiff stating that she had not, before the day of the injury, seen a gap in the metal grate grille over the drain, [149] this raised a question as to whether or not Supply-Linq should have taken precautions at all. Counsel for Supply-Linq stated:- "That raises the question of whether or not my client should have taken any precautions at all. If there wasn't a gap before the day of the accident, it wasn't foreseeable that somebody might come to grief in a gap that might have developed in the morning or at some time before the plaintiff last observed the grilles so it's a question of foreseeability and whether or not a reasonable person in my client's position would have taken precautions." [150]
This submission cannot be accepted. Foreseeability does not require the precise chain of events that led to the injury to be foreseen. [151] Mr Beck's evidence was that he had been raising the matter concerning the grates since 2009. He stated that the grates went to the back of the building and vehicles drove over them, including forklifts. He accepted that the grates became damaged and he assumed that this had been because of point loading from the trucks and forklifts driving across which bent them in the middle, and raised the longitudinal edges above the level of the concrete creating a trip hazard. [152] Apart from this, he stated that the movement of the grates which he guessed was because of the forklifts turning on the grates and sliding them along. [153] He accepted that gaps had been apparent some of the time, and changed from time to time. His evidence was that instructions were given to senior supervisors to keep an eye on the grates and periodically, he would get staff to try to push them in as close as possible. [154] He stated that he may not have noticed the particular gap in the grate before the Plaintiff's accident, but he had noticed gaps along the length. [155]
Beyond this however, the Plaintiff submitted that an examination of the relevant grates depicted in Exhibit C show one grate displaced because it could be seen that it was not sitting beyond the edges of the drain. The Plaintiff noted that Supply-Linq had taken action following the accident, in that it had placed a board and witch's hat over the area in question as depicted in Exhibit K. On this basis, the Plaintiff submitted that this provided powerful evidence that this was not "shifted around and removed, by moving one or other of the grate covers, the drain covers." [156] Reference was made to the fact that Mr Beck conceded that the area in question was such that the "panels of grate were not easily banged together to get rid of the gaps." [157] Further the Plaintiff gave evidence that Mr Cordi said at the time of the accident: "Well, we've been trying to get that fixed for months." [158] The Plaintiff was not challenged in this regard. I am satisfied that the Plaintiff's submission and factual analysis is correct.
It follows that the requirement of s 5B(1)(a) of the 2002 Act that the risk was foreseeable is satisfied. The risk was not far-fetched or fanciful, nor could it be regarded as being insignificant. The issue of whether in the circumstances a reasonable person in the First Defendant's position would have taken those precautions requires a consideration of the matters referred to in s 5B(2) of the 2002 Act. In considering the probability that harm would occur if care were not taken, I consider this to be particularly high in light of what I accept was poor visibility when the loading task was carried out, the proximity of the grate to the entrance which staff were directed to use, and the forecourt area in which staff were required to load cardboard boxes from the crate and access, and reassemble the crate door. The likely seriousness of the harm was high, particularly where the size of the gap and the undisclosed depth of the drain channel where one's weight would be held by the grate. As to the burden of taking precautions, the evidence of Mr Beck was of the scope of works obtained on 14 October 2009 [159] of $4895, although his expenditure between July and December 2012 was $2000 - 2500, with the particular area in question involving an amount of $500 - 600. I bear in mind in this regard the requirements of s 5C(a) of the 2002 Act. On a temporary level at least, the cost would have been negligible in providing a plywood cover and witch's hat. Neither Defendant submitted that such precautions would not have prevented the harm. No issue of social utility arises.
Whilst s 5C(c) of the 2002 Act states that steps taken subsequently to obviate or reduce a risk of harm do not themselves constitute an admission of liability regarding risk such steps are often nevertheless significant in identifying the measures that might have been taken before the accident to manage the relevant risk. [160]
Supply-Linq made no submission that if found to have breached its duty its breach would not have caused harm to the left knee and I am satisfied within the terms of s 5D of the 2002 Act that Supply-Linq's breach of duty did cause that harm. The extent and nature of that harm, and harm to the back and left hip will be discussed below.

[8]

Liability of JLL

The Plaintiff contented that the evidence of Mr Beck was that he was the point of contact between the building managers and the owners of Supply-Linq. Mr Beck stated that this referred to CBRE, JLL and another company which he could not remember. [161] Mr Beck said that his interaction with the representatives of JLL was that they would do site inspections three to four times a year [162] and they would come in if called upon to address an issue. [163] He stated: "… we were looking after the site basically." [164] He stated that he did not walk around with them half the time, but he left them to their own devices. [165]
The Plaintiff submitted that Mr Beck's evidence was that he may not have noticed the exact gap before the Plaintiff's accident, but the gap could have been there but he did not notice it. [166] The Plaintiff also contended that the reason the board and witch's hat was put over the area, was that the gap was not easily removed by banging the covers together. [167] The Plaintiff submitted that there were a number of adverse inferences that arose from the failure to call evidence on the part of JLL and that there was no witness to assist it as to the fact that the risk of harm existed at the time of the Plaintiff's accident. Counsel for the Plaintiff stated:- "It would have been an easy matter for him to call someone from a professional property management organisation, which is what the third defendant is, about the state of affairs of these premises prior to the plaintiff's accident, so that would not assist the defendant. The defendants completely failed to discharge its onus as to acting within its delegation, or being unable to act within its delegation. Your Honour has a few extremely general documents without any attempt being made to explain any of them. That document, that expenditure document from 2012 which refers to replacing the fence and the grates, that is of absolutely no assistance because your Honour doesn't understand why the expenditure for the fence is in with the grates in the first place. No one has come along to tell your Honour that it was impractical to do one job rather than the other or to say that it was outside the delegation or anything of that nature, so the third defendants completely failed to discharge its onus if it wanted in the first place to escape liability." [168]
Supply-Linq drew attention to the scope of services that JLL provided under the Managing Agency Agreement which included:- "Responsible for day-to-day management of the property together with associated administrative and accounting functions." [169]
Supply-Linq further drew attention to the services that JLL was required to perform under the heading of "Physical Management" in the Managing Agency Agreement. These included:- 1. Undertake inspections of the property to ensure that the required standard of presentation, cleaning, repairs and operations are being maintained and to identify and address any health and safety aspects that require attention. 2. Respond in the first instance to any complaints or requests of the tenants, taking into account the Client's interests and referring any matter of significance to the Client. 3. Control preventative maintenance programs or ensure that the tenants have done so for the property with the approval of the Client. 4. Supervise and direct any on-site staff employed by Jones Lang LaSalle or otherwise engaged by Jones Lang LaSalle or the Client. 5. Produce an information manual for the benefit of each tenant outlining the building operations and services provided at the property. 6. Provide recommendations to the Client for establishment and review of all maintenance and service contracts, monitor the performance of each contractor, and authorise contractors' accounts for payment. 7. Arrange repairs and maintenance deemed prudent with any item of expenditure exceeding a predetermined amount requiring the prior approval of the Client unless contained in an approved budget or in the opinion of Jones Lang LaSalle the works are necessary for the protection of the property or the supply of essential services in the event of an emergency. [170]
Supply-Linq tendered the various records it subpoenaed relating to the subject property, produced by JLL. [171] It was contended that the issue of repairing the grates was known by JLL by reason of an email which was sent by Mr Nick Karousos the portfolio manager for JLL on 6 May 2011 to Mr Greg Corsa (and copied to others) which included a list of repairs to the subject property, and included reference to: "Description: Check all drain covers and carry out repairs; Comment: x 2 quotes". [172] The email from Mr Karousos requested Mr Corsa to take ownership of the attached quotes so they could track back the respective work.
JLL contended that pursuant to the terms of the Managing Agency Agreement it was constrained in the management of the property subject to instructions from the owner and to provide monthly management, operational and financial reports. [173] JLL referred to the fact that under the heading "Physical Management" it was required to undertake inspections of the property to ensure the required standards of presentation, cleaning, repairs and operations are being maintained, and to identify and address any health and safety aspects that required attention. [174] It argued that this was carried out within the constraints of reporting to the owner and acting in accordance with the client's reasonable instructions. [175] JLL did not dispute that it had a responsibility in relation to the upkeep of the premises, but maintained that it was subject to an expenditure limit of $5000 and pursuant to Clause 3.3(b) of the Managing Agency Agreement, any higher amount required the client's written approval. It acknowledged that it reported to the owner that the drains needed attention, however it contended that as expenditures was higher than its limit, it could only act with the owner's approval.
JLL stated that the item itself had been identified as part of non-recoverable expenditure for the year ending 1 July 2010 - 30 June 2011 which referred to:- "Side Drains & Fence Boundary Replacement - Required to lift presentation of property." [176]
JLL also drew attention to the fact that the non-recoverable capital expenditure for the period 1 July 2011 - 30 June 2012, dated 12 July 2011, showed an item: "Side Drains and Fence Boundary Replacement" of $25,000. [177]
JLL accepted that the work was not carried out within the 12 month period.
It next drew attention to the contents of the document titled "Budget Assumptions and Comments - Operational Expenditure" which referred to:- "22531 R&M - General: An allowance has been made for rectification of drains adjacent to the building, renewal or repair of boundary fence (northern aspect)." [178]
It then relied on a break-down of non-recoverable expenditure [179] which referred to the following for July 2011: "Side Drains & Fence Boundary Replacement $25 000." [180]
It was argued that this was picked up in a subsequent document titled "Operational Expenditure" for 1 July 2011 - 30 June 2012, where JLL contended it was included in repair and maintenance general, an amount of $24,000. [181]
JLL reiterated that it could not carry out the works as they exceeded the expenditure limit. [182] It denied that it was under a duty to the Plaintiff, or that it had breached any duty [183] and in its Defence to the First Cross-Claim, it specifically relied on the terms of the Managing Agency Agreement entered into with the owners of the property. [184]
JLL relied on a number of authorities to support its argument. [185]
The Managing Agency Agreement itself evidences that it was the managing agent of a number of properties. [186] Exhibit D 1.5 also evidences that it was managing other properties apart from those of the owner. It can be inferred from these documents that JLL has considerable experience in the management of properties and the reasonableness of the owner's delegation to it was not in issue. The question which therefore arises is whether the obligations of JLL extended to taking reasonable steps to provide or recommend the provision of relevant repairs in the area in which the Plaintiff's accident occurred. In this instance JLL's documents are not themselves evidence that they were forwarded to the owners. JLL submitted that this could nevertheless be inferred. [187] In my view, it is more of a matter of conjecture rather than inference. The First Cross-Claim did allege a failure by JLL to arrange or properly arrange for the hazardous gap between the grates located on the common property to be repaired or properly repaired. No submission however was made as to a failure to seek instructions from the owners.
It is unnecessary to determine what communications transpired between JLL and the owners. What is of significance is that JLL provided no evidence as to how the figure of $25000 referred to in the document dated 12 July 2011, [188] being the non-recoverable capital expenditure required for "Side Drains & Fence Boundary Replacement" was calculated.
In the document earlier referred to as part of Exhibit D1.5, in May 2011 in Item 6 there was a reference to obtaining two quotes in relation to the topic of: "Check all drain covers and carry out repairs." A subsequent document produced in the Defendant's tender bundle describes that Item 17, a quotation for "check all drain covers and carry out repairs" from MID for $2050. The day due for completion of this work was 1 October 2011. Under the heading "Comments" it is noted that:- "Parson's quote not accepted, contacted refuse to supply number of drains involved and type of mesh. MID Advises 25 plus drains Recommend MID." [189] For replacing boundary fence in main driveway, the comments noted: "Awaiting quotes."
On this evidence and in the absence of any further explanation, I am satisfied that the amount actually required to have been spent to repair the area in question was within JLL's delegation.
I am fortified in this conclusion by the fact that the amount actually expended was significantly less than $25,000 and also within the JLL's delegation. The details provided in Exhibit D 3.3 suggests that matters other than safety were part of the figure it submitted being "To lift presentation of the property" and underneath that: "An allowance has been made for rectification of drains adjacent to the building, renewal or repair of boundary fence (northern aspect)" and "Side Drains & Fence Boundary Replacement."
The duty of care of a managing agent was described in Laresu Pty Ltd v Clark. [190] Consistent with that decision, JLL did owe a duty of care to the Plaintiff.
I accept that JLL was aware or ought to have been aware of state of the grates. It had not only corresponded about carrying out repairs from 6 April 2011 but had, according to Mr Beck, carried out a series of inspections of the premises from time to time. On the evidence I can infer this included an inspection around the time that the correspondence was written. Whilst on the evidence, I cannot find a failure to ensure proper and adequate site inspection and risk assessment, it is clear from its own email correspondence that it was aware of the nature of the work that was required to be undertaken and it can be inferred of its significance. I am further satisfied that it had the means and authority to address it, but failed to do so.
Having regard to the provisions of s 5B of the 2002 Act, I am satisfied that the risk of harm previously described was foreseeable and not insignificant. JLL clearly knew that the forecourt area (described as the common area) was used by Supply-Linq and its workers and its use was provided for in the lease. [191] The use of that area at hours when external visibility was poor could also be inferred as the lease provided no restrictions on the time of its use and it was not in issue that Supply-Linq employees who opened the premises including the gate.
For the same reasons given in respect of Supply-Linq, I am satisfied that the probability that harm would occur if care were not taken and the likely seriousness of the harm was high. Also for similar reasons, the taking of precautions to avoid the risk of harm was not burdensome. No question of social utility arises. I am satisfied that a reasonable person in the position of JLL would have taken the precautions of installing railings or replacing the grates in question or at least a temporary solution of covering the area in the way later undertaken. Again I take account of s 5C of the 2002 Act in the way previously outlined in the case of Supply-Linq
JLL made no submission that if found to have breached its duty, the breach would not have caused harm, and I am satisfied within the terms of s 5D of the 2002 Act that JLL's breach of duty did cause harm of a similar nature to that contended by Supply-Linq.

[9]

Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5

s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) entitles a tortfeasor to recover contribution from any other tortfeasor for such amount "as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage."
The principles enunciated by the High Court in Podrebersek v Australia Iron and Steel Pty Ltd [192] in the context of contributory negligence are a guide to the appropriate approach in the present context.
I have identified earlier the manner in which each Defendant has breached their duty of care to the Plaintiff. Supply-Linq directed the work duties she was required to perform as well as the location on the premises where she was required to perform them and working at a time in the area where visibility was poor. Supply-Linq were aware of the hazard created by the drain but undertook no preventative action themselves beyond giving instructions to senior supervisors to keep an eye on the grates and periodically, to get staff to try to push them in as close as possible. There was no evidence that this system was actually enforced. Indeed this alleged system was not put to the Plaintiff in cross-examination. Mr Beck conceded that to the extent it was engaged it could have created hazards elsewhere. Further in light of the position of the grates where the Plaintiff occasioned her injury, the pushing together of the grates would have still left different heights of the adjoining grates. Whilst Supply-Linq corresponded with CBRE and JLL to address the hazard no action was taken until sometime after the Plaintiff's accident. I accept the Plaintiff's evidence that it was not brought to her attention by Supply-Linq. I accept that the need to traverse that area by reason of the fact that it was near an entrance way that Supply-Linq encouraged its workers to use.
JLL was to the managing agent with the direct responsibility for the condition of the premises subject to the terms of its Managing Agency Agreement. Notwithstanding the fact that the state of the drains and the hazard it caused was drawn to its attention, as it had to its predecessor, it failed to take any immediate action in circumstances where it was authorised to do so having been appointed managing agent since 11 March 2011 within the terms of the Agreement.
Overall I would assess the liability of Supply-Linq as greater, being 60% compared to JLL as 40%.

[10]

Workers Compensation Act 1987 (NSW) s 151Z(2)

Both Defendants contended for a proportionate reduction on account of contribution of the Plaintiff's employer, YL Business Solutions Pty Ltd, pursuant to s 151Z(2) of the 1987 Act.
Supply-Linq submitted that it was incumbent on the Plaintiff's employer to perform inspections of the area where the Plaintiff was working to detect risks of harm which ensued on 18 August 2011. It was argued that it should have been equally apparent to the employer's representative (when they came out to the site) that there was a problem with the grates which was creating gaps. Supply-Linq relied on Pollard v Baulderstone Hornibrook Engineering Pty Ltd. [193] It was contended that the employer should have instructed the Plaintiff to not have continued to work until the problem was addressed.
Again, it was the Plaintiff's case that she was not aware of the presence of the gaps. Further, the Plaintiff was cross-examined about her interaction with her employer. [194] The Plaintiff's evidence was that she could not recall if she was told what to do in the event of encountering a hazard in the workplace. [195] Subsequently she was told to tell somebody else in charge. [196] The Plaintiff did not recall being told to ring the employer for instructions. [197] It was not put to the Plaintiff that she was not told to stop working until it was safe. The Plaintiff had acknowledged that someone from the employer would attend from time to time, but stated that the person would be different every week. [198] She stated that they had asked her how she was going, and the interaction was described as "maybe two minutes" long. [199] The Plaintiff did not know if they had carried out an inspection of the drain. [200]
The Plaintiff relied on the principles expressed in Dib Group Pty Ltd trading as Hill & Co v Cole. [201] On her behalf it was submitted as follows:- "What we know is that someone from this employer was visiting the premises every week but there's again no evidence that would assist your Honour on any of the specifics of that. The first defendant bears the onus of proving the 151Z reduction. We don't know whether the person from YL came in the front door or the back door. The plaintiff says that there were discussions with YL at the beginning of the job, Someone from YL would know that the plaintiff was picking and packing and at a work station and having to go around to pick items et cetera et cetera. But this is a one-off task that's done for a few minutes on a Thursday morning where the instruction would be, "Well, on Thursday mornings we go out, we empty out the paper out of these containers into a bigger container so that the truck can take the cardboard away." HIS HONOUR: Was the plaintiff asked about this? WELSH: No, not at all. She was asked some general questions but nothing in specific terns and no evidence was called by the first defendant that would permit your Honour to make affirmative findings about any failure on the part of the employer. All your Honour has is there was a problem with some of these grates. and there is a non-delegable duty of care. Now, had someone from YL spoken to a supervisor or someone about the grates they would have been told something about that perhaps, but we don't know, we simply don't know. The submission is that the first defendant has failed to discharge its onus of proving the extent of the employer's liability for the purpose of s 151Z. The primary reason for that is, as I said, that this task which the plaintiff was undertaking was a very small part of her employment that is undertaken outside the premises, it's not apparently part of her ordinary job, and in those circumstances there should be no reduction on the count of s 151Z or an extremely small one. It's conceded that the plaintiff is not entitled to bring proceedings against her employer, so the effect of the 151Z reduction will be a proportionate reduction." [202]
In Atkinson v Gameco (NSW) Pty Ltd, [203] Ipp JA with Gyles JA and Hunt AJA agreeing, adopted as the correct statement of principle, the following passage in Bourke v Victorian Work Cover Authority [204] stated by Winneke P (with Brooking and Buchanan JJA agreeing):- "True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another … occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee's work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he had breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v Austin Lifts Limited [1959] 1 WLR 100: 'Notwithstanding what was said in Taylor v Sims & Sims [(1942) 167 LT 414; [1942] 2 All ER 375], it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work … ; and, if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course on the circumstances …' (See also Wilson v Tyneside Window Cleaning Company [1958] 2 QB 110 at 121-2 per Pearce LJ; Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88 at 91-2 per Walsh J). One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer's duty will vary. It will depend no doubt upon such matters as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors (emphasis added)."
The Plaintiff in this case was working at a single site and had been doing so for some three years, having commenced in 2008. Although the entrance was described as a "back entrance", her evidence was that she would arrive at work before 6:00am, park her car on the premises and walk to the warehouse before starting to work. The task of removing cardboard boxes was a regular task each Thursday. It was carried out in the morning in circumstances where the illumination, particularly during winter, on all accounts did not provide for easy visibility. The Plaintiff's evidence was that she would walk to the main warehouse doors every day when it was up. She stated:- "Q. Now, prior to the day of your accident had you ever noticed that there was a drain which ran across the front of the warehouses on the forecourt? A. Yes. Q. You had to walk over it all the time because it ran across the main big warehouse doors. That's right? A. Yes. Q. And you had to walk across it to get in and out of the smaller office style door next to the big warehouse doors. Is that right? A. Yes. Q. Did you use that little door very often? A. Yeah, that was the main entrance. Q. Did you walk in and out of the main warehouse doors very often? A. Yeah, every day when it was up." [205]
The difficulty with the Plaintiff's submission is that it focuses on the task that the Plaintiff was doing and not the use that she was required to make of the area in question. This was acknowledged by Mr Beck in the following exchange:- "Q. The problem wasn't for anyone walking through the doors, it was for someone who had, for whatever reason, to cross the drain in between the doors, if I can put it that way. A. Yes. When they cut the corner. Yes. Q. Or not even cutting the corner - having to step onto the drain in that location, I suppose, is what you'd say. Yes? A. Yeah. Q. All right. But staff used the smaller access doors most of the time? A. They're supposed to, yes. Q. So a staff member who was following the rules used the small door? A. Yes." [206]
In this instance it was reasonable for the employer to inspect the subject premises to ensure a safe place of work. There was no evidence that it did so beyond making enquiries of the Plaintiff. Specifically, nothing was put to Mr Beck as to what action the employer took.
The Plaintiff's unchallenged evidence that her supervisor Mr Cordi had stated: "Well, we've been trying to get that fixed for months." [207] Mr Beck also conceded as much in his evidence. [208] It was reasonable to expect that the employer might have inspected the area in question during the months referred to by Mr Cordi in his conversation with the Plaintiff and identify the risk presented. Unlike the circumstances in Dib, the facts revealed in the evidence do not suggest a proper inspection by the employer of the premises, would not have revealed the risk. To the contrary, the danger was apparent. I accept that a reasonable person in the employer's position would thereafter prevent the Plaintiff from working until the situation was rectified and area safeguarded.
In my view, it is appropriate to reduce the damages that may be recovered from the Defendants by the contribution which the Plaintiff would be entitled to recover from the employer as a joint tortfeasor in accordance with s 151Z(2) of the 1987 Act. For this purpose in considering the position of employer as compared to that of the other tortfeasors who had more regular and immediate responsibilities for the site (in the case of JLL) and work conditions (in the case of the Supply-Linq). In the circumstances I consider that an appropriate contribution is 20%.

[11]

CONTRIBUTORY NEGLIGENCE

Both ss 5R and 5S of the 2002 Act were pleaded by both Defendants. s 5R of the 2002 Act provides:- "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
The principles to be applied are those set out by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd. [209]
In Verryt v Schoupp, [210] Meagher JA with Gleeson JA and Sackville AJA agreeing, stated:- "[20] The relevant statutory provisions are referred to in my judgment in Davis v Swift [2014] NSWCA 458 at [23] - [26], [28] - [29]: [29] Section 5R of the CL Act, …, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence." [211]
In Ghunaim v Bart, [212] McColl JA stated:- "[63] The fact that there is no clear demarcation between an act done without reasonable care for one's own safety and an inadvertent, thoughtless act was emphasised in Sungravure Pty Limited v Meani [1964] HCA 16, (1964) 110 CLR 24 by Kitto, Menzies and Owen JJ. Referring to a submission on behalf of the respondent (plaintiff) that he had merely acted thoughtlessly or inadvertently and not negligently and that in those circumstances a finding of contributory negligence should not be made, the majority said (at 33): "An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration of the tribunal of fact." [64] Windeyer J set the matter in context, saying (at 36-37): "A safe system of work is one that is safe for the average workman taking reasonable care for his own safety. It is not a system which is safe only for persons of superior skill whose attention never wanders.... In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care." [65] In Commissioner for Railways v Halley (1978) 20 ALR 409 at 415, Jacobs J emphasised that it was not sufficient for an employer seeking to establish that an employee was guilty of contributory negligence merely to demonstrate that the employee knew the task at hand was "highly dangerous." In such circumstances, the employer had to establish that the employee also knew that what he did, even though highly dangerous, "was not required of him in the performance of his duty." Murphy J said (at 420) in a passage upon which the appellant relied: "Judicial mitigation of the harshness of the contributory negligence rule in its application to injured workers is illustrated by statements such as those in Carlyle v Commissioner for Railways (1954) 54 SR (NSW) 238. Mr Justice Herron said, after referring to a number of authorities: "The result of those pronouncements is that a mistake made by a workman will not usually be a good defence to an action if it was due to inadvertence, hurry, absorption in work or fatigue" (at p 249). In Flower v Ebbw Vale Street, Iron and Coal Co Ltd [1936] AC 206 Lords Atkin and Wright, adopting Mr Justice Lawrence's words, stressed that, in considering this question: "... `the tribunal of fact has to take into account all the circumstances of work in a factory and that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence'" (at p 214). Even more so, it is not for every risky thing that a worker may do in his unfamiliarity with the work that he ought to be held guilty of contributory negligence. Contributory negligence by an employee is not to be determined on the same basis as negligence. Carelessness by an employee due to confusion, fatigue, or natural slackening of attention or preoccupation in what he is doing need not, and ordinarily should not, be regarded as contributory negligence (see Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; [1939] 3 All ER 722). (Emphasis in original) [66] Commissioner for Railways v Ruprecht [1979] HCA 37, (1979) 142 CLR 563 emphasises the necessity, in considering contributory negligence, to pay careful regard to the nature of the work the employee was undertaking in order to assess the significance of the employee's conduct. Gibbs J (with whom Stephen J agreed) observed (at 568) that "in deciding whether the [employee] was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention born of familiarity and repetition, and the man's preoccupation with the matter in hand". Mason J pointed out (at 572) that "... the existence of an unsafe system of work increases the risk of injury to an employee through his inadvertence." [67] Murphy J (at 576 - 577) emphasised the risk to which preoccupation with the task at hand exposed the employee, saying: "Employees often become so absorbed in their work that they are inattentive to their own safety. Momentary carelessness is not likely to be prevented or diminished by rules like contributory negligence or even by safety codes (statutory or otherwise) ..." [68] In Murphy J's view (at 577 - 578) before an employee could be found guilty of contributory negligence, there must be "wilful misconduct", having regard to "the cases which show that carelessness by an employee due to confusion, fatigue or natural slackening of attention, or preoccupation in what he is doing, is not to be regarded as contributory negligence (see Halley's Case; Carlyle v Commissioner for Railways (1954) 54 SR (NSW) 238, at p 249; Flower v Ebbw Vale Steel, Iron & Coal Co Ltd [1936] AC 206, at p 214; Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152). It is not enough to show mere knowledge of the risk; the onus is on the employer to prove that the employee knew and fully appreciated the danger at the time and yet went on to incur it." [213]
Pollard v Bauderstone Hornibrook Engineering Pty Ltd was a case involving contracted worker. In discussing the question posed by s 5R of the 2002 Act, McColl JA stated:- "[16] The circumstances which attract particular consideration when a person is injured in an employment situation may also be relevant, however, when the question of contributory negligence arises in a non-employment context. A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff's position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff has so conducted him or herself as to fail to take reasonable care for his or her safety: Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 (at [30]) per Gleeson CJ, McHugh, Gummow and Hayne JJ." [214]
Both Defendants claimed that the Plaintiff was contributory negligent on the basis that she had failed to take reasonable care for her own safety and failed to keep a proper look out. The Defendants' argument expressed by Counsel for Supply-Linq [215] was as follows:- "In my submission it's the case that the plaintiff either did not look to see where she was placing her feet upon approaching the gate that was placed against the warehouse wall or if her evidence is accepted and it was dark and she couldn't see the ground below, then she simply should have stopped and not proceeded with what she was doing. Your Honour, in my submission it cannot be the case that the plaintiff, who accepted that she saw the gate against the wall, could not see where she was placing her feet in front of her. In my submission it is either the case that the plaintiff was simply not watching where she was placing her feet or it was do dark that she simply shouldn't have been doing or working in the area that she was. I have one authority to hand up to your Honour on the issue of contributory negligence. That's the case of Stojan (No 9) Pty Ltd v Kenway. Factually the case is not similar but it involves a plaintiff who was ascending stairs in the dark and failed to employ the use of a handrail. In that case there was the reduction of 50% contributory negligence or thereabouts. In my submission, your Honour, an appropriate discount for contributory negligence in this case is in the order of 20%." [216]
In this instance the task that the Plaintiff was undertaking was described as a production line. There was a familiarity borne of the repetitive nature of the task and a preoccupation with the task at hand. The Plaintiff was navigating an area she was encouraged to use, familiar to her and where she could have expected a traversable surface close to an entrance. Her vision was limited by the conditions as I have found. At its highest the Plaintiff's actions would amount to inadvertence. in my view, no circumstance of contributory negligence arises.

[12]

INJURIES

The Plaintiff's evidence was that following the incident she felt pain in her left knee and that it was throbbing. [217] In addition she claimed that she experienced left hip and lower back pain. [218] She stated that in the days following the accident that she would feel "aching and throbbing" in the lower back on the left side and it would "go down" her leg. [219] She stated that she always had pain down her hip since she fell. [220]
She was supported in this regard by her partner Ms King.
In cross-examination the Plaintiff was asked about seeing Dr Zhanna Tsukanova on 18 November 2010 complaining about pain in her back and knees. The Plaintiff could not recall this. [221] Whilst Dr Tsukanova's records do disclose this attendance and referral of Voltaren Rapid medication, there were no referrals for investigation or prescribed medications.
The Plaintiff was also cross-examined about the contents of the Accident, Incident & Hazard Report - NSW relating to the accident. [222] She accepted that if she had any pain to her back or left hip she would have noted on the form but did not note it. [223]
The Plaintiff's evidence was that she had no time off that day, apart from leaving early to see Dr Tsukanova. [224] In cross-examination it was put to her that she did not refer to any injury to her back or her left hip when she saw Dr Tsukanova on the day of the accident. The Plaintiff responded that:- "If she wrote that, I suppose." [225]
Dr Tsukanova on 18 August 2011 records:- "[I]njury to left lower leg this morning able to WB abrasion and big bruise to left shin medial to knee WB walking without limp plan: ice; analgesia; R/V if not improving." [226]
The Plaintiff continued to work, until she saw a specialist, Dr Jayker Davé. She stated that she found being on her knee all day "very difficult, hard." On 7 September 2011, Dr Tsukanova noted:- "[O]ngoing pain and swelling after last injury tender lump pain radiating down the leg limping while walking lump below the knee, knee not swollen needs US and X-ray, R/V after." [227]
The ultrasound and x-ray were reported on 7 September 2011 by Dr Alvin Chan. [228] The report noted in relation to the ultrasound:- "Given the history of trauma, appearances would be most in keeping with a liquefying haematoma/area of fat necrosis. Progress scans are suggested to ensure resolution." Dr Chan noted that the x-ray to the left knee and tibia, and fibula, were normal. [229]
On 8 September 2011, Dr Tsukanova noted the findings of the ultrasound and referred the Plaintiff for progress ultrasound in three to four weeks. In the meantime, the Plaintiff was started on Tramal SR. [230] However, in evidence-in-chief, the Plaintiff stated that she was taking Endone, Panadeine Forte and Naproxen. [231] Naproxen appeared to have been prescribed on 21 October 2011. [232]
The repeat ultrasound was reported by Dr Mark Waterland on 30 September 2011, who noted:- "In the area of injury there is a slight increased echogenicity within the dermoid adipose tissue consistent with previous injury but there is no focal haematoma. There is a small amount of fluid in the pes anserinus bursa. No other soft tissue abnormality is demonstrated." [233]
The Plaintiff stated that she had the repeat scan because it was "still hurting." [234] On 1 October 2011, the Plaintiff was referred by Dr Tsukanova to see an orthopaedic surgeon who was Dr Davé. The Plaintiff was asked in chief about the problems in her lower back up until she saw Dr Davé. She stated that there would be "aching and throbbing" [235] on the left side and "it would go down my leg." [236] The Plaintiff added that she also had pain in her hip since she fell [237] although she stated she "just never realised that." [238]
On 19 October 2011, Dr Davé took a history from the Plaintiff that she:- "… fell in a hole in the concrete (next to manhole) with her leg falling down to the level of her knee. In the process she twisted her upper body on the fixed lower leg." [239] He referred the Plaintiff for an MRI scan.
The Plaintiff saw Dr Tsukanova on 24 October 2011, who noted that she may require arthroscopic examination. [240] Dr Tsukanova subsequently referred the Plaintiff to physiotherapy on 1 November 2011. [241]
In cross-examination the Plaintiff was taken to a workers' compensation claim form completed on 24 October 2011 which became Exhibit D1. She accepted that when completing that form she had to see Dr Tsukanova to obtain a medical certificate and nowhere in the document did she refer to her back and left hip. [242] Then it was put to her that this was because when she saw Dr Tsukanova to complete the document she had not complained of any injury to her back or left hip arising from the accident. The Plaintiff responded:- "She always asked if they hurt, mine - hip and my back, because of falling. And me being stubborn I told her no." [243]
On 26 October 2011, the Plaintiff had an MRI scan to the left knee which was reported on by Dr Andrew Robinson as follows:- "Slight thickening of the femoral insertion of the MCL, presumably reflecting the sequelae of a previous injury. Focal tendinosis of the infrapatellar portion of the patellar tendon. Chondromalacia in the patellofemoral compartment." [244]
The Plaintiff saw Dr Davé following the MRI scan and he referred her to physiotherapy. In a report dated 8 November 2011. [245] Dr Davé stated that if she remained symptomatic, he would consider a cortisone injection into the bursa. That report also records obtaining an accident history of the Plaintiff being trapped at the knee and her body subsequently twisting and rotating on the fixed lower leg.
Around 9 January 2012, the Plaintiff had a steroid injection. Dr Tsukanova noted on 10 January 2012 that she had a general reaction to the local anaesthetic and could hardly walk now because the area was "swollen and very tender today, tender to WB, limping." [246]
The Plaintiff in evidence described the pain as "it hurt. I screamed" from the injection. [247] A follow up injection was noted as being required on 16 January 2012. The Plaintiff was unfit for work for two days. [248] On 16 January 2012, Dr Tsukanova noted that the Plaintiff had ongoing pain and significant reduction of movements in the left knee, but was able to move her toes. However, she was walking with a significant limp. She noted that the Plaintiff remained on Panadeine Forte and received ongoing physiotherapy. [249]
On 19 January 2012, Dr Tsukanova noted that the pain had improved, but noted that the Plaintiff was still limping. She certified the Plaintiff as being unfit for work.
On 30 January 2012, the Plaintiff had a follow up cortisone injection. Dr Davé recorded:- "[The Plaintiff] was physically sick, but also had a lot of pain and swelling around the medial aspect of the tibia … The most likely diagnosis is that of a steroid flare …" [250]
The Plaintiff gave evidence that around the time of a cortisone injection her low back was aching. [251]
The Plaintiff gave evidence that from the back to the toe, "it feels like the same sort of pain." [252] Later she stated that in her mind, she could separate the pain coming from the back down to her leg, and her knee pain. [253]
The Plaintiff saw Dr Davé on 29 March 2012. He reported:- "She continues to have anterior knee pain with grinding. She is not able to stand for long. She has continued physiotherapy once or twice a week. She has easy aggravation of the anterior knee pain. She is now complaining of pain over the medial hamstring tendon along its whole length." [254]
On 11 April 2012, Dr Davé noted that the Plaintiff was complaining of severe pain mainly on the patellofemoral joint and that she had some physiotherapy with taping which made a big difference. This was something she acknowledged by the Plaintiff in evidence. [255] Dr Davé noted that the Plaintiff developed a rash to the tape. He also noted that she was to be started on hydrotherapy and an exercise program. [256] The Plaintiff stated that hydrotherapy did not help her. [257] She stated that she had a further steroid injection [258] on 11 April 2012, however that did not result in any improvement and she was given a referral to see Dr Walker for a second opinion.
On 27 April 2012, Dr Richard Walker opined:- "I suspect most of [the Plaintiff's] symptoms are form [sic] the patellofemoral joint. She may have some ongoing pain from the medial collateral ligament as well as the hamstring tendons as they insert into the medial proximal tibia." [259] Dr Walker noted that there was no surgical pathology to be addressed, however, recommended ongoing physiotherapy and hydrotherapy, and regular simple analgesia as well as a new MRI scan to see if there was any new pathology. [260]
On 30 April 2012, Dr Tsukanova trialled the Plaintiff to work four hours per day for five days per week. The MRI scan was carried out on 3 May 2012 and reported on by Dr Kevin Tay who stated:- "No meniscal tear identified. In particular, no medial meniscal tear. Small amount of fluid adjacent to the tibia below the level of the joint line. Given its close relation to the pes anserinus it is likely pes anserinus bursitis." [261]
On 29 May 2012, the Plaintiff saw Dr Tsukanova who noted that she had finished physiotherapy and there was no change in pain. She noted that Dr Walker did not support surgery and that there would be no further steroid injections. She trialled the Plaintiff to work six hours per day for five days per week.
An ultrasound on 8 June 2012 reported by Dr Fiona Leung noted "no evidence of deep venous thrombosis in the left lower limb." [262] Dr Tsukanova noted that the Plaintiff complained of pain and she wanted to continue work but found it difficult. On 12 June 2012, an ultrasound by Dr Greg Chen recorded:- "Possible split within the medial collateral ligament with associated oedema. This could be further assessed by an MRI. There is a small amount of fluid within the supra-patellar bursa." [263]
On 7 August 2012, an arthroscopy was carried out by Dr Davé at the Campbelltown Private Hospital. [264] Dr Davé recorded that the operative procedure was "medial meniscus anterior horn tear, grade 2 medial condyle and Hoffa fat pad was debrided". The operation performed was recorded as "arthroscopy, chondroplasty and debride fat pad". The Plaintiff stated that after this procedure she had eight weeks off work, but did not notice a lot of improvement to her left knee. [265]
When the Plaintiff returned to work she was placed on light duties doing labelling on odd products. [266] According to her evidence she did not do picking and packing or emptying the cardboard cages. [267] The Plaintiff stated she could sit down when she felt the need to do so and did so probably five to six times a day. The Plaintiff stated that on a daily basis thereafter she felt her knee was unstable and that after the accident she could not kneel on her left knee. [268] After the surgery her evidence was that the swelling in the knee was not as bad as beforehand although she had pins and needles sensations. [269] She acknowledged that after the surgery her knee was "hurting bad" and could hardly walk afterwards. She observed a limp. Since the Plaintiff returned to light duties and stated that her back was never completely pain free describing it as "achey." [270] She stated that her hip was never pain free and had a "pinching throbbing" sensation. [271]
On 17 October 2012 the Plaintiff was seen by Dr Wayne Viglione, orthopaedic surgeon. He records that at the arthroscopy "it looked like some of the fat pad removed" [272] and there was a "small chondral flap on the medial femoral condyle which was also debrided." [273] He stated that he could not see a meniscal lesion. [274] He noted that the "knee was stable" and "[s]tressing the patellofemoral joint caused some pain due mainly to local pressure" and "[t]here were no sensory disturbances around the knee." [275]
On 6 and 8 November 2012, Dr Tsukanova recorded in her clinical notes that the Plaintiff had acupuncture to lower back triggers. [276]
In a report dated 3 December 2012, Dr Davé noted an ultrasound finding of the Plaintiff's left knee showing an "intrasubstance tear of the lateral collateral ligament." [277] Dr Davé did not recommend a surgical solution and stated that gym attendance and exercise was unlikely to be of any benefit as she had exhausted this modality of treatment. [278] He noted that the Plaintiff's main symptoms were along the lateral side of the knee and that she had recently completed a course of acupuncture around the buttock area which has helped her with her knee pain. [279] The Plaintiff was discharged to the care of Dr Tsukanova.
In so far as the left hip was concerned Dr Tsukanova was recorded as having expressed the view in a medical case conference on 4 April 2013 with Ms Manasi Raje, occupational therapist, that the Plaintiff's left hip bursitis was caused by the workplace and was related to her original left knee injury. [280] However the report also records that Dr Tsukanova advised that she would recommend MRI scan investigations would be beneficial to further investigate the cause of the Plaintiff's left hip symptoms. [281]
On 17 April 2013, an x-ray was carried out to the Plaintiff's lumbar spine, Dr Fiona Leung noted mild degenerative disc disease although no significant disc space narrowing. In relation to the left hip an x-ray and ultrasound was reported on. It was observed:- "There is minor fluid distension of the trochanteric bursa which may be due to mild trochanteric bursitis. The gluteal tendons are grossly unremarkable although if there is persistent concern for tendon tear or tendonosis, MRI would be the next diagnostic algorithm of choice. The calcific focus noted on the plain radiographs was not identified on sonography." [282]
On 15 July 2013, the Plaintiff had a MRI to the left hip reported on by Dr Praneal Sharma who observed:- "The appearances are most likely due to bilateral gluteal tendonosis. There is no definite evidence of trochanteric bursitis." [283]
In a report of 27 August 2013, Andrew Cooke, physiotherapist, records that:- "In terms of her left hip, which has received no physiotherapy as yet, the clinical diagnosis seems to be chronic gluteus medius tendonosis, which normally responds to hands on therapy, stretches and strength work, however, has not been treated as yet." Mr Cooke accepted that physiotherapy was complete for the knee but recommended further treatment for the hip in terms of long term strengthening to improve overall function. [284]
In a report of 20 November 2013 to the Plaintiff's solicitors, Dr Tsukanova stated that the Plaintiff most likely developed left hip pain due to increased pressure on her left hip while she was trying to avoid the knee pain. Dr Tsukanova records:- "Ms Pamela Spencer continues to suffer from pain in the lateral aspect of the knee as well as a shooting pain running across the front of the patella occurs unpredictably and sporadically. She also gets pain in the left hip which affects her daily life and performance. Her current capacity is 8.5 hrs 6 day (normal working hours) with some restrictions lifting up to 7 kg and no squatting and bending the left knee. There is no therapy that I can think of that is going to improve her outlook quickly. My opinion is she is still beneficial of having physiotherapy (left knee and hip) and it is going to be a question of pain management and some activity adjustment. Her current diagnosis is chondromalacia in the patellofemoral compartment and left hip tendonosis." [285]
On 9 February 2014, the Plaintiff presented to the Campbelltown Hospital complaining of left sided low back pain referring posteriorly down the left leg. A history is obtained that the Plaintiff was bending to put down an object when she felt a 'pop' in her lower back. [286] Further the Plaintiff is recorded to have denied a previous history of lower back pain. [287] She was prescribed Endone, given advice as to mobilisation, exercises and lifting technique. [288]
The Plaintiff was questioned about this incident. [289] She at first was uncertain about attending the hospital, what she reported and what treatment she received. She also could not recall attending a doctor at the Claymore Medical Centre regarding the same matter that day. When asked if it was very painful since that day she stated: "I don't recall that." Subsequently she stated that she remembered the pain and that it was different to the pain she had following the incident as it was just below the rib cage and hurt when she breathed in. She stated the pain went away 2 to 4 days later but when put to her the pain was still there on 11 February 2014 she stated that she did not recall.
The clinical notes [290] indicate that the Plaintiff saw another doctor on 9 February 2014 but that on 11 and 12 February 2014 she saw Dr Tsukanova. On 11 February 2014, it appears that the discharge summary from Campbelltown Hospital was provided to the practice and the Plaintiff was referred for an x-ray.
In a report of 2 April 2013 to GIO General Ltd, Dr Tsukanova directly linked the left hip, lower back pain and left knee pain. When asked if the left hip was directly related to the injury of 18 August 2011, Dr Tsukanova stated:- "L hip pain is directly related to the workplace. She has L knee pain and was trying to put pressure from the knee and put more pressure on the left hip." [291] When asked if the lumbar spine was directly related to the workplace injury of 18 August 2011, Dr Tsukanova stated:- "Yes, due to muscle spasm due to L hip pain." [292]
The Plaintiff saw Dr Tsukanova again on 25 February 2014 and thereafter on 17 June 2014. On this later occasion there was no mention of the Plaintiff's back.
Dr Paul Teychenné, consultant neurologist, examined the Plaintiff on 11 December 2013 and reported that the Plaintiff had left L4/5 radiculopathy that evidenced an injury to the lumbar spine, most probably by jarring at the time of the fall. The history of the incident which was recorded was that the Plaintiff told him that:- " … The left leg slipped in and she fell onto the side of the left hip. The whole of the left thigh and the left lower leg she impacted against the cage side. The whole leg slipped down between the cage sides into the hole below the cage. She stated that she also fell back onto the left, falling onto the left hip …" [293]
The Plaintiff also saw Dr Peter Conrad at the request of her solicitors on 12 February 2014. He opined:- "This lady was involved in a fall at work on the 18th August 2011. As a result she injured her lumbar spine and in view of the chronicity of her symptoms and non-verifiable radiculopathy in the left leg, she should have an MRI scan to rule out any significant discal injuries. In addition, she sustained a direct trauma to her left knee associated with some damage to the medial meniscus as shown on Dr Dave's arthroscopy and a haematoma of the front of the knee and patellar tendinosis. She also sustained a left hip strain. She has ongoing back pain and pain and stiffness in her left leg and left knee. She needs conservative treatment and may need physiotherapy on a needs basis." [294]
On 17 February 2014 the Plaintiff saw Dr James Bodel who reported that she suffered an injury to the left leg but the exact diagnosis was difficult to determine. He stated that it appeared that there was a tear of the anterior horn of the medial meniscus and also some articular cartilage damage in the medial femoral condyle and in the retropatellar region. [295] He described the back and left buttock pain as intermittent and (presumably referring to the incident involving the pot plant) stated that the Plaintiff had "a fairly severe episode of this just recently and had to go to hospital but it is now settling." [296] Dr Bodel referred to the x-ray of 17 April 2013 and ultrasound showing no significant abnormality of the left hip. [297]
On 17 November 2014 the Plaintiff saw Dr Anthony Smith at the request of the solicitors for Supply-Linq. Dr Smith recorded a history of injury to the knee and left hip but not the back. Referring to the x-ray of 7 November 2014, Dr Smith records that:- "There is early degenerative change. In the lumbar spine, there is disc space narrowing at L5/S1. It is not a true lateral. The radiologist reports retrolisthesis at multiple levels. I do not think that can be fairly said to be the case in the absence of an x-ray being an oblique." [298]
Dr Smith was of the view that the Plaintiff had arthritis in both the knees and both her hips and the history suggested an aggravation of her knee arthritis. He opined that there was a relationship between the onset for the first time of aggravation to the hip and knee arthritis on the left. However he felt the aggravation had long since ceased. He opined that the Plaintiff was now aggravating the hip and knee arthritis with various activities such as kneeling, squatting and walking for lengthy periods and being on her feet for lengthy periods. [299]
On 15 January 2015, an MRI was carried out to the lumbosacral spine which was reported on by Dr Waterland and referred to in the report of Dr Conrad of 21 December 2015. It notes:- "Dr Waterland - MRI scan - Lumbosacral spine: narrowing left facet joint L4/5. No other abnormalities." [300]
Dr Bodel saw the Plaintiff again on 12 January 2016 at the request of her solicitors. [301] After reviewing the MRI of 15 January 2015 he opined that the Plaintiff had suffered a disc injury at the lumbosacral junction. [302] Insofar as the left knee was concerned, his findings do not appear at variance to those expressed in his report of 17 February 2014. [303]

[13]

ANALYSIS OF INJURY

The Plaintiff's counsel submitted:- "In my respectful submission, it's clear enough that certainly on the civil standard that what this plaintiff was experiencing throughout the period after this accident was pain in her left leg, some of which was due to her knee, some of which was due to her hips, some of which was due to her low back, she's getting radiating pain down the leg, and it took a little while for all of these things to emerge in the medical evidence, so, your Honour, there is no recent invention in relation to the back." [304]
The Plaintiff also relied on the significant forces involved on the Plaintiff's body referred to in the history obtained by Dr Davé. Further the Plaintiff's counsel submitted:- "WELSH … So the plaintiff's medical case relies on some very strong support from the plaintiff's general practitioner. There were varying views about what precisely was wrong with the plaintiff's knee, and there's a difference, your Honour will read, in the opinions as to whether what Dr Davé says was done in the surgery was actually done because Dr Viglione had a look at it and thought something different was done. It seems to be the consensus of the medical evidence that the plaintiff certainly had a partial meniscectomy in this surgery. Why Dr Viglione couldn't see that on the film, I don't know, but Dr Davé says that he did it. Dr Davé also says that she has chondromalacia patella in the left knee. Well, that's traumatic harm to the underside of the patella, which of itself can be painful and disabling. She had a bone contusion in the knee, consistent with there being some very significant forces being imposed on the joint, and the plaintiff says what her problems are. There's no medical evidence to say her reported problems are completely unreasonable, all that's occurred is that Dr Smith has said, 'Well, I just think it's because she's got arthritis in her knee, bilateral knee arthritis, which is asymptomatic in the right knee.' That, on its face, has to be rejected because we know she had damage in the knee, and the fact that the right knee is asymptomatic means that whatever arthritic process she might have had would be asymptomatic in the left now if she hadn't had the injury, and the same thing applies to the hips. What your Honour takes from Dr Smith's opinion is, in fact, a good deal of support for the plaintiff's case, and your Honour would reject Dr Maxwell's opinion because it is out of line with the range of other doctors in the case." [305]
Supply-Linq [306] submitted that the failure of Dr Tsukanova to refer to the back in her report of 20 November 2013 was because if there was an injury to the back at this time she did not attribute it to what occurred on 18 August 2011. [307]
Dr Tsukanova obtained a history of the incident of 9 February 2014 as evidenced by the fact that the discharge summary is incorporated in her clinical notes. The records of Dr Tsukanova record treatment for back pain on 18 November 2010 and 6 and 8 November 2012. The x-rays of Dr Leung of 17 April 2013 recorded degenerative disc disease in the lower back. These events were not recorded in the discharge summary of Campbelltown Hospital where the Plaintiff is recorded to have denied a previous history of low back pain.
Dr Teychenné's and Dr Conrad's observations [308] as to the Plaintiff occasioning injury to the lumbar spine immediately consequent to the accident do not correspond with Dr Tsukanova who referred to the lumbar spine pain as due to muscle spasm due to left hip pain. Nor is injury supported by the reports of Dr Smith who saw the Plaintiff at the request of Supply-Linq or Dr David Maxwell [309] who saw the Plaintiff at the request of behalf of JLL.
Ms King's evidence was somewhat equivocal in the timing of the Plaintiff's back and hip symptoms qualifying her recollection of the Plaintiff mentioning soreness as to her hip and back with statements of: "if I can recall correctly cause it was a long time ago" [310] and "Yeah, from what I can recall." [311]
In light of the contents of Dr Tsukanova's clinical records, Exhibit B and D1 and the Plaintiff's evidence in cross-examination, I am not satisfied that the onset of the Plaintiff's symptoms in the back and hip followed the immediate aftermath of the accident.
I accept that the Plaintiff has mild degenerative disc disease although no significant disc space narrowing as revealed in the x-ray report of 17 April 2013 by Dr Fiona Leung. The MRI reported on by Dr Waterland and referred to by Dr Conrad in his report of 21 December 2015 rules out any notion of disc prolapse. Dr Smith referred to the presence of early degenerative changes.
So far as symptoms are concerned they reported as having have arisen both prior and since the accident in unrelated circumstances. I accept the view expressed by Dr Conrad who describes the back symptoms as intermittent. Dr Bodel in his report of 17 February 2014 also describes them as intermittent [312] although in his report of 12 January 2016, Dr Bodel describes ongoing pain and stiffness in (inter alia) the back. [313] According to Ms King it was her who advised the Plaintiff that it was "probably related to that fall [that the Plaintiff] had." [314]
Whilst I am conscious of the limitation of relying on clinical records, in the circumstances of this matter they appear to me to provide a more accurate basis of assessing, the Plaintiff's symptoms and history in relation to her back than the Plaintiff's and Mrs King's evidence which I found unreliable on this issue.
I accept that the Plaintiff did have intermittent back symptoms since the surgery flowing from her limping and the degenerative changes recorded in the radiology. To this extent I accept Dr Tsukanova's evidence. I do not draw any adverse inference from Dr Tsukanova's failure to refer to the back in her report to the Plaintiff's solicitors of 20 November 2013 or the incident of 9 February 2014 in her report to GIO General Ltd on 4 April 2014. In my view this is accounted for by the limited nature of the symptoms and the specific requests for information.
Supply-Linq accepted that at some point, the Plaintiff developed some type of injury to the left hip but did not concede that this was causally related to the initial injury. [315]
As noted earlier on 16 January 2012, Dr Tsukanova noted that the Plaintiff had ongoing pain and significant reduction of movements in the left knee and was walking with a significant limp. This was following the Plaintiff's first injection. I accept that the left hip pain did develop as a consequence of the Plaintiff thereafter putting pressure on the left hip as disclosed in the report of Dr Tsukanova of 4 April 2014 to GIO General Ltd. I accept the findings of Dr Praneal Sharma of 15 July 2015 that the Plaintiff's left hip had bilateral gluteal tendonosis. Dr Maxwell described the bilateral changes as probably not that significant [316] and the pain as "somewhat obscure." [317] Dr Anthony Smith does accept that there is a relationship between the onset of pain for the first time from the aggravation to the Plaintiff's hip and knee arthritis on the left but considers these aggravation to have ceased. Whilst Dr Smith's view as to cessation does not account for the fact that differences in the symptoms between the hips. In the circumstances I am satisfied that the left hip is causally related. I further accept that according to his last report Dr Bodel does not suggest any ongoing symptoms in the hip. [318]
In relation to the knee Supply-Linq disputed that the Plaintiff suffered a meniscal tear to the left knee. [319] Dr Davé records such a finding on 7 August 2012. [320] Dr Viglione on 17 October 2012 looked at the Plaintiff's first MRI and could see no lesions apart from a small chondral lesion on the tip of the medial femoral condyl. He also added that he could not see a meniscal lesion. [321] On 27 April 2012, Dr Walker had noted on the basis of the MRI of October 2011 that the meniscus was intact. [322] The reference to meniscus by Dr Davé is unclear. Dr Davé does not record performing a meniscectomy but rather arthroscopy chondroplasty and Hoffa fat pad debridement. In the circumstances I am satisfied the Plaintiff did sustain an injury to her left knee requiring the surgery Dr Davé undertook but not satisfied that a meniscectomy was performed.

[14]

PSYCHOLOGICAL INJURY

So far as the Plaintiff's emotions were concerned she stated that since the accident she felt like she was an emotional wreck because she could not do anything. [323]
The Plaintiff stated that she does not want to go anywhere socialising because of the pain. [324] Since the accident she stated that her partner Donna King describes her as a "cranky yank." [325] Notwithstanding this, the Plaintiff stated that she had not had been referred to either a psychologist or psychiatrist and nor had she spoken to her general practitioner about it. [326]
The Plaintiff particularised claims for anxiety and depression, disturbed family relationships, and increased moodiness and irritability. [327]
In support the Plaintiff relied on a report of Dr Thomas Oldtree Clark who examined the Plaintiff on 14 October 2014 and reported the same day. He reported:- "Ms Spencer is suffering from an Adjustment Disorder nominally. This has now developed into a Chronic Regional Pain Syndrome. She experiences unexplained ongoing pain which appear to have an automatic distribution. Ms Spencer has suffered a physical and psychiatric reaction to her knee injury by sustaining a medial meniscus tear. This however has gone on to what is known as a Chronic Regional Pain Syndrome with some phobic anxiety and disturbed sleep pattern." [328]
Dr Oldtree Clark later stated that the Chronic Regional Pain Syndrome was best addressed by a pain specialist.
The Plaintiff saw Dr Oldtree Clark on a second occasion on 8 December 2015 and reported on 13 January 2016. In that report he noted that she had stopped smoking and lost weight. The Plaintiff gave evidence about health issues she confronted in 2014 following a mini-stroke in 2014 leading to her giving up smoking and losing13 kilograms. [329] She conceded that it was a stressful time. [330] Dr Oldtree Clark asked the Plaintiff to complete a questionnaire at the end of the session. The documented responses appear to suggest deterioration in the Plaintiff's emotional state with claims of sadness, withdrawal, mood shift, "stormy" relations with her partner, flashbacks, short temper, and difficulty concentrating. This is in contrast to the first report where he recorded the Plaintiff referring to her relationship as "best friends" and adding:- "She is however a very determined, independent person and has gone back to work, copes with her housework, drives normally and it has not affected her relationship (emphasis added)." [331]
Dr Oldtree Clark in his first report notes the Plaintiff can drive an automatic car without restriction and enjoys gardening and bowling but finds the activities difficult. In his second report he noted that although the Plaintiff drives, she cannot sit for long and no longer enjoys gardening or bowling. In his first report he noted the Plaintiff still performs housework and "copes" but with some difficulty.in his second report he noted that the Plaintiff "makes herself do housework."
In both reports Dr Oldtree Clark maintained the diagnosis of Adjustment Disorder as before but noted in the second it was now resolving.
Dr Doron Samuell, psychiatrist, examined the Plaintiff on behalf of Supply-Linq. His report dated 9 June 2015 notes that the Plaintiff did not currently assert any psychological difficulty. [332] When he asked the Plaintiff if the accident had any emotional impact on her, she is recorded as having said that she could not do the things that she used to do such as playing with grandchildren, carrying heavy items and that she had trouble grocery shopping. He records that the Plaintiff was learning to live with it. [333] Dr Samuell found no current psychiatric condition and no incapacity from a psychological perspective. [334]
Dr Selwyn Smith, psychiatrist, examined the Plaintiff on behalf of JLL. In his report of 10 September 2015, Dr Smith found that the Plaintiff did not develop diagnostic criteria for a formal psychiatric disorder. He rejected Dr Oldtree Clark's opinion that the Plaintiff was suffering from an adjustment disorder with phobic anxiety and chronic regional pain syndrome noting:- "By her own account Ms Spencer did not report any psychological symptoms that would satisfy a formal diagnosis as defined within the Diagnostic and Statistical Manual of Mental Disorders (fifth edition) of the American Psychiatric Association. Ms Spencer has not required nor by her own account does she need to attend with a psychiatrist or psychologist in response to her accident. No reference to any psychological symptomatologies was contained within her attendances with her family physician or at the hospital. No reference to a psychiatric disorder was documented from the various WorkCover certificates I reviewed. I respectfully disagree with the opinion expressed by Dr Clark that Ms Spencer has experienced an Adjustment Disorder with phobic anxiety and that she suffers from a chronic regional pain syndrome. I found no clinical evidence to support Dr Clark's opinion in that regard. I also found no evidence to suggest that she required psychiatric treatment or domestic assistance from a psychiatric perspective. Any psychological symptomatologies experienced by Ms Spencer have been but normal variants in response to the accident." [335]
Ultimately no submissions as to psychiatric or psychological injuries were advanced by the Plaintiff's counsel.
I accept the evidence of Dr Samuell and Dr Selwyn Smith, and find the latter opinion particularly persuasive.
Dr Oldtree Clark's diagnosis relies on symptoms of significant impairment in social or occupational functioning. However the evidence of the Plaintiff and her partner indicate little, except a change in mood [336] and some restrictions compared to pre-accident functioning. Ms King's evidence was that the Plaintiff continued to enjoy work. [337] Whilst the second of the two reports of Dr Oldtree Clark suggests a deterioration in the Plaintiff's mood, he maintained the same view and found that the adjustment disorder was resolving.
On balance Dr Selwyn Smith's opinion that any psychological symptoms were but normal variants in response to the accident has weight. To the extent Dr Oldtree Clark opines as Plaintiff having Chronic Regional Pain Syndrome, he acknowledges that it was best addressed by another specialist and no report from such a specialist is in evidence

[15]

Out of pocket expenses

Past out of pocket expenses are agreed between the parties as $48,935. [338]
The Plaintiff's Statement of Particulars made an unspecified claim for future out of pocket expenses for physiotherapy, medication, counselling and potential future knee surgery. The Schedule of Damages sought a figure of $37,000 although how that was derived was unspecified. The Plaintiff counsel ultimately submitted as follows- "The plaintiff will need some ongoing medical treatment. We have proposed a figure referable to $33 a week. Your Honour knows she is taking some medication. She said she likes a massage. Again this is just going to be a global educated guess as to what is fair to compensate the plaintiff, but the past is definitely a guide and when there has been nearly $50,000 worth of out of pocket expenses in the past, ten or 15 as suggested by the defendants is probably a bit mean in the circumstances. In my submission you wouldn't give her less than about $25,000 as a global figure for future treatment. The figure we proposed is equally reasonable, given that there is possibility of future joint replacement as a result of this accident. Your Honour, I think that is basically all I wanted to say about quantum." [339]
The claim for future surgery appears to be based on the view of Dr Bodel. In his report of 17 February 2014 he states that he saw no indication for surgery or other invasive test. [340] In his subsequent report of 12 January 2016, he states that surgery was a possibility should the knee deteriorate. [341] He added that that it is not indicated at the moment and hopefully not in the foreseeable future. The Plaintiff's treating specialists do not forecast surgery and the consensus favours conservative treatment. Nor does Dr Maxwell. [342] The Plaintiff was not sure if her knee deteriorated whether she would have a knee replacement. [343]
Dr Anthony Smith does support injections to the knee and hip, the prescription of Voltaren and the use of a splint. [344] However he stated that this was due to bilateral hip arthritis and bilateral knee arthritis which was a constitutional malady. [345]
The Plaintiff stated that she would like to have further treatment being the massage therapy the she use to get at Fitness HQ to her left leg, hip and back. She stated that hurt but helped. [346]
Apart from the Plaintiff's desire there is no other evidence that supports the massage therapy she used to receive at Fitness HQ being reasonable and necessary. Dr Davé on 3 December 2012 stated that gym attendance and exercise was unlikely to be of benefit and she has exhausted this modality of treatment. [347] Dr Walker did state on 27 April 2012 that he would recommend ongoing physiotherapy and hydrotherapy. [348] This however was prior to Dr Davé's report of 3 December 2012. Dr Conrad in his report of 21 December 2015 states that medication, medical supervision and physiotherapy should be "on a needs basis." [349] Dr Thomas Oldtree Clark recorded in his report of 13 January 2016 that the Plaintiff did not wish to see a psychiatrist or psychologist further. [350]
The Plaintiff could not recall when she last saw her general practitioner and confines herself to non-prescription pain relief on weekends as well as home exercises.
In the circumstances I do not consider that past expenditure provides a basis to assess future expenses nor am I satisfied there is any likelihood of surgery. In my view, a reasonable buffer based on conservative treatment for the future is $15,000.

[16]

Past economic loss

Past economic loss according to the workers' compensation repayments is $19,917.94. [351] The Plaintiff asserted a further loss of around $4,500 on the basis of the Plaintiff's earnings in 2013 demonstrating a loss compared to the 2012 year compared to the 2013 year. The 2013 year figures do show a lower figure than 2012. The 2011 taxable income figure of $29,992 is closer to the 2013 taxable income figure of $33,195. [352] The 2012 taxable figure $41,065 is clearly higher. The Plaintiff submitted that this difference amounted to $90 net per week or $4500 in total could be accounted for on the basis of the Plaintiff working restricted hours following the accident. [353] In its Statement of Particulars this loss was foreshadowed although it was identified as to be established by reference to comparable wage data. Nothing was put in the Plaintiff's opening that suggested a different method of computation. [354]
The course ultimately taken was to rely on variances in the Plaintiff's own income data. The Defendants submitted that there was no evidence to support the loss due to the injuries sustained. [355] The relevant tax returns and assessment notices had been served on the Defendants.
The Plaintiff did give evidence of being on light duties following the accident. There is evidence of the Plaintiff being certified to work reduced hours by Dr Tsukanova issuing Workcover Certificates during 2012-13. [356] Further in a report of Ms Manasi Raje, occupational therapist, dated 24 April 2013 there is a reference to the Plaintiff working reduced hours of 6 ½ per day for 5 days. [357] The details of vocational rehabilitation provided by Rehabilitation Services are also summarised for the period 2012-2013. [358] Exhibit L shows that that at around this time the Plaintiff's employer and the Plaintiff received some make up pay as well as some benefits under s 36 of the 1987 Act. In some instances this appears to be limited to a statutory rate. The Plaintiff gave evidence that prior to the accident she worked overtime on Saturdays although not very often. [359] Whether that was available in the period following the accident by reference to comparable data was not directly established. What is clear is that following the accident the Plaintiff did not perform overtime work at Supply-Linq. [360]
On balance it appears the difference is such that I should allow the further sum of $4,500.
Total past economic loss is accordingly allowed at $24,417.94.
Past loss of superannuation is allowed at 11% being an amount of $2685.97. [361]

[18]

Future economic loss

In terms of s 13 of the 2002 Act in assessing future economic loss the task required was described in an analogous legislative context considering s 126 of the Motor Accidents Compensation Act 1999 (NSW) in Nominal Defendant v Livaja [363] as follows:- "[39] The assessment of future economic loss involves an hypothetical calculation, with the need to balance a number of variables: see the recent discussion in Amoud v Al Batat [2009] NSWCA 333 at [22]-[28]. One purpose of s 126 is to require a structured approach to such a calculation. Subsection (1) is expressed in terms which emphasise the need for the plaintiff to satisfy the Court as to certain "assumptions" in respect of future earning capacity. The Court must only act upon such assumptions as are established to its satisfaction on the balance of probabilities. Those assumptions must accord with the plaintiff's "most likely future circumstances" on the basis that the injury for which he or she seeks compensation had not occurred. There is nothing obscure about the nature of the findings so required: they must be sufficient to establish a baseline of earning capacity, extending into the future, from which diminution caused by the injury may be calculated: see State of New South Wales (NSW Police) v Nominal Defendant [2009] NSWCA 225 at [83]-[84] (Beazley JA, Allsop P and Macfarlan JA agreeing). Further, the assumptions must be stated and there is authority for the proposition that failure to do so would render the judgment invalid: sub-s (3); Zahra v Brown [2006] NSWCA 162 at [71] (Beazley JA, Santow JA agreeing). [40] The purpose of sub-s (2) is less clear. There is a missing step between sub-ss (1) and (2). An essential part of the calculation is the assessment of the consequences for the claimant's earning capacity as a result of the injury. Subsection (2) requires adjustment of the amount of damages "by reference to the percentage possibility" that "the events concerned might have occurred but for the injury". Reference in sub-s (2) to "those assumptions" must be a reference to the assumptions about future earning capacity, absent the injury, referred to in sub-s (1). Subsection (1) refers to both assumptions and "other events": it might appear that the reference in sub-s (2) to "the events concerned" was intended to mirror the reference in sub-s (1) to "other events", although the language is somewhat obscure. [41] The assumptions or events upon which a baseline may commonly be calculated include: (a) identification of the skills, training and experience of the plaintiff, as at the date of the accident; (b) the work he or she was undertaking immediately prior to the accident; (c) the likelihood that he or she would have continued in such employment, but for the accident; (d) the possibility that he or she might have obtained promotion or other benefits, but for the accident; (e) the age to which he or she was likely to have worked in that employment, and (f) the possibility that the employment would not have been continuous. [42] Each of these factors is liable to variation, depending upon the circumstances of the case. For example, the likelihood of improved earning capacity for a skilled or professional person, who was at the beginning of a career when the accident occurred, may be high. The possibility of unemployment for periods may be low in some occupations and higher in others. It is common under the general law to allow a reduction in the order of 15% (depending on the circumstances) for "vicissitudes", to allow for the possibility that some event other than the injury would have adversely affected earning capacity. Assuming that length and continuity of employment are treated as "events concerned", for the purposes of sub-s (2), that provision may be seen as allowing for variation for such vicissitudes."
So far as the future is concerned, the Defendants contended that the Plaintiff had not demonstrated a diminution of earning capacity resulting in financial loss.
The Plaintiff has largely engaged in relatively unskilled occupations and has basic educational qualifications. Her evidence was that before the accident she did not have any idea of the age she thought she might retire. [364] Nor did she have any particular goals except to save money be happy and share her life with her partner. [365] She stated that she enjoyed the work. [366] In terms aspirations it is difficult to see how the accident has impacted on the Plaintiff's earnings.
In January 2014, the Plaintiff went to work for Phil Gilbert Toyota. She acknowledged that this involved a return to picking and packing type work and stated the she moved because it was fulltime with benefits. [367] She also acknowledged that she was on her feet during the day and consequently her left knee aches and throbs. [368] The Plaintiff stated that since the surgery she felt her left knee was getting worse in aching throbbing, and the pins and needles. She stated that the back was very sore without change and the left hip about the same. The Plaintiff stated that she gets help at Phil Gilbert with the heavy work and asks for assistance five to six times a day. [369] She did not recall when she last saw here general practitioner and did not have a current script for any medication. [370] She stated that did not consume painkillers as she did not feel safe to consume them and drive to work although on weekends she consumed maybe four Panadeine or Panadol tablets. [371]
In cross-examination the Plaintiff conceded that she was seeking to expand her range of skills and was doing computer related work which involved scanning and barcoding invoices, and checking that documentation and parts were correct. [372] She acknowledged that in this position she is not required to do picking very often.
Counsel for the Plaintiff contented that the case was one where a buffer of between $100,000 and $125,000 was appropriate. Counsel for the Plaintiff submitted:- "… based on the plaintiff's most likely future circumstances, but you do know she's a woman who does not enjoy working at the moment, she's in pain all the time, she's working because there's a financial imperative, she can't afford not to work at present, so these are all reasons why she's not incurring a loss of earnings at the present time. She's got this job because she knows the manager. If something happens to him, the sympathy could easily be gone, when your Honour knows that she is only fit for a selective range of work. She's not fit for the picking and packing work she was doing when she had this accident, she needs help --" [373]
Counsel for the Plaintiff acknowledged that the Plaintiff's earnings were such that the Plaintiff was not suffering economic loss at present. [374] It was further acknowledged that that the Plaintiff had been given a good performance reviews in her present position. [375]
In addressing the assumptions about future circumstances for the purposes of s 13 of the 2002 Act, I do not accept that the Plaintiff does not enjoy working at the moment and is working only because there was a financial imperative. Although the Plaintiff gave this evidence in chief, [376] the evidence of Ms King was that she does enjoy work now. [377] Moreover the Plaintiff accepted a description of her as an active intelligent go-getter who wanted to improve herself. [378] The Plaintiff has been the subject of good reviews and sought to learn everything about the company, do the best with everything she tried, and has sought out area to expand her skills. [379] The business expanded with an increase in the number of warehouse staff in recent times from 5 to 7 because of what the Plaintiff described as a pickup in business. [380] The Plaintiff also acknowledged that she was training someone at the moment. [381]
Dr Anthony Smith stated in his report of 17 November 2014 that the Plaintiff is fit for work on a full time basis if she does not have to use repetitive flights of stairs and ladders or kneel or squat on a repetitive basis.
Dr Maxwell stated in his report of 29 October 2015 that there does not appear to be any significant constitutional or other condition affecting the Plaintiff's earning capacity but does note that she has been a heavy smoker and has hypertension. [382]
Dr Conrad stated in his report of 21 December 2015 that the Plaintiff would find it difficult to do heavy work. However, Dr Conrad stated that the Plaintiff was well motivated and she was able to work as a receiver providing she is able to stand or sit at will and not lift anything more than five kilograms in weight and not do a lot of standing, walking, squatting, kneeling and bending. [383]
Dr Bodel stated in his report of 12 January 2016 that the Plaintiff was working in spare parts interpreting and coping reasonably well. He notes she has the capacity to continue with work and needs to be in permanently modified duties, taking care to minimise bending, twisting or lifting or kneeling and squatting. [384]
I do not consider that the security of the Plaintiff's employment is dependent on the continued employment of her manager and nor do I view it as under threat by nature of her injuries. Nor am I satisfied that the work tasks she is carrying out cause her difficulties. In my view it is likely that the Plaintiff will be able to continue in that employment and it is likely to continue for the foreseeable future.
What may be accepted is that there has been some diminution of earning capacity which may in the unpredictable future give rise to loss of earnings. Such allowance must be based on a calculation of possibilities in accordance with Malec v JC Hutton Pty Ltd [385] and also subject to a discount accounting for the Plaintiff's other health related issues. [386]
The exercise is speculative however bearing in mind the Plaintiff's age, 51, it is reasonable to allow the sum of $40,000 being an amount which includes loss of future superannuation.

[19]

Non-economic loss

The Plaintiff submitted:- "We have submitted 35% is an appropriate figure to compensate her. Your Honour has been given some comparable verdicts - comparable, we say, in inverted commas. These cases all obviously turn on their own facts. I have only brought along one case. It's the decision in Coles Supermarkets Australia Ltd v Haleluka in which Judge Elkaim awarded the plaintiff non-economic loss damages at 30%. This was a woman who had been struck by a shopping trolley and suffered some harm to her hip. She had some pathology in her hip and she had pain but when your Honour reads this judgment, you will see that at para 25 there's reference to some damage within the hip joint. At para 26, the medical opinion from Dr Deveridge was that she will have continuing problems for the remainder of her life, although there will no doubt be periods when the severity fluctuates. The picture was that this plaintiff was subject to aggravations but at other times was not too bad and Judge Elkaim arrived at a figure of 30%. There was no surgery, I am reminded, in this case and the Court of Appeal said that there's no way you could say that was not within a sound discretionary range. These things are largely a matter of impression for your Honour. The other thing that may be of some assistance in this case, although again with very different facts, is that from para 35 there's a consideration of an award for future economic loss but this is someone who wasn't working at the time and who was going to go back into the workforce but would be in a reduced capacity, so it is probably not all that much use to your Honour." [387]
Counsel for Supply-Linq on behalf of both Defendants submitted:- "There are references to there being a meniscal tear, but she wasn't a meniscal tear. That an appropriate award to compensate the plaintiff for her loss of enjoyment of life and pain and suffering in accordance with s 16 of the Civil Liability Act, in my submission, is 19% of the most extreme case, and that's the schedule of damages that has been put forward by the defendants jointly." [388]
Counsel for JLL prepared a précis of what were submitted were comparable decisions to the Court.
Each case of course depends on its own facts and circumstances. The Plaintiff was active prior to the accident enjoying a range of activities with her partner including travel and socialising with family and friends. She has taken what could be regarded as minimal time off work in the circumstances, and returned to perform lighter duties before commencing her current employment in 2014. I accept that her ability to undertake particularly heavier household task has been affected. The Plaintiff stated that she found driving difficult. [389] She stated that she "'always pulling at [her] leg" as "it's like something is always pinching [at] and the pins and needles that go all the way down [her] lower back to [her] left toes. [390] Nevertheless she is able to drive short distances and does so to and from work.
I have not accepted the psychological complaints that she makes and consider that although she continues to suffer from knee pain with some radiation the left hip and back was productive of symptoms to the extent indicated
In all the circumstances, I assess this as 26% of a most extreme case being a sum of $48,500.

[20]

Domestic assistance

The Plaintiff claims domestic assistance for the past only [391] and submitted as follows: "Now, in relation to care, because Basten J said in Boral Bricks v Cosmidis that orthopaedic surgeons aren't qualified to give opinions about domestic assistance doesn't mean that you can't get domestic assistance unless you have an occupational therapist's report. There are many cases in which the Court of Appeal has endorsed awards that were entered without such evidence, and one of those cases is Tumor v Judd(?) in which ten hours a week was awarded on a more or less commonsense basis. Because what the orthopaedic specialists and other specialists can do is describe a person's restrictions, and since your Honour knows that this particular plaintiff has now got restrictions with all of those things I just read to you from Dr Bodel's report, bearing in mind we're only claiming for the first 12 months after the accident, it's entirely reasonable that she would have needed at least an hour a day of assistance, by which I mean Donna King taking on things that she wasn't doing before‑hand. It's as simply as that, I would just ask your Honour to read the medical evidence, say, "Was there a need in that period?" bearing in mind it took up until August for them to decide on a course of surgical treatment for her. That easily founds the 12 months, and it's a matter for your Honour as to whether you're satisfied that there was more than six hours a week in that period. Donna King gave evidence about what she was doing for her, she said it was an hour to an hour and a half a day, five or six days a week of extra domestic work. That's all I want to say about that aspect, unless your Honour wants to ask me something about it." [392]
The Defendants relied on the report of Ms Josephine Campisi, occupational therapist, who assessed the Plaintiff as requiring a total of 6 ½ hours of assistance for an eight week period post the August 2012 surgery. [393]
The evidence of the Plaintiff as to domestic assistance is imprecise as to the periods and extent that she was unable to attend to some to some of her pre-accident domestic work. Nevertheless it implies that she was capable of doing vacuuming at times, [394] cleaning the bathroom [395] and after six months laundry once a week. [396] When cross-examined as to the contents of Ms Campisi's reports she conceded doing some gardening when she forces herself. She could not recall telling Ms Campisi that she could hang sheets on a clothes line.
Ms King indicated that she carried out additional domestic tasks following the Plaintiff's injury such that met the thresholds in s 15(3) of the 2002 Act. Ms King stated that the additional work was an hour and a half each day for five to six days probably to the end of twelve months. [397] She described the duties as cooking, cleaning, washing, ironing, gardening, helping the Plaintiff in and out of the shower and "everything" housework comes under. [398] Earlier in her evidence she was asked about the housework the Plaintiff did following the accident and stated:- "Very little, not like she would normally do and used to do. She'd still cook a meal, you know, maybe put a load of washing in the machine and hang it on the portable clothesline. Things like that." [399]
Ms King stated that before the accident the Plaintiff cooked most nights but following the accident it was three possibly four days a week. [400] This was consistent with the Plaintiff's evidence that she cooked three days a week. [401]
In cross-examination Ms King conceded that in the twelve month period the Plaintiff did domestic work but no heavy work which she described as "vacuuming, changing beds hanging sheets or towels or heavy laundry on the line or anything like that." [402] Otherwise cross-examination did not appear to be referenced to the restricted period in which the Plaintiff made her claim but rather to the broader post-accident restrictions which the Plaintiff advanced as part of her non-economic loss claim.
There was evidence that following the accident Ms King attended to the gardening of the home where they resided - a task previously performed by the Plaintiff.
In Richard Ronald McConachie trading as Willancorah Pastoral Company v Graham John Pack, [403] the NSW Court of Appeal rejected a mechanical approach to the assessment of voluntary domestic assistance. Stein AJA stated:- "[20] The written submissions of the appellant take on an air of unreality. They express a mechanical and arithmetic approach to the calculation of gratuitous domestic care services which the subject matter will not easily bear. As Foster AJA said in Werner v Krahe [2002] NSWCA 168 at [27] precision is impossible in this area and the question is largely one of impression."
My own impression of the evidence is that the Plaintiff did perform domestic tasks in the twelve months following the accident although not the heavier duties and otherwise made adjustments in performing household tasks. There was clearly a period where the Plaintiff required great domestic assistance such from 9 January 2012 when her symptoms escalated and for the eight weeks she was off work following the arthroscopy. I would accept therefore that the threshold in s 15(3) of the 2002 Act was met from 9 January 2012 to 8 October 2012 when she returned to work eight weeks after surgery, For much of this period the Plaintiff was either off work or performing limited hours duties at work. This amounts to a total of 39 weeks.
On the basis of the medical opinion I accept 6 ½ hours as satisfying the requirements of s 15(2) of the 2002 Act. Using the applicable hourly rates prescribed by s 15(4) of the 2002 Act from 9 January 2012 for 39 weeks, I would calculate the total amount for domestic assistance as $9772.29.

[24]

Endnotes

Hereinafter referred to as "Supply-Linq"
Hereinafter referred to as "CBRE"
Hereinafter referred to as "JLL"
T 165.35 - .36
Uniform Civil Procedure Rules 2005 (NSW) r 9.11 (2)
Hereinafter referred to as "the premises". The premises has been variously described in the Plaintiff's opening as 44 - 48 Mandarin Street, Villawood: see T 5.19 and Plaintiff's Second Further Amended Statement of Claim at [3]
Plaintiff's Second Further Amended Statement of Claim at [10]
Plaintiff's Second Further Amended Statement of Claim at [13]
Exhibit D 3.3 Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, and Third Defendant's Defence at [3]
Plaintiff's Second Further Amended Statement of Claim at [5]-[6]
First Defendant's Defence at [4]
Plaintiff's Second Further Amended Statement of Claim at [7]; First Defendant's Defence at [5]; and Third Defendant's Defence at [4]
First Defendant's Defence at [6] and [8]; and Third Defendant's Defence at [7] - [8]
Hereinafter referred to as the 1987 Act; First Defendant's Defence at [11] and Third Defendant's Defence at [10]
Hereinafter referred to as the 2002 Act
First Defendant's Defence at 10 and Third Defendant's Defence at 12
T 19.32
T 19.49 - 20.1
T 20.23
T 21.20 - .37
T 21.48
T 22.6
T 22.13 - .14
T 22.21
T 23.15 - .29
T 23.49
T 24.3
T 24.7
T 24.11
T 24.21
T 24.25
T 29.43
T 29.46
Depicted in Exhibit F
Depicted in Exhibit A
T 30.20
T 31.14
T 31.18
T 31.22
T 31.28
T 31.31
T 31.48
T 32.5
T 24.33 - .38
T 34.4 - .21
Exhibit B
Exhibit B
T 34.49
Exhibit C
T 36.47 - .48
T 37.4 - .5
T 36.25
T 35.15 - .18
Exhibit D
T 38.34 - .35
Exhibit E and T 40.21 - .27
T 99.6
T 99.11 - .26
T 99.30
T 99.34
T 99.37
T 100.7
T 100.10
T 100.14 - .20
T 100.29 - .30
T 100.36 - .38
T 105.3 - .4
T 105.10
T 105.14
T 105.25
T 105.42
T 105.35
T 105.39
T 106.26
T 106.44
T 107.1
T 107.31
T 107.34
T 130.23 - .28
T 130.48 - 131.5
T 133.26
T 135.41 - .47
T 167.35 - .39
T 167.50
T 168.2
T 168.17 - .18
T 168.24
T 168.34
T 169.12 - .13
T 169.29 - .31
T 170.36 - .37
T 171.1 - .40
T 162.37 - .41
T 173.38 - .39
T 173.12 - .17
T 163.27
T 173.42 - .47
T 173.50 - .51
T 174.3 - .4
T 174.15 - .28
T 174.30 - .35
T 175.3
T 177.30 - .38
T 177.46 - .47
T 178.1
T 178.4
T 178.7
Exhibit D 3.1
T 178.22 - .34
T 178.37 - .38
T 178.42
Exhibit D 3.2
Exhibit D 3.2
T 180.2 - .19
Exhibit D 3.2
Exhibit D 3.2
T 179.46 - .47
T 175.13
T 175.19 - .21
T 175.23 - .24
T 175.32 - .34
T 175.36 - .38
T 175.40 - .42
T 175.44 - .45
T 175.49 - 176.1
T 176.3 - .8
T 176.10 - .14
T 176.19 - .21
T 176.23 - .26
T 180.43
T 181.15 - .19
T 181.26
T 181.30 - .49
T 182.24 - .26
T 182.14
T 183.49
T 184.24
T 184.31
T 185.20
T 184.18
Exhibit D 3.4
Second Further Amended Statement of Claim filed on 6 September 2016 at [12]
T 214.24 - .29
T 100.12 - .30
T 100.34
See TNT Australia Pty Ltd v Christie & Ors (2003) 64 NSWLR 1; [2003] NSWCA 47, 9 [41] (Mason P) and 31 [176] (Foster AJA); also see: Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167
ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372
[2015] NSWCA 320 at [100] - [122] (Leeming JA with Basten and Simpson JJA agreeing)
T 24.21
T 216.10 - .15
Chapman v Hearse (1961) 106 CLR 112, 120 - 121 (Dixon J)
T 180.37
T 181.6
T 181.30 - .32
T 182.26
T 242.6 - .8
T 184.20 - .27
T 37.4 - .5
Exhibit D 3.1
Izzard v Dubier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 at [97] (Macfarlan JA with Barrett JA agreeing)
T 167.50
T 169.12 - .13
T 169.29 - .31
T 169.42
T 169.45 - .46
T 182.28 - .36
T 184.20 - .31
T 243.10 - .24
Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 164
Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 166
Exhibit D 1.5
Exhibit D 3.3, Portfolio Job Sheet - Annexed to email from Mr Nick Karousos, p 183
Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 164
Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 166
Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 142, Clause 3.1(c)
Exhibit D 3.3, Budget - Non-Recoverable Expenditure for 1 July 2010 - 30 June 2011
Exhibit D 3.3, Budget - Non-Recoverable Expenditure for 1 July 2011 - 30 June 2012
Exhibit D 3.3, Budget - Non-Recoverable Expenditure for 1 July 2010 - 30 June 2011
Exhibit D 3.3, Budget - Non-Recoverable Expenditure for 1 July 2011 - 30 June 2012
Exhibit D 3.3, Budget - Non-Recoverable Expenditure for 1 July 2011 - 30 June 2012
Exhibit D 3.3, Budget - Operating Expenditure for 1 July 2011 - 30 June 2012
T 228.38 - .42
Third Defendant's Defence at [7]
Second Cross-Defendant's Defence to the First Cross-Claim at 4 and 5
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53] (Hodgson JA with Gyles AJA and Nicholas J agreeing) ; Laresu Pty Ltd v Clark [2010] NSWCA 180; and Wynn Tresidder Management v Barkho [2009] NSWCA 149
Exhibit D 3.3, Managing Agency Agreement between Jones Lang LaSalle and Perpetual Trustee Company, p 182
T 236.25 - .49
Exhibit D 3.3, Budget - Non-recoverable Expenditure for 1 July 2011 to 30 June 2012
Exhibit D 3.3, Schedule of Works for May 2011
[2010] NSWCA 180 at [82] - [83] (Macfarlan JA with Tobias JA and Handley AJA agreeing)
Exhibit D 3.3, Lease Agreement between Supply-Linq Pty Limited and Perpetual Trustee Company Limited, p 103 at [15.13]
(1985) 59 ALJR 492
[2008] NSWCA 99
T 99.4 - 100.14
T 99.45
T 100.7
T 100.10
T 99.9
T 99.37
T 99.30
[2009] NSWCA 210
T 258.7 - .39
[2005] NSWCA 338
[1999] 1 VR 189
T 24.1 - .17
T 185.10 - .25
T 37.4 - .5
T 171.21
(1985) 59 ALJR 492; [1985] HCA 34
[2015] NSWCA 128
[2015] NSWCA 128 at [20] (Meagher JA with Gleeson JA and Sackville AJA agreeing)
[2004] NSWCA 28
[2004] NSWCA 28 at [63] - [68] (McColl JA with Giles and Ipp JJA agreeing)
[2008] NSWCA 99 at [16] (McColl JA with Mason P and Beazley JA agreeing)
See: T 223.28 - .31, where it was adopted by JLL
T 217.11 - .31
T 33.26 - .31
T 33.33
T 38.1 - .10
T 38.12 - .15
T 57.39 - .46
Exhibit B
T 59.27 - .33
T 37.17
T 59.50
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
Exhibit H, Report of Dr Alvin Chan dated 7 September 2011, p 1
Exhibit H, Report of Dr Alvin Chan dated 7 September 2011, p 1
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
T 37.33 - .36
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
Exhibit H, Report of Dr Mark Waterland ,dated 30 September 2011, p 2
T 41.13
T 38.3
T 38.6 - .7
T 38.9 - .22
T 38.10
Exhibit J, Report of Mr Jayker Davé, dated 19 October 2011
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
T 61.30 - 62.17
T 62.22 - .23
Exhibit H, Report of Dr Andrew Robinson, dated 26 October 2011, p 3
Exhibit J, Report of Dr Jayker Davé dated 8 November 2011
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
T 41.47
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
Exhibit H, Report of Dr Jayker Davé dated 31 January 2012, p 4
T 42.20 - .21
T 42.28
T 42.37
Exhibit H, Report of Dr Jayker Davé dated 29 March 2012, p 5
T 42.42 - .46
Exhibit H, Report of Dr Jayker Davé dated 11 April 2012, p 6
T 43.2
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
Exhibit H, Report of Dr Richard Walker, dated 27 April 2012, p 10
Exhibit H, Report of Dr Richard Walker, dated 27 April 2012, p 10
Exhibit H, Report of Dr Kevin Tay, dated 3 May 2012, p 11
Exhibit H, p 12
Exhibit H, Report of Dr Greg Chen, dated 12 June 2012, p 15
Exhibit H, Report of Dr Jayker Davé, dated 7 August 2012, p 7
T 43.31 - .33
T 47.41 - .45
T 47.47 - 48.1
T 44.1 - .3
T 44.17 - .26
T 48.30 - .39
T 48.41 - .42
Exhibit H, Report of Dr Wayne Viglione, dated 17 October 2012, p 16
Exhibit H, Report of Dr Wayne Viglione, dated 17 October 2012, p 16
Exhibit H, Report of Dr Wayne Viglione, dated 17 October 2012, p 17
Exhibit H, Report of Dr Wayne Viglione, dated 17 October 2012, p 17
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
Exhibit H, Report of Dr Jayker Davé, dated 3 December 2012, p 8
Exhibit H, Report of Dr Jayker Davé, dated 3 December 2012, p 8
Exhibit H, Report of Dr Jayker Davé, dated 3 December 2012, p 8
Exhibit J, Progress Report with Amendments by Ms Manasi Raje, dated 24 April 2013, p 2
Exhibit J, Progress Report with Amendments by Ms Manasi Raje, dated 24 April 2013, p 3
Exhibit H, Report of Dr Fiona Leung, dated 17 April 2013, pp 13 - 14
Exhibit H, Report of Dr Praneal Sharma, dated 15 July 2013, p 19
Exhibit J, Final Assessment Report - Work Related Activity Program of Mr Andrew Cooke, dated 27 August 2013, p 4
Exhibit H, Report of Dr Zhanna Tsukanova, dated 20 November 2013, p 21
Exhibit D 1.4, ED Discharge Referral Powernote for the Plaintiff, p 71
Exhibit D 1.4, ED Discharge Referral Powernote for the Plaintiff, p 71
Exhibit D 1.4, ED Discharge Referral Powernote for the Plaintiff, p 72
T 64.10 - 66.28
Exhibit J, Clinical notes of Dr Zhanna Tsukanova
Exhibit J, Report to GIO General Ltd, dated 2 April 2013
Exhibit J, Report to GIO General Ltd, dated 2 April 2013
Exhibit H, Report of Dr Paul Teychenné, dated 11 December 2013, p 23
Exhibit H, Report of Dr Peter Conrad, dated 13 February 2014, p 36
Exhibit H , Report of Dr James Bodel, dated 17 February 2014, p 54
Exhibit H , Report of Dr James Bodel, dated 17 February 2014, p 53
Exhibit H , Report of Dr James Bodel, dated 17 February 2014, p 54
Exhibit D 1.4, Report of Dr Anthony Smith, dated 17 November 2014, p 3
Exhibit D 1.4, Report of Dr Anthony Smith, dated 17 November 2014, p 5
Exhibit H, Report of Dr Peter Conrad, dated 21 December 2015, p 45
Exhibit H, Report of Dr James Bodel, dated 12 January 2016, pp 56 - 61
Exhibit H, Report of Dr James Bodel, dated 12 January 2016, p 59
Exhibit H, Report of Dr James Bodel, dated 12 January 2016, pp 59 - 60
T 247.14 - .20
T 248.4 - .30
See: T 220.22 - .23, where it was largely adopted by JLL
T 194.43 - .45
Exhibit H, Report of Dr Paul Teychenné, dated 11 December 2013, p 22; and Exhibit H, Report of Dr Peter Conrad, dated 13 February 2014, p 35
Exhibit D 3.3, Report of Dr David Maxwell, dated 29 October 2015, pp 14 - 23
T 144.36 - .37
T 146.45
Exhibit H, Report of Dr James Bodel, dated 17 February 2014, p 53
Exhibit H, Report of Dr James Bodel, dated 12 January 2016, p 60
T 144.36 - .38
T 196.30 - .32
Exhibit D 3.3, Report of Dr David Maxwell, dated 29 October 2015, p 18
Exhibit D 3.3, Report of Dr David Maxwell, dated 29 October 2015, p 21
Exhibit H, Report of Dr James Bodel, dated 12 January 2016, p 60
T 201.31 - .32
Exhibit H, Report of Dr Jayker Davé, dated 7 August 2012, p 7
Exhibit H, Report of Dr Wayne Viglione, dated 17 October 2012, p 16
Exhibit H, Report of Dr Richard Walker, dated 27 April 2012, p 9
T 47.10 - .31
T 52.49 - 53.7
T 56 .13 - .14
T 55.24 - .26
Plaintiff's Statement of Particulars filed on 27 January 2016 at (i) - (k)
Exhibit H, Report of Dr Thomas Oldtree Clark, dated 14 October 2014, p 65
T 138.18 - .20
T 137.2
Exhibit H, Report of Dr Thomas Oldtree Clark, dated 14 October 2014, p 65
Exhibit D 1.4, Report of Dr Doron Samuel, dated 9 June 2015, p 14
Exhibit D 1.4, Report of Dr Doron Samuel, dated 9 June 2015, p 13
Exhibit D 1.4, Report of Dr Doron Samuel, dated 9 June 2015, pp 15 - 16
Exhibit D 3.3, Report of Dr Selwyn Smith, dated 10 September 2015, p 10
T 56.14, T 145.17 - .18, T 146.15 - .2 and T 151.30 - .31
T 151.30 - .31
T 202.1 - .2 and T 259.21 - .26
T 256.15 - .25
Exhibit H, Report of Dr James Bodel, dated17 February 2014, p 55
Exhibit H, Report of Dr James Bodel, dated 12 January 2016, p 60
Exhibit D 3.3, Report of Dr David Maxwell, dated 29 October 2015, p 21
T 57.11 - .14
Exhibit 1.4, Report of Dr Anthony Smith, dated 17 November 2014, p 6
Exhibit 1.4, Report of Dr Anthony Smith, dated 17 November 2014, p 5
T 56.46 - 57.2
Exhibit H, Report of Dr Jayker Davé, dated 3 December 2012, p 8
Exhibit H, Report of Dr Richard Walker, dated 27 April 2012, p 10
Exhibit H, Report of Dr Peter Conrad, dated 21 December 2015, p 45
Exhibit H, Report of Dr Oldtree Clark, dated 13 January 2016, p 78
Exhibit L and see also: T 206.16 - .23 and T 213.12 - .15
See Exhibit M
T 259.33 - 260.2
T 7.15 - .19
T 207.35 - .37
Exhibit D 3.3, Report of Ms Josephine Campisi, dated 20 October 2015, pp 35 - 36
Exhibit J, Progress Report with Amendments by Ms Manasi Raje, dated 24 April 2013, p 1
Exhibit D 3.3, Report of Ms Josephine Campisi, dated 20 October 2015, pp 33 - 34
T 43.11 - .21
T 80.41 - .43
T 213.10 - .15
(1981) 148 CLR 438; [1981] HCA 41
[2011] NSWCA 121 at [39] - [42] (Basten JA, Campbell JA and Rothman J)
T 28.34 - .36
T 28.38 - .40
T 28.28 - .29
T 49.18 - .22
T 49.33 - 50.10
T 54.50 - 55.2
T 54.4 - 54.15
T 55.17 - .22
T 111.11 - .33
T 253.23 - .32
T 251.46 - .48
T 108.23 - .45 and T 252.27 - .28
T 54.22 - .23 and T 54.12 - .14
T 151.30 - .31
T 108.14 - .21
T 108.23 - .45
T 51.1 - .8
T 51.14
Exhibit D 3.3, Report of Dr David Maxwell, dated 29 October 2015, p 21
Exhibit H, Report of Dr Peter Conrad, dated 21 December 2015 p 46
Exhibit H, Report of Dr James Bodel, dated 12 January 2016, p 60
(1990) 169 CLR 638; [1990] HCA 20
Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [72] (Basten JA with Meagher JA and Adamson J agreeing)
T 255.40 - 256.7
T 201.32 - .36
T 56.16 - .17
T 56.20 - .23
See T 152.35 - .36 where the future domestic assistance claim was not pressed
T 254.1 - .26
Exhibit D 3.3, Report of Ms Josephine Campisi, dated 20 October 2015, p 60
T 81.1 - .49
T 82.20 - 83.20
T 83.22 - 84.10
T 152.13 - .33
T 152.26 - .30
T 145.7 - .9
T 145.23 - .25
T 79.47 - 80.2
T 154.25 - .27
[2004] NSWCA 148 at [20] (Stein AJA with Hodgson and Bryson JJA agreeing) 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: 24 February 2017

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