Parker v City of Bankstown RSL Community Club Ltd

The use of the Club for dance concerts 5The Yees have run a dance school from their premises at Prestons since 1984. Mrs Yee is a dance teacher. Her husband is involved in the administration of the school. They held concerts at which children and young adults performed the dance routines they have learned in their classes. The ages of the performers ranged from about three years to eighteen years. Crystal and Brandon Parker attended the school. Since 2001 the Yees' concerts had been held at the Club. Other dance studios also hired the Club's auditorium for their concerts. 6A club member, Frank Charlton, was generally available to be engaged by persons who hired the auditorium of the Club. If available and required, he would either open up the lighting box and switch the lights on or operate the lights throughout a performance. In the former case he would attend at the commencement of the function for a short period; in the latter case, he would remain throughout, at a higher fee. The Club would charge the hirer an amount of $50 for his initial attendance for setting up and $165 if he remained throughout the performance. The Club included his charges on the invoice it submitted to the hirer. Mr Charlton was not one of its employees.

The layout of the Club 7The layout of the auditorium was determined by the Club and not the hirers. There were three tiers of seating. Section C, the central section, was five tables wide and six tables long and was on the ground level. Each table in Section C seated ten people. The tables were positioned so that the long side was perpendicular to the front of the stage. The next level was higher than Section C, and was located on either side of Section C in two separate sections, Sections B and D, each of which contained ten tables: two of which seated 18, four which seated 12 and two which seated four. There was a gap between the two tables which seated four and the rest of the tables to create a pathway for people seeking to move around the auditorium or to leave the auditorium to locate their children who were located on the other side of Section A. Sections A and E were one tier higher again. They each contained four tables of 12 and one table of four. The table of four was in the same line as the two such tables in Sections B and D. 8Section C had a wooden floor, as it was used on other occasions as a dance floor. The other sections were covered in red carpet. The edges of each carpeted section were lined with silver metal strips to designate the edge of one tier and the presence of a change in level. 9There were no separate steps between the tiers since the difference in the height of the tiers was only about 150 mm. Nonetheless, the height difference permitted those in Sections A and E to be slightly elevated from those in Sections B and D, who in turn enjoyed some elevation above those in the central Section C. Although Mrs Parker was reluctant to concede that she could see, by reason of the presence of tables, chairs and people on the different levels that there was a difference in elevation, I find that she could discern the differences in elevation from the better view that her position in Section E afforded her. 10At the opposite end of the auditorium from the stage there was a snack bar, a bar and the main entry. 11There were four separate sources of light in the auditorium: (1)The house lighting, which comprised ceiling lighting and pelmet lighting, which operated around the perimeter of the auditorium, including along the wall beside Sections A and E. (2)The lighting in and emanating from the foyer, the bar and the snack bar. (3)The strip lighting which was comprised of a series of lights in a plastic sheath that ran continuously underneath the top edge of each tier. (4)The stage lighting which could be dimmed or turned off according to the requirements of the performance.

Mrs Parker's attendance at the 2007 mid-year concert 12Mr and Mrs Parker also attended the 2007 mid-year concert as Crystal and Brandon, and possibly also their eldest daughter Chloe, performed on that occasion. I do not accept Mrs Parker's evidence that she remained outside the auditorium for most of that concert and viewed the concert from the door of the auditorium. I consider that she was reluctant to admit that she had gone to her table because it would reveal some familiarity with the auditorium and the different heights of the tiers. Although she may have spent some time outside, I find that she probably went to sit at her table which was located in either Section A or B in the auditorium on at least a few occasions in the course of the mid-year concert. 13Mr and Mrs Parker's evidence about the mid-year concert was inconsistent. Mrs Parker said that her husband stayed in the auditorium for most of the concert and complained that she was not there with him (because she was standing outside) and he said that they did not go into the auditorium because they remained outside for the whole time, although he had bought tickets for them. It was my impression that they both wanted to minimise their familiarity with the auditorium because they perceived that to do so would enhance Mrs Parker's chances of succeeding on liability. Indeed Mr Parker was not able to proffer a reason for the apparent irrationality of both parents remaining outside a concert at which their children, whom they wanted to support, were performing and for which they had paid money to attend.

Mrs Parker's attendance at the concert on 22 December 2007 14The dance school run by the Yees held a Christmas dance concert on Saturday 22 December 2007. It began at 2 pm and lasted for about three hours. The Yees hired the Club's auditorium for the event and sold tickets for the performance. No one, apart from the staff of the Club and the performers, was permitted to enter the auditorium without a ticket. The tickets were highly sought after. According to Mrs Parker, parents would queue from 4 am to obtain the best position in the auditorium from which to view their offspring. 15Mr and Mrs Parker arrived at the Club with their five children at about 2 pm on 22 December 2007. They presented their tickets at the door to Norma Harris, who was associated with the Yees. When they entered the auditorium the house lights were on. Mr Yee directed them to their allocated seats on Table 2 in Section E which was the table in Section E closest to the stage. First they took Crystal and Brandon back stage and then collected a jug of water from the bar on the way to their table. In order to reach their table, Mrs Parker had to go from the ground tier (the foyer and Section C) to the first tier (Section D) and then to the second tier (Section E). She walked along the wall at the edge of Section E. She did not pay any attention to whether the strip lighting was illuminated on the steps between Sections C and D or D and E. 16Mr Parker accepted that he had no difficulty with the steps that he encountered on his way from the entrance to their table in Section E or on any occasion when he went to get drinks from the bar during intermission or to deliver a child to the backstage area. He could see other people walking up or down the steps. He agreed that his eyes adjusted to the dimming lighting when the house or stage lights were off and that he could see the people at his table and at the surrounding tables. 17Although Mrs Parker was not particularly sure about it, her evidence was that she did not leave her seat through the whole performance until she had to go backstage to retrieve Brandon, in the course of which she fell. She said that Crystal or Mr Parker accompanied Brandon from the family table to the backstage area. Mrs Parker explained that Chloe, who was averse to noise and crowds, became easily upset. Accordingly, Mrs Parker spent the time looking after her rather than socialising or walking around the auditorium. Mr Parker left his seat once to go to the bar area to buy jugs of drinks. He also left his seat to deliver Brandon to the backstage area before his performances (at the conclusion of which Mrs Parker was to collect him).

Whether the strip lighting was on in the auditorium throughout the concert and at the time Mrs Parker fell 18Much of the evidence in the proceedings was directed to whether the strip lighting was on at various times in the course of the afternoon of 22 December 2007. 19In addition to the evidence of witnesses who were present at the concert, a video tape of the concert which was filmed by Robert Platt was also tendered. As the video was created to record the concert itself, the camera was focussed on the stage rather than the area where Mrs Parker and her family were sitting, or the location where she fell which was at the opposite end of the auditorium from the stage. The video showed that there was considerable ambient light from the stage at various points. It also showed that, at least in the area around the stage, people, including young children, were able to move about without any apparent difficulty, although the house lights were off. I accept that there are some limitations on drawing inferences from the lighting and illumination that can be seen on a video. However, the movement of people disclosed by the video indicated that the light was sufficient during the performance to enable this to occur. 20Although there are shots in the video from which one might be able to discern strip lighting, I am not satisfied that it would be appropriate for me to draw an inference that the strip lighting was illuminated in circumstances where what I perceive might be strip lighting might merely be a reflection of the metal strip. Further, because the camera was focussed on the stage, the relevance of the video to the issue whether the strip lighting was on is slight compared with what it shows about the relative ease with which people were moving around the auditorium. 21The bar and the snack bar were open throughout the concert and people made their way to buy drinks and food there during the performance as well as during the intermission. There was also an area where there were poker machines on the floor below and people would also walk from the concert to this area. As referred to above, access to the backstage area was through the area near the bar and snack bar. Throughout the concert parents would cross the auditorium to deliver and collect their children from the backstage area. The children, particularly older or precocious ones, would make the journey themselves or with their siblings or co-performers. There is no evidence that on any other occasion any other person fell as a result of inadequate lighting at the concert. 22Mr Parker was not really focusing on the strip lighting. He said that he did not look for it because he had no need to do so and could see where he was walking. He did not know whether the strip lighting was on or not. 23James Parker, the plaintiff's eldest son, also attended the concert on that day. He remained at the table for most of the performance although he took one of his brothers to the toilet at some stage. His evidence was implausible in some respects and I am not persuaded that he was telling the truth about all matters, as opposed to trying to assist his mother to succeed in her case. For example, he said that he was watching the stage constantly throughout the performances and did not notice that people were walking around the auditorium throughout the concert at any time when the house lights were off. I do not accept his evidence that he stumbled on the step on one occasion. He agreed with the proposition, which I find to be false, that anyone facing the stage would be sitting in pitch darkness. I do not accept his evidence that he could not see his mother sitting next to him or his drink in front of him. 24Ms Donaldson, the Club's function co-ordinator who worked on reception on the day of the Christmas concert in 2007, gave evidence, which I accept, that when she arrived at the auditorium on 22 December 2007 she turned on the house lights and the strip lighting. She walked around the auditorium (which involved her walking around Section C from the rear of the auditorium up to the stage, across where the section meets the stage and down the other side) to check that the lights were on and working and found them to be so. She also checked the layout of the tables and that the paths to the various exits were clear. From time to time in the course of the afternoon she had cause to enter the auditorium. I accept her evidence that on each occasion on which she did so, including when the house lights were off, she found the strip lighting to be on. It was part of her role to check such matters. When house lights were dimmed and the strip lighting was on, she had no difficulty in seeing where she was walking. 25Mr Dib, the Duty Manager of the Club, was on duty on 22 December 2007. I accept his evidence that he walked into the auditorium at some time near the commencement of the concert to check that all was in order. I accept his evidence that when he entered the auditorium the house lights had already been dimmed and he observed that the strip lighting was on. 26Ms Mansour, whose younger two daughters were performing at the concert, gave evidence. I am satisfied that she recalled that the strip lighting was on at the intersection between Sections B and C because she used that lighting to guide her path from her table to the backstage area. Although it would be unusual for someone who is first asked to recall an event that occurred over six years ago, to be able to recall a matter as peripheral as strip lighting, I accept that Ms Mansour was able to recall the presence of the strip lighting on that occasion. Her recollection was, in my view, reliable because of her focus that day on what she saw as her principal task, which was to make her younger children feel important at the dance concert because their older sister had recently been selected to perform in "Billy Elliott". She was able to distinguish the 2007 Christmas concert from other concerts that she had attended because of its timing relative to this event. I accept that she bent her head so as not to obscure the view of the rest of the audience as she moved along the intersection between the sections, using the strip lighting as an "effective pathway". She undertook the journey from her table to the backstage area on several occasions in the course of the concert. Although the strip lighting she observed was some distance from where Mrs Parker fell, her evidence is nonetheless relevant since Ms Donaldson's evidence was that the strip lighting was operated from a single switch. It is also consistent with Ms Donaldson's evidence and Mr Dib's evidence, which I accept. 27Leanne Harris also gave evidence that the strip lighting was on during the concert. She had been a dance teacher at the Yees school for twenty years by the time of the hearing and had attended a substantial number of concerts. She was responsible for the youngest performers. This required her, from time to time throughout the concert, to deliver distressed children to their parents in the auditorium. Although I accept that Ms Harris was endeavouring to give her evidence as accurately as possible I am not satisfied that she had any particular recollection of the 2007 Christmas concert or whether the strip lighting was on at that event. 28Mr White submitted on behalf of the Yees that I ought draw an inference against the Club that Mr Charlton's evidence would not have assisted it, and more readily draw inferences against it, because Mr Charlton was not called to give evidence in the proceedings. Mr Cavanagh submitted that I ought infer from Mr Charlton's age (about 90) that he was not able to give evidence and further that he was not in the Club's "camp" since he was not an employee of the Club at the relevant time although he was a member of the Club. It is not necessary for me to resolve the debate about the significance of Mr Charlton not being called because I am not satisfied that he was at the Club on 22 December 2007. 29The evidence of those witnesses who thought that Mr Charlton was there and that he operated the lights on 22 December 2007, including that of Mr Yee and Mr Platt, was not reliable since it was an amalgam of general recollection from similar events. In Mr Yee's case, I accept what he told Mr Anderstrem (an investigator retained on behalf of the Club) as accurate: namely that "we" (persons engaged by the Yees, as opposed to Mr Charlton or the Club) controlled the lighting when the concert started. 30Furthermore, although the Club's invoicing was not entirely consistent, I accept Ms Donaldson's evidence of its usual practice, for which she was generally responsible. I consider that it was unlikely that Mr Charlton was in attendance on 22 December 2007 since the invoices did not record that the Yees had been charged for his services. While the Club sometimes waived charges for items, on the basis that the air-conditioning was not working, these instances were generally confined to waiver of hiring charges for Club's facilities rather than Mr Charlton's fees. Although Mr Charlton was usually present for such events, Ms Donaldson recalled that he had some health problems at that time which may have prevented his attendance at the 2007 Christmas concert. 31There was a substantial amount of evidence about a so-called "biobox" on the floor above the auditorium which looked down towards the stage and a sound and light box which was to the side of the stage on the same level as the stage. My finding that Mrs Parker has not established that the strip lighting was off at the location where she fell (or indeed anywhere in the auditorium) makes it unnecessary to make findings about the possibility (which the evidence does not establish was any more than that) that some unidentified person used some switch in either of these locations which had some (unproved) effect on the strip lighting. Furthermore because the strip lighting was operated by one switch, it was either wholly on or wholly off (but for isolated damage or malfunction, of which there was no evidence). Accordingly the possibility that only one section of the strip lighting would have been off as a result of the operation of a switch can be excluded. 32Accordingly, the evidence of Mr Yee and others as to the lighting on 22 December 2007, except in so far as it concerns strip lighting, does not need to be addressed.

How Mrs Parker fell 33Some time before 5 pm, Mrs Parker made her way along the wall at the edge of Section E and began to walk through the space between the larger tables and the tables for four in that section. She was alone. The other children were with her husband at the table and Brandon was backstage waiting to be collected. She fell at the location of the step between the higher Section E and the lower Section D and landed on the red carpet in Section D. 34Her evidence was that she stepped into Section D, expecting that her foot would land on a level the same as Section E but because there was a step, which she had neither recalled nor appreciated would be there, she stumbled, lost her balance and fell heavily on the floor. She said that she landed with her face near a woman's foot. The woman kicked her and chipped her right front tooth. 35For the reasons that follow, I do not accept that this was how the accident happened. I find that Mrs Parker was not looking where she was going when she fell. The presence of differences in level was a risk that was obvious having regard to the layout of the auditorium, the tables on different tiers and the illumination from the strip lighting. Had Mrs Parker been looking where she was going she would have seen the step and would have avoided any obstacles in her path. I do not accept that she was paying attention to whether the change in tier was illuminated. I am not satisfied that she noticed whether the strip lighting was on or off. I am satisfied on the basis of the other evidence referred to that the strip lighting was probably on throughout the auditorium. I am not satisfied that it was off at the location where Mrs Parker fell. 36I do not consider that Mrs Parker was deliberately giving false evidence about how the accident occurred. However I consider that her conviction that the strip lighting was off is likely to be the result of her belief that she was not to blame for what had happened to her, as appears from the following exchange in her cross-examination: Q. What you are really saying is that as you walked towards that edge or step, you didn't notice the strip lighting, that's about all you can say, isn't it? A. No, I would have seen it if it was on. 37She was helped by others out to the foyer. Mr Parker, who had been at the family table when his wife fell, was called to her side. By the time he got there there were already people gathered around her. He did not have any difficulty seeing the steps he needed to traverse to reach her on that, or indeed, any other occasion. The second sentence in the following statement made by Mr Parker in his written statement did not survive cross-examination: "I don't recall the step having a lighting strip on. If it did, it certainly was not on." 38Mr Parker briefly returned to the table where the children were and asked James, the eldest, and another adult at the table to look after the others while he took his wife to the Bankstown Hospital. When Mr Parker returned to Mrs Parker she told him what had happened when she fell. He had no knowledge from his own observation of how it had happened because he was sitting at the table at the time. 39When Ms Donaldson found out about the fall, she paged Mr Dib who came to the auditorium. Mr Dib spoke with Mrs Parker who told him that she had fallen in the auditorium. I accept his evidence that she did not make any complaint about the lighting to him. Mr Dib filled in part of the incident report form referred to below, although not the substantive parts, which were filled in by Ms Donaldson. 40Before Mrs Parker left for the hospital she gave a version to someone who reported the matter to a R Harris (who assisted with first aid), who told Ms Donaldson who recorded the version in an incident report form as follows: PART 5: LOCATION OF INCIDENT Auditorium- right hand side step. PART 6: TYPE OF INCIDENT [both boxes ticked] Tripped over object (either bag or foot) Steps/ Stairs Type of surface: carpet "Tripped over object and fell down step and onto floor." 41It is not clear whether the original source of this version was from a witness to the fall or from Mrs Parker herself. A notation on the incident report form which was addressed to Ms Donaldson reads as follows: "22/11/07 pm Kerry, The injured person's husband was not able to advise details of who witnessed the incident and he advised that he did not witness the accident and neither did the person who administered first aid. Parts 5 & 6 were advised as they were reported to him. He has left his mobile as a contact." 42Whether or not Mrs Parker was the source of the version in the incident report, I accept Mr Dib's statement (made on 18 November 2008) as follows: "I was paged to attend front reception, where I met Mr. & Mrs. Parker, whom I did not know or recognise. I noted that Mrs. Parker was in some distress and holding onto her right arm. She told me that she had tripped and fallen stepping down off the raised seating, hurting her elbow. No other explanation for the accident was provided. She did not discuss the level of lighting in the auditorium or make any suggestion or comment there was any problem with the level of lighting. Her husband also made no comment about the state of lighting. I obtained their personal details, offered to call an ambulance. However, the husband told me that it would be quicker for him to drive his wife to hospital. They then left and I have had no further contact." 43After Mrs Parker left the Club premises with her husband, Mr Dib returned to the auditorium. When he entered the auditorium the house lights were still dimmed but the strip lighting was on. 44When Mrs Parker arrived at the hospital she was x-rayed and examined by a Registrar, who called in Dr Jonathan Herald, an orthopaedic surgeon who specialised in elbow surgery. Dr Herald recorded her history as follows: "She tripped over someone's foot and landed on her face and on her right elbow. She also injured her right knee in the fall." 45I do not accept Mrs Parker's evidence that she told Dr Herald in January 2008 that he had recorded the incorrect history. Nor do I accept that there is any basis for her speculation that he was "trying to fill in for himself what happened". I consider these to be recent inventions designed to overcome the similarity between the substance of the incident report and the history recorded by Dr Herald, which are both inconsistent with the basis of Mrs Parker's case in these proceedings. 46The correspondence between the contents of the incident report form and the history as recorded by Dr Herald is significant. Without Dr Herald's history of the incident, one might infer that it was possible that someone made a mistake in reporting the matter to Ms Donaldson and that one of the witnesses on the scene might have misapprehended what occurred. However because what appears in the incident report form is in substance the same as what Dr Herald recorded, I am satisfied that this is what actually happened.

The expert evidence 47The evidence of the experts has been rendered largely irrelevant by reason of my factual findings. However it is necessary to address it since Mrs Parker had alternative cases which were based on the proposition that the strip lighting was in fact on at the location where she fell. 48The experts agreed that if the strip lighting was off, the steps could present a safety hazard because the lighting in the auditorium was dimmed at times which gave rise to the need to indicate the presence of the steps to a greater extent that occurred by reason of the differential height between the tables in one section and those in the adjacent sections. 49The experts' views, however, differed in their opinions on the assumption that the strip lighting was illuminated. Dr Cooke said that if the strip lighting was on, someone heading in a downward direction who was approaching a step would see the step in enough time before it presented a hazard. Mr Adams disagreed. However when Mr Adams inspected the Club he did not try to replicate the lighting conditions that were present on the night. Nor did he take into account the metal strip at the edge of each tier. His opinion was directed to the question when Mrs Parker could see the light source itself rather than when the step would be illuminated such that she could reasonably detect its presence. In cross-examination he conceded that the effect of the strip lighting would be greater when the ambient light was lower and that the metal strip would tend to have the effect of enhancing the effect of the strip lighting. I do not accept Mr Adams' evidence that the time within which a person such as Mrs Parker could discern the step was insufficient. I prefer Dr Cooke's evidence.

Causation 50I am satisfied that Mrs Parker tripped when she fell on an unidentified object near the step. I am not satisfied that the strip lighting was not illuminated. Had she been taking reasonable care for her own safety and looking where she was going she would have seen the step and been able to negotiate it safely.

Liability 51Mrs Parker pleaded her claim against the defendants in contract and tort. She alleged that a term was implied into the contract that "services" would be rendered with due care and skill. Because I regard the duties as relevantly similar and co-existent I do not propose to distinguish between the tort and contracts claims further in these reasons. Mr Daley, who appeared on behalf of Mrs Parker, submitted that Part 1A of the Civil Liability Act does not apply to the claim because it was not a claim for negligence. He argued that s 5A does not have the effect of applying the Part to the claim because it was not a "claim for damages for harm resulting from negligence". I reject this argument. In my view, s 5A applies to this case and makes applicable this Part of the Civil Liability Act to Mrs Parker's claim.

The Club 52The Club, as occupier of the premises, owed a duty to those in the auditorium to take reasonable care to protect them from harm and to warn them of risks of harm that were not obvious. 53In my view, in the circumstances of the present case, where the Club knew that the light in the auditorium would be low because of the dimming or extinguishment of the house lights during the performance, the risk of someone missing a step and falling was foreseeable and not insignificant. A reasonable person in the position of the Club would have taken precautions against such risk of harm. I consider that the precautions the Club in fact took - of installing metal strips along the edge of the tier and strip lighting below the edge - were reasonably sufficient to avoid the risk of harm referred to above. Once the Club had taken such precautions the risk of harm became an obvious one and the Club was not, in my view, required to do any more to warn visitors to its auditorium of the change in levels. 54I am not satisfied that the strip lighting was off at any time during the concert or at any location. In particular Mrs Parker has not proved that it was not illuminated at the location where she fell. Indeed the overwhelming evidence was that it was probably illuminated throughout the auditorium during the whole concert. 55Mrs Parker conducted her case against the Club and the Yees on the basis that the strip lighting was off. Hers was the only evidence on this matter. I do not accept her evidence that the strip lighting was off. She has failed to prove that case. 56Her alternative case was that, even if the strip lighting was on, the steps presented an unreasonable danger to those descending the steps in a darkened auditorium because they could only be seen about one metre away. I do not consider that it follows from this fact that the steps presented a hazard. They were an obvious risk. The difference in the heights of the tiers was indicated not only by the strip lighting but also by the difference in the heights of the table surfaces and the elevations of the respective spectators at the different levels. I do not accept Mr Adams' view that any further illumination was required. The plaintiff has failed to establish any alleged breach of duty against the Club. 57In my view, Mrs Parker fell because she was not taking reasonable care for her own safety in that she did not watch where she was going. 58Because I have not found negligence it is not necessary to consider the question of contributory negligence, although it follows from the finding above that I consider that Mrs Parker was solely responsible for her fall. 59I note that there were questions asked and submissions made by Mr Daley who appeared on behalf of Mrs Parker as to the presence of bags and other obstacles on the floor of the various tiers in the auditorium, near the chairs that surrounded the tables. No case was put that the Club or the Yees ought to have insisted on people stowing such belongings elsewhere or should have required such items to have been placed within the area directly under each chair so that the pathway of persons was not obstructed. The case was run on the basis of strip lighting and, ultimately, also on the alternative basis that the steps were not indicated sufficiently in advance to alert persons such as Mrs Parker of their location. I have accordingly decided the case on that basis. 60Although I have found that Mrs Parker probably tripped on an item, it is not necessary to address whether either the Club or the Yees were implicated in the presence of that item (nor was there any basis in the evidence to implicate them) since Mrs Parker did not run her case on that basis and, in her evidence, eschewed the proposition the version recorded in the incident report or the history recorded by Dr Herald, was the truth.

The Yees 61The Yees were also occupiers of the auditorium. They sold tickets to entrants and had some control over the venue. They controlled the stage lighting for the concert but I am not satisfied that they interfered in any way with the strip lighting or that it went off at any time for any reason, whether because of their involvement or not. 62Because of my finding that Mrs Parker has not established that the strip lighting was off and, indeed, the Club has established that it was likely to have been on throughout the function at all locations, it is not necessary to consider the liability of the Yees further. They were not responsible for the layout of the Club or the position of the tiers or the level of the steps required to be taken between the tiers. 63The plaintiff has failed to establish any alleged breach of duty against the Yees.

The credibility of witnesses 64I consider that Mrs Parker gave an incorrect version of how the accident happened because of her desire to feel that she was not at fault and to enhance her prospects of success in the litigation. She may now have come to believe that the version on which her case is founded is true. In my view, she exaggerated the income which she earned in the past and which she earned as a result of her business, as well as her need for care to enhance her claim. Although she may believe that her knee and left shoulder problems are associated with her fall, I do not accept that they are. 65Although I accept that she held her right elbow in place in the courtroom because it was more comfortable for her to do so, I do not accept that the use of her right limb is as restricted as it might have appeared from the restriction displayed in the courtroom. Its range of movement is restricted but she is capable of using it, although at times it might cause her pain and difficulty, particularly if she perseveres with a repetitive activity such as ironing. 66I accept her evidence only to the extent indicated by my findings. 67It was my impression that, although there were incorrect statements in Mr Parker's witness statement which are referred to above, he acknowledged their inaccuracy in oral evidence and generally gave honest evidence in the proceedings. 68James Parker's evidence was obviously partisan. His evidence about the level of lighting was false. He appeared to consider that his obligation was to help his mother's case as he perceived it to be and did not, in my view, give truthful evidence. I do not accept his evidence unless corroborated or amounting to a statement against interest. 69My assessment of the other witnesses appears sufficiently elsewhere in these reasons.

Facts 70Notwithstanding my findings on liability I am obliged to make findings on damages. I do not propose to quantify the damages since such calculations would be hypothetical. However my findings will be sufficient to enable such calculations to be performed if required. 71Mrs Parker was born in September 1971. She is 42 years old and lives at Mount Pritchard with her husband and five children, the eldest two of whom were born as a result of a former de facto relationship. 72While she was still at school she worked at Kentucky Fried Chicken (KFC) as a customer service operator and cashier. After she left school midway through Year 11, she increased her hours of work. She also obtained work in a coffee shop. In February 1989 she went to secretarial college and completed a course as a result of which she obtained work with a fabrics company. However, she left after about three months. She obtained full-time employment at KFC but resigned in December 1991 when she was expecting her first child, James. After James' birth she returned to work as a waitress at Pizza Hut. She worked about 20-30 hours a week at night. In about October 1992 James became ill and was hospitalised with a bronchial condition. While there, it was discovered that he had a kidney problem. Mrs Parker resigned from her employment to care for him as he remained unwell throughout his early childhood. 73Her second child, Jordan, was born in February 1996. At around this time she met Sean Parker, whom she married on 19 September 1998. She has had three children of her marriage: Chloe, who was born in December 1998, Crystal, who was born in April 2001 and Brandon, who was born in May 2002. 74Chloe was born seriously disabled. She was diagnosed with pervasive development disorder, sensory perception disorder, dyspraxia and autistic tendencies. She requires full-time attention and cannot be left alone except for short periods of time. During school term she attends the William Carey Educational Support Unit where she is, for school hours, under constant supervision. 75Mrs Parker did not return to paid employment until about late 2006 when she worked part time as a shop assistant scrap book teacher with a business called "Memories That Last". 76In 2007, about six to eight weeks before her fall, she decided that she wanted to set up her own business doing the type of work that she had been doing with "Memories That Last". This work involved assembling photographs and other memorabilia provided by clients and composing a scrapbook as a memento. Other work associated with this involved wedding invitations and the like. Mrs Parker intended to run her business at night time and in the weekend so that Mr Parker could look after Chloe while she was working. She intended to run her business from home at the outset, and then, move to rented premises. 77Mrs Parker gave evidence that she had been paid by two clients for scrapbook work that she had done for them as part of the business she was trying to establish before her fall. She said that she had not declared the income because she had called someone from the tax office who told her that she did not need to because it was "just a hobby" and amounted to less than $6,000. She did not produce any documentary evidence of her business, or of any payment she had received as a result of work she had performed. I am not satisfied about the quantum of any net profit earned by Mrs Parker as a result of the business or that it would have been sustainable. I am not satisfied that what she said she understood from speaking to the tax office was an accurate representation of what she was told. 78After her fall she was unable to do anything further in the business. She accepted that if one wanted to find out what she had earned one would consult her tax returns. In her tax return for the year ended 30 June 2008 she declared gross income from "Memories That Last" of $2,015. She did not declare any income from her own business for that year or thereafter. She has remained without remunerative employment since her fall. 79Mrs Parker gave evidence that had her proposed business failed, she would have returned to shelf-packing at night time because she would have been able to accommodate that work with her responsibilities to her children. 80I am not satisfied that, but for the accident, Mrs Parker would have been able to earn any substantial income from her own business. 81Mrs Parker suffered considerable pain as a result of the fall. The following day Dr Herald performed an operation to remove the radial head of the bone in her right arm, which was replaced by a prosthesis. She was in hospital until Christmas Eve at which point she was discharged home. Mrs Parker was largely bedridden and suffering severe pain for the first month after her discharge. She ate most of her meals in bed. 82She had further surgery on 30 January 2008 and underwent manipulation of her elbow joint under general anaesthetic. She was in hospital overnight. After discharge she needed help around the house but was no longer bedridden. She had intensive physiotherapy to assist her to regain movement in her right arm. However, she found that there was little improvement. Indeed she felt that she was becoming more incapacitated. 83Mrs Parker underwent further surgery which was performed by Dr Herald on 11 May 2009, as a result of which she spent two to three days in hospital. Following discharge she was required to use a CPM machine which passively moved her right arm constantly throughout the day. 84Her right arm can be used for support and some activities but she uses her left arm for most activities. She takes pain-killing medication and tries to restore herself by resting. During the proceedings she held her right arm substantially immobile with her right elbow close to her body. 85She complained of pain in her right knee and shoulder and alleged that the pain was as a result of her fall. I am not satisfied that there is any causal connection. 86Mr Parker works full time as an estimator and is away from home throughout the day on weekdays. It takes him about 15 minutes to get to work. Despite her disabilities, Mrs Parker continues to be the primary carer for her children. Mrs Parker showers and dresses Chloe because Mr Parker does not feel comfortable doing these tasks because Chloe has matured. 87Mrs Parker is able to drive although she tends to drive only for short distances and her mother, Mrs Edwards, who gave evidence, does not regard her as a safe driver. She has her own car, a Tarago that she uses to take the children to school or to the bus stop, although she also takes them to the bus stop on foot. When she was assessed by Ms Beaver an occupational therapist, in June 2011 Mrs Parker described her capacity in the following terms which I accept as truthful: "Mrs Parker returned to driving soon after her accident and states that she experiences pain in the right elbow and shoulder if driving for more than 20-30 minutes. For most of the driving tasks required of her she remained independent, but reports experiencing pain and fatigue which affect her tolerance for the task." 88Mrs Parker can iron with her right arm but can only iron one or two things at a time. She can still write with her right hand although not as well as previously. 89The issue about the extent to which Mrs Parker can use her right arm is informed to some extent by the findings of medical practitioners about muscle wasting. If a limb is kept motionless to a significant period it will waste. If it is not used normally then some wasting can be detected. Dr Smith said in his report dated 20 February 2014 as follows: When asked to get up, she props herself up on the grossly weak right upper limb. The right are is ½ inch greater in diameter than the left arm and the right forearm is ¼ inch greater in diameter than the left forearm. Internal rotation of both shoulders passively is 90°. Actively, extension on the right is 20° and on the left it is 40°. Flexion is 60° on the right and 100° on the left. Abduction is 75° on the right and 100° on the left. There is a global power loss in all movements of the right upper limb and there is some altered sensation in the hand, over the ulnar side of the right hand. She is otherwise neurologically unremarkable. With rotary movements of the right shoulder, there is some crepitus in the right acromioclavicular joint. . . . "She remains with work hypotrophy of the forearm and arm musculature compared with the left but she does have a restriction in the range of movement of the elbow regarding flexion and extension and pronation and supination. Her arms are more useful than she makes out." 90That she used her right arm to prop herself up when in Dr Smith's rooms is telling, since it shows that the injury has not overcome her natural preference for use of a dominant limb. It explains why the diameter of the right upper limb, both at the forearm and at the upper arms is greater than the left. 91However, Dr Perides in his report dated 10 April 2014 said: "Dr Anthony Smith examined her and noted well developed muscles in the right forearm. Today I specifically looked at these muscles and noted that the tone in the right forearm muscles was much less than on the tone on the left. It appeared clear that she was not utilising her right upper limb normally." 92Any inconsistency between these two opinions is, in my view, more apparent than real. In my view Mrs Parker does use her right arm to a much greater extent than was apparent in the courtroom, but she does not, and cannot, use it normally as a result of the injuries she sustained in the fall. Nonetheless she can manage to do most of the physical tasks which she used to do. 93Her principal disability is the injury to her right arm. I am satisfied that this disability was caused by the fall. I am not satisfied that there is any disability in her knee that was caused by the accident or that the left shoulder symptoms of which she complains were caused by the accident. I am not satisfied that any difficulties she has in walking are causally connected with the accident.

Non-economic loss 94Mrs Parker has, by reason of the fall, lost some use of her right arm. Although she can, and still does, use it for many tasks, the use is compromised by lack of flexibility and pain. I accept that the pain and relative immobility has caused her to become moody and at times frustrated. I am not satisfied that she has suffered any psychiatric illness as a result of her fall. 95I assess her non-economic loss at 35% of the worst case.

Damages for domestic care and assistance 96For the first four weeks after Mrs Parker was initially discharged from hospital after her fall she needed to be cared for full time by her husband who took time off work for that purpose. 97Much of the time, Mrs Parker is the only adult at home with Chloe, who is unable to assist her, and for whom she provides physical assistance. Mrs Parker, at these times, manages to perform physical tasks for herself and Chloe without assistance. Toileting and showering are difficult for her although she manages to do them. Sometimes her husband helps her with particular items of clothing. He also helps her wash her hair on the weekend. 98Mrs Parker gave evidence that her husband and children do more around the house than they did before her fall because of her reduced ability to use her right arm. I accept this evidence as a general proposition. However the number of hours spent on such care and assistance is not established by the evidence. There has been no differentiation between what Mr Parker did before the fall and what he has done afterwards, which is the relevant comparison. Her mother, Mrs Edwards, works full-time and did not quantify the level of assistance others give to her daughter. Because of her own health and her work commitments she is unable to provide much assistance to Mrs Parker herself. 99Without reliable lay evidence no proper comparison can be made between what members of the family would have done in any event but for the fall and what they are now required to do because of it. The assessment of damages for care is, for this reason, peculiarly dependent on lay evidence. It can reasonably take precedence over expert evidence where it is reliable and credible: see Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 at [54]-[55] per Allsop P (Campbell and Meagher JJA agreeing). The difficulty in the present case is that no proper foundation for the quantification of damages for care has been laid down in the lay evidence. 100There are difficulties in relying on expert evidence as to the amount of care required, particularly where the care has been provided gratuitously and might not necessarily be able to be provided as quickly or efficiently as commercial care. However, I am assisted by the experts who have met in joint conclaves to assess Mrs Parker's past and present need for care.

Damages for gratuitous attendant care services: s 15 of the Civil Liability Act 2002 101Mrs Parker needed substantial care when she was discharged from hospital on the first occasion and Mr Parker was required to take time off work to look after her. I would allow 40 hours a week of care at rates for gratuitous care for this initial period of four weeks. However, but for this period, I consider that the level of care, both for the past and the future is of the order of one hour a day. This is slightly in excess of the amounts opined by the joint conclave of Drs Rowe, Smith and Conrad but it accords generally with the figures proposed for the longer term by the occupational therapists. The figure of seven hours a week at gratuitous rates ought be allowed for the rest of Mrs Parker's life. Gratuitous rates are appropriate since the care is predominantly provided by Mrs Parker's husband, who impressed me as a man devoted to his wife's care and wellbeing. There is no indication that he will not be ready, willing and able to provide that care for the foreseeable future.

Damages referable to the care of dependants: s 15B of the Civil Liability Act 2002 102At the time of her fall, Mrs Parker was, effectively, a full-time housewife and mother. Her children were then aged 15, 10, 9, 6 and 5. She was the main carer for her children during the hours during the week when Mr Parker was at work. At other times, when Mr Parker was at home, they shared the care of the children. From the commencement of 2008 all her children would have been at school. There is a bus stop near their home to which Mrs Parker escorts the children, either by car and on foot. She has developed strategies inside the home for cooking for them. In the years since the accident, the children's need for care has reduced because they are now older. The two older children, James and Jordan, are able to take more responsibility for their sisters. 103There is a particular need to maintain stability and routine for Chloe, whose equilibrium is largely dependent on the consistency and regularity of her days. Mrs Parker is the prime carer for Chloe and would have continued in that role, irrespective of the fall. She helps Chloe physically, with clothes, showering and toileting as she would have done in any event. She monitors Chloe in every aspect of her daily life. Chloe will not accept an outsider assisting her. Mrs Parker is able to perform her role as Chloe's carer by monitoring and verbal instruction and encouragement, as well as physical assistance. 104Mrs Parker is also required to care for Jordan who has ADHD (an attention deficit disorder). However this care is not physical and involves reminding him to take his medication and encouraging him to get up in the morning and get ready for university. These are tasks which are not affected by her injuries. 105Although Mrs Parker's capacity to care physically for Chloe was adversely affected by her injuries, I am not satisfied that this resulted in a need that meets the threshold in s 15B of the Civil Liability Act. As Chloe has matured (physically although not, apparently, emotionally), her need for physical care has diminished. Although her need for emotional care may be as great as ever, her mother is in a position to fulfil the need, notwithstanding her physical injuries. 106I accept that it has become harder for Mrs Parker to fulfil the reasonable physical needs of her children since the accident and she has had to compromise with physical tasks and adopt a degree of ingenuity. For example she uses a machine to cut food to be cooked because it is difficult for her to prepare food with a knife. To the extent that these difficulties result in pain and suffering, they are reflected in the quantification of non-economic loss. 107However, I am satisfied that most of the physical tasks she did for her children are now either still done by her or done by her husband and the children for themselves and each other. I do not consider that there has been since the accident, or that there will be as a result of the accident, a need for such services that is reasonable in all the circumstances and which meets the threshold requirements of s 15B (as construed in State of New South Wales v Perez (2013) 84 NSWLR 570 per Basten JA, Ward JA agreeing). 108Accordingly I do not propose to make an award under this section.

Damages for economic loss 109I am not satisfied that Mrs Parker would have been able, but for the accident, to have earned money from her own business. She has not established that there were real prospects that the business she proposed to conduct would have been profitable. I consider that the most likely scenario, but for the fall, would have been that she would have obtained casual employment part-time from time to time in the evening as a shelf packer to augment the family income but which would not have interfered with her obligation to care for the younger children and Chloe. I do not consider that Mrs Parker would be likely to have engaged in any paid employment during the day because of Chloe's needs. I do not consider that she would have worked substantial hours in such employment which is, of its nature, not highly paid. She is no longer fit for work as a shelf packer by reason of the injuries sustained in the fall. 110Mr Daley, who appeared on her behalf, put her claim principally on the basis that she would have earned $1,000 per week net. He put an alternative claim on the basis that she would have earned average weekly earnings. I do not consider either of these scenarios to be realistic having regard to Mrs Parker's antecedent work history and lack of skills and qualifications for remunerative employment. 111Mrs Parker is no longer fit for any work but her physical incapacity as a result of the fall was unlikely to be productive of significant financial loss (Graham v Baker (1961) 106 CLR 340) having regard to her work history, her limited work skills, her present obligations for her younger children and her obligations to care for Chloe which are likely to last for the rest of Mrs Parker's life. The underlying facts are relatively difficult to assess with any degree of precision. In my view this is a case where a buffer is warranted: Pollard v Baulderston Hornibrook Engineering Pty Limited [2008] NSWCA 99 at [84] and Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244 at [33]ff. 112I assess her economic loss as $20,000 for the past, inclusive of interest and $50,000 for the future. As I consider the money she would have earned would have been earned on a casual basis I make no allowance for superannuation. The amount for the past reflects my assessment that in the past seven years she has still been heavily engaged in child rearing and would have been unlikely to engage in much work outside the home, except of a very sporadic kind. The allowance for the future takes account of the possibility that she will have more flexibility when the children are older, although Chloe's need for care will probably continue undiminished, which would have limited her work options in the future in any event.

Out of pocket expenses 113The out-of-pocket expenses incurred by Mrs Parker are limited to the cost of medication and appointments with her medical practitioner to obtain such prescription medication. Past out of pocket expenses have been agreed at $22,638.07. The claim for future out of pocket expenses at $28.85 per week appears to me to be reasonable and is allowed at a lump sum of $27,583.

Orders 114I make the following orders (1)Judgment for the defendants. (2)Dismiss the cross-claims. (3)Unless an application for a different order is made within seven days in writing to my Associate, order the plaintiff to pay the defendants' costs of the proceedings.

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: 11 June 2014