Powell v JFIT Holdings Pty Ltd t/as New Dimensions Health and Fitness Centre

District Court of NSW|2020-03-06|Before: Mr J

Table of Contents Nature of case [1] Factual background [2] - [5] Issues for determination [6] Evidence overview [7] - [8] Credibility and reliability of testimony [9] - [54] Surveillance film of plaintiff's activities [10] - [12] The plaintiff [13] - [22] Mr Alexander Avis [23] Ms Raelene Matthews [24] - [26] Ms Caitlin Abela [27] - [30] Mr Scott Waterhouse [31] - [40] Reliability of documentary evidence [41] - [54] Fact findings [55] - [117] Plaintiff's background circumstances [56] - [66] Plaintiff's pre-accident health [67] Accident circumstances [68] - [77] Injuries [78] - [79] Initial treatment [80] Subsequent medical treatment and allied reviews [81] Findings on differing medical opinions [82] - [84] Disabilities that evolved [85] - [102] Work effects [103] - [108] Domestic effects [109] Mitigation [110] Plaintiff's most probable circumstances but for her injury [111] - [117] Issue 1 - Risk of harm [118] - [124] Issue 2 - Defence of waiver [125] - [156] Issue 3 - Duty of care, scope and content [157] - [164] Issue 4 - Breach of duty of care [165] - [189] Legislation [167] - [168] Section 5B(1) of the CL Act - consideration [169] - [179] Section 5B(2) of the CL Act - consideration [180] - [184] Section 5C of the CL Act - consideration [185] - [188] Conclusion on breach of duty of care [189] Issue 5 - Causation of harm [190] - [198] Issue 6 - Contributory negligence [199] - [210] Issue 7 - Assessment of damages [211] - [248] Non-economic loss [212] - [216] Past economic loss [217] - [219] Future economic loss [220] - [225] Past domestic assistance [226] - [228] Future domestic assistance [229] - [237] Future treatment expenses [238] - [246] Past out-of-pocket expenses [247] Summary of damages assessment [248] Disposition [249] Costs [250] Orders [251]

Nature of case

The plaintiff, Ms Jacqueline Powell, now aged 46 years, claims personal injury damages on account of the alleged negligence of the defendant, JFIT Holdings Pty Ltd, trading as New Dimensions Health and Fitness Centre. The defendant is the proprietor and occupier of gymnasium premises at 32 Leonay Parade, Leonay, NSW. The plaintiff was a member of the defendant's gymnasium where she sustained injury as a result of claimed hazardous conditions which prevailed at those premises. The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) ("CL Act") and the Australian Consumer Law (Cwth).

Factual background

On or about the late afternoon of Thursday 4 February 2016, when the plaintiff was aged 42 years, she sustained a lower back injury that involved an L4/5 lumbar disc prolapse whilst she was at the defendant's gymnasium. That injury occurred whilst she was undertaking a bending, twisting and lifting movement to relocate a 25kg disc weight that had been left, amongst other weights, in an awkward position on the floor of the weights area of the gymnasium. The plaintiff had picked up that weight and was intending to stack it on a rack provided for that purpose. At the time, the plaintiff needed to clear a floor space in that area to enable her to carry out her exercise regime.
Contrary to the terms of members' use of the gymnasium, other gymnasium users had earlier that day left the exercise area of the floor of the premises in a cluttered, messy and therefore un-usable state. This was due to the presence of a number of heavy circular weight plates or discs that had been left strewn and scattered on the floor by previous users earlier that day, in circumstances where the defendant's staff had not taken any action to clear that area for use by members.
In order to clear and tidy an adequate floor space for her exercise routine the plaintiff found it necessary to lift, manipulate, clear away, and then rack a number of weight plates and related weight bars because gymnasium staff had not cleared them away or stacked them. In those events she experienced what she described as an immense pain in her lower back whilst lifting the 25kg disc weight from the floor in a twisting or rotation movement. She found this had been required in order to position that weight for correct stacking onto a nearby weight rack designated for that purpose.
The plaintiff claims her injury was caused by the negligence of the defendant. The defendant denies that it was in any way negligent. The defendant also seeks to rely upon a claimed defence of contractual waiver, a matter contested by the plaintiff. In the alternative, the defendant also asserts that there was contributory negligence on the plaintiff's part, an assertion denied by the plaintiff.

Issues for determination

My review of the pleadings, the evidence and the submissions of the parties, indicates that after first identifying my findings on matters concerning the credibility and the reliability of testimony, and then identifying my findings on relevant factual matters, the remaining issues calling for determination in these proceedings may conveniently be identified as follows: 1. The identification of the relevant risk of harm within the meaning of s 5B of the CL Act; 2. Whether, having regard to relevant provisions of the Australian Consumer Law, the defendant has made good its claimed defence of waiver of responsibility based on the provisions of s 5N of the CL Act; 3. Identification of the duty of care owed by the defendant, and the content of that duty; 4. Whether the plaintiff has made good her claim that the defendant had breached its duty of care; 5. Whether, within the meaning of s 5D of the CL Act, the plaintiff has proven that the defendant relevantly caused the plaintiff's injury and her claimed damages; 6. Whether the defendant has made good its claim that there was contributory negligence on the plaintiff's part; 7. The assessment of the plaintiff's entitlement to damages for non-economic loss, past economic loss, future economic loss, past domestic assistance, future domestic assistance, future treatment expenses, and past out-of-pocket expenses.

Evidence overview

In the plaintiff's case, oral evidence was given by the plaintiff, her son Mr Alexander Avis and Ms Raelene Matthews, both of whom were familiar with the defendant's gymnasium. In the defendant's case, oral evidence was given by Ms Caitlin Abela, a receptionist who had been employed by the defendant, and Mr Scott Waterhouse, a contract personal trainer who was also familiar with the defendant's gymnasium premises.
The plaintiff's exhibits were tendered in the series Exhibits "A" to "C". The defendant's exhibits were tendered in the series Exhibits "1" to "6". Those documents will be referred to in these reasons where it becomes relevant to do so.

Credibility and reliability of testimony

In the paragraphs that follow I set out my conclusions on matters concerning first, the defendant's surveillance footage of some of the plaintiff's activities, and then my conclusions on the credibility and reliability of the testimony of the respective witnesses who gave oral evidence.

Surveillance film of plaintiff's activities

The defendant obtained and tendered surveillance film that showed some aspects of the plaintiff's activities. That surveillance footage was obtained through a series of observations that had been conducted over the course of three separate days by private investigators engaged by the defendant. The resultant surveillance footage comprised a series of relatively short segments that had been joined together into an aggregate of 66 minutes. This was the product of 20 hours of attempted surveillance of the plaintiff's activities.
In my view, none of that surveillance evidence, or the documentary summary of it that was prepared by the investigators, provided a reasonable basis for materially contradicting the plaintiff's evidence. The position might possibly have been different if the film had been the subject of a relevant medical commentary.
Absent such a commentary, I have concluded that the images of the plaintiff in that surveillance footage did not materially contradict the plaintiff's evidence of her claimed disabilities and the related limitations that those disabilities have caused her. Viewed in the context of the plaintiff's oral evidence, the occasional movements of the plaintiff, as seen in that footage, as seized upon by the defendant, were, in my view, of benign significance.

The plaintiff

The plaintiff was an impressive witness. I considered her to be a truthful and generally reliable witness who recounted her evidence in a matter-of-fact manner within the limits of her recollections, without embellishment. She made fair concessions where it was appropriate for her to do so. In light of the unchallenged and uncontradicted content of the medical evidence, it is apparent that her evidence on damages issues was considerably understated.
In arriving at that conclusion, I have not accepted the defendant's submission that the surveillance footage "clearly showed that [the plaintiff] had exaggerated the extent of her injury and disabilities in her evidence".
It is difficult to see how the defendant could fairly maintain that submission where its own expert evidence from Dr Scott Harbison, a consultant orthopaedic surgeon, stated that on his identified objective findings, the plaintiff not only did not appear to be exaggerating her symptoms or exhibit any abnormal illness behaviour, but on his examination, he considered that no inconsistencies were identified in her presentation: Exhibit "C", pp 102, 105 and 107. That view was consistent with that of the plaintiff's treating pain specialist, who noted there was no significant pain catastrophisation in the plaintiff's presentation: Exhibit "C", p 80.
In my view, the defendant's rolled up submission alleging exaggeration was also problematic because it conflated the fact of the plaintiff's injury with her consequential residual disabilities. It was plain that the plaintiff had not exaggerated the extent of her injury, as was confirmed by the uncontested medical assessments and by the uncontested surgical findings.
The defendant's surveillance footage showed relatively brief glimpses of some of the plaintiff's activities. Some of the footage showed her holding her lower back for support whilst standing for a prolonged period in a supermarket: T147.27 - T147.38; T179.5 - T179.20. The apparent weights of the items of shopping that the plaintiff was seen to be carrying, as shown in that footage, did not seem to be particularly heavy to the point of causing her obvious discomfort during those isolated instances of activity. I did not consider that the content of that footage materially contradicted her evidence or reasonably permitted adverse inferences to be drawn against her evidence.
A difficulty faced by the defendant in seeking to sustain the submission claiming the plaintiff has exaggerated the extent of her injuries and disabilities is that such a proposition was never squarely put to the plaintiff in order to provide her the procedurally fair opportunity to comment upon it at the time she was cross-examined by senior counsel for the defendant: Browne v Dunn (1893) 6 R 67. No medical evidence was called to support that submission made on behalf of the defendant.
Furthermore, in making that submission, which was in general terms, senior counsel for the defendant did not identify, with any degree of particularity, which aspects of the plaintiff's evidence had allegedly been impugned by the defendant's surveillance material.
In my view, the absence of such critical particularity is a matter of some importance given that the plaintiff's evidence on those matters was not otherwise improbable, where she also fairly acknowledged that not only had there been some improvement in her levels of pain over time (T70.29), but that she also has some days where her pain levels were manageable, and she is able to "sort of function": T70.43; T74.32.
The limited challenge the defendant made to the plaintiff's evidence, to the effect that she was quite capable of "from time to time" doing all of the domestic tasks needed to look after herself every day, a proposition with which she disagreed (T123.29 - T123.35; T147.11 - T147.16), was vague and did not justify the submission that the plaintiff had exaggerated, as it lacked sufficient particularity to satisfy the requirements of fairness: Browne v Dunn (1893) 6 R 67.
I have accepted the plaintiff's evidence in its entirety as I considered it credible in its terms, reliable on its face, and not otherwise materially contradicted.

Mr Alexander Avis

Mr Avis is the plaintiff's second son. He has served in the Army and he is presently a serving police officer. I considered him to be an impressive and truthful witness who recounted his evidence without embellishment. He took care to confine his evidence to matters within his direct knowledge and observations, as would be expected of someone in his profession. The defendant made no criticisms of his evidence.

Ms Raelene Matthews

Ms Matthews was called as a witness in the plaintiff's case. Notwithstanding the defendant's submission to the effect that she had given exaggerated evidence, I considered that she was an impressive witness whose evidence was reliable.
Ms Matthews was a former member of the defendant's gymnasium and one of the plaintiff's former personal trainers at the gymnasium. I considered her to be a truthful witness who recounted her evidence without embellishment. She made appropriate concessions in cross-examination when they were due and she identified the limits of her recollection of relevant events.
The defendant sought to attack the credit of Ms Matthews with an assertion that "bad blood" existed between herself and the gymnasium staff: T208.4. It was in effect put to her that her evidence that assisted the plaintiff's case was based on such alleged ill-feelings on her part. Ms Matthews rejected that attack in a dignified and reasoned factual manner. I reject the attack that the defendant sought to make as to her credit. That attack was not made good by any supporting evidence.

Ms Caitlin Abela

On the day of the plaintiff's injury Ms Abela was employed in a junior position as a receptionist at the defendant's gymnasium. She is now a horticulturist. She was aged 17 years at the time of the events. Her list of duties as a receptionist was extensive, but primarily centred around membership, marketing and customer relations: Exhibit "4"; T222.7 - T222.16; T226.46 - T227.8. Ms Abela was called as a witness in the case for the defendant. The defendant submitted Ms Abela was a straightforward and reliable witness whose evidence should be accepted.
I considered that Ms Abela was a truthful and reliable witness who did her best to recount her knowledge on matters upon which she was asked questions. She was at times hesitant when giving her evidence, and she took time to consider her answers. This appeared to be on account of the fact that she ceased her employment with the defendant some years ago, and it appears that she did not have access to the defendant's records that may have otherwise assisted her to refresh her memory with regard to the factual content of her evidence: T221.5 - T221.20.
Ms Abela gave candid evidence about her work duties. She stated that she had never been instructed to check the weights room in the defendant's gymnasium on an hourly basis and she had never regarded that task to be part of her role: T230.23 - T230.28; T231.49. This was apparently because she had so many other allocated tasks to do: T232.4; T232.42 - T232.45.
Ms Abela agreed that a lot of the time, whilst she was at the reception desk, she would not know what was going on in the weights area of the gymnasium, and she acknowledged that after "tradies" hour in the gymnasium, in the afternoon on weekdays, weights were often left on the floor as a common occurrence: T231.28 - T231.45. She also agreed that of a weekday afternoon, at around 5.30pm, the floor of the weights area was often littered with weights, plates and bar bells that were left there by people who should have known better: T233.19.

Mr Scott Waterhouse

Mr Waterhouse was formerly one of the plaintiff's personal trainers at the defendant's gymnasium. He gave his evidence in a very confident manner: T263.3 - T263.27. Despite his claim of having a good memory of his former clientele, their exercise programs and their physical abilities, and by inference, relevant events and circumstances, his evidence contained many general statements as to what would have probably occurred, or what normally would have occurred, rather than giving factual evidence based on an actual recollection.
Much of Mr Waterhouse's evidence was plainly based on hypothetical considerations as to what he considered would have been the case, or what probably would have occurred in normal circumstances. That impression was drawn to the attention of senior counsel for the defendant at early point in the evidence-in-chief of Mr Waterhouse: T242.35. Mr Waterhouse's evidence nevertheless proceeded to be framed in what was acknowledged as being hypothetical terms: T243.16.
Initially, I considered the possibility that Mr Waterhouse had simply used expressions such as would have, or probably, or normally, or guess, as a manner of speech. However, on considering his evidence as a whole, I considered that it had limited probative value on contested matters of fact because of its hypothetical foundations.
There are literally scores of examples in the transcript where Mr Waterhouse's evidence was framed in hypothetical terms. Those examples are too numerous to cross-reference in these reasons.
Mr Waterhouse had variously been an employee of the defendant and he had also worked as a contractor personal trainer in the defendant's gymnasium. He said that he had "probably" trained the plaintiff in 2012, 2013 and "possibly up from 2015 to late 2016": T245.20. I considered that latter date range as nominated by him to be unlikely in view of the date of the plaintiff's injury and subsequent treatment.
The focus of Mr Waterhouse's training of the plaintiff had been for strength and resistance training with weight-based programs. Despite his evidence to the contrary (at T251.35), I took his descriptions of the plaintiff's training as being general descriptions, rather than being accurate fact-based descriptions: T251.30.
In describing the various types of weight exercises that Mr Waterhouse said the plaintiff was accustomed to undertaking, he agreed that the use of weights had to be carefully undertaken in an ergonomic way in order to avoid injury: T253.42; T263.45 - T264.15; T275.46.
Mr Waterhouse agreed that the act of leaving weight plates on the floor of the gymnasium could result in the creation of a hazard: T267.17. Whilst he said that the gymnasium was "pretty tidy most of the time" (T271.47), that was not always the case.
My overall view of the limited extent of the factual detail within the evidence of Mr Waterhouse on matters within his direct knowledge, was that nothing he said in his evidence materially contradicted the evidence of the plaintiff.
For the above reasons, I do not accept the defendant's submission that Mr Waterhouse was a straightforward and reliable witness whose evidence should be accepted.

Reliability of documentary evidence

The defendant made no submissions of significance in relation to tendered documents. The analysis that now follows relates to Exhibit "4", the plaintiff's expert's report, and the records kept by the defendant relating to attendances at the gymnasium.

Exhibit "4" - "Weekday Daily Tasks"

The defendant tendered a document that set out the tasks that employed receptionists at its gymnasium were expected to carry out on 4 February 2016: Exhibit "4". On that day, two receptionists were rostered on duty at the gymnasium.
On the day in question, a receptionist named Sarah was rostered to work on the first shift of the day from 7.00am to 2.00pm. Amongst her listed duties was the task of putting "All weights away hourly". Sarah was present at Court but she was not called to give evidence: T276.35.
The second receptionist, Caitlin Abela, was rostered to work the afternoon to evening shift from 2.00pm to 8.30pm on that day. Her duties were to put "All weights away", that is, not just on an hourly basis and not at designated times. Plainly, this was because the afternoon shift at the gymnasium was busier, with more frequent usage of equipment by members after normal working hours.
The plaintiff submitted, correctly in my view, that Exhibit "4" was an important document to take into account in determining liability questions in this case. The provenance and the terms of that document were not disputed.
That document has significance from several analytical perspectives. First, the duties that the defendant required of each of its employed receptionists were materially different when the duties for the morning and afternoon shifts were compared. Secondly, Ms Abela's shift was by far the busiest part of the day. Thirdly, the document must be considered in light of Ms Abela's uncontradicted evidence that although weights were quite often left on the floor by gymnasium patrons, she was not required, as was Sarah, to check the floor for weights hourly, and because she said it was not part of her role to remove the weights from the floor after 5.30pm. T275.48.
Other documentary evidence tendered in the proceedings requires evaluative comment, as follows:

Plaintiff's expert report

The plaintiff relied upon a report comprising expert opinion evidence from Mr Ken Armanasco, an expert in physical education, sport, fitness, weight training, trampolining, gymnastics and sports injuries: Exhibit "C", pp 1 - 38.
Initially, the defendant objected to the plaintiff tendering the expert report of Mr Armanasco: T2.10. Ultimately, the defendant took the position that the report should be given little weight: T180.1, and following.
Mr Armanasco's degrees, qualifications, training and experience, including on matters of safety, risk management systems for small, medium and large sized organisations across a wide range of physical sporting activities, as set out at pages 3 to 4 of his report, and in his curriculum vitae appearing between pages 29 to 38 of his report, plainly indicate that he was suitably qualified to provide expert opinions on matters of gymnasium safety and risk, as has been raised in this case.
Mr Armanasco had inspected the defendant's gymnasium premises on 15 September 2019. At that time, he found the configuration of the gymnasium to be standard for a facility of its type, and that it was well maintained and fit for purpose with sufficient floor space available for safe movement and use of the equipment. He also found the floor area around the weights area to be free from slip, trip and fall hazards, and that there were appropriate systems in place for managing free weights, plates and bar bells, along with adequate lighting. I infer those systems were in place at the time of the plaintiff's injury. Whether or not those systems were duly engaged and implemented is a question to be determined.
Mr Armanasco was asked by the solicitor for the plaintiff to address a number of key questions. The effect of those questions, and his answers, were as follows: 1. The applicable industry standards and guidelines for fitness facilities of the type operated by the defendant was largely according to self-regulation, and remained subject to State-based work health and safety legislation, which relevant to this case, he identified as being the Work Health and Safety Act 2011 (NSW), and Work Health and Safety Regulation (2017) (NSW); 2. The appropriate number of staff that should be present at a fitness centre of the type operated by the defendant, including supervisory staff and contractors or instructors such as personal trainers, is not the subject of defined guidelines, and much would depend upon the layout, the configuration, the anticipated movements by clientele, the complexity of the equipment, the risk environment, and "housekeeping requirements", which included putting away equipment. With particular reference to the defendant's establishment, and having regard to duty of care issues, he anticipated that a minimum of two staff should be there at all times, with a preference for three persons at times of high volume use: Exhibit "C", pp 11 - 13; 3. A reasonable system of supervision in a fitness centre of the type operated by the defendant would have had to take into account the conditions of each centre, but it ought to have included a developed system that involved a risk assessment that took into account operational hazards likely to arise at the facility, a roster of supervisory duties relative to use patterns, and the communication of housekeeping requirements to the membership, including as to returning weights equipment to storage after use. He also identified the need for a supervisory checklist for staff and staff training on housekeeping requirements and signage to house rules: Exhibit "C", pp 13 - 15; 4. On the assumption that the plaintiff found that she was required to move what was obviously heavy equipment from the floor in order to carry out her training programme, in circumstances where weights and related equipment were regularly left on the floor and not returned to storage, he expressed the opinion that it was reasonable for the defendant to implement a system for monitoring and addressing this issue, the key elements of which required staff to regularly monitor and enforce housekeeping standards on the gymnasium floor. He observed that the list of duties contained in Exhibit "4" did not include a requirement that reception staff maintain housekeeping standards regarding the gymnasium floor. In making that observation, he highlighted the difference in the listed tasks as between the receptionist's tasks as they applied to the morning and the afternoon and evening shifts, which potentially permitted a build-up of weights equipment on the floor of the gymnasium, which is what occurred in this case: Exhibit "C", pp 15 - 17; 5. On the question of what reasonable steps, if any, the defendant could have taken to avoid injury to the plaintiff, he identified the need for good housekeeping practices to be developed by adequately trained supervisory staff rostered on duty in adequate numbers, with particular accountability for the state of the gymnasium floor. He highlighted the need to enforce the requirement that users put away weights and equipment after use, as identified in the defendant's displayed signage, and to regularly monitor for compliance of this, particularly, in periods of high use: Exhibit "C", pp 17 - 18.
Mr Armanasco's opinions remained unchallenged and uncontradicted by any expert of like qualifications. He was not required for cross-examination. I have concluded that his expressed views were in accordance with common sense and they could be relied upon and accepted.

Defendant's electronic attendance records

The defendant's gymnasium had a facility for electronic access by the use of swipe cards at the door. The defendant's access system also permitted ad hoc manual recording of a member's entry onto the premises if recorded by reception staff on entry. However, staff members were not always located at the reception area because they had other multiple duties. The access entry door was at times left open for members to obtain access. At those times, access and egress was not necessarily recorded by staff members. This was also the case with personal trainers when entering the premises: T268.8. As a result, I considered that the defendant's records, of the plaintiff's various attendances to be unreliable as an indicator of whether or not the plaintiff either was or was not on the premises on any particular day.

Fact findings

In the paragraphs that now follow, unless otherwise qualified, my findings of fact are set out on the following topics concerning: (1) the plaintiff's background circumstances; (2) the plaintiff's pre-accident health history; (3) the accident circumstances; (4) the plaintiff's injuries; (5) the initial treatment; (6) subsequent medical and allied reviews; (7) findings on matters of difference of opinion in the medical evidence; (8) the disabilities that remain; (9) the work effects of her injuries; (10) the domestic effects of her injuries; (11) mitigation of damages; and (12) the plaintiff's most likely circumstances that would have prevailed but for her injuries.

Plaintiff's background circumstances

The plaintiff is presently employed in a senior administrative capacity at a private denominational school with a payroll of 113 persons, which she administers. She holds the position of director of business services for that school. She is a single mother with three adult sons aged 28, 26 and 23 years.
The plaintiff holds impressive professional qualifications in a range of endeavours. Those qualifications were obtained before her injury. Whilst studying for those qualifications, she had pursued other employment positions as well.
The plaintiff has been working for her present employer since 1997, having started as a casual office assistant and moved up to more senior administrative roles as she proceeded to acquire qualifications, starting with a secretarial course.
In 2004-2005 the plaintiff completed a Diploma of Accounting course at TAFE. This enabled her to commence employment as an administrative assistant with her present employer. In 2006-2008 she completed a Certificate IV course in Business Management and Front-line Management. In 2010-2011 she completed a Diploma of Management. In 2016-2017, she completed her Masters degree in Business Administration.
The plaintiff's early background circumstances were significantly disadvantageous to her. When those circumstances are viewed prospectively, at face value, it seemed unlikely that she would be able to attain the educational, employment and family achievements that she has in fact achieved.
In the plaintiff's earlier years, with some considerable determination and resourcefulness, she applied herself to successfully overcome many difficulties and obstacles that had the potential to hinder her advancement in life.
She is the youngest of six children of a family who lived in difficult circumstances of poverty that also involved alarming risk to her personal safety and wellbeing. Her father left the family when she was very young. As a single parent, her mother struggled to bring up her family in circumstances of depressing poverty, disadvantage, and disturbing exposure to violence.
The plaintiff left school in Year 10 with the School Certificate. On leaving school she did not work for some time. In those early years she had partnered with a man who took steps to ensure that as a couple they moved about frequently. This was because he was anxious to avoid any contact that might result in him being re-imprisoned. In that time she had two children. That relationship was marked by episodes of extreme domestic violence. She and her two children left that relationship with the professional assistance of police and medical practitioners. She and her children spent some time in a refuge. She initially relied upon government allowances for support.
The plaintiff later re-partnered and in that relationship, in 1997, she had her third son. That relationship ended some time ago.
Through the plaintiff's own efforts, she has successfully brought up her three sons who are now adults. They have gone on to lead impressive lives, notwithstanding the difficulties that prevailed during their early upbringing. In that time, as is evident from her qualifications, with considerable application and resourcefulness, she also managed to successfully pursue part-time studies for self-advancement.
In addition to the plaintiff's current employment, her various past employment positions have included: employment officer assisting physically and mentally disabled adolescents in obtaining employment; payroll support and human resources, and a human relations consultant; as well as working in administration and financial duties for a not-for-profit charity, mainly in a part-time voluntary capacity, but also deriving about $10,000 per annum for formal paid work for that organisation. The plaintiff's taxable income for the 2018/2019 financial year was $218,867: Exhibit "C", p 130.

Plaintiff's pre-accident health

The plaintiff had been in relatively good health prior to her injury. Apart from needing surgery in 2010 for an unrelated issue that has been successfully treated without any lasting adverse consequences (T27.6), she has had no significant pre-accident adverse health issues.

Accident circumstances

The plaintiff joined the defendant's gymnasium in 2012 for the purpose of maintaining her personal fitness. In 2013 she began competitive running as a sport. Although of petite build, she was quite strong. In 2015, she sought personal training assistance which led to a training programme being devised for her. She continued to pursue that programme until the time of her injury.
On the afternoon in question, which is believed to be 4 February 2016, although not confirmed by either the defendant's electronic or manually maintained access records, the plaintiff attended the defendant's gymnasium intending to carry out exercises with weights that were part of a training schedule that her personal trainer had developed for her.
On her arrival at the weights area of the premises she found that she was confronted with a large quantity of gym equipment that had been left strewn untidily on the floor by previous patrons. Those circumstances were in plain contravention of the terms of membership of the gymnasium which required that it was the responsibility of users of equipment to put the equipment away after use, as indicated by the terms of the following sign: [Exhibit "C", p 16]
At that time of the afternoon, which was known as "tradies" hour, none of the defendant's rostered staff had taken any action to either clear or stack away the equipment left on the floor by previous patrons. A clear area of floor space was necessary in order for the plaintiff to safely pursue her exercise regime. This was not available to her as there were at least two weight bars and at least six disc weights or plates, including at least one that weighed 25kg, that had been left strewn on the floor in a state of disarray, thus precluding the intended use of that area.
At the time, the defendant did not have a rostered supervisory presence in that area. Therefore, in order to make use of the area, the plaintiff started to clear away and stack the weights obstructing the floor area. In order to use the weights area in those circumstances, the plaintiff had to lift and stow the weights by lifting them onto a storage rack or weights tree provided for that purpose.
When necessary, the activity of clearing weights was normally undertaken by the plaintiff's trainer when the trainer was present. The defendant did not suggest to the plaintiff that the activity of lifting 25kg weight plates from the floor onto a weight tree was part of the plaintiff's usual fitness training regimen, either when training with a personal trainer, or when training alone.
Mr Waterhouse, the defendant's witness, conceded that if stray weights were left on the floor in the manner described above, this was a circumstance that had the potential to cause injury to other gymnasium users. The fact that weights were at times left strewn on the floor was known to the defendant's employees, as referred to at paragraph [30] above.
The plaintiff acknowledged that she had previously handled similar weights in her exercise regime: T95.40. On the day in question, she successfully cleared away five plates without a problem before approaching the sixth and heaviest such plate: T96.14. It is clear from the plaintiff's explanation that the mechanics of putting those plates away involved different actions compared to the constituent parts of her usual exercise programme, contrary to what the defendant sought to suggest.
As the plaintiff proceeded to bend down to pick up the sixth plate, a 25kg weight plate that was located in an awkward position on the floor, she undertook a load-bearing lift and lateral twisting or rotation movement so that she could move and position that weight onto its designated rack which was located about 1 metre away: T104.26. In the course of that manoeuvre, she felt what she described as an immense and intense pain in her lower back as she performed that twisting movement: T48.25 - T49.15. At that time she sustained the subject injury.
The unchallenged and uncontradicted expert neurosurgical evidence was that typically, a damaging disc injury will occur with a weight bearing twisting injury of the kind described by the plaintiff, where the circumferential capsule fibres around the disc are pinched. That evidence indicates that it may thereafter take some time for the tear to extend sufficiently to cause disc material to extrude, and following this, it is not uncommon for a recurrence to later occur: Exhibit "C", pp 98 - 99. I find that process occurred in the present case.

Injuries

Initially, the plaintiff believed that she incurred a painful strain to her lower back. Therefore, she took a stoic and patient attitude to that injury in the hope that it would resolve over time. In that regard, she therefore adjusted and modified her physical activities to a less arduous form to allow for anticipated healing to occur. As a consequence, she did not immediately seek medical treatment for her injury.
However, over the ensuing weeks the plaintiff came to realise that her injury had been of a greater extent to that which she had initially thought. This was brought home to her after non-arduous jogging following a fun-run. As her back condition did not improve she sought out medical advice. This later led to referrals and tests that ultimately revealed her injury to involve an L4/5 disc protrusion, which later required multiple surgical treatments.

Initial treatment

There is no suggestion that the initial delay in the plaintiff seeking professional treatment for her back pain has in any way contributed to her need for surgical treatment. She has had four episodes of major spinal surgery and some lesser rhizolysis procedures, some of which involved radiofrequency procedures. She has assiduously pursued post-surgical rehabilitation on each occasion she had surgery.

Subsequent medical treatment and allied reviews

The chronology of the plaintiff's post-injury relevant medical attendances and treatment is as follows: Initial medical advice 1. On 13 April 2016, the plaintiff consulted Dr David Samra, a practitioner in sports and exercise medicine, He recorded a 6 - 8 week history of low back pain originating with the injury the subject of the present claim. He noted that x-rays which had been obtained had not revealed any significant bony injury but that narrowing of the L4/5 and L5/S1 disc spaces was seen on those x-rays. He suggested the plaintiff undertake a programme of modified exercise and rest, and that a lumbar MRI scan be considered at a later stage, if required: Exhibit "C", pp 90 - 91; Increased pain following jogging 1. On 27 June 2016, the plaintiff attended the emergency department at Nepean Hospital with the present symptoms of back pain and left leg pain since February that year. The history recorded in the notes is that she had been "deadlifting 60kg". I accept the plaintiff's evidence that the reference to 60kg is incorrect. The other history recorded was that the pain was initially treated with physiotherapy and it settled but it recurred after a recent 25km trail run resulting in a dull constant shooting ache with left-sided pain, and pain in the left hip, left thigh, lateral calf and lateral left foot in the L4, L5, S1 dermatomes. Symptoms of numbness and tingling in the left lateral leg and toes was also recorded, not relieved by rest or movement. The plaintiff also complained that her left leg felt weak because of the pain: Exhibit "5"; 2. On 28 June 2016, at the request of her general practitioner, the plaintiff underwent an MRI scan of her lumbar spine in view of a history of low back pain and queried left-sided sciatica "since January 2016", which, in light of the evidence, I read as a mistaken reference to February 2016. The report of that MRI scan observed there was intervertebral disc desiccation at the L3/4, L4/5 and L5/S1 levels, and annular tears at the L3/4 and L5/S1 intervertebral discs. The report also noted a mild left-sided paracentral and intervertebral disc protrusion at L4/5 compressing the traversing left L5 nerve root in the left L4/5 sub-articular recess: Exhibit "C", pp 122 - 123; 3. In 2016, the plaintiff's general practitioner recorded that the plaintiff's lumbar pain involved sciatica that radiated to her left leg: Exhibit "C", pp 70 - 71; First operation 1. In 2016, on an unspecified date, at the referral of her general practitioner, the plaintiff was seen by Dr Charles New, an orthopaedic and spinal surgeon: Exhibit "C", p 83. Other documents refer to the fact that Dr New operated on the plaintiff's spine prior to 13 October 2016: Exhibit "C", p 89. The dates of the pre-October 2016 operation were not in evidence; 2. On 13 October 2016, Dr New reviewed the plaintiff again in his rooms. He noted she had some left foot drop weakness following her surgery, on a date that was not specified. At that review he concluded that the plaintiff's nerve, apparently the left sciatic nerve, was assessed to be in very poor condition, which to him, meant that the left foot drop weakness was unsurprising: Exhibit "C", p 89; 3. On 17 October 2016, the plaintiff was again reviewed by Dr New with regard to her complaint of post-surgical footdrop, which he considered to be due to the plaintiff's (left sciatic) nerve being in very poor condition. He prescribed a carbon fibre foot orthotic to assist the plaintiff with walking, he suggested an EMG study and a further review in about 5 - 6 weeks: Exhibit "C", p 89; 4. On 24 October 2016, the plaintiff underwent a post-L4/5 laminectomy lumbosacral MRI scan to investigate post-operative left foot weakness. The radiologist commented that there was a small but normal post-operative fluid accumulation in the laminectomy defect but there was a substantial left paracentral disc protrusion still present at the level L4/5 which was unquestionably still impacting upon the L5 nerve root in the terminal portion of the intrathecal sac and at its origin: Exhibit "C", p 121; 5. On 26 October 2016, the plaintiff was again reviewed by Dr New. He noted she had experienced a "disc recurrence" in that a very large piece of the L4/5 disc was detected to have broken away inside the disc space and had come out of place, such that revisionary surgery was required and this was arranged for 16 November 2016: Exhibit "C", pp 87 - 88; Second operation 1. On 16 November 2016, Dr New operated upon the plaintiff's lumbar spine at Nepean Hospital. He carried out the procedure of left L4/5 neurosensory laminotomy, neurolysis and disc excision: Exhibit "C", pp 85 - 86; 2. On 17 November 2016, Dr New described the most recently performed operation as involving the removal of a very large amount of disc material at the level of L4/5. This was carried out under image intensification. He noted that the nerve root at that level had been in very poor condition. He noted that a large amount of disc material had been removed and that the nearby nerve roots were then coated in an anti-adhesion gel. He stated that the plaintiff's longterm prognosis was guarded, and he anticipated that further procedures would be required. He suggested a further review in 6 weeks' time: Exhibit "C", pp 84 - 85; 3. On 5 December 2016, Dr New wrote a short report noting that on 30 November 2016 he had reviewed the plaintiff again and noted she had experienced an improvement in her leg pain. He noted the plaintiff had returned to work and he planned to review her again in January 2017: Exhibit "C", p 83; 4. On 5 January 2017, the plaintiff had an x-ray of her pelvis and left hip to investigate her left-sided symptoms at that time. The hips and pelvis x-rays were described as being normal without degenerative changes: Exhibit "C", p 120; 5. On 19 January 2017, Dr New reviewed the plaintiff again. In his letter dated 23 January 2017, he reported that in his opinion the plaintiff had "a tremendous" result with regard to her leg pain. He planned a further review in 4 months: Exhibit "C", p 82; 6. On 5 September 2017, at the request of Dr Samra, the plaintiff underwent an MRI scan of her lumbosacral spine. He noted the presence of post-laminectomy surgical findings in that there was no longer a residual disc protrusion on the left which had been compressing the L5 nerve. Disc flattening was also noted at L4/5. Some other findings were noted, namely, mild degenerative changes at L3/4 without significant neural compromise; mild degenerative facet joint disease at L5/S1 without neural narrowing; and a mild convex curvature of the spine at L4/5 centred at L4/5. No evidence was found of any recurrent disc protrusion at the level of L4/5: Exhibit "C", p 119; Commencement of pain clinic treatment 1. On 3 October 2017, the plaintiff was reviewed by the Western Sydney Pain Centre for persisting mixed back and neuropathic left leg pain following previous L4/5 discectomy decompression laminectomy, and L4/5 radiculopathy. Treatment options were discussed for medication change from opiates to a pain management and exercise programme, physiotherapy, psychological assistance for adjustment of expectations and acceptance, and the option of a spinal cord stimulator was also discussed: Exhibit "C", pp 80 - 81; 2. On 21 November 2017, the plaintiff was again reviewed at the Western Sydney Pain Centre for her persisting back and neuropathic leg pain. She had successfully switched from opiate medication and was enrolling in the Kickstart programme of self-management for pain strategies: Exhibit "C", p 79; 3. On 9 January 2018, the plaintiff was again reviewed at the Western Sydney Pain Centre following the earlier medication changes. It was noted that she had become more active and that her pain was better controlled. Her exercise regime was noted to be slow jogging twice per week and weights once per week. Ongoing pain management coping strategies were encouraged and physiotherapy and psychological treatment were identified as options to be considered: Exhibit "C", pp 77 - 78; 4. On 13 February 2018, the plaintiff was again reviewed at the Western Sydney Pain Centre by Dr Ho, who noted the continued compliance with the prescribed medication regime. He noted the plaintiff had persisting mixed back and neuropathic left leg pain against a history of back surgeries. He also noted the plaintiff was more active, and was engaging in slow jogging twice per week: Exhibit "C", pp 75 - 76; 5. On 17 April 2018, the plaintiff was again assessed at the Western Sydney Pain Centre by Dr Ho. He noted the plaintiff had persisting mixed back and neuropathic left leg pain against a history of back surgeries. He noted the continuing medications and he also noted that the plaintiff was doing well in the pain management programme, including remaining active, doing regular exercise and progressing with sports physiotherapy treatment: Exhibit "C", p 73; 6. On 14 May 2018, the plaintiff underwent a non-contrast CT scan of her lumbar spine to further investigate her post-laminectomy and discectomy radiating left leg pain and left-sided sciatica. The radiologist commented that the scan revealed a new left paracentral disc protrusion at L4/5 since the previous MRI scan in 2017, resulting in moderate central canal stenosis and moderate to marked left neural foraminal stenosis with encroachment of the existing left L4 nerve root as well as a suspected impingement of the descending left L5 nerve root in the sub-articular recess. A trial of a CT-guided corticosteroid epidural injection at L4/5 was identified as a possibility for symptomatic relief: Exhibit "C", pp 117 - 118; 7. On 18 May 2018, Dr Samra referred the plaintiff to Dr Richard Parkinson, a consultant neurosurgeon at St Vincent's Hospital, for assessment and management of her lumbar problems and her related radiculopathy. Dr Samra referred to the plaintiff's successive spinal surgeries carried out by Dr New three months apart in late 2016, referring to the second of those surgeries as "re-do surgery". His concern was the plaintiff's recurrent radiculopathy, in the form of ongoing left-sided sciatica to the left buttock and left thigh, which was having a heavy impact on the plaintiff. He noted the plaintiff had a left paracentral disc protrusion affecting the left exiting L4 and descending L5 nerve roots: Exhibit "C", p 72; Epidural block - temporary relief of pain 1. On 18 May 2018, the plaintiff had an epidural block injection that gave her only minimal pain relief: Exhibit "C", p 70; Referral to neurosurgeon 1. On 4 June 2018, the plaintiff's general practitioner, Dr Jananee Seneviratne referred the plaintiff to Dr Parkinson for review with a history of laminectomy and discectomy having been "unfortunately performed at the incorrect level … complicated by leg numbness" followed by "a revised L5/S1 laminectomy 7 weeks later in late 2016". The discrepancy between the estimated interval of three months referred to by Dr Samra at (22) above and this interval of seven weeks, is immaterial. The referral letter identified the plaintiff's problem as ongoing left-sided sciatic pain radiating down to the left thigh. The letter noted the plaintiff was receiving regular rehabilitative treatment from a sports physiotherapist: Exhibit "C", pp 70 - 71; 2. On 8 June 2018, Dr Parkinson saw the plaintiff and wrote to Dr Samra and to Dr Seneviratne to report his impression and recommendation, namely, the need to repeat the imaging and to then review her to try to chart the progress of the L5 nerve root, and to base his further recommendations afterwards. Dr Parkinson noted a history of significant ongoing back and left leg pain and constant numbness in the left leg since the second spinal surgery, and that the plaintiff's ability to stand, bend, lift and run was affected by pain which was made worse by those activities. He noted midline back scarring, limited dorsiflexion of the spine and sensory losses. He reviewed the MRI scans dated 26 June 2016, 21 October 2016 and 5 September 2016. He noted the L4/5 disc bulge and disc height loss: Exhibit "C", pp 68 - 69; 3. On 19 June 2018, the plaintiff underwent a lumbar MRI scan at the request of Dr Parkinson. The radiologist noted previous surgery at L4/5, degenerative disc disease at L3/4 with a posterior annular tear with disc flattening but no canal neural exit foraminal compromise. A new finding of a posterolateral disc protrusion was noted at L4/5 markedly compressing the origin of the left L5 nerve: Exhibit "C", p 116; 4. On 4 July 2018, Dr Parkinson saw the plaintiff again in light of the recent repeat MRI scan and report. He wrote to Dr Samra and Dr Seneviratne expressing the view that the recurrent posterolateral L4/5 disc herniation was severely compressing the left L5 nerve, with associated severe pain. He suggested the plaintiff have a microdiscectomy rather than a fusion but noted a fusion may be required "if she herniated again": Exhibit "C", p 67; Third operation 1. On 6 July 2018, Dr Parkinson carried out a spinal operation on the plaintiff at St Vincent's Private Hospital: T67.20; 2. Between 16 July 2018 and 2 September 2018, it appears that the plaintiff was an in-patient at St Vincent's Private Hospital: Plaintiff's schedule of out-of-pocket expenses; Fourth operation 1. On 31 August 2018, Dr Parkinson operated on the plaintiff at St Vincent's Private Hospital. This was the plaintiff's fourth major spinal surgery. The procedure was recorded as "Redo left L4/5 microdiscectomy" for recurrent left L4/5 disc herniation. The operative findings were recorded as being the removal of multiple herniated fragments to achieve excellent decompression. This operation had the effect of widening the previous laminectomy approach. A distal rhizolysis of the left L5 nerve root was confirmed. Post-operative physiotherapy and analgesia were provided: Exhibit "C", pp 65 - 66; Post-fourth operation reviews to present time 1. On 2 October 2018, one month following her further post-spinal surgery, the plaintiff presented to Nepean Hospital with atypical chest pain and pleurisy of 2 days duration, and difficulty breathing deeply. A pulmonary embolism was suspected but not confirmed. No pathological conditions were identified: Exhibit "C", pp 60 - 64; 2. On 4 October 2018, pursuant to a request made on 10 September 2018, the defendant's solicitor appears to have arranged for a Dr Peter Wilde to carry out a medical file review of the plaintiff's situation without the benefit of an examination of the plaintiff. The defendant's other orthopaedic expert, Dr Scott Harbison, whose report will be referred to shortly, was provided with a copy of Dr Wilde's report but it was not tendered in evidence by the defendant. Dr Harbison stated that Dr Wilde's comments and conclusions coincided with his own views of the events which are the subject of the proceedings, and on the plaintiff's history as recorded by him: Exhibit "C", pp 109 and 112; 3. On 5 October 2018, the NSW Department of Health issued a pharmaceutical authority to the plaintiff's general practitioner for the plaintiff to be supplied with short-term Oxycodone, an opiate drug, for pain relief: Exhibit "C", pp 58 - 59; 4. On 26 October 2018, the plaintiff's general practitioner requested the NSW Department of Health to authorise a 3 - 6 month supply of a Schedule 8 opiate drug to treat the plaintiff's ongoing pain, noting that the plaintiff had a history of requiring opioid analgesia for more than 2 years for recurrent left-sided L4/5 back problems: Exhibit "C", pp 54 - 57; 5. On 6 November 2018, the NSW Department of Health issued a further authority for the plaintiff to receive the opiate Oxycodone for the period 6 November 2018 to 6 November 2019 for pain relief: Exhibit "C", pp 52 - 53; 6. On 15 January 2019, the plaintiff was again reviewed at the Western Sydney Pain Centre following the surgery performed by Dr Parkinson. The plaintiff reported residual ongoing radicular leg pain and significant back pain. Dr Ho noted the plaintiff was still using Endone and was receiving physiotherapy. Dr Ho suggested a trial of diagnostic facet joint block injections bilaterally at L2/3 to L5/S1 and medial branch radiofrequency treatment: Exhibit "C", pp 50 - 51; 7. On 26 March 2019, the plaintiff was again reviewed at the Western Sydney Pain Centre. Dr Ho noted that the plaintiff had a positive diagnostic result from the block injections to the left L4/5 and L5/S1 facet joints. He therefore booked her for radiofrequency therapy to the medial branches of the affected nerves at those levels: Exhibit "C", pp 48 - 49; 8. On 30 May 2019, the plaintiff consulted Dr Noel Dan, a consultant neurosurgeon at the request of her solicitor. After examining the plaintiff and reviewing her history of injury, her sciatic pain, and the surgical treatments she has had, he considered there was a direct connection between the described injury and the tear to the L4/5 lumbar disc which had resulted in a protrusion. Dr Dan noted the plaintiff had a very large lumbar scar with evident trophic changes and a related and easily visible contour defect that was associated with adhesion to the underlying structures. He considered that her cited complaints would continue permanently: Exhibit "C", pp 92 - 97; 9. On 2 July 2019, the plaintiff was again reviewed at the Western Sydney Pain Centre. Dr Ho reported that the plaintiff had significant benefit from the radiofrequency treatment to medial branches of nerves at the L4/5 and L5/S1 levels. He recommended a change to the plaintiff's medication by weaning her off Endone and Palexia in favour of Norspan patches. He noted the plaintiff had significant pain sensitivity: Exhibit "C", pp 46 - 47; 10. On 9 July 2019, Dr Ho reported that the plaintiff derived significant benefit from Norspan patches but she experienced the side effect of nausea which required that other medication be prescribed: Exhibit "C", p 45; 11. On 14 August 2019 at the request of the solicitor for the defendant, the plaintiff was examined by Dr Scott Harbison, a consultant orthopaedic surgeon. Dr Harbison stated: "The disc protrusion follows degeneration in the disc and rupture through the annular ligament. The nerve roots are adjacent to the disc and any protrusion or extrusion can result in nerve root pressure. A disc protrusion in general usually follows some degeneration but the extrusion event frequently follows a flexion and rotation strain as occurred in this case. The history is consistent with the sequence of events. … I believe that Mrs Powell's current condition is related to the incident on 04 February 2016, the run in June 2016, and pre-existing minor degeneration in the disc. There has also been some natural progression. I believe that the lifting incident in February 2016 caused a change in the pathology resulting in an extrusion of disc material and subsequent pressure on the left L5 nerve root. The run in June 2016 aggravated this condition, possibly by causing further disc extrusion. I believe that there was a pre-existing condition given that the MRI showed disc desiccation at the L3/4, L4/5 and L5/S1 discs. This is a frequent finding in asymptomatic people but it is part of the normal ageing process. The natural history of that condition is for the discs to progressively degenerate. This causes some collapse of the discs and that can secondarily cause degenerative changes in the apophyseal joints. This natural history has been altered by the events described above." Dr Harbison stated that the plaintiff did not appear to be exaggerating her symptoms or demonstrating any inconsistencies in her presentation: Exhibit "C", pp 102 - 115; 1. On 22 October 2019 Dr Dan provided a commentary on the report of Dr Harbison. In that commentary he confirmed his already stated view that the plaintiff's injury was more likely than not to have been caused by the incident on 4 February 2016: Exhibit "C", pp 98 - 101.

Findings on differing medical opinions

It appears that the only substantive difference to emerge from the expert medical opinions is that whereas Dr Dan provided a detailed description of the appearance of the plaintiff's surgical scarring, as referred to in sub-paragraph (38) of paragraph [81] above, Dr Harbison simply stated, without reasons, that he did not agree with Dr Dan's assessment of the plaintiff's scarring: Exhibit "C", p 109.
I consider Dr Harbison's cited comment about the plaintiff's post-operative scarring, which was dismissive, has no probative value and I do not accept it because it is not supported by the cogent reasoning required for an expert opinion: UCPR r 31.27(1)(c). Although Dr Harbison stated (at Exhibit "C", p 102) that he prepared his report in accordance with the Expert Witness Code of Conduct, and that Code appears as an annexure to his report (at Exhibit "C", p 115), plainly, the cited opinion did not comply with that Code as it was not the subject of any reasons: Sch 7, cl (3)(e). I therefore attach no weight to that expressed opinion. Instead, I accept Dr Dan's unchallenged opinion on that question.
Following my consideration of the plaintiff's evidence, and the details that have emerged from the medical evidence as summarised above, I now turn to the identification of the plaintiff's remaining disabilities.

Disabilities that evolved

I accept as reliable the evidence of the plaintiff as to her ongoing disabilities. I therefore also propose to draw upon the content of the uncontested medical evidence that outline her historical accounts to assist in defining the plaintiff's ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995 (NSW).

Pre-operative disabilities

The plaintiff described initially having muscular pain in her lower back which she treated with heat packs, a preparation known as Deep Heat, and Panadol. She also modified her exercise to avoid hurting her back. Her son Alex, took compassionate leave from his work interstate and he took over the housework tasks and home maintenance and cleaning tasks.
Several weeks after the initial injury, the plaintiff went on a fun run, which she described as a sort of jog, following which she found her back pain to be exceptionally painful. Her sleep was disturbed and ultimately, she went to Nepean Hospital for treatment. This led to her having an MRI scan on 28 June 2016, following which she was referred to Dr New. She saw him on 30 June 2016, and on 7 September 2016 he operated on her spine for the first time: T56.47.
In that period, the plaintiff found she could not stand or sit for long, and she carried out a lot of her work in a reduced capacity from home, without reduction in her income.
The disabilities the plaintiff experienced in the lead-up to her first operation, which Dr New performed on 7 September 2016, involved her experiencing excruciating and consistent lower back pain with nearly everything she did. In that period, her son Alex did most of the domestic tasks.

Disabilities following the successive surgeries

After the first operation, which involved her staying in hospital for four days, she still had severe pain which she described as being worse than before. At home she found she had developed left foot drop. She could no longer move her left foot. She had back pain that radiated down her left leg and that pain resulted in her having much reduced sleep. She could not drive for six weeks in that time. Her sons drove her to work and her employer made workplace adjustments for her needs and comfort.
In the period leading up to the second operation, which Dr New carried out on 16 November 2016, the plaintiff experienced progressively worsening unremitting back and left leg pain, irritating foot drop and sleep deprivation. Her concentration was adversely affected.
After the second operation, for which the plaintiff spent about two weeks in hospital, her back continued to be painful, but she found it was far more manageable. She still needed medication for pain. It was six weeks before she could swim or drive. However, she experienced flare-ups of pain. She was taking prescribed opiate medication for pain relief. In that time, she applied for and obtained a promotion at her work but she still experienced physical difficulties at work. She carried on nevertheless.
Although the second operation had alleviated the plaintiff's foot drop, a result described by Dr New as tremendous, she described it as "good, but not tremendous": T62.40. She had nerve damage which resulted in numbness and no feeling in parts of her left foot, that position remains unchanged. She worked closely with a physiotherapist to increase her abilities, and she was as a result, able to resume running but to a significantly reduced degree. It did not alleviate her back pain, which was not resolving, and she was seeing a number of doctors, and still taking prescribed opiates for pain relief.
In September 2017, the plaintiff's pain management physician sent her for a further lumbar MRI scan and referred her to Dr Parkinson for a neurological review in light of her worsening lower back pain and related left hip pain. Between Dr Ho and Dr Parkinson, the plaintiff had three rhizolysis procedures performed on her spine to interrupt the nerve endings in her lower spine to reduce her painful sensations: T64.16. This resulted in slight short term improvements but the procedures had to be repeated.
In that time the plaintiff continued to work as she had limited remaining sick leave. Her employer had generously allowed her to manage with reduced work hours, including doing some work at home. The plaintiff was taking Lyrica for nerve pain and anti-inflammatory medications. Her pain did not abate.
In May 2018, the plaintiff had a CT-guided steroid injection into her spine which resulted in a temporary abolition of pain, but only for 8 hours, following which her pain returned to its previous levels. She continued to see Dr Parkinson, who later recommended further surgery.
On 6 July 2018 Dr Parkinson first operated upon her spine at St Vincent's Private Hospital. This was the plaintiff's third spinal operation: T67.20. She spent one day in hospital, and took a week of sick leave. The result was that she experienced reduced levels of back pain. However, by August 2018, the former level of pain returned. Since then it has remained chronic, and it has affected her mental state. The following passage extracted from the plaintiff's evidence summed up the position as follows: "A. The pain started to return. At this point, I think the biggest thing for me at this point was my mental state. I was - I had been in chronic pain for - since the first incident. It was very taxing to go from being somebody who was studying, running, doing jobs, like being very very active, to struggling to get through a day, like struggling to do a full day at work. And when the pain came back, it was almost in - you know, you try to deny it? It's like, I don't want this. You know when you get to the..(not transcribable)..I was just so over all of it. So, I was struggling again. I knew within myself that it was not okay. Like, I knew that the level of pain I was experiencing wasn't normal, and wasn't okay. But was still trying - trying to get through it." [T67.44 - T68.3]
The plaintiff then continued to experience pain in her lower back, left hip and to her left leg without relief. She struggled to remain active. She found it difficult to undertake basic tasks. She was physically taxed and mentally exhausted from those circumstances. She returned to see Dr Parkinson who recommended the recent operation be repeated.
On 31 August 2018, Dr Parkinson performed his second operation on the plaintiff's spine, her fourth major spinal surgery, that operation was a repeat of the earlier procedure he carried out at St Vincent's Private Hospital. She took a week of sick leave. That final operation resulted in some improvement in her experience of pain, which she had been finding intolerable and relentless.
However, the plaintiff described her ongoing problems as follows: 1. She still needs to take medication for pain, including Norspan patches: T70.13 - T71.9; 2. She still experiences ongoing back pain and some days she finds it very hard to manage and get through the day: T70.39 - T70.45; 3. She has been told by Dr Parkinson that she may need a four level spinal fusion, which she is reluctant to have (T71.22), but she thinks it likely she will ultimately have the spinal fusion: T72.1; 4. In the meantime, a spinal cord stimulator has been suggested to her by her pain management specialist: T71.27; 5. In weighing up those options, the plaintiff said: "A. I think I can't stay on pain relief for the rest of my life. There has to come a point where I can't continue to do that. And if the pain gets any worse, that will be when I seriously say I - I either have to make the decision about the spinal cord stimulator or the fusion. I have to do one or the other next." [T71.43 - T71.46] 1. She still struggles day-to-day, including mentally, and at times feels exceptionally drained and frustrated when trying to do normal day-to-day things: T72.14; 2. Recent medications, Palexia and Cymbalta, caused her terrible side-effects, including confusion and dizziness: T73.16; 3. She has had to continue with occasional radiofrequency rhizolysis procedures which give her temporary pain relief: T73.20 - T73.37; 4. Her mental acuity at work is affected by her pain medication: T74.3; 5. At a baseline level, the plaintiff does not have pain-free days, and she experiences "really big" spikes in her pain levels, at random, not particularly related to activity: T74.45 - T75.4; 6. The plaintiff uses heat packs "a lot" everywhere, at home, in the car, at work, to alleviate her pain: T75.42; 7. Even on a "good day" the plaintiff still experiences pain. On an average day, she rates this at a level of four out of ten, but there are spasmodic days when she rates it as a level of eight or nine out of ten, and exceptionally painful. It is on those days she wears her pain relief patches and she takes medication: T84.11 - T84.37; 8. She has experienced embarrassment, and frustration as a parent when, at a low ebb, she felt the need to disclose to her sons her difficulty in coping with day-to-day matters due to her pain: T86.7 - T86.24; 9. She continuous to seek medical and physiotherapy assistance, and tries new therapies, including new exercises and more recently, a TENS machine: T86.43.
In the historical accounts, the plaintiff gave to those who have examined and treated her, she recounted details of her disabilities. The following summary of those disabilities is extracted from those histories as recorded by those practitioners: 1. Persisting mixed back and radiculopathic or sciatic leg pain of variable severity: Exhibit "C", p 45; 2. Sciatic pain that radiates down the back of the left leg with associated pain across the front of the legs, with numbness from the mid-calf to the lateral three toes, with occasional dragging of the left foot and occasional tripping: Exhibit "C", p 92. Fortunately the plaintiff's problem with left foot drop has substantially resolved; 3. Weakened dorsiflexion gait: Exhibit "C", pp 68 and 75; 4. Reduced sensation in the L5 and S1 nerve root distribution: Exhibit "C", p 105; 5. Expert medical examination reveals that the plaintiff's lumbar movements are about half the normal range, with some guarding evident on the left side: Exhibit "C", p 105; 6. Pain on the left side when tilting to the right, and tenderness from the level L2 down to the sacrum: Exhibit "C", p 105; 7. The experience of pain every day in the lower lumbar region in the midline and on both sides, spreading to the left groin, with occasional sciatica in the left leg and permanent numbness in the lateral border of the left foot and the lateral three toes: Exhibit "C", p 104; 8. Additional episodic back pain associated with the involuntary reflex activity of coughing or sneezing: Exhibit "C", p 104; 9. The ever-present requirement of engaging with multi-disciplinary specialist consideration of pain management issues, including the need for psychological and physiotherapy treatment: Exhibit "C", p 52; 10. Surgical scarring with associated trophic changes and adherent to underlying structure, as was described by Dr Dan at sub-paragraph (38) of paragraph [81].
The plaintiff faces the prospect that the natural history of her condition is for her symptoms to continue, at least intermittently, but she also faces the prospect of a gradual loss of movement in her lumbar spine, with no alteration to her neurological defects. She faces the permanent loss of sensation in the left lower limb without the prospect of significant future change: Exhibit "C", p 109.

Work effects

Prior to the plaintiff's first operation the plaintiff's employer made allowances to accommodate her disabilities. Without those adjustments she could not have worked. That position remained the case until her second operation performed by Dr New, which was led as being in November 2016: T59.1; T60.45. Despite the plaintiff experiencing foot-drop, sleeping and concentration difficulties due to worsening back pain, and needing medication and being driven to work by her sons, her employer made further allowances and adjustments so that she could continue to work. Fortunately, the plaintiff obtained a promotion at work in that time.
The plaintiff's employer gave her sick leave during her successive absences from work. She has struggled with her work due to her disabilities as cited above.
The plaintiff's disabilities have resulted in her missing work opportunities, including travel: T75.8 - T75.27. Although the plaintiff is sustaining "mostly full time work hours" at present (T75.30), if she finds it necessary to change her employment, which would not be her choice, she is concerned that a new employer would not be so accommodating of her problems and her need for allowances to be made to enable her to continue with her work when her 5 year contract is up for renewal, at which time it will be considered by an outside review panel applying fresh eyes to the position in the context of a work culture where promotion through the ranks is not necessarily the norm.
Since returning to work in 2020, there have been lots of days where her back has been exceptionally painful, at which times she walks around with a heat pack around her waist to help her get through the day: T85.15.
In her position at work, where she supervises 28 people, although she considers herself to be an understanding and compassionate person, at times she finds this to be more difficult with regard to her workplace communications when she is on edge and in pain: T85.31.
With regard to work meetings, when she is in a lot of pain, she may miss some meetings and catch up later, or at meetings, she gets up and moves around, a leniency that is afforded to her by her present supervising employer: T86.5.

Domestic effects

The plaintiff's ability to carry out her pre-accident domestic tasks of cleaning, vacuuming, lawnmowing, and the like has declined. She has received assistance from family members for such tasks and has also had the need for paid assistance. She claims damages for domestic assistance.

Mitigation

The defendant made no submission to the effect that the plaintiff has unreasonably failed to mitigate her damages. The preponderance of the evidence is to the contrary.

Plaintiff's most probable circumstances but for her injury

In light of the plaintiff's claim for damages for future economic loss, it is necessary to identify relevant assumptions as to the plaintiff's most likely circumstances but for the fact of her injury: s 13 of the CL Act.
The defendant submitted that but for the subject injury, the plaintiff would have been in exactly the same position in which she currently finds herself. I find that submission to be overly simplistic as it does not pay due regard to the benevolent attitude of her sympathetic employer who has made considerable allowances to accommodate her post-injury disabilities.
I accept the submission made on behalf of the plaintiff that, but for the subject injury, she would not have had to endure significantly excruciating pain, and endure four bouts of spinal surgery with the burdens of rehabilitation. She would not have lost time from her work due to those surgeries and her employer would not have needed to make workplace adjustments in response to the physical problems she was encountering at work due to her back injury.
Those measures taken by her employer included the provision of a standing desk, an ergonomic chair, and the provision of a new computer with an ergonomic keyboard. These are plainly the actions of a considerate, benevolent and sympathetic employer.
I also accept that the plaintiff would not have had to take extended periods of sick leave, nor would she have to wear Norspan pain-relieving patches to manage her pain. Nor would she have also had the need to take other medication, including prescription medications, to try and alleviate her pain.
But for her injury, it was unlikely that she would find herself having to struggle with the difficulty of getting out of bed in the mornings, and encountering difficulty in sitting in meetings. Nor would she have had to miss work opportunities due to her consequential inability to travel: T74.31 - T74.38; T75.13 - T75.27.
But for the subject injury the plaintiff would most probably have remained in her employment, in her current role, in an unrestricted capacity until a review date arose that may have resulted in a need for her to seek alternative employment. In that regard, but for her injury, she would have retained an unrestricted capacity to seek out other employment on the open labour market if circumstances arose which made this necessary. She obviously would have kept working until the normal retirement age.

Issue 1 - Risk of harm

Before considering the question of whether or not the defendant was in breach of its duty of care in the circumstances of the plaintiff's injury, it is necessary to first identify the relevant risk of harm: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60], [62]; Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90, at [98].
The focal point for identifying the relevant risk of harm is to recognise that the plaintiff's purpose in attending the defendant's gymnasium was to perform her exercise regime, and not to tidy up the disorganised weights area. That area was typically described in the evidence as "disgusting" (T195.2; T211.27), because other users of the gymnasium and the defendant's staff would neglect to put away used equipment, leaving the area "quite messy": T41.32; T49.37 - T49.38; T112.24.
It is common ground between the parties that the relevant risk of harm should not be formulated too precisely or narrowly. Instead, in this case, the risk of harm must be seen to be a generally broad concept not confined to a particular hazard that ultimately caused harm. Instead, it should allow for a range of contingent circumstances involving the foreseeable use of the premises so as to encompass the prevailing circumstances surrounding the activity in which the injury occurred: Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320, at [118].
Initially, the parties took very disparate positions on what constituted the relevant risk of harm in this case: T6.6 - T6.49; T14.5 - T14.37.
Ultimately, the defendant submitted that the relevant risk of harm should be identified as nothing more than the risk of suffering injury whilst lifting up a weight and putting it away: T14.11.
In my view, that formulation is too narrow as it failed to recognise the avoidable untidy and hazardous circumstances that prevailed in the weights area of the gymnasium under the defendant's watch. In my view, that narrow formulation submitted by the defendant is also contrary to the guiding principles found in line of authorities identified above.
In my view, in this case, the relevant risk of harm within the meaning of s 5B of the CL Act, also included the risk of incurring injury from lifting heavy weight plates from the floor in the course of undertaking housekeeping activity as distinct from undertaking an exercise regime, where those weight plates had been left strewn there in circumstances in which gymnasium staff had not taken steps to inspect the area, collect and appropriately store those weights. It was that hazardous condition of the premises which necessarily impeded other users such as the plaintiff from safely undertaking their exercise regimes in an adequate space within the weights area of the defendant's premises.

Issue 2 - Defence of waiver

The defendant seeks to invoke s 5N of the CL Act to support a claimed defence of waiver to shelter itself from responsibility for the plaintiff's injury. In reply, the plaintiff claims that s 5N has no application because at the time, she was not engaged in recreational activity. In the alternative, the plaintiff also claims that the effect of s 5N that would otherwise be protective of the defendant is defeated by s 5N(6) of the CL Act by virtue of s 60 and s 64 of the Australian Consumer Law.
The defendant's s 5N defence is based on the terms of an acknowledgment of responsibility that appears as an annexure to the Terms and Conditions of the agreement between the parties that initiated the plaintiff's membership of the defendant's gymnasium. The acknowledgment was in the following terms: [Exhibit "1", p 2]
The plaintiff signed the document comprising her membership form in three separate places on 22 April 2013. One of those signatures acknowledged that she had been given a copy of the terms and conditions of membership, which she acknowledged to have read and understood: Exhibit "1".
The defendant submitted that those circumstances were sufficient to engage the applicability of the cited waiver so as to provide the defendant with the benefit of that exclusion from liability: Causer v Browne [1952] VLR 1.
Section 5N of the CL Act provides: 5N Waiver of contractual duty of care for recreational activities (1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term. (3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (4) In this section, recreation services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity. (5) This section applies in respect of a contract for the supply of services entered into before or after the commencement of this section but does not apply in respect of a breach of warranty that occurred before that commencement. (6) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety.
Section 5K of the CL Act is relevant to determining the applicability of s 5N to the facts of this case, as it contains a definition of what constitutes "recreational activity", as follows: 5K Definitions In this Division dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. obvious risk has the same meaning as it has in Division 4. recreational activity includes (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.
The parties made disparate submissions in their respective approaches to the application of s 5N of the CL Act to the facts and circumstances of this case.
The defendant submitted that as the plaintiff was engaging in an exercise programme at a gymnasium at the time of her injury, it is likely that such activity is caught by all three limbs of the definition of recreational activity as provided by s 5K(a), (b) and (c) of the CL Act, arguing that she was clearly engaged in recreational activity. The superficial attraction of that submission belies the inherent complexity of the construction of the term "recreational activity": Goode v Angland [2017] NSWCA 311, at [190] - [194]. The applicability of that submission stands to be determined by whether or not the plaintiff was actually engaged in her exercise programme at the time she was injured.
The expression "recreational activity", as appearing in s 5N is a wide term that is capable of a number of interpretations. The construction of that term must take into account that the statutory meaning of "recreational activity" within s 5K of the CL Act is an inclusive definition that is not exhaustive. It must be given a beneficial and purposive construction.
A key element of relevance to the construction of the term recreational activity in the factual context of this case is the statutory emphasis on the provision of recreation services, as referred to in sub-sections (3), (4) and (5) of s 5N of that Act. This involves a factual question which must be dependent upon the particulars of each case.
The plaintiff's stated purpose in attending the defendant's gymnasium was to carry out her training regime, which necessarily involved exercise activity. Exercise should be taken to fall within the accepted definition of a sport: Belna Pty Ltd v Irwin [2009] NSWCA 46, at [13].
This gives rise to a relevant question, namely, what was the relevant recreational activity in this instance, given the broad generality of the definition of that term within s 5K of the CL Act: Fallas v Mourlas (2006) 65 NWSLR 418; [2006] NSWCA 32, at [31].
Was the recreational activity the exercise regime that the plaintiff intended to pursue at the gymnasium and which she had not yet commenced, or was it the activity of clearing up the floor of the weights area of the gymnasium, a task which she needed to attend to before her exercise regime could commence?
The term "recreational activity" has been described as an "elaborate definition". Its construction must be guided by the need to look to the purpose of the specific activity in which the plaintiff was actually engaged at the time of her injury. This is where the "three disjunctive limbs" of the definition are directed to the characterisation of the activity (clearing the weights), its purpose (to enable recreational activity to take place) and the state of the location (in the weights area which was blocked from effective use): Goode v Angland [2017] NSWCA 311, at [205] - [206].
The plaintiff's submissions drew attention to the non-exhaustive definition of "recreational activity" as including any "sport" which is not defined in the CL Act. The plaintiff's submissions therefore proceeded to rely upon dictionary definitions that referred to sport as amusement, diversion, fun, pastimes, games, and competitive leisure activities.
Binding decided cases dealing with the principles of statutory construction indicate that resort to dictionary definitions for the purpose of statutory construction can lead to difficulties: South Western Sydney Local Health District v Gould [2018] NSWCA 69, at [77] - [81]; Goode v Angland [2017] NSWCA 311, at [205] - [206]. Instead, any interpretation or construction of recreational activity or sport within the meaning of the statute must be according to the terms of the statute.
In that regard, I find that a gymnasium-based training programme for the purpose of attaining or maintaining physical fitness does fall within the definition of "sport" or activity for "enjoyment, relaxation or leisure", within the meaning of s 5K(a) of the CL Act: Belna Pty Ltd v Irwin [2009] NSWCA 46, at [13].
Whilst the plaintiff was intending to pursue physical fitness exercises, which can be a recreational activity, that activity had not yet actually commenced at the time she was injured, as she was engaged in the preliminary activity of clearing a space to enable that activity to proceed.
In my view, a determinative distinguishing feature in this case is that at the time the plaintiff was injured, apart from just being in the premises, she was not actually being provided with recreational services nor was she engaging in a sport or a recreational activity. At that time, she was preparing to carry out her exercise regime that could not have safely commenced until the floor of the weights area of the gymnasium had been cleared of mess and disarrayed obstacles to that objective.
In that context, the relevant service that the defendant provided to the plaintiff was the provision of access to the premises, the equipment itself, and a space within the defendant's premises for her to use that equipment for her exercise regime. The clearing up activity undertaken by the plaintiff in the weights area was not a recreational activity, but merely a preliminary activity to recreational activity.
The preliminary activity of clearing away obstacles to the plaintiff's exercise regime, was not something that she undertook as a consumer of recreational services. Nor was that clearing up activity incidental to the pursuit of her intended recreational activity, as it was the function of gymnasium staff to ensure that the weights area of the premises were maintained in a safe and tidy state suitable for safe use.
Analogies almost always include elements of imperfection. However, in my view, a sufficiently illustrative analogy is to consider the recreational activity of running, which requires the preliminary step of the donning of running shoes, that step being incidental to the pursuit of actual running. If the running shoes, required for that activity, happened to be located in a partly concealed or obstructed position under a pile of debris that obscured them from view or access, the task of clearing away that debris which prevented them being accessed, should not be seen to be incidental to the pursuit of a recreational activity.
Accordingly, I find that s 5N of the CL Act has no application to the facts of this case in terms of sheltering the defendant from liability to the plaintiff.
In response to the defendant's reliance on s 5N of the CL Act, in the alternative to the above approach, the plaintiff also relied upon s 60 of the Australian Consumer Law that provides: 60 Guarantee as to due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
Section 64 of the Australian Consumer Law also provides: 64 Guarantees not to be excluded etc. by contract (1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of this Division; or (b) the exercise of a right conferred by such a provision; or (c) any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services. (2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision.
In substance, the plaintiff's position is that the combined effect of the above provisions means that a defence under s 5N of the CL Act is not available to the defendant in this instance, as s 64 of the Australian Consumer Law must prevail over the potential exclusion provided by the force of s 5N of the CL Act, so as to render ineffective the clause relied upon by the defendant in this case: s 5N(6) of the CL Act.
In response to the plaintiff's reliance upon s 5N(6) of the CL Act to the effect that the harm suffered by the plaintiff resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices for the protection of personal safety, the defendant simply points to the fact that the plaintiff was injured whilst putting away weights in a gymnasium and claims this was an activity that she was engaged in nearly every time she attended the gymnasium.
Putting to one side the element of overstatement within that submission to the effect that she had done this "nearly every time", the defendant consequently submitted that it is difficult to see how harm from that activity could be seen as resulting from a contravention of a provision of a written law of the State or Commonwealth, particularly the Australian Consumer Law.
I do not accept the defendant's submission. As the defendant was operating the gymnasium in question, there is no doubt that it was engaged in supplying services to the plaintiff as a consumer in the course of trade or commerce: s 60 of the Australian Consumer Law.
It therefore follows that the statutory guarantee imposed on the defendant by s 60 of the Australian Consumer Law, namely that the services be provided, or rendered, to use the terms of that provision, with due skill and care, prevails over the purported contractual exclusion sought to be relied upon by the defendant.
Accordingly, I find that neither the purported waiver, nor the intended protective effect of s 5N of the CL Act as contended by the defendant, provides the defendant with any shelter from liability to the plaintiff's claim for damages: s 5N(6) of the CL Act.
The paragraphs that now follow examine the questions of the duty of care owed and whether there has been a relevant breach of that duty by the defendant.

Issue 3 - Duty of care, scope and content

The scope of any duty of care owed by the defendant is delimited by the expectation that the plaintiff would exercise reasonable care for her own safety: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [45]; Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253, at [53].
In my view, the plaintiff adequately discharged her duty in that regard, in recognising the need to clear up the floor of the weights area in order to carry out her exercise, because the floor was in a cluttered mess that rendered it unusable, and where there is no dispute that in such a state it constituted a hazard.
The defendant accepts that it owed the plaintiff a duty to take reasonable care in connection with the operation of its gymnasium. In my view, the terms of that concession by the defendant were narrow, and devoid of any detail as to the scope and content of the duty owed.
Such unduly narrow formulations avoid answering the key question involving the evaluative task of identifying a duty of care and determining its scope and content: Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 ("Stavar"), at [102] - [103].
The determination of that key question is predicated upon first, the foreseeability of harm at a gymnasium, a matter which was obvious beyond contest in this case, and secondly, the nature of that potential harm: Stavar, at [103]. The evaluation of that latter component is not a formulaic exercise of listing defined features relevant to the circumstances. The cited authorities caution against attempts at an exhaustive analysis: Stavar, at [104].
In the context of the commercial relationship between the plaintiff and the defendant, the defendant recognised that there was a need to clear the floor of the weights area and stack weights appropriately on the racks provided for that purpose. So much is clear from the list of duties for its reception staff. It can be inferred from such recognition that this was because, to fail to do so, could be hazardous to gymnasium users utilising the floor of the weights area.
The defendant assumed that duty of care by requiring its staff to periodically clear away any weights left inappropriately there by other gymnasium patrons. The principle purpose of such a requirement was to address the potential for harm from hazard and consequential injury from a broad range of causes associated with the condition of the premises that did not need precise definition.
To fail to recognise and to discharge such a duty would represent an undesirable departure from the need to conform with the structure and fabric of the common law as modified by statute: Stavar, at [103(q)].

Issue 4 - Breach of duty of care

The claim by the plaintiff that the defendant had breached its duty of care must be determined in accordance with the applicable statutory framework as provided by the three pre-conditions that are identified in s 5B of the CL Act also taking into account the qualifying considerations identified in s 5C of the CL Act.
In essence, the plaintiff's claim is that the defendant's failure to inspect the floor of the weights area of its gymnasium, and keep the equipment that was located there tidy and appropriately stored, amounted to a breach of duty of care. In that regard, the plaintiff has pleaded the following particulars of negligence: 1. Exposed the plaintiff to (sic) risk of injury that could have been avoided by the exercise of reasonable care; 2. Failed to inspect the floor in the premises to ensure that the floor was free of hazards. 3. Failed to inspect the floor in the premises to ensure that ail stray gym equipment was put away within a reasonable period of time. 4. Failed to implement an effective system that ensured that all gym equipment was put away by patrons after use.

Legislation

Section 5B of the CL Act provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
Section 5C of the CL Act provides: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Section 5B(1) of the CL Act - consideration

In the paragraphs that now follow, I set out my findings on the consideration of the three pre-conditions for a finding of negligence as specified in s 5B(1) of the CL Act.

Section 5B(1)(a) of the CL Act - foreseeability of harm

The identified risk of harm as discussed at paragraphs [118] to [124] above, was plainly recognised as being within the reasonable contemplation of the defendant. This is evidenced by the defendant having beforehand placed a sign in the premises in the terms copied at paragraph [70] above. However, by placing that sign within the premises, the defendant sought to place responsibility for gymnasium tidiness and safety onto gymnasium users who used the weights before the arrival of the plaintiff, and not just on its own staff, where duties included attention to such matters.
The terms of that sign indicate that the defendant was well aware of the existence of a foreseeable risk that members of its gymnasium facility would frequently, and on a random daily weekday basis, fail to put away heavy items of exercise equipment after using that equipment in the weights area. In that regard, the terms of the cited sign suggested that the supervisory role of the gymnasium staff was directed more at member compliance in terms of possible cancellation of membership, and was not directed at supervision of compliance by gymnasium users with the identified conditions that were relevant to the safety of members.
Both the expert, Mr Armanasco, and Mr Waterhouse, a contract trainer who worked at the defendant's gymnasium, recognised that if the state of the exercise area was that weights were left on the floor, this would constitute a relevant hazard.
In my view it is beyond argument that the risk of a user of the defendant's gymnasium sustaining an injury whilst lifting equipment to clear away awkwardly strewn weights left in an untidy state on the floor was foreseeable: s 5B(1)(a) of the CL Act.
It is not necessary to confine the examination of such foreseeability to the actual source of the plaintiff's injury where the activity which precipitated the injury was within a range of anticipated activities associated with the ordinary use of the premises.

Section 5B(1)(b) of the CL Act - not insignificant risk

The defendant submitted that the risk of injury to the plaintiff was insignificant in the described circumstances. I disagree, for the reasons that follow.
In the described circumstances which prevailed at the defendant's gymnasium, on a prospective view, the risk of injury, whether to the back, or to some other part, was not insignificant: s 5B(1)(b) of the CL Act. It is accepted that a range of potential and significant injuries could occur in a gymnasium in circumstances where it became necessary to move and clear away weights that had been left strewn on the floor in a hazardous state. In the present case, this required the plaintiff to undertake a housekeeping activity which was necessary so that she could carry out her exercise regime.

Section 5B(1)(c) of the CL Act - precautions of a reasonable person

Based on the expert evidence of Mr Armanasco, and also in accordance with a commonsense analysis, I consider that a reasonable person in the position of the defendant would have taken precautions against the risk of injury that has been identified: s 5B(1)(c) of the CL Act.
I find that the required precautions were simple, and easily implemented, namely staff undertaking inspection of the weights area for tidiness and safety, and ensuring that the floor of the weights area was kept tidy by appropriately storing equipment that was no longer being used, that is, off the floor, and placed on racks provided for that purpose.
The defendant was well aware of the advisability of those precautions being taken. This is evidenced by the fact that it included the task of tidying the gymnasium floor and putting away weights in the list of daily tasks that it required to be carried out by its rostered reception staff, both for the morning and the afternoon shifts: Exhibit "4".

Section 5B(2) of the CL Act - consideration

As the three pre-conditions required by s 5B(1) of the CL Act are satisfied, as explained above, I now turn to consider the application of s 5B(2) of the CL Act to the circumstances of this case.

Section 5B(2)(a) of the CL Act - probability of harm

Absent the identified precautions identified at paragraph [178] above, being taken, given the identified hazard posed by heavy equipment being left on the floor of the weights area after use, and not tidied up, particularly where previous users had modified the configuration of the available floor area by moving some heavy exercise machines, I am satisfied that in those circumstances there was a high probability that persons such as the plaintiff, whilst taking reasonable care for their own safety, could nevertheless sustain injury whilst putting away weights to clear the floor area to enable its use for exercise: s 5B(2)(a) of the CL Act.

Section 5B(2)(b) of the CL Act - seriousness of harm

It can be assumed reasonably that any activity requiring the lifting of heavy weights carries with it a foreseeable risk of a back injury that might vary in nature from a relatively minor muscle strain to a more serious disc tear of the kind suffered by the plaintiff: s 5B(2)(b) of the CL Act.

Section 5B(2)(c) of the CL Act - burden of taking precautions

In my view, it would have been a negligible burden for the defendant to take the identified precautions, namely to inspect the weights area for tidiness, to supervise the activity of gymnasium members either during or after use of the weights equipment, to ensure compliance with the requirements of tidiness, and if need be, to pick up and appropriately store on racks, any weights left on the floor that were no longer in active use. The defendant employed reception staff for those purposes, but it appears from the evidence of the plaintiff and Ms Abela, that such staff members were allocated to numerous other tasks that apparently deflected them from taking the identified precautions: s 5B(2)(c) of the CL Act.

Section 5B(2)(d) of the CL Act - no relevant social utility

No relevant considerations of social utility arise in this case. There is an obvious positive social utility in the commercial activity of providing facilities for training and exercise. There is no social utility to be achieved by doing so in an unsafe environment that exposes individuals to the risk of injury that could be avoided by the exercise of reasonable care appropriate to the circumstances: s 5B(2)(d) of the CL Act.

Section 5C of the CL Act - consideration

In the paragraphs that now follow, I address the matters required to be considered in accordance with s 5C of the CL Act.

Section 5C(a) of the CL Act - burden of precautions for similar risk

A commonsense analysis, as also confirmed by the evidence of Mr Armanasco, indicates the appropriateness of taking the precautions identified at paragraph [178] above: s 5C(a) of the CL Act.

Section 5C(b) of the CL Act - avoidability by doing things differently

There are no countervailing considerations within the contemplation of s 5C(b) of the CL Act. The defendant was required to take the precaution of taking reasonable care, which if taken, would have more probably than not, avoided injury to the plaintiff.

Section 5C(c) of the CL Act - relevance of subsequent actions

In this case no relevant considerations arise within the contemplation of s 5C(c) of the CL Act.

Conclusion on breach of duty of care

For the above reasons, I find that the plaintiff has satisfied the statutory requirements for proving that the defendant was relevantly in breach of the duty of care it owed to her. I therefore find that the defendant was negligent as claimed by the plaintiff.

Issue 5 - Causation of harm

The plaintiff must prove that the defendant's negligence was the relevant cause of her injury: s 5D of the CL Act. That section provides as follows: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
On the evidence, I am left in no doubt that the plaintiff injured her back in the incident in question, such that she experienced immediate and immense pain.
I am also left in no doubt that the progressive mechanism that was described in the report of Dr Dan occurred in this case, namely, that in the incident there had been a tear to the fibres surrounding the affected lumbar disc, and this later progressed with what would be considered ordinary activity for a person of the plaintiff's age and level of fitness, which in this case, included a kind of jogging for exercise: T54.36 - T54.39.
I am also satisfied that the subsequent medical evaluation of the plaintiff's back and related complaints, including her need for successive back surgeries, flowed as a natural and probable consequence of her back injury sustained on 4 February 2016.
In arriving at that conclusion I have not overlooked the reference in the medical evidence that the first of the plaintiff's back operations, which resulted in a subsequent worsening of her condition, was stated to have been performed at the incorrect level in her lumbar spine, and which was then followed by the need for further surgery: Exhibit "C", pp 70 - 71.
In my view, those circumstances do not operate as a limiting factor on the assessment of the plaintiff's damages. The defendant, although fully aware of that potential issue as it had been forensically investigated by the plaintiff and disclosed to the defendant (T236 - T237), did not seek to argue that a novus actus interveniens had occurred. On that issue, the suggestion that the operation in question had been performed at the incorrect level of the plaintiff's lumbar spine should not be seen to be a factor that limits or confines the assessment of damages in this case: Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; [1985] HCA 37, at [6].
In my view, the plaintiff has established factual causation. This is because, but for the fact that the defendant had negligently permitted the heavy weight plate in question to remain on the floor of the weights area, in circumstances of hazardous mess and untidiness, the plaintiff would not have incurred the need to act to tidy up those weights in order to make room for her own exercise regime. Had reasonable care been taken by the defendant, she would not have been injured: s 5D(1)(a) of the CL Act: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32].
I am also satisfied that the scope of the defendant's liability should extend to the circumstances in which the plaintiff was injured, because the defendant had made its gymnasium facility and equipment available to the plaintiff on payment by her of a membership fee as part of the defendant's commercial operations for profit: s 5D(1)(b) of the CL Act.
I therefore find that the plaintiff has established that the defendant's negligence was the relevant cause of her injury and of her related disabilities.

Issue 6 - Contributory negligence

In support of its claimed defence of contributory negligence, the defendant has pleaded the following particulars of contributory negligence: 1. Failure to take any adequate, or any reasonable, care for her own safety. 2. Failing to assess the weight of the weight plate. 3. Failing to request assistance to lift the weight plate. 4. Failing to properly pick up the weight plate. 5. Failing to avoid areas in which other patrons were training and had placed their gym equipment.
That defence must be assessed according to the statutory frameworks of s 5B, s 5C, and s 5R of the CL Act. Although s 5S of the CL Act provides that contributory negligence, if found to have existed, can defeat a claim of this kind, the defendant does not seek a result in those terms in this case.
Section 5R of the CL 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 defendant submitted that on the facts of this case there should be a finding of 50 per cent contributory negligence made against the plaintiff. That submission was essentially based on the premise that the plaintiff ought to have asked for assistance to move the weights that prevented her from using the floor, and that such an alleged failure was at least equal to any negligence that might be found to have existed on the part of the defendant. That argument was not further developed by the defendant in oral submissions.
That argument must first be assessed according to the requirements of s 5B of the CL Act. The central focus of that evaluation is the foreseeability of harm: s 5B(1)(a) of the CL Act.
The defendant submitted that the plaintiff's decision to pick up the weights left on the floor without seeking assistance, this being a task she had undertaken on previous occasions, was in effect an alleged failure on her part to exercise reasonable care for her own safety.
I do not accept that submission. At the time of the plaintiff's injury, there was no-one at the defendant's reception desk from whom such assistance could have been sought (T114.27 - T114.35), and the other contract trainers on the premises were conducting classes in other areas, and it would not have been possible to interrupt their classes to do the defendant's housekeeping. I accept the plaintiff's evidence in that regard: T114.49.
The defendant pointed to the fact that an injury of the kind suffered by the plaintiff had not occurred beforehand. Properly understood, that submission simply meant that such an injury had not previously been reported to the defendant. That is not a relevant disentitling factor.
The defendant also asserted that the activity of lifting weights of the type in question here, was a commonplace activity for the plaintiff, which she had performed on previous occasions. That submission fails to recognise the particular twisting and rotation movement the plaintiff had to undertake on this particular occasion. The defendant did not demonstrate or prove that the plaintiff had performed those exact movements before.
In my assessment, the proposition that the plaintiff had not correctly or safely applied herself to the task of picking up the weight in question from the floor, which was clearly marked as being 25kg, has not been sustained on the evidence.
I infer from the plaintiff's evidence that in the messy disarrayed and condition of the premises (T112.24), that weight in question was in an awkward location in juxtaposition to the rack upon which it was to be stored. This is also apparent from the plaintiff's need to undertake a combined twisting rotation and lifting movement in order to place the weight on its designated rack. The defendant called no evidence to the contrary: s 5E of the CL Act.
I am not persuaded that the defendant has made good its claimed defence of contributory negligence.

Issue 7 - Assessment of damages

In the paragraphs that follow I set out my assessment of the heads of damage claimed by the plaintiff.

Non-economic loss

Damages for non-economic loss must be determined according to a percentage assessment measured against a most extreme case: s 16 of the CL Act. The plaintiff submitted the appropriate assessment should be 35 per cent: MFI "1". In contrast, the defendant initially submitted that assessment should be 24 per cent of a most extreme case: MFI "4". In final submissions the defendant modified that submission to 27 per cent. The assessment of damages for non-economic loss is an evaluative exercise. That evaluation now follows.
The plaintiff has suffered a seriously debilitating injury that has consequently left her with lasting painful disabilities. Those disabilities have already been identified in detail between paragraphs [85] to [102] above. Those disabilities are chronic in nature. The plaintiff's evidence on those matters, whilst descriptive, was given in understated terms. Her evidence as to the effects of those disabilities was not exaggerated, as was submitted to the contrary on behalf of the defendant.
The plaintiff's chronic pain limits her work and her leisure activities. She has tethered scarring to her lower back which is obviously a cosmetic impairment when visible. She finds that she needs to wear pain patches and she needs to take medication to address her pain. She faces the prospect of a fifth and more serious operation to fuse four levels of her lumbar spine. I accept her evidence that it is likely that she will have that procedure, although the timing of it will be uncertain. The result of that operation, which will be required to address her continuing problems with back pain and with impaired function, will also be uncertain. It is possible her condition may not materially improve following that surgery, and it may worsen to further impair the amenity of her life as has occurred previously. Not all vicissitudes are adverse to a plaintiff in a damages sense: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53, at [19].
In my view, those matters which are set out in more detail in the evidence at paragraphs [85] to [102] above, and in the medical evidence surveyed at paragraph [81] above, taken together with the plaintiff's relatively young age, all point to serious ongoing and lasting impairments that operate as significant detriments that adversely affect the plaintiff with regard to her ability to enjoy the amenity of her life.
Pursuant to s 16 of the CL Act, I therefore assess the plaintiff's damages for non-economic loss at 35 per cent of a most extreme case, which is the monetary equivalent of $230,500.

Past economic loss

On behalf of the plaintiff, it was initially indicated that a claim would be made for damages for past economic loss in the buffer amount of $35,000: MFI "1". In contrast, on behalf of the defendant, it was submitted that such damages should be assessed at $20,000: MFI "4". In final submissions the plaintiff abandoned that claim.
Although the plaintiff has in the past experienced the need to take substantial time away from her work, which would ordinarily have resulted in loss of income, her employer has provided her with paid sick leave, which is not the subject of a claim for reimbursement: T12.49 - T12.50; T69.29 - T69.36.
I therefore make no assessment of damages for past economic loss.

Future economic loss

On behalf of the plaintiff, it was submitted that damages for future loss of earning capacity should be assessed in the buffer amount of $200,000: MFI "1". In contrast, on behalf of the defendant, it was submitted that no such damages should be awarded: MFI "4".
The claim for future economic loss arises in an unusual context in this case. First, the evidence discloses that, to the plaintiff's credit, despite her disabilities, she has made considerable efforts to mitigate her damages by continuing to work, at times, under difficult circumstances that limit her ability to work in the same way she had previously been able to do. Secondly, to the great credit of her employer, despite her disabilities, she has progressed in her employment. This was made possible by her employer extending to her some considerable workplace understanding, including by making some adjustments to her working conditions. Thirdly, as a longstanding employee, the plaintiff has in the past obviously been able to draw upon considerable sick leave entitlements for which no refund has been sought by her employer. As a result of those circumstances, no weekly loss of income has been identified for the purpose of calculating a future loss of earning capacity.
Nevertheless, it is clear from the plaintiff's ongoing disabilities as identified at paragraphs [85] to [102] and [103] to [108] above, and from her changed circumstances compared to what would otherwise have been her most likely circumstances, as referred to at paragraphs [111] to [117] above, that the plaintiff has suffered an impairment in her future loss of earning capacity that is likely to cause her to suffer economic loss in the future. That loss requires assessment.
A buffer amount is claimed in respect of that loss absent an identifiable recurring weekly loss that would permit a mathematical projection on the applicable discount tables: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
The claim for future economic loss must take into account a confluence of relevant imponderable factors. These include: 1. Her present contract of employment, which will be due for review in the near future, may not be renewed. If that occurs, she may not be able to secure equivalent well paid employment; 2. In the events leading up to a decision to have her fifth spinal operation, a four level fusion, she is likely to be dealing with increased levels of pain and discomfort that will have the real potential to interfere with her continued employment; 3. The likely result of a fifth spinal operation, which will doubtless require a period of convalescence and back rehabilitation involving restrictions on physical activity, is not known at present, but these matters must also be taken into account, including the possibility of an adverse result, or little improvement in her physical ability to work; 4. If she had to compete for employment on the open labour market against persons without disability and without the need for a prospective employer to make special allowances for her disability, including by providing ergonomic and other furniture specific to her needs, she may not be able to secure alternative employment at all, or if she manages to do so, it may not be at a similar rate of remuneration; 5. At age 46 years, she has approximately 21 years of potential working life ahead of her which, on her history, she would most likely have pursued to its full extent, if not longer, had she not been injured, and that considerable work capacity has been damaged as a result of her injury.
Those factors indicate that a substantial buffer allowance must be made for damages for future loss of earning capacity. I assess the plaintiff's damages for future economic loss in the buffer amount of $150,000.

Past domestic assistance

On behalf of the plaintiff, it was submitted that damages for past domestic assistance should be assessed in the buffer amount of $26,600: MFI "1". In contrast, on behalf of the defendant, it was initially submitted that such damages should be assessed at $5000: MFI "4". The defendant subsequently argued that the plaintiff had not made out a claim for damages for past domestic assistance. In final submissions, the plaintiff abandoned her claim for past domestic assistance.
There is no doubt that after her injury, the plaintiff has received and has continued to receive considerable domestic and personal assistance from family members, including from one of her sisters and from one of her sons, the latter having also paid for some assistance to be provided from a commercial service. Before such assistance can be assessed in monetary damages, for the value of past assistance, statutory thresholds need to be satisfied. As this component of the claim is no longer pressed, this issue no longer requires examination or consideration in terms of quantification.
I therefore make no assessment of damages for past domestic assistance.

Future domestic assistance

On behalf of the plaintiff, it was initially indicated that damages for future domestic assistance should be assessed in the amount of $183,500: MFI "1". In final submissions that claim was ultimately modified to an amount of $102,130. In contrast, on behalf of the defendant, it was submitted that no such damages should be awarded: MFI "4".
The plaintiff's claim for future domestic assistance has some support in the medical evidence. Dr Dan believes that the plaintiff will require assistance with the heavier duties comprising domestic maintenance, and that she would be unfit for outdoor tasks including gardening and mowing, and that she should avoid any heavy lifting activities including the scrubbing of floors: Exhibit "C", p 93. Dr Harbison confirmed that the plaintiff's need for domestic assistance has only been required because of her back problem: Exhibit "C", p 109. That evidence remains unchallenged and uncontradicted.
The plaintiff lives in a rented four bedroom two storey townhouse with one bathroom, a front lawn and a backyard. Before her injury she mostly took the responsibility for the cleaning, which included vacuuming, mopping, the washing, placing the washing in the dryer, as well as the moving of the lawns and the shopping. The cleaning took about 3 hours per week, the lawns about an hour per week: T37.20 - T38.36.
The plaintiff did not employ a cleaner before her injury, but she has since. Typically, the employed cleaner spends two hours per week undertaking a big clean at a cost of $50 per hour on a Saturday morning: T77.35 - T79.34. In addition, the house is vacuumed two or three times per week which takes about 20 minutes on each occasion. She cannot vacuum upstairs because of the need to take the vacuum cleaner there which is difficult for her: T79.36 - T79.50; T120.48 - T121.3; T122.13. Her eldest son pays for someone to do the lawns once a week in summer and less frequently in winter: T81.7 - T81.34.
The plaintiff indicated, and I accept, that she will still be engaging a cleaner after these proceedings have concluded (T82.28), and that to keep a reasonable standard of maintaining the household, about two hours would be required per week (T83.12), in addition to the services of a person to garden and mow the lawns: T83.46 - T84.9.
In view of the plaintiff's spasmodic experience of pain, at random, with more painful days than more good or manageable days (T84.33; T85.2; T122.20), I consider it reasonable to allow for future expenditure along those lines. The plaintiff is in a reasonable position to gauge the time required for such tasks without the need to resort to expert evidence: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55].
The plaintiff submitted this component of her claim would be quantified reasonably by allowing for such assistance on a commercial basis of 3 hours per week at the rate of $45 per hour for a period of 35 years (x 875.6) but deferred for 3 years (x 0.864) to reflect the likelihood that by then the plaintiff would be living on her own, and whether in rented or her own accommodation, the extent of the need might lessen.
I consider that approach to be a reasonable one, save for the need to apply a discount of 15 per cent for potential vicissitudes, which includes the possibility of a degree of potential improvement after surgery. This yields the discounted sum of $86,810.
I therefore assess the plaintiff's damages for future domestic assistance in the sum of $86,810.

Future treatment expenses

On behalf of the plaintiff, it was submitted that damages for future treatment expenses should be assessed in the buffer amount of $50,000: MFI "1". In contrast, on behalf of the defendant, it was submitted that such damages should be assessed at $5000: MFI "4".
At present, although the plaintiff is reticent about having future surgery, she is not functioning because of her pain. At times, during normal day-to-day things this is exceptionally draining for her, and this is pointing her to the likelihood of undergoing spinal fusion surgery: T71.35 - T72.15.
In light of that evidence, and in light of her ongoing chronic pain, I propose to make an allowance for the prospect of that surgery taking place.
The plaintiff is presently incurring treatment costs in relation to the following components: 1. Physiotherapy treatment, including the use of a TENS machine and involving different manipulative treatments and exercises to maintain back comfort, which at times involves weekly attendances, costs $79 per visit: T86.30 - T87.15. The plaintiff's schedule of out-of-pocket expenses shows she has incurred $5916.35 for physiotherapy treatment between 10 October 2016 and 14 February 2020, which over approximately 172 weeks, equates to an average of $33.61 per week; 2. Consultations with Dr Ho, her pain management specialist, which used to proceed at monthly intervals, are now scheduled at 3 monthly intervals, at a cost of about $230 to $250 each, or about $18.46 per week: T87.39 - T87.50; 3. General practitioner consultations on an as need basis, including for pain medication, prescriptions and referrals, are at present bulk-billed: T88.2. That position is likely to change after she receives compensation from these proceedings. An allowance of one visit per month at $35, or $8.75 per week, therefore seems reasonable; 4. Pharmaceutical expenses as itemised in the plaintiff's schedule of out-of-pocket expenses are in the total amount of $3467.53 over a 4 year period, have been incurred at an average of $16.67 per week over that period. That figure roughly equates to the currently weekly cost of Norspan and Endone prescriptions: T72.25; T72.30 - T72.34.
The cost of the proposed spinal fusion surgery is difficult to estimate. Hospital fees for the last surgery amounted to $25,708.81. The anaesthetic fee for that surgery was $1172.50. Dr Parkinson's fee for the first operation was $7000. He generously performed his second operation pro bono, as is stated in the plaintiff's schedule of out-of-pocket expenses.
Using that information as a guide, it would appear that the all-up costs of further spinal surgery may be conservatively costed at about $35,000 in round figures, which would include some allowance for post-operative physiotherapy and medication.
At age 46 years, the plaintiff has an expected statistical median life span of 42 years. The 5 per cent multiplier for 42 years is 931.5. Projecting the total of the estimated weekly costs outlined in paragraph [241] above, namely $77.50 per week, at 5 per cent over 42 years (x 931.5), this yields the sum of $72,191. Allowing a 15 per cent discount for vicissitudes, generously to the defendant, this yields the discounted sum of $61,362.
The total of those two sums amounts to $96,000 in round figures. Those figures have to be viewed in the context that the timing of future surgery is at present an uncertain imponderable factor. However, viewed overall, they demonstrate that the plaintiff's claim of $50,000 for future treatment expenses should be seen to be reasonable and should be allowed.
I therefore assess the plaintiff's damages for future treatment expenses in the sum of $50,000.

Past out-of-pocket expenses

I assess past out-of-pocket expenses in the agreed sum of $33,787.62.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $230,500 (b) Past economic loss $Nil (c) Future economic loss $150,000 (d) Past domestic assistance $Nil (e) Future domestic assistance $86,810 (f) Future treatment expenses $50,000 (g) Past out-of-pocket expenses $33,787.62 Total $551,097.62

Disposition

The plaintiff has established her entitlement to a damages award for $551,097.62 and she should have a judgment for that amount.

Costs

As the plaintiff has succeeded in obtaining a judgment in her favour, she should have an order that the defendant pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff against the defendant in the amount of $551,097.62; 2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further or other orders are required.

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: 04 June 2020

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