Rachel Hobby v Rydges Hotels Limited & Anor

Circumstances of the Plaintiff's Injury 7The plaintiff was injured when she attended an engagement party at the hotel premises on the evening of 26 April 2008. The party was held in a function room which had been hired by Mr Hamilton Gervaise, the father of the bride to be. The function room comprised a carpeted area with tables and chairs, together with a wooden, parquetry dance floor. 8The following summary contains my finding of facts unless otherwise noted. The judgment is prepared without the benefit of a transcript of the proceedings, however, the areas of controversy were limited. 9The plaintiff arrived at between 7 and 7.30pm. At that time, guests were being served drinks on trays, and food was being distributed on platters. That was done by wait staff walking around the function room, including the area of the dance floor, offering food and beverages to the guests. 10After some time had passed, there were some formalities. The engaged couple were introduced and commenced a dance together on the dance floor. They are shown doing that in exhibit A, a photograph which shows them on the dance floor with coloured streamers and pieces of paper swirling around them. Some guests are shown in the background watching them. Exhibit D also shows the couple at about the same time, and around them is demonstrated to be a number of items already on the dance floor. I infer that exhibit D was the earlier of the photos. 11Others joined in the dancing. At approximately 8.30pm the plaintiff was on the dance floor. She was with her aunt, Ms Rosanne Conner. As she danced, she slipped when her left foot slipped on something on the dance floor and she fell heavily, with her left knee folding under her and her full weight landing on top of her left leg, thereby twisting her left knee. She ended up on the floor with her left knee bent under her, on her back, with her right leg out in front of her. 12The plaintiff gave evidence, which I accept, that she was making note of the streamers and other items on the floor to make sure she did not step on them. She did not see anything else. 13The plaintiff was unable to get up by herself and was eventually assisted onto a chair. She noticed food up the side of her right leg and it was a dark browny colour with pastry, which she described as a "party pie or something like that". She also saw some food on the floor similar to the food that had been served on platters. 14The plaintiff was in severe pain and was assisted by other guests to her parent's car and taken to Blacktown Hospital. She underwent an xray and was referred to the care of her GP, Dr Saad. She was referred in due course to Dr Fox, Orthopaedic Surgeon, and underwent scans and physiotherapy, which did not help. She then came under the care of Dr Hoe, Orthopaedic Surgeon, who, following an MRI scan, advised surgery for a tear in her anterior cruciate ligament. It is not in dispute that she suffered that injury in the fall. 15Mr Hamilton Gervaise gave evidence in the plaintiff's case. He had known her since birth, but was not a blood relation. He still regarded her as a niece. He arranged for the engagement party of his daughter, Mercedes, at the hotel premises. It involved hire of the function room, together with a food and beverage package. Guests had to buy their own alcohol from the bar. According to Mr Gervaise, waiters took drink orders and brought them on trays. Food was also served on platters, by first being offered to guests and then being left on tables. He described the dance floor as being in the middle, with a carpeted area around two sides and the front. The room was booked between 7pm and 12 midnight, and food was to be supplied up until 9pm. He was expecting 70 guests. 16Mr Gervaise observed that the floor to the function room was clean at first. He observed it to gradually get messier during the night when food and drinks were served, and streamers and poppers were used. He observed a couple of glasses on the floor, but observed no one employed by the defendant cleaning the room. No cleaning was carried out until the end of the function. 17Mr Gervaise believed that the plaintiff's accident occurred in the middle of the evening at a time when the dance floor was messy. There was streamers and confetti and bits of food on the dance floor which he described as overall being "untidy". To his observation, at the time of her fall, the dance floor was a lot messier than that shown in the photo exhibit D. 18Rosanne Conner also gave evidence in the plaintiff's case. She was an impressive witness whose credit was not impugned. She gave evidence that she observed wait staff serving drinks and food to people on the dance floor, including when people were dancing on the dance floor. She was dancing with the plaintiff at about 8.30pm when the plaintiff slipped and fell and as she went to help her, she noticed party-like food on the floor near her, and could see a mark on the floor where she had slipped. She described the whole floor area at that time as being "unbelievably dirty". She went on to state that she would not have danced on the floor had she noticed it was so dirty at the time, however, the lighting was not bright. 19The plaintiff's mother, Mrs Ann Gaskin also gave evidence. She was at the engagement party, but did not see her daughter fall. She gave evidence that she observed food and drinks being served by waiters and waitresses on the dance floor throughout the evening. She observed the flooring to be "very dirty with glasses, streamers and spilt food and drink". After the plaintiff fell, she observed her to have food on her trousers. She gave evidence relevant to the plaintiff's damages claim to which I will refer below. 20It was put to Mrs Gaskin in cross-examination that no person was served food or drink whilst dancing on the dance floor, which she stated was not true. It was also put to her that people were asked to get off the dance floor if they were observed to be drinking by staff, which she also denied. She stated that she herself had a drink on the dance floor, and that she did not see anyone being asked to leave it. 21The plaintiff was recalled. The same two propositions were put to her with leave, both of which she denied. She said that she was offered food and drink on the dance floor, that it did happen and that no person with a drink on the dance floor was asked to leave it. I accept that evidence. 22The plaintiff also relied on a report of Neil Adams dated 24 September 2012 (exhibit G). It was admitted over objection on the basis that Mr Adams had not inspected the premises nor carried out any testing on the floor surface. It was therefore a commentary on the risk of people slipping, tripping or falling. No application was made to restrict its use pursuant to s 136 of the Evidence Act 1995, however, I have not had regard to the opinions expressed in the report in determining the matter. 23The defendant's evidence on liability comprised the evidence of Ms Kate Boniface who had been employed by the defendant from June 2007 until May 2011, at first as a bar attendant and later as a supervisor and front office manager. On 26 April 2008 she was employed as the food and beverage supervisor at the defendant's premises and in particular, in respect of the function being held at what she described as the Crown Pacific room. She also had responsibilities in respect of a restaurant in the premises which was nearby. She said that the staff were instructed that no food was to be served to guests on the dance floor and she did not recall seeing any food being served to guests on the dance floor that night. She gave evidence that alcoholic drinks were to be purchased from the bar and that soft drinks were served as part of the package, but were served in jugs which were delivered to the tables. Further, staff were directed to ask patrons to leave the dance floor if they were observed to be eating or drinking there, and to leave the food and drink at their table. She had no recollection of requiring any person to leave the dance floor on that occasion. 24Ms Boniface did not see the plaintiff fall but was told about the accident by another guest. She observed the plaintiff after the accident with frozen peas on her injured knee, but did not talk to her. She went to check on the dance floor which she did by walking around it a couple of times. At the time she did this, she was not aware of where the plaintiff fell or what her explanation was for the fall, namely, that she had slipped on food on the dance floor. 25Ms Boniface gave evidence that she did not see any broken glass, liquid or anything along those lines on the dance floor which would cause her concern at that time. 26When cross-examined, Ms Boniface stated that she wrote an incident report for her general manager by email. When called for, that report was not produced. She made a formal statement to an investigator in 2011 and that statement was produced. 27She acknowledged that the dance floor was a parquetry timber floor and that food would be a slipping hazard to any person dancing on it. She acknowledged that if food and beverage was served to patrons on the dance floor, or if they were observed to be on the dance floor with food or drinks, there would be a failure of the staff to do their job if that activity was not stopped. 28When shown the photographs, exhibits A, D & E, Ms Boniface could not recall the debris demonstrated in those photographs on the dance floor that night. She agreed that with that type of debris demonstrated on the dance floor, there would have had to have been a hopeless dereliction by the staff of their duties. The state of the floor as demonstrated in the photographs was something of which she had no recollection. Had she observed the floor in that condition she would have directed staff to clean it up. She agreed that it would be potentially highly dangerous for patrons for rubbish and debris as depicted in the photographs to remain on the dance floor. 29None of the staff were allocated the job of cleaning the room, including the dance floor. Rather, as staff finished other duties involving delivery of food and beverages, they were expected to clean up rubbish or debris throughout the night. That had not occurred on this occasion. She conceded that if there had been no cleaning up, the staff had not been doing their job as directed. It was further put to her that there was only one big clean up at the end of this evening, on this occasion, based on evidence given to that effect by Mr Gervaise.

Liability 30The defendant submitted that it, whilst being the occupier of the premises, rented the function out for the party that the plaintiff attended. In doing so, notwithstanding that the room contained a dance floor, it was submitted that the defendant had no notice at all as to what was going to occur in the function room that right. The defendant had given instructions to staff to keep a look out for spillages and to act appropriately if they occurred. It was submitted that the extent of the duty of care owed by the defendant in these circumstances was reliant on the terms of the contract for hire of the room, relying on Bevillesta Pty Limited v Liberty International Insurance Co [2009] NSWCA 16. 31Notwithstanding that the function package included the provision of food and beverages, it was submitted by the defendant that there was no evidence that notice was given to it as occupier as to how the function was to proceed. It was submitted that the plaintiff had not established what systems should have been put in place by the defendant, and that the plaintiff had not established that what the defendant in fact did was unreasonable. As the defendant could not have known the purpose of the function taking place, it was submitted that it was not on notice that the dance floor was to be used as a dance floor. 32The defendant submitted, by asking rhetorically, what should it have reasonably done? It had a system in place which was reasonable in the circumstances. 33On the basis of those submissions, the defendant submitted that it had not been negligent in this case. 34I do not accept these submissions. The defendant as occupier had a duty to take reasonable care to avoid foreseeable injury to persons taking care for their own safety on its premises. I do not accept the submission that the scope or content of the duty of care owed by the defendant is determined by the terms of the contract for hire of the function room, nor do I accept that the Court of Appeal's decision in Bevillesta Pty Limited v Liberty International Insurance Co is authority for that proposition. That case concerned an occupier of shopping premises being held liable for injury suffered by a plaintiff who slipped on a squashed orange on those premises. The occupier was liable on the ground that it had changed the contractual requirements with its cleaning contractor from having four cleaners to two cleaners, thereby increasing the time taken for cleaners to cover the public area and exposing members of the public to a greater risk of injury. The occupiers' Appeal to the Court of Appeal was dismissed. Hodgson JA, with whom Gyles AJA and Nicholas J agreed, held that an occupier's duty of care was delegable in the sense that it could be discharged in whole or in part by engaging cleaners to take steps to keep the property safe. At paragraph 53 his Honour said: "Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier's duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming onto the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability." 35In Bevillesta, it was held that the lack of precision as to the terms of the contract on the evidence meant the occupier could not escape liability. The case has no application to the present circumstances. 36I find that the defendant provided food and beverages to guests attending the function from approximately 7pm. That was done by service of both food and soft drinks on platters carried by staff and served to patrons on both the carpeted area of the function room and the dance floor. 37On the basis of Ms Boniface's evidence, I find the system put in place by the defendant was as follows: (1)Staff were instructed that no food was to be served to guests on the dance floor. (2)Staff were directed to ask patrons to leave the dance floor if they were observed to be either eating or drinking there, and to put their food and drink down at their table. (3)Staff were directed to be observant as to the presence of debris on the floor, both in respect of the function room and the dance floor, and along with other duties, to clean the floor surfaces when they observed spillages to take place. 38Applying ss 5B and 5C of the Civil Liability Act 2002, I find that there was a risk of harm to guests attending the function, being a risk of injury by slipping on debris, including food or drinks spilt on the dance floor. In accordance with s 5B(1)(a), I find that that risk was foreseeable, namely, that it was a risk which the defendant knew or ought to have known, and Ms Boniface acknowledged that. In accordance with s 5B(1)(b), I find that the risk was not insignificant, and in respect of s 5B(1)(c), I find that a reasonable person in the defendant's position would have taken precautions against such a risk of harm. I have had regard to s 5B(2) in determining that question, based on the high probability that injury would occur if reasonable care was not taken and the likely seriousness of such harm, namely, that serious injury could occur. The burden of taking such precautions was not high, and the activity creating the risk here, namely, the holding of an engagement party, was an activity within the community which had a social utility. 39I find that the defendant failed to take any of the precautions contained within its own system, as outlined above. I find that food and drink was served to guests within the function room, including on the dance floor, and that no patrons who were eating or drinking were asked to leave the dance floor. I find that there was debris on the floor of the function room, including the dance floor, which included food served by the defendant to the guests and that nothing was done by the defendant to remove it or clean it. 40I therefore find that the defendant breached its duty of care to the plaintiff by allowing food to remain on the dance floor. The plaintiff's injury occurred at approximately 8.30pm, over an hour after food had commenced being served. I do not accept the defendant's submission that the spillage may have occurred just moments before the plaintiff's injury. This would, in my view, be speculative. Rather, relying on the process of probabilistic reasoning referred to by the High Court of Australia in Strong v Woolworths Limited (2012) 86 ALJR 267, I find that the food upon which the plaintiff slipped was spilled sometime between 7.30 and 8.30pm and remained on the floor for the plaintiff to pass over it, and in the process of doing so, I find her foot slipped and that she fell and landed heavily with her left leg tucked under her body. 41By allowing guests to be consuming food on the dance floor and by failing to observe the food on the dance floor and to clean it, the defendant breached its duty to take reasonable care to avoid foreseeable injury to the plaintiff, who was taking care for her own safety. 42Paragraph 8 of the defence to the Amended Statement of Claim pleads as follows: "8. The Second Defendant says that any risk posed by the said slippery and contaminated dance floor or by traversing the said slippery and contaminated dance floor was an obvious risk for the purpose of Part 1A, Division 4 of the CLA and; (a) Pursuant to s 5G of the CLA, the Plaintiff is presumed to have been aware of the risk of harm and; (b) Pursuant to s 5H of the CLA, the Second Defendant did not owe a duty of care to the Plaintiff to warn of the risk and; (c) The plaintiff voluntarily assumed the risk of harm posed by the activity." 43The risk of harm, i.e. the risk of injury by slipping on debris on the dance floor, was not a risk that would have been obvious to a reasonable person in the position of the plaintiff. I am satisfied on the balance of probabilities that the plaintiff was not aware of the risk of harm here, as she was taking reasonable care for her own safety. I therefore find that the defence pleaded by the second defendant pursuant to s 5G and 5H of the CLA is not made out. Further, there is no evidence by which it could be established that the plaintiff voluntarily assumed the risk of harm in this case. 44Further, I find that the activity of dancing on the slippery and contaminated dance floor is not an inherent risk of activity for the purpose of s 5I of the CLA, and the second defendant's reliance on s 5I, outlined in paragraph 9 of its defence to the Amended Statement of Claim is not made out. 45No submission was made by the defendant that in the event that I find breach of duty of care that such breach was not a necessary condition of the occurrence of the harm, i.e. factual causation pursuant to s 5D of the CLA. Applying the "but for" test, I find factual causation in the circumstances here, and I further find that it is appropriate for the scope of the second defendant's liability to extend to the harm so caused to the plaintiff pursuant to s 5D(1)(b) - see Strong v Woolworths, supra, at [18] - [20]. 46There will therefore be a verdict for the plaintiff for damages as assessed below.

DAMAGES 47The plaintiff was born on 28 May 1981. She left school after grade 5 and was illiterate. She thereafter worked with her father who had a roofing business which involved restoration of tiled and metal rooves on residential buildings. From age 12 she assisted her father by operating the machines involved in that business, but from age 14 or 15 she carried out physical work with him on roofs. She continued to do so until she was 19 years of age. 48In 2001 she married and by 2003 she was separated with three children. They are now aged 10 years, 9 years and 5 years. She had taken time off work after the birth of her first child, but went back to work doing office work before her second child was born. That office work involved her answering phones and writing down names and addresses. She did not work thereafter on a roof in that business as her father had an accident and suffered a serious back injury. She had thereafter worked part time for her uncle in a similar business. She had not in fact worked since 2007, however, it was her evidence that she intended to work, but for her injury, when her third child turned one year old in August 2008. She intended to return to work part time, but eventually resume full time work as a roofer. She had been offered work in her uncle's business when she was able to return to work. 49It is not in issue that the plaintiff sustained a full thickness tear of her ACL for which she was treated by her GP, Dr Saad and she initially had some physiotherapy at Blacktown Hospital. She was referred first to Dr Fox, Orthopaedic Surgeon, to discuss surgical repair and later came under the care of Dr Hoe, who recommended an ACL reconstruction. She was placed on a waiting list but has declined the surgery on no less than three occasions. On the first, she said it was at Christmas time and she no one to look after her children. On the second occasion her reason for not proceeding with the surgery was that her father had recently undergone carpal tunnel surgery and that would have interfered with the childcare arrangements that she had in place. On the third occasion, she said that she was too scared to get it done. The reason that she was frightened about the surgery was she stated: "If it doesn't go right, my knee will be stuffed and there will be no one to look after my children." 50Whilst her left knee was not now as painful as it had previously been, it was never pain free. After the accident it was very swollen and still does swell up from time to time. The knee makes a clicking noise, and is unstable. The plaintiff gave evidence that she limped all the time and had difficulty crouching or squatting and could not kneel. She stated that her knee twists easily and if she hurts it, then it gets worse. She could not climb a ladder and could not work on a roof where she would be required to have one leg higher than the other. 51The injury had made her depressed and subject to mood changes. She described herself as being upset "all the time". 52It was the plaintiff's case that she was now completely unemployable, that she required assistance with housekeeping and domestic tasks and would require care into the future. In addition, she claimed both past wage loss and future economic loss to age 67 years. 53The plaintiff tendered a schedule of damages (exhibit K). The following table compares the plaintiff's claims outlined in that schedule, with the defendant's position: Description of the Head of Damages Plaintiff's Claim Defendant's Position Non-economic loss $160,500.00 $35,000.00 Treatment Expenses $1,995.00 $1,995.00 Future Treatment Expenses $20,000.00 Past Care $74,304.00 Nil Future Care if paid $279,944.00 Future Care - gratuitous $181,963.00 Past Dependent Care $86,688.00 Nil Future Dependent Care $50,000.00 Past Economic Loss $41,600.00 (i) From 1/1/09 @ $400 per week for 2 years $94,400.00 (ii) $800 per week from 1/1/11 Future Wage Loss $372,130.00 Past Super @ 11% $14,960.00 Future Super @ 14.21% $52,879.00

54The defendant's case was that there was no evidence supporting the plaintiff's case for past care or assistance with her children. The only evidence in respect of her claim for care for the children came from the plaintiff's mother, Mrs Gaskin. It was submitted that Mrs Gaskin's evidence was exaggerated, for example, her evidence that the plaintiff was "drugged out on medication" and her evidence that the plaintiff could not take the children to school, to basketball or to a swimming carnival. I accept that there was an element of over-embellishment in Mrs Gaskin's evidence, arising from an overprotective nature in respect of her daughter. 55An issue in the case concerned the plaintiff's refusal to have surgery offered to her and whether that amounted to a failure to mitigate her damages. The first question is whether her refusal to undergo the surgery was unreasonable. In a letter dated 27 June 2008 from Dr Saad to Dr Hoe, Dr Saad recorded that the plaintiff had been seen by Dr Fox who declined to offer surgery. In her report dated 7 September 2012 Dr Saad stated that Dr Fox was unable to carry out the surgical repair as the plaintiff could not afford private treatment. Dr Saad reported that the plaintiff had told her that she had temporarily declined any surgery as there was no one able to care for her and her three young children if she was to undertake any necessary surgical procedures. 56I find that the real reason why the plaintiff has refused the surgery is that she is scared of having a poor outcome. I find that this is an unreasonable position for her to take, given that she will remain significantly disabled without surgical repair of her ACL and will be susceptible to ongoing pain and instability in the joint which will cause her much disability into the future. By comparison, the surgery is relatively safe, with the majority of patients doing well following the procedure, according to Dr Pillemer in his report dated 29 May 2012, a report relied on by the plaintiff. It was Dr Pillemer's opinion that it is "essential" that the plaintiff undergo surgical treatment for her injury. 57Dr Hoe, in a report dated 21 July 2012, stated as follows: "Mrs Hobby's left knee is likely to remain unstable without surgical intervention. Surgery has been recommended. Following that surgery, she is unlikely to be able to look after children for approximately 3-4 weeks. She may require assistance from family members. Following the surgery I would expect a return of close to normal function of her left knee." 58In a report dated 14 February 2012 Mr Gerard Glancey, psychologist, noted that the plaintiff reported anxiety associated with the surgery and with the anaesthetics involved in such surgery. She also reported anxiety related to the prospect of an undesirable outcome to surgery. Mr Glancey was of the opinion that treatment by a psychologist for six consultations may assist with the anxiety she suffers associated with the surgery. 59I prefer the evidence relied on by the plaintiff referred to above to that of the report of Dr Peter Burke dated 12 December 2011 relied on by the defendant. Dr Burke diagnosed an "apparent rupture of the anterior cruciate ligament of the left knee", and stated: "Clinical examination does not confirm such an injury." He went on to state that, in his view, further surgery was not indicated. 60In respect of the plaintiff's claims for past and future economic loss, the defendant submitted that there was no evidence that the plaintiff had worked since 2003. The evidence that she had worked for her uncle, following her father's injury, was vague, and not supported by contemporaneous documentation. It was submitted that Part 15, Rule 12 of the Uniform Civil Procedure Rules imposes an obligation to provide documentary evidence including tax returns for a period of two financial years immediately before the injury was suffered. Part 15 Rule 12 does oblige a plaintiff in a claim for damages for personal injuries to serve with the claim and statement of particulars documents supporting a claim for economic loss, see Rule 15.12(2), (5) and (6). Rule 15.12(7) provides that if such documents as are required cannot be served, "a statement of the reasons why it cannot be served must be included in the documents served". The plaintiff has failed to comply with that Rule here. 61Further, notwithstanding that the plaintiff was served with a subpoena requiring her to produce her tax returns, no documents have been produced and the plaintiff tendered no evidence that she worked after 2003. The plaintiff gave somewhat unsatisfactory evidence that all of her wage details had been taken care of by her uncle, that he was out of the jurisdiction on holiday in Hawaii and no explanation was provided as to why she did not obtain the documents from him before he left. Further, the plaintiff told Dr Burke that she had ceased work at aged 23 years, which would have been sometime in 2004, following her father's accident. 62Further it was submitted that her mother's evidence, where it was suggested that prior to the accident the mother did little to assist in the care of her children, gave rise to an inference that the plaintiff was not working for a considerable period of time prior to the accident. 63The defendant further relied on exhibit 4 in the proceedings which demonstrated that she received fortnightly payments from CentreLink for a period of time in 2007. 64The defendant submitted that the reality was that the plaintiff was not working for some years prior to the accident, and that whilst her children were young, there was no real prospect of her returning to any paid employment. For the future, the defendant submitted that the Court would have regard to the need for her to undergo surgery, and award at best a very modest cushion for diminished earning capacity. 65With respect to past gratuitous care, the defendant submitted that there was no evidence that the plaintiff required any such care and that there was no evidence that she required assistance with her children. In respect of the future, the evidence suggested that the plaintiff may need some assistance with heavier aspects of her domestic duties. 66The plaintiff's assessment of damages for non-economic loss involves an assessment of 32% of a most extreme case pursuant to s 16 of the CLA. There is no doubt that the plaintiff sustained a significant injury, and that it has had a considerable impact on all of her domestic activities. 67The plaintiff has submitted that she exceeds the threshold pursuant to s 15 of the CLA for domestic care and assistance, and requires 26 hours per week. Whilst it was submitted that the plaintiff's mother's evidence was "a bit over the top", that evidence did corroborate the plaintiff's inability to carry out domestic chores and was important corroborative evidence. For the future, the plaintiff submitted that 7 hours was a reasonable assessment of the plaintiff's need for paid assistance at a rate of $40 per hour and that her medical evidence supported that claim. 68The plaintiff further submitted that she was entitled to past care relating to her children, based on 14 hours per week. For the future, a claim was made for a lump sum of $50,000 for such dependent care. 69The plaintiff's claim for past wage loss was based on her working first for a period of two years on a part time basis at a rate of $400 per week. Thereafter, as her children reached school age, her loss was at a full time rate of $800 per week. The plaintiff's case was that she was completely unemployable, however, given that the sort of work that she was doing was "high risk", she would not be doing that work into her sixties. Her claim was therefore calculated at a rate of $500 per week over her working life to age 67. Past superannuation was claimed at 11%, whilst future superannuation was claimed at a rate of 14.21%. 70Having considered all of the evidence, I make the following assessment of damages. For non-economic loss, given the severity of the injury to the plaintiff's left knee and the need for surgery, and having regard to the impact that it has had on all of her domestic activities, I assess the plaintiff's claim for non-economic loss at 28% of a most extreme case, pursuant to s 16 of the CLA. Having regard to the table in s 16, that would result in an award of 14% of the maximum amount, namely, $75,000.00. 71I note treatment expenses are agreed in the sum of $1,995.00. It is also agreed that the plaintiff should be awarded future treatment expenses, having regard to her need for surgery. The cost of that surgery will be in the region of $8,000.00, according to the evidence of Dr Pillemer and Dr Conrad. In addition, the plaintiff will require therapeutic physiotherapy treatment and psychological treatment, according to the evidence of Mr Glancey. She will also require medication from time to time in the future, particularly following the surgery. I therefore allow the sum of $15,000.00 for future treatment expenses. 72I do not accept the evidence of the plaintiff's mother in respect of her need for past gratuitous care. However, given the significant ongoing problems that she has suffered with the instability of her left knee, I am satisfied that the plaintiff has met the threshold for such gratuitous attendant care services in s 15(3) of the CLA. Whilst her need for such assistance was greater for the year or so immediately following her injury, on average, that need was in the order of 14 hours per week. At a rate of $25 per hour I have assessed the appropriate award over a period of 5 years since the accident and rounded it off at $90,000.00. Further, I find that the plaintiff has established a claim pursuant to s 15B for gratuitous assistance provided to assist her in looking after her young children and that the threshold in s 15D(2)(c) has been met in respect of such services. I assess the plaintiff's claim at 7 hours per week over the 5 year period and have rounded it out to $45,000.00. 73For future care, I find that the plaintiff will require 7 hours care per week and that $40 per hour is a reasonable commercial rate for that care. However, provided the plaintiff has the recommended surgery for reconstruction of her anterior cruciate ligament, she will not require that care for the rest of her life and I award it for a period of 10 years only. I have rounded that award off to $145,000.00. 74As the plaintiff's children reach school age and require less intensive care from her on a daily basis, I find that the need for dependent care will diminish. I find that it is an appropriate case to award a lump sum for such care and I award the sum of $30,000.00 for that head of damages. 75With respect to the plaintiff's claim for past wage loss, I find that the plaintiff had not worked for some five years prior to the accident, and given that the youngest child was still a baby at the time of her injury, she would not have worked in any capacity until that child had commenced school. I therefore decline to make an award for past wage loss for the plaintiff. 76Section 13 of the Civil Liability Act 2002 provides as follows: "Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 77The section is in the same terms as s 126 of the Motor Accidents Compensation Act 1999. It is well settled that the section may be satisfied by the award of a lump sum by way of a "buffer" - see Macarthur District Motorcycle Sportmen Inc v Ardizzone [2004] NSWCA 145, Penrith City Council v Parks [2004] NSWCA 201. However, the section imposes a requirement on the plaintiff to satisfy the Court that the assumptions about future earning capacity on which an award is to be based accord with the claimant's most likely future circumstances, but for the injury - see Kallouf v Middis [2008] NSWCA 61 at [55] - [57]. Thus, the Court is required to be satisfied on the probabilities that a loss will be suffered, notwithstanding that a precise calculation cannot be made - see Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244 at [33] - [40] referring to Pollard v Baulderstone Hornibrook Engineering Pty Limited [2008] NSWCA 99 and Nominal Defendant v Livaja [2011] NSWCA 121 at [39] - [40]. 78The plaintiff's claim for future loss of earning capacity is somewhat complex. She is uneducated, and has relied on her physical capacity to carry out high risk but unskilled work, which has been made available to her by her father or uncle. To that extent, her capacity for work has not been tested on the open market for labour. I find, pursuant to s 13 of the CLA that her most likely future circumstances, but for the injury, would have been a return to work in her uncle's roofing business once her children reached school age, and that that would have been on a part time basis. I am not persuaded that she would have returned to work full time and further, I am satisfied that she would not have continued doing this type of work for the whole of her working life. 79The adjustment required pursuant to s 13(2) of the CLA involves an assessment of the percentage possibility of the assumption made about her future earning capacity by reference to events that might have occurred, but for the injury. Here, an adjustment has to be made by reference to the imprecision with which the plaintiff has presented her case on economic loss. She relies on no contemporaneous record of wages of salary, and there are no taxation returns supporting her claim. In Matar v Jones [2011] NSWCA 304, the Court of Appeal held that failure to comply with taxation legislation is a matter that goes to credit, although evidence of earnings not disclosed to the Commissioner for Taxation may be taken into account, subject to reduction for income tax that should have been paid. That is not the case here where there is no evidence of any earnings by the plaintiff. 80Given that the plaintiff's prospect of return to any work is a low probability, this is an appropriate case for an award of a lump sum representing her inability to compete with able bodied persons on the open marketplace for labour. However, having regard to the various matters set out above, I assess the plaintiff's future loss of earning capacity as a lump sum of $30,000.00, including any lost future superannuation entitlements. 81I therefore assess the plaintiff's claim as follows: Non-Economic Loss $75,000.00 Treatment Expenses $1,995.00 Future Treatment Expenses $15,000.00 Past Gratuitous Care $90,000.00 Past Dependent Care $45,000.00 Future Gratuitous Care $145,000.00 Future Dependent Care $30,000.00 Future Diminished Earning Capacity $30,000.00 Total $431,995.00

Contributory Negligence 82Whilst the defendant pleaded a defence of contributory negligence, no submission was made supporting that pleading. In the circumstances in which the plaintiff was injured, I find that she did not, at all, contribute to her own injuries, and therefore there should be no deduction from her damages for her own contributory negligence.

Conclusion 83I therefore find that there will be Verdict for the Plaintiff in the sum of $431,995.00.

Orders 84I make the following Orders: (1)Verdict and Judgment for the Plaintiff in the sum of $431,995.00. (2)That the Second Defendant pay the Plaintiff's costs of the proceedings. (3)Exhibits to be returned forthwith. (4)Parties have Liberty to Apply on seven days notice in respect of any special order for costs. 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: 09 May 2013