Rebecca Nemeth v Westfield Limited & P T Limited

District Court of NSW|2012-04-30|Before: Judge P

The Plaintiff's Claim 1The plaintiff claims damages for personal injury suffered by her in a fall at a car park which formed part of the premises managed by the first defendant and owned by the second defendant on 16 July 2009. 2At the commencement of the hearing the defendants admitted liability for the plaintiff's injuries, but pursued their defence of contributory negligence.

The Plaintiff's Background 3The plaintiff was born on 17 January 1975 and therefore was 34 years of age at the time of her injury and is now 37 years of age. She is a married woman with one child, Maddison, born on 24 January 1996. 4The plaintiff had a history of depressive illness following the birth of Maddison when she suffered post-natal depression. Since that time she had been under the care of Dr Heather Tucker, psychiatrist, and had been diagnosed with panic disorder, obsessive-compulsive disorder, and at times with major depression. She had been prescribed medication known as Efexor which she took from time to time at a dosage of 75 mg daily. 5The plaintiff married her husband, Robert, on 17 May 2003. She had left school following year 10 in 1990 and had worked in a number of sales assistant positions both before and after the birth of Maddison. She had completed a TAFE course in retail in 1994. In 1999 she completed a TAFE course in Office Administration and thereafter worked in several administrative positions between 1999 and 2004. From 2004 she was employed as a bookkeeper/office manager by Noppen Air Pty Limited. She worked there until May 2010.

The Plaintiff's Injury and Treatment 6The plaintiff attended the defendants' shopping centre at between 6 and 6.30pm on 16 July 2009 with her husband, her daughter and her niece, Emma. Her husband parked their car, following which they commenced to walk towards the door which led into the shopping centre. It was dark and the plaintiff gave evidence that the lighting was poor. As they walked towards the door to the escalator the plaintiff placed her left foot on a speed hump which is shown in the photograph marked Exhibit A. She was wearing sneakers, and her left foot caught on a rubber strip attached to the speed hump. When her left foot got stuck she placed her right foot into a drainage gully or trench, causing her to fall to the ground, landing on her left knee and both hands. 7The plaintiff suffered a fracture of the tip of the right lateral malleolus. She consulted her local medical officer, Dr Abi-Hanna, the following day and was sent for an x-ray which confirmed the fracture. Despite early optimism by Dr Abi-Hanna and a prognosis of complete recovery, she continued to consult him throughout 2010 and was referred on 25 November 2010 for a MRI of her ankle. Previous radiological studies, including a CT scan, had demonstrated an un-united avulsion type fracture of the right ankle and an ultra sound on 15 January 2010 had revealed some thickening of the talofibula ligament. The MRI of her right ankle and foot taken on 15 December 2010 revealed a normal ankle joint and intact lateral collateral ligament and peroneal tendons. 8The plaintiff was referred to Dr Y Liaw, orthopaedic surgeon, who examined her on 18 May 2011. His examination revealed that she walked with a normal gait but had difficulty performing tip-toe walking on her right foot. She was tender over her right ankle lateral collateral ligament and over her peroneal tendons. There was evidence of generalised laxity. Dr Liaw diagnosed chronic right ankle pain associated with subtle instability of her ankle joint and recommended physiotherapy. In his opinion, her prognosis was guarded and she was likely to have ongoing ankle pain. At the hearing the plaintiff was wearing a Cams Walker Boot which she said had been prescribed for her use for a period of six weeks.

The Evidence 9Evidence was given orally by the plaintiff and her husband, Robert Nemeth and by Ms Deborah Hammond, an occupational therapist qualified on behalf of the defendants. Otherwise both parties relied on documentary evidence including medical reports, however, no doctors were required for cross-examination. 10The plaintiff gave evidence of the circumstances in which she was injured, as outlined above. She was off work for one month following the accident and when she returned to work on 17 August 2009 she was on unrestricted duties. Her job did not involve much walking around, however, she had difficulty for a short period of time ascending and descending two flights of stairs at her workplace, which she managed by going up and down on her bottom. She suffered a temporary aggravation to her ankle injury whilst on a family holiday in Orlando, Florida, when her elderly mother struck her ankle with a powered scooter she used for mobility. She noticed that at the end of a working day her right ankle was sore and throughout 2009 and early 2010 her right ankle remained swollen. She had some treatment by way of physiotherapy and took Neurofen and Panadeine for pain relief. 11The plaintiff gave evidence that, notwithstanding her psychological problems, pre-accident she led an active lifestyle which included working full time, looking after her family, looking after the family home which involved attending to all of the interior domestic chores, and also engaging in active recreational activities including water skiing, kung fu and attending the gym. 12Since the accident the plaintiff has been unable to engage in any of these activities which has led to an increase in her weight from approximately 70 kilograms to 115 kilograms, and aggravation of her psychological condition which has led to her dosage of Efexor being increased from 75 mg per day to 150 mg per day. 13The plaintiff left her employment with Noppen Air Pty Limited in May 2010 when she and her husband decided to move to Port Macquarie and to purchase a business known as Cold Rock Icecreamery. They purchased a home in Port Macquarie and both worked in the business from May 2010 until March 2011. At that time the plaintiff obtained an administrative position with a local company, Fairclough & Reynolds, where she worked for a few months, before obtaining employment at a call centre employed by Essential Energy. She worked there until September 2011 and has been unemployed since that time. The business, Cold Rock Icecreamery, failed and was closed down in February 2012. Her husband now works as a removalist. 14The plaintiff gave evidence that she noticed that she walked at times with a limp whereby she favoured her right ankle. She also noticed pain in her left knee in 2010, although that was now not a problem. In December 2011 she noticed pain in the back of her right leg, approximately 5 cm above her heel, which led to her having an MRI of her lower right leg which showed no abnormality. 15The plaintiff's main complaints were that her ankle was never pain free, although the pain varied from a dull pain to a burning sensation. She felt the stability of her left ankle was not very good at all but that her injury had now stabilised. She has not had physiotherapy since early 2011. In addition to the pain, the plaintiff gave evidence that she could not crouch or squat, and had difficulty kneeling down. As a result, both before and after the family moved to Port Macquarie, she had been unable to attend to any domestic chores which she formerly did and now relied on her husband and daughter to assist her in heavy cleaning, including bathrooms, cooking, washing clothes and shopping. She gave evidence that her husband and daughter spent on average seven hours per week attending to domestic chores that she formerly did. A complication was that the house was not cleaned to a standard acceptable to the plaintiff and that this led to constant fighting with her husband Robert. For that reason, the plaintiff gave evidence that she would definitely pay money for domestic assistance if it was provided to her by way of these proceedings. 16The plaintiff gave evidence that she had become short tempered, stressed and unhappy and that that affected her relationships with both her husband and daughter. Because of the injury to her left ankle, the type of footwear she could wear was now reduced to thongs or sneakers, and that she was not able to now wear high heels. 17The plaintiff was cross-examined about the circumstances of the accident. It was put to her that if she had been paying attention to where she was walking she would have seen the rubber strip, to which she replied she could not see the rubber strip because of the poor lighting. She disagreed with the proposition that she was talking to her children and not looking where she was going. That question arose from an incident report (Exhibit 4) in which the plaintiff had given a verbal account as follows: "I was walking and talking to my children when I twisted my ankle in the gap ..." 18The plaintiff agreed that she had returned to work with Noppen Air Pty Limited on 20 August 2009 and continued to work for that company until May 2010 with no loss of income. During that time the condition of her ankle improved slightly. The plaintiff was challenged as to her evidence that she was unable to carry out household activities including cooking a meal, cleaning and washing. 19In respect of her business at Port Macquarie from May 2010, the plaintiff gave evidence that she worked five days per week usually between 11am and 5 or 6pm, but that on occasions she would work up to 12 hour shifts if other staff did not come in. Her work involved her being on her feet 70% of the time. She agreed that she had good movement of her ankle joint, but that she suffered right ankle pain which was worse in cold weather. The plaintiff was challenged as to various histories she gave to both her treating doctors and those qualified by her solicitors and those of the defendants. She said that the pain in her ankle did not occur all of the time and was brought on by walking or by some movements in bed. She took Neurofen a couple of times per week for pain. 20The plaintiff was cross-examined on the basis of a clinical record on her attendance on a dietician on 2 May 2011 (Exhibit 5). She conceded that she had weight problems for many years and that she had put on 15 kilograms since moving to Port Macquarie. She gave evidence that her weight prior to the accident had been approximately 75 kilograms and that she had been restricted in walking to a distance of 500 metres. She was crossexamined about her eating habits and gave evidence that she did not think she had a problem with consumption of confectionery. 21The plaintiff was cross-examined on various aspects of the history she had given to Drs Tucker, Drew and Liaw in respect of her capacity to walk, and her inability to traverse uneven ground such as rocks or gravel roads. It was put to her that her injury had no limiting effect on what she could do in terms of not only her work, but also the various domestic activities in respect of which the plaintiff claimed she was restricted. For example, it was put to the plaintiff that she could use a vacuum cleaner and vacuum one room at a time, to which she agreed. She could also do cooking with regular breaks. The evidence the plaintiff gave of an estimate of seven hours per week domestic assistance provided to her by her husband and daughter was challenged, and the plaintiff gave evidence that she timed these activities over a two week period some time in 2011 at the request of her solicitors. She agreed that she could do a number of domestic chores including making beds, doing her own washing and using a vacuum cleaner, together with cooking meals for herself. It was put to her that she had told Dr Schutz on 4 April 2011 that she could do all of her housework, to which she replied "sometimes I can". It was then put to her that her husband and daughter only assisted her when she was unable to do these things herself, to which she replied that they did it when she told them to, and that that occurred every day. 22The plaintiff was cross-examined as to her assessment by an Occupational Therapist, Ms D Hammond, qualified by the defendants' solicitors on 31 October 2011. The plaintiff was then shown video exposed of her on 22 February 2012, 19 February 2012, 20 February 2012 and 21 February 2012, in that order ("Exhibit 1"). The video showed her working at the Icecreamery in Port Macquarie, working in or about the shop premises and on the last occasion, leaving the shop and walking to her car. The plaintiff was asked a number of questions about the activities that she was shown engaged in during the video, however, none were inconsistent with her evidence, and in fact the plaintiff was shown to be limping on at least one occasion and favouring her right leg. 23The plaintiff was also challenged about her usage of the anti-depressant Efexor both before and after her injury. Her evidence was that, notwithstanding her GP had at one stage prior to her accident increased the dose of Efexor, she was fearful of using the medication and had sought a second opinion from Dr Tucker, her psychiatrist, about the recommended increased dosage and had not had the prescription filled. 24Finally, the plaintiff was shown her application for employment to Fairclough & Reynolds, which became Exhibit 2 in the proceedings. She conceded that the contents of her letter of application and the attached CV, which stated that her "passion lies in an office environment", and emphasised her employment since 2001 in management and bookkeeping duties, was stated to her "best advantage". 25The plaintiff's husband, Robert Nemeth, gave evidence that notwithstanding her psychological history, prior to the accident, the plaintiff was coping emotionally and had a personality that was "fun and bubbly". She was a very active person and did all of the interior household chores whilst he attended to the lawns and garden maintenance. 26Mr Nemeth described the car park where the plaintiff fell on 16 July 2009 as being "very dark" and was not challenged on that evidence. 27Since the accident, Mr Nemeth gave evidence that the plaintiff's mobility was retricted, that she had become very lethargic and that she was not as outgoing as she had previously been. According to him, the plaintiff had put on weight and become very moody. As far as the move to Port Macquarie was concerned, he stated that they both worked in the business that they purchased, but that she could sit down to rest whilst he served the customers. Since the accident he had attended to all of the floor cleaning, the cooking and assisted in the shopping, as her mobility was not as good as it had been, and he wanted her to rest so she was not in pain. He stated that the family intended on staying in Port Macquarie. 28Mr Nemeth was cross-examined about the various cleaning tasks that he attended to and said that he did vacuuming of the house once per week, although the living area was vacuumed every second day. This would take 10 to 15 minutes, whilst the whole house took one hour to do. He did the bathrooms weekly which took one and a half hours. The majority of the housework was carried out on Sunday and that it took four to five hours, although it did vary. Mr Nemeth also gave evidence that he did all of the shopping with his daughter and that the plaintiff was involved in that on very rare occasions. Mr Nemeth gave further evidence that the plaintiff tried to do things around the house, although he would tell her not to, because he was concerned about the after effects of such activity and in particular, her complaints of the pain to her right ankle. 29The defendants called Ms Deborah Hammond, an Occupational Therapist, to give evidence. She had provided a report dated 3 November 2011 following an assessment by her of the plaintiff undertaken at the plaintiff's residence in Port Macquarie over a period of two hours on 31 October 2011. The report was relied on by counsel for the defendants to challenge various aspects of the plaintiff's evidence, particularly in respect of her ability to carry out domestic activities, and whether she required assistance in doing so. Those matters were conveniently contained in a table appearing on page 17 of her report which listed in three columns the various tasks undertaken, the pre-injury responsibility for those tasks and the "current responsibility" in respect of carrying out those tasks. Ms Hammond gave evidence in chief that she relied on the plaintiff for the information contained in the table. She confirmed her methodology in the assessment as it was outlined in paragraph 1.2.2 of the report at page 6. 30Ms Hammond was cross-examined by Senior Counsel for the plaintiff, in particular as to the methodology used by her. For example, Ms Hammond advised she relied on the self-reporting of functional aspects by the plaintiff contained in Appendix B to her report at page 32. That document demonstrated that the plaintiff had reported that she had moderate difficulty performing heavy activities around her home. Ms Hammond conceded that she had not asked the plaintiff to demonstrate her ability to do some of the heavy domestic chores such as sweeping, mopping or vacuuming. Ms Hammond conceded that the content of the table on page 17 of her report did not involve a transcript of the plaintiff's self-report, but rather, her understanding of what the plaintiff was capable of doing. She gave evidence that she took into account, in forming her conclusions, not only the plaintiff's self-reporting, but the medical evidence with which she was qualified. 31Ms Hammond was also challenged as to her expertise in assessing earning capacity, however, she gave evidence that she had training as an Occupational Therapist in occupational rehabilitation. She would not have recommended any job for the plaintiff involving walking and standing. She disagreed with the proposition that there would be lots of jobs that the plaintiff could not do and it was put to her that she had ignored the plaintiff's history of work as a shop assistant in suggesting she was suitable for sedentary work. Ms Hammond conceded that she did not have requisite knowledge of the job market in Port Macquarie and that she would get a job market analysis carried out if asked to comment on that. 32Ms Hammond disagreed with the proposition that she did not discern between conflicting medical opinions, nor did she do anything to test what the plaintiff told her. For example, she asked the plaintiff no questions about the opinions expressed by Dr Drew or in respect of the matters claimed by her in her statement of particulars. 33Ms Hammond had no notes of her conversation with the plaintiff at the time of the assessment, but stated that she used evidence-based tools in coming to the conclusion expressed in the table on page 17. Ms Hammond disagreed when it was put to her that the plaintiff had told her that she was obtaining substantial help from her husband and daughter in terms of the domestic activities carried out at their home. No evidence was given by the plaintiff in Reply to support that proposition

Plaintiff's Medical Evidence 34The plaintiff's Medical Evidence contained in Exhibit C included two reports from Dr Abi-Hanna referred to above. As at 15 February 2011, his opinion was that the prognosis was guarded "as symptoms have persisted for over a period of more than one year since injury". The plaintiff's orthopaedic surgeon, Dr Y Liaw, provided a report dated 9 August 2011, having first examined the plaintiff on 18 May 2011. At that time she had intermittent pain in her right ankle, especially after prolonged walking and also in cold weather. She complained of difficulty walking on uneven ground, hanging washing due to the uneven surface, had difficulty standing on tip-toes, could not crouch and had difficulty sitting with her legs crossed due to right ankle pain. She also complained of intermittent swelling of the ankle. 35Dr Liaw stated that on examination she walked with a normal gait, was tender over the right ankle lateral collateral ligament and over her peroneal tendons. There was evidence of ligamental laxity. Dr Liaw's diagnosis was one of chronic right ankle pain associated with subtle instability of the ankle joint. He was hopeful, with physiotherapy, the plaintiff's ankle pain will settle, but otherwise her prognosis was guarded and she was likely to have ongoing ankle pain. 36The plaintiff in fact had not had physiotherapy since early 2011. 37The plaintiff was examined for medico-legal purposes by Dr Bodel, orthopaedic surgeon. Dr Bodel found that the plaintiff had ongoing pain, stiffness and instability in the right ankle as a consequence of the avulsion fracture she suffered on 16 July 2009. In respect of the need for past and future domestic assistance his opinion was as follows: "For the first four months after the injury she would have required six hours domestic assistance per week as a consequence of the injury and the immobilisation in a cast and in a boot and after that she requires two hours domestic assistance per week as a consequence of the persisting pathology." 38Dr Bodel was further of the opinion that a surgical stabilisation procedure and arthroscopy are clinically indicated at a cost in the order of $8,000 to $10,000. In a further report dated 11 January 2012, Dr Bodell changed his opinion as to the nature and extent of the injuries suffered by the plaintiff by stating: "This lady has suffered a lateral ligament injury to the region of the right ankle as a consequence of the circumstances of injury described above." At the time of that report the plaintiff was working 30 hours per week in customer service work in Port Macquarie and was coping with that. Dr Bodell was of the opinion that she required domestic assistance at the rate of three hours per week as a consequence of the injury. In respect of future treatment, he stated: "At this stage she has seen a number of doctors and surgical stabilisation has not recommended" (sic) I would agree that it is not indicated on the basis of her current clinical presentation but she does require some intermittent analgesic medication." 39Dr H Drew provided a report dated 22 July 2011. At the time of his examination, the plaintiff complained of persistent pain below the right ankle, over the lateral side of the foot and sometimes across the dorsum of the foot, which wakened her during the night and felt stiff in the mornings. There had been no improvement over the last 12 months and she was no longer able to run or water ski. Dr Drew took a history that: "Much of the housework is done by her husband and daughter and Mrs Nemeth says she feels no need for domestic assistance." 40Dr Drew is of the opinion that the plaintiff would have difficulty with any work which required her to be on her feet for much of the time or which required frequent use of steps or stairs. 41In Dr Drew's opinion the plaintiff did not need domestic assistance (page 3 para 4) and little improvement was expected in the foreseeable future. Her persisting pain raises the possibility of a complex regional pain syndrome or undiagnosed joint damage, however, he reached no conclusion as to either provisional diagnosis. He stated that the plaintiff may require physiotherapy for a period of six to twelve months at a cost of $5,000 and referred to the possibility of surgical removal of the bony fragment, but deferred to her orthopaedic surgeon's opinion as to the need to such procedure. 42In respect of her psychological state, the plaintiff relied on a report from her treating psychiatrist, Dr Tucker, dated 16 November 2010. Dr Tucker noted that the injury to her ankle meant that the plaintiff's exercise capability was limited and that had not helped her mood or her weight. The plaintiff had a fear of exercising, and a fear of not exercising, and the weight she has gained also adds to these fears. Dr Tucker stated that despite her anxiety, the plaintiff had not allowed the injury "to rule her life". Dr Tucker further noted that the plaintiff's medication was Efexor 150 milligrams daily and Diazepam 2.5 - 5 milligrams daily prn for severe anxiety. While somewhat outside the area of her specialty, Dr Tucker believed that physiotherapy would be of further value to her in terms of restoring confidence, strengthening her ankle and helping to regain her exercise capacity, which had been considerable. 43The plaintiff relied on two reports of a medico-legal nature from Dr T Clark, Psychiatrist, dated 14 April 2011 and 18 January 2012. In the first of those reports Dr Clark diagnosed severe depression, being a "Major Depression (first episode, currently depressed with prominent associated anxiety features including panic attacks with agoraphobia)". He went on to state that there was "no obvious organic cause for her psychiatric condition". However, the psychiatric history taken by him, whilst recording her treatment by Dr Tucker, does not refer to her post-natal depression, nor her obsessive compulsive disorder. In his second report, Dr Clark diagnosed a major depressive disorder, again as a first episode.

The Defendants' Medical Evidence 44The defendants' medical reports (Exhibit 3) included the report of the MRI scan dated 15 December 2010 which showed no ligamentous tear and no cause for hind foot pain. In a report dated 5 April 2011, Dr Lucas, Muscular Skeletal Radiologist, commented on the various radiological studies, including the MRI scan of 11 December 2010 and opined "The imaging series shows evidence for a sprained ligament which appeared acute on the study from 17 July 2009 given the soft tissue swelling. The subsequent imaging shows the natural progression of this ankle sprain. There are no complicating features such as significant scarring or synovitis or evidence of an osteochondral injury of the talus or other internal derangement of the ankle". 45The defendant relies on a letter from Dr Liaw to the plaintiff's treating GP dated 18 May 2011 following his first examination of the plaintiff. An MRI of the right ankle dated 6 April 2012 showed no significant alteration in the findings compared to the MRI scan in December 2010. 46The plaintiff was examined by Dr Schutz, Consultant Surgeon, on behalf of the defendants, who provided a report dated 12 May 2011. He was of the opinion that the injury had healed without complication and that full recovery was anticipated to occur "possibly over several years". Dr Schutz was of the opinion that functional recovery had occurred but that the plaintiff was still suffering symptoms associated with prolonged walking and standing. He was of the opinion that the plaintiff had a need for domestic assistance of around six hours per week following the injury for a maximum of two months followed by diminishing need over the next month. 47The defendants relied on a report of Dr Eli Revai, Psychiatrist, dated 19 April 2011 in which he opined that the plaintiff had a pre-morbid history of panic disorder, obsessive compulsive disorder and major depression, but that her symptoms were not aggravated by the fall the subject of these proceedings. 48The defendants also relied on the report of Ms Hammond, Occupational Therapist, referred to above. Ms Hammond's opinion that the plaintiff's requirement for domestic assistance amounted to six hours per week for eight weeks following the injury was the subject of cross-examination and her evidence is referred to in paragraphs 29 to 33 above.

The Parties' Submissions 49Counsel for the defendant provided a written outline of the defendants' submissions on damages, together with a Schedule of Damages. Those submissions were supplemented by oral submissions in which he attacked the plaintiff's credit, submitting that every written record tendered in the proceedings contradicted the plaintiff's evidence. Examples relied on in support of that submission were the clinical records relating to the assessment of the plaintiff by a dietician on 2 May 2011, together with various histories taken by doctors qualified on behalf of both plaintiff and defendants. These inconsistencies, it was submitted, amount to a magnification by the plaintiff in respect of the extent of the disability arising from her injury such that I would not accept the plaintiff's complaints to the various doctors nor her evidence without reservation and circumspection. I do not accept this submission for the reasons set out by Basten JA in Mason v Demasi [2009] NSW CA 227 at para [2] to [4]. Further, it is clear that the written records comprising the plaintiff's treating doctor's clinical notes (Exhibits 5 & 6) and the plaintiff's treating doctors' reports substantially support the evidence given by the plaintiff rather than contradict it. 50In respect of the various heads of damages, I set out below a comparison of the plaintiff and defendants' positions, and thereafter I deal with each head of damages seriatim, outlining both parties' submissions in respect thereof. Item Plaintiff's Claim Defendants' Submission Non-Economic Loss 30% - $119,500 10 - 15% - 0 - $5,000 Past Treatment Expenses $1,295.55 $1,295.55 Future Treatment Expenses $20,000 $3,000 Past Economic Loss $34,420 $2,800 Future Economic Loss $204,000 Nil Past Gratuitous Domestic Assistance $24,460 Nil Future Domestic Assistance Gratuitous Care: $171,605, or Nil Commercial: $196,120

51In respect of non-economic loss, the defendants advocated a range pursuant to s 16 of the Civil Liability Act 2002 ("the Act") of between 10 15% of a most extreme case. The defendant relied on the first report of Dr Abi-Hanna, the fact that she had suffered "a tiny linear avulsion fracture of the right ankle" and that she was able to return to her pre-accident employment on 20 August 2009. 52The defendants thus submitted that the plaintiff had suffered a trivial fracture and a sprain of the right ankle from which she had made a complete recovery with some intermittent continuing symptoms of no functional significance. Pursuant to s 17A of the Act, I was provided with a copy of the Court of Appeal's judgment in Owners Strata Plan 156 v Gray [2004] NSW CA 304. In that case the plaintiff tripped and fell suffering injury to her left ankle. The injury was diagnosed as soft tissue injury involving the lateral ligaments of the left ankle and the plaintiff was left with ongoing symptoms including intermittent swelling and some discomfort laterally of the ankle. The plaintiff had been unable to return to various recreational activities and the trial Judge had assessed damages for noneconomic loss at 33% of a most extreme case. That finding was overturned on Appeal and an award of damages made on the basis of a finding of 20% of a most extreme case pursuant to s 16. 53The defendants submitted, relying on the report of Dr Revai, that the plaintiff had not suffered psychiatric injury as a result of the fall and that the plaintiff's psychologically based symptoms were not aggravated by the fall but that they related to her past history. Further, the defendants submitted no award of damages could be made to the plaintiff for pure mental harm pursuant to s 31 of the Act. 54Senior Counsel for the plaintiff submitted that the injury and circumstances of the plaintiff in the present case are so far removed from that in Owners Strata Plan 156 v Gray that the facts did not permit a comparison with the present case and the Court would not have regard to it. 55The plaintiff submitted s 31 of the Act did not apply, as the plaintiff had suffered "consequential mental harm" as defined in s 27 of the Act. She relied on the report of Dr Tucker to establish an aggravation of her preexisting psychiatric condition. 56The parties agree the past treatment expenses in the sum of $1,295.55, however, the defendants has paid the sum of $433.55 and seeks a credit in respect of that amount. 57In respect of past economic loss, the defendants concede the plaintiff's four weeks off work at $700 net per week, a total of $2,800. The plaintiff has claimed that loss, together with two further periods, namely, from 18 August 2009 to 30 September 2011, being a global claim of $10,000, and from 1 October 2011 to date, based on $700 net per week, being a claim for $21,700. The defendants submit that the plaintiff had been employed by Noppen Air Pty Limited as a bookkeeper/office manager since September 2004. She was in secure employment and did not cease work in May 2010 because of any disability associated with her injury. Rather, she left for various reasons, to travel with her husband to Port Macquarie to live, and to purchase their own business. The injury suffered by her had not been productive of any financial loss since that time, but rather, was as a result of her own choices made in terms of geographical and lifestyle choices. Further, the plaintiff had shown ample capacity to work as a sales assistant during the period when she and her husband operated the Icecreamery business and when it became obvious that that business was failing, she had no difficulty obtaining work in office management which she had experience in for almost 10 years prior to the accident. 58The plaintiff's submissions demonstrated that the plaintiff had not in fact incurred any loss financially from the date of the accident until the 2011 tax year, when her tax records indicated that the taxable income had dropped from a level of approximately $45,000 in 2010 to $28,300. It was put that from 1 October 2011 the plaintiff has been unemployed, and is competing on the labour market with a reduced earning capacity in that, as a result of the injury to her right ankle, she is unable to compete for employment on a level basis for shop sales positions. 59Similarly, the plaintiff's claim for future economic loss is based on her inability to carry out work which would involve her being on her feet in sales positions. It was submitted that notwithstanding her employment by Noppen Air for a period of five years before her injury, all of the employment that she had as an office manager/bookkeeper was for short periods of time only. She worked for much longer periods of time doing sales work prior to the year 2000, and therefore the claim was made for the rest of her working life on the basis of $300 net per week for a 40% loss of her earning capacity. The plaintiff claims no diminution of her earning capacity as a result of the aggravation of the psychological condition. 60The plaintiff also claims loss of superannuation entitlements in respect of both past and future economic loss. 61The defendants submitted that there could be no award for damages for future economic loss as the plaintiff had not established that the injury suffered by her had been productive of any financial loss. 62The plaintiff's claim for past gratuitous domestic assistance was based on her evidence that her husband and daughter carried out heavier household chores including cleaning, cooking and shopping for her at an average of seven hours per week, and had done so since she suffered her injury. The defendants submitted that s 15(3) of the Act had not been satisfied in that the plaintiff had not, on the balance of probabilities, satisfied the threshold test therein, namely, that the gratuitous attendant care services had been provided for at least six hours per week and for a period of at least six consecutive months (see Hill v Forrester [2010] NSWCA 170). The defendants submitted that the plaintiff's evidence and that of her husband, to the effect that these domestic chores were carried out to assist the plaintiff on an average of seven hours per week, could not be sustained in view of the medical evidence. It was submitted that the plaintiff's evidence was contrived and artificial, and that the doctors' reports should be preferred to the evidence of the plaintiff, as, on the balance of probabilities, they would be more accurate. Further, it was put that the cross-examination of both the plaintiff and Mr Nemeth demonstrated that, to the extent that domestic assistance was provided to the plaintiff, the Court would not be satisfied that first, there was a reasonable need for such services (as required by s 15 (2) (a)), nor that the need had arisen solely because of the injury suffered by the plaintiff (s 15 (2) (b)) and that the assistance would not have been provided to the plaintiff but for the injury (s 15 (2) (c)). 63Thus, it was submitted on behalf of the defendants that even if the Court accepted that Mr Nemeth spent seven hours per week carrying out domestic chores for the household at large, this did not reflect the plaintiff's needs and had to be reduced. It was significant that the operative provision, namely s 15 (2), included the expression "to a claimant" consistent with the definition of "gratuitous attendant care services" in s 15 (1). 64As to the future need for such gratuitous services, the defendants submitted that there was no evidence that such care was required, relying on Drs Drew and Bodel. Further, there was no basis for awarding paid care as there was no evidence suggesting that such domestic assistance that the plaintiff may require would not be provided gratuitously by either her husband and/or daughter. 65Senior Counsel for the plaintiff submitted that the opinions expressed by the various doctors, relied on by both parties, must be regarded as subsidiary to the sworn evidence by the plaintiff and her husband in respect of the care provided. Both were "excellent witnesses" and that seven hours domestic assistance was hardly "beyond the pale". Notwithstanding that these matters always involved an element of estimation, it was submitted that the threshold in s 15 (3) had been exceeded and that the plaintiff had denied that she had told various doctors that she did not require domestic assistance, indeed, it was submitted that it would be strange if she did so at a time when she was well aware that she was pursuing such a claim. 66As to the future, Senior Counsel for the plaintiff submitted that the plaintiff's need for gratuitous domestic assistance would continue indefinitely into the future. The need for paid care arose in this case because the provision of gratuitous assistance by the plaintiff's husband was causing problems in that his ability to carry out the various domestic chores was not to a standard to the plaintiff's satisfaction. 67The plaintiff relied on the Court of Appeal's decision in Teuma & Or v C P & P K Judd Pty Limited [2007] NSWCA 166 in answer to the submission made by the defendants that the time spent by Mr Nemeth should be discounted for domestic chores carried out on behalf of the household in that, in reality they were part of the give and take of the family life. In response to the submission by the defendants that there was no evidence when the provision of gratuitous care would end, Senior Counsel for the plaintiff submitted it was available inferentially, indeed that it was "pretty obvious" that the plaintiff and her husband wanted that care to end straight away and it was a matter of commonsense that the need for commercial care was required. This was particularly so given the definition in s 15 (1) of attendant care services as including the following: "(c) Services that aim to alleviate the consequences of an injury." 68Senior Counsel for the plaintiff submitted that the defendants' submission that the amount of time spent by the plaintiff's husband and daughter should be discounted involved a fiction and that there was no authority for the proposition. Prior to her injury, the plaintiff attended to all of the household duties and she now has difficulty with all of them. The plaintiff's claim for paid care was based on Dr Bodel's opinion that she required three hours per week, although the plaintiff submitted that five hours per week was appropriate for the future.

Damages 69The plaintiff's evidence that she led an active lifestyle prior to her injury on 20 July 2009 was not challenged, and was supported by the report of her treating psychiatrist, Dr Tucker. Further, I found the plaintiff to be an impressive witness in the manner in which she had overcome her preaccident psychological problems and in the way she had tried to overcome her injury. She returned to work within a month of the injury and had continued to work from August 2009 until May 2010 as an office administrator/bookkeeper, notwithstanding early difficulties in mobility. She then moved with her family to Port Macquarie and established a family business in which she worked full time, notwithstanding that for 70% of that time she was required to be on her feet serving customers. 70Notwithstanding the early optimism expressed by her treating general practitioner, the plaintiff did not achieve a good resolution of her injury and has suffered continuing pain and swelling in her right ankle. She is restricted in terms of her mobility to walking no more than 500 metres, and has trouble on stairs and uneven ground. She has not returned to any of her pre-accident recreational activities and has been restricted in what she can do in terms of heavy cleaning and domestic chores. 71I have been referred to the Court of Appeal's decision in Owners of Strata Plan 156 v Gray, supra, pursuant to s 17 A of the Act, however, I accept the submission from Senior Counsel for the plaintiff that it is difficult to make concise comparison between cases which are so dependent upon their facts. Moreover, I accept the opinion of Dr Liaw that the plaintiff has chronic right ankle pain associated with subtle instability of her ankle joint. I also accept his opinion that she is likely to have ongoing ankle pain. I also accept Dr Schutz's opinion that full recovery could take several years. Further, I prefer the evidence of the plaintiff's treating psychiatrist, Dr Tucker, to that of either Dr Clark or Dr Revai, and do not accept Dr Revai's opinion that her psychologically based symptoms were not aggravated by the fall. I therefore find the plaintiff suffered a serious aggravation of her psychological condition which required her medication to be doubled. I assess the severity of her non-economic loss pursuant to s 16 of the Act as 25% of a most severe case. Pursuant to the table in s 16, that results in an award of 6.5% of the maximum amount that may be awarded, a sum of $34,000. 72I award the plaintiff's treatment expenses as agreed in the sum of $1,295.55, of which the defendants have paid $433.55 and receive a credit therefore. 73For future treatment I am not persuaded that the plaintiff will require future surgery to her left ankle. The treating orthopaedic surgeon has not recommended it, and whilst Dr Bodel raised the possibility of such surgery in his report dated 18 March 2011, in his second report dated 11 January 2012 at paragraph numbered 6 on page 2 he noted that the procedure had not been recommended and further agreed that it was not indicated on the basis of her current clinical presentation. Further, the plaintiff gave no evidence that she had discussed the possibility with any doctor or that she had any present intention in respect of it. The evidence does support a need for her to have some ongoing physiotherapy treatment and nonprescription analgesic medication and I award the sum of $3,000 for that purpose. 74For past economic loss, the plaintiff's loss for four weeks following her injury was the sum of $2,800. The plaintiff's injury since that time has not been productive of any financial loss. It was her own choice to move to Port Macquarie and to establish her own business with her husband. Similarly, when that business failed, she obtained work for which she was qualified as an office administrator and she left that employment because she said it was boring. The uncertainties of the employment market in Port Macquarie are not a factor which lies at the feet of the defendant tortfeasor and I am not persuaded that her loss should be measured in any way by reference to an inability to be on her feet for long periods of time. There are three reasons for this. First, from 2000 she did no work in sales at all, rather, her qualifications and experience was all in office administration and bookkeeping. Secondly, when she established her own business, knowing that there was customer service involved, she was able to remain on her feet for a significant period of her employment hours. Thirdly, when her business failed, she returned to work in office administration. I am therefore not persuaded that her injury has been or may be productive of any financial loss (see Medlin v The State Government Insurance Commission (1995) 182 CLR 1). 75In respect of her claim for future economic loss, the same reasoning applies. Before an award can be made pursuant to s 13 of the Act, the Court must be satisfied that the assumptions about her future earning capacity, or other events on which any award is to be based, accord with the plaintiff's most likely future circumstances but for the injury. The Court is then required to make the adjustments required in s 13 (2). But for the injury, the plaintiff most likely would have been working in office administration or bookkeeping, as she had been for the nine years preceding her injury. Any change to that has been as a result of her own choices, both geographically and vocationally. It is to that type of work that she returned when her own business failed. I find that the most likely future circumstances but for the injury will be that the plaintiff will return to work of that kind, namely, office administration and bookkeeping and that the injury to her ankle will not be productive of any financial loss. The chance that the plaintiff may at some time in the future return to sales type employment is speculative and does not support an award under s 13 - see Sophie Fegan by her tutor Inga Rozenauers v Lane Cove House Pty Limited [2007] NSWCA 88 per Bell J at [17]-[26]. 76The issue of whether the plaintiff satisfied the threshold in s 15 (3) of the Act so as to qualify for an award of damages for gratuitous domestic assistance, loomed large in these proceedings. Both the plaintiff and her husband gave evidence that such assistance was provided, to a level of seven hours per week following the accident and up until the present time. Both were challenged vigorously in respect of that evidence, on the basis of histories recorded by doctors qualified for medico-legal purposes in the proceedings and the occupational therapist, Ms Hammond, and the opinions expressed by some of these doctors. For example, the high watermark on the medical evidence relied on by the plaintiff is the opinion expressed by Dr Bodel in his report dated 18 March 2011, that for the first four months after the injury the plaintiff would have required six hours domestic assistance per week as a consequence of the injury, and after that she required two hours domestic assistance per week. In his second report of 11 January 2012 Dr Bodel recommended she required three hours domestic assistance per week. 77I find that the plaintiff was fastidious in her application to the domestic and housekeeping chores prior to her injury, and that since her injury she has been restricted in her ability to carry out the heavier aspects of that housework, and that assistance has been provided to her by her husband Robert and her daughter Maddison since the accident. The plaintiff did not, in my opinion, overstate the matters she required assistance with and had in fact gone to the trouble of measuring the time involved in carrying out the various duties. 78I am satisfied that the plaintiff required, for a period in excess of six months, more than six hours per week of domestic assistance which was provided by her husband and daughter. The need for that assistance was greater in the first 12 months following her injury, but on average, she required such care at an average of seven hours per week for 2 years following her injury. Thereafter, her need for such assistance has diminished. I agree with the plaintiff's submissions that it would be artificial to break the provision of such assistance down, for example, to a cleaning regime of one room at a time, or, cooking with breaks. However, I assess her need for such assistance from July 2011 to the present time to be at an average of 3 hours per week. I therefore award damages for past gratuitous domestic assistance on the following basis: From 17 July 2009 to 16 July 2011 104 weeks x 7 hours per week x $24 per hour = $17,472 From 17 July 2010 to 11 May 2012, 42 weeks x 3 hours per week x $24 per hour = $3,024 ______ $20,496

79For future domestic assistance I am not persuaded that such assistance should be provided on a commercial basis merely because the plaintiff is not satisfied with the assistance being provided by her husband and daughter. The fact of the matter is that it is being provided in that way and there is no evidence that it would not otherwise be provided. Further, with the application of treatment by way of physiotherapy, the plaintiff's condition will improve to an extent where such assistance is not required and I therefore award damages for the future for a period of 5 years only at $25 per hour. 80The calculation is 3 hours per week x $25 x 260 = $19,500.

(i) Non-Economic Loss $34,000.00 (ii) Past Treatment Expenses $1,295.00 (iii) Future Treatment Expenses $3,000.00 (iv) Past Domestic Assistance $20,495.00 (v) Future Domestic Assistance $19,500.00 __________ $78,290.00

82The defendant submitted that its case on contributory negligence was based on the entry in Exhibit 4, referred to in paragraph 17 above, that the plaintiff was walking and talking to her children prior to the injury. Inferentially, she was not taking care for her own safety and therefore contributed to her injury. I find that inference is not available from Exhibit 4. The document was not adopted by the plaintiff and was written by the author of the incident report. The plaintiff disagreed with the proposition that she was not looking where she was going when it was put to her in crossexamination. Further, there was no challenge by the defendants to the evidence of the plaintiff and her husband that the car park was very dark and that the lighting was poor. Nor was there any challenge that the rubber strip on the speed hump constituted a trip hazard. 83The onus is on the defendants to prove contributory negligence. The admission of liability by the defendants assumes an admission that it breached its duty of care to the plaintiff who was at the time having regard to her own safety. The plaintiff's action of stepping onto the raised traffic speed hump which was in a car park where pedestrians were expected to walk from their cars to the shopping centre, involved no breach of any duty the plaintiff had to take care for her own safety. It did not even reach the standard of "mere inadvertence, inattention or misjudgement", which of course does not constitute contributory negligence - see Czatyrko v Edith Cowan University 2005 (79) ALJR 839 at 843. 84The defendant submitted that the plaintiff's damages should be reduced by 15% for her contributory negligence. I find that there was no contribution by the plaintiff to her injuries and therefore find that there should be no reduction of her damages.

Orders 85I order as follows: (1) Verdict and Judgment for the Plaintiff in the sum of $78,290.00. (2) The Defendants to have a credit for the sum of $433.55. (3) The Defendants to pay the Plaintiff's costs. (4) Parties to have liberty to apply on seven days notice. (5) The exhibits are to be returned. 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: 28 May 2012

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Judgment (13 paragraphs)

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Cases Cited (5)