Rodd v Hall

Factual background - Liability

1. Unless otherwise indicated, I find the facts to be as follows.
2. The plaintiff was born in September 1958 and is now almost 61. She was an employee of the Commonwealth Bank for approximately 20 years from 1976 until 1996. She was an employee of Qantas airlines for 18 years until accepting a redundancy in 2012. In that year, she returned to reside in Wagga Wagga to assist and care for her mother who had been diagnosed with dementia.
3. In early August 2013, the plaintiff accepted a temporary position as a Customer Service and Information Manager with the Eurobodalla Shire Council in Moruya, New South Wales. On 12 August 2013, she travelled to Moruya and undertook her final orientation meeting with the Eurobodalla Shire Council.
4. On 12/13 August 2013, the plaintiff was a paying guest at the Moruya Motel located on the Princes Highway in Moruya. The plaintiff occupied room 4.
5. At all material times the defendants were the owners of the Moruya Motel and were responsible for the care, control and management of that enterprise.
6. At approximately 6.15am on 13 August 2013, the plaintiff took a shower in the bathroom of room 4. While doing so, a quantity of water made its way from under the shower curtain and onto the adjoining tiled floor.
7. The plaintiff's evidence on this issue (which I accept) was as follows: "A. After my appointments, I checked in to the Moruya Motel. … It would have been after 3. Q. And what was your intention for the following day? A. Drive back home to Wagga. Q. And what sort of a drive is that? A. It's a five and a half hour drive, so I had no appointments that day, so it was just a casual get up and leave. ... Q. On the morning of 13 August did you get up at the usual time? A. Correct, yes, six. Q. And what did you do after you got up; you talk about going into the shower? A. Yes. Q. And after you'd had your shower, and were drying off, did you notice something about the state of the floor? A. Yes, I did. Q. Had you put the shower mat down in place before you had the shower? A. I had, yes. Q. What sort of state was that in when you'd finished the shower? A. It was totally saturated. Q. Did you look down and see what the state of the floor was? A. Yes, it was very wet. Q. Did you take steps to try and dry it up a bit? A. I did, I took a towel off the rail and put it down as well. And before I left, after I dried myself, I actually added my own towel to the floor. Q. So, there were two towels on the floor as well as the bathmat? A. Yes." (T.11.6-.49)
8. A number of photographs were taken of room 4 by the plaintiff's liability expert, Mr Dohrmann. The following references are to the photographs in his report and the Court Book (CB), which the parties prepared. "Q. And if you were standing where that photograph was taken, would you be standing where the toilet is, or near where the toilet is, as demonstrated at photo 5.14 on page 119? A. That's right, yes. Q. If you walked into the bathroom, to get anything from the area adjacent to the toilet, where the vanity is and hand basin et cetera, you have to walk effectively just past where the shower curtain is? A. That's right, yes." (T.12.42-.50) "Q. … Where you said you'd dried yourself off and then you put the towel that you'd been using to dry yourself off on the floor as well, where did you position those towels, were they adjacent to the bathmat or in the doorway itself, or how was it? A. Immediately in front of me, so the bathmat was to my left and the towels were directly in front of me. Q. And so, did you then exit the bathroom? A. Yes. Q. How did you do that? A. Very carefully. Q. Why do you say, "very carefully"? A. Because I'm aware, I was aware the floor would be damp, and I had towels on the floor, so I was just very cautious leaving the bathroom. Q. What happened then; you say in your statement you got dressed, had a cup of tea? A. Yes, had a cup of tea. Q. And did some period of time elapse before you went back into the bathroom to finish your packing? A. That's right. Q. You have at a guess said about an hour in your statement, does that seem to you now to be correct? A. That's correct, yes. … Q. When you got dressed, did you put on a pair of shoes? A. I did, yes. Q. And what sort of shoes were they? A. So, they were black suede low heeled boots." (T.13.1-.40) "Q. Can I show you two photographs, slightly different but what appear to be the same set of shoes? Are they of a type very similar to what you were wearing on the day? A. Yes … Q. Can you tell us whether or not the shoes you were wearing on the day were leather or had a compound sole if you remember? A. I don't remember the sole, only other than they were partly leather and part suede, very similar to these but I don't recall the sole. … Q. When you walked into the bathroom you had to go past the area where the shower curtain was and were the towels still on the floor where you left them? A. Yes. Q. And did you step on the towels or around the towels? A. No, the towels were on my left and I came in on the right hand side to - around to the vanity so I didn't step on the towels. Q. And what was the purpose of your going into the bathroom, just remind us? A. To collect my toiletry bag and clean my teeth and leave. Q. And I think you have answered this before, was there any pressure on you to leave at a certain time or anything like that? A. No, no, I had all day. Q. And were you aware of any water on the floor before you walked into that part of the bathroom? A. I was aware that there was water, but I wasn't expecting there to be water in that thoroughfare and vanity basin end of the bathroom. Q. So how many steps did you get into the room do you think as best you can recollect? … A. … So probably about four steps." (T.14.11-50) "Q. And what happened as you were taking those four steps? A. Once I reached inside to turn to the vanity basin it just happened so quickly, my feet went from underneath me and I slipped and landed on my hip. Q. Did both feet go under you at the same time or as far as you can recollect, I know it's not easy, but as far as you can recollect which foot, if any, slipped or did they both go? A. I believe it was my right foot that went and I just went and landed very hard on the floor. Q. On your - what side did you land? A. On my right side." (T.15.1-.13) "Q. And did you notice anything about your clothing; you were wearing jeans I think, were you not? A. Yes, my tops of my jeans, my pants were wet. Q. You are indicating in the buttock region? A. In the buttock area. Q. So did you manage to get hold of the reception? A. I did. Q. And did somebody come in response to your call? A. Yes. Q. Were you apologetic about having to call them at this busy time of day? A. I was. Q. Why was that? A. Because I've worked on hotel reception work and at that check out time I was very mindful of taking someone away from reception." (T.15.27-.45) "Q. Did she say anything to you when she came in? A. Not that I recall initially because I had already explained on the phone who I was and what room I was in and that I was sorry to bother her, that I needed help. I had slipped in the bathroom and she came down very quickly and she came in and I don't remember any conversation. … Q. Did she give you a blanket or something? You were on the floor I take it at this stage? A. I was on - yes - no, there was no blanket offered that I remember. Q. Or a pillow? A. No. The only thing I do remember was that she went in and looked in the bathroom. Q. And did you observe her going in? A. I saw her peer in through the door and she with one foot she dragged a towel across from the shower and she wiped where I had slipped on the floor. Q. Were you able to see into the bathroom where she was wiping? A. Yes. Q. What did you observe that she was doing this? A. I could see a black scuff mark on the floor where I had slipped, slipped and I could see water from the light because it was very light at that time in the morning." (T.16.3-.29)
9. Under cross-examination the plaintiff's evidence (which I also accept) was as follows: "Q. Early on in the questions from Mr Cranitch, when he was asking you about the circumstances of the fall, I think you said that when you stepped out of the shower, you did so very carefully? A. Yes. Q. And is that because you were aware from your own personal experience that you knew the tiled surface if wet could be slippery? A. Yes." (T.31.34-.41) "Q. Where in relation to that photograph had you put the mat down? [This is a reference to the photograph at the bottom of CB 77.] A. So I had the mat down probably more to the left hand side where the shower curtain is. Q. Outside the curtain? A. Yes outside the curtain so that when I stepped out I could just reach over and get a towel. Q. And were the towels hanging on the rail? A. Yes. Q. And that's at the top of 78? [This is a reference to CB 78.] A. Yes, that's right. Q. And you described the mat when you opened the shower curtain was -- A. Was saturated. Q. --was saturated? A. Yes." (T.32.11-.28) "Q. So where then in relation to if we're looking at the photograph on the top of 78, where did you put down the two towels? [This is a reference to CB 78.] A. So I put down the first towel - was just basically in front of me because when I opened the shower curtain I had noticed the water streaming out into the centre of the room. So I put a towel down there to block that water and then after I finished drying myself I just added that down on the floor as well. Q. I suppose what I'm trying to get to is was the towel on top of the mat, was it beyond the mat, that is closer to the vanity or? A. It was ‑ not closer to the vanity and it wasn't directly on the bath mat, it was more directly in front. …. Q. And you talked about water streaming out when you pulled back the curtain? A. Yes. Q. What do you mean by that? Where was the water streaming to? A. So it was streaming out from the centre heading towards the centre of the ‑ heading towards the toilet and vanity, heading in that direction. Q. So again if we go back to the ‑ sorry to jump around like this perhaps if we go down to the photograph at the bottom of page 80 and again allowing for some distortion because of the photograph, are you saying that the water was streaming away from the photographer towards the toilet? [This is a reference to CB 80.] A. Yes. Q. And you could see that when you pulled back the shower curtain? A. Yes, it was just going straight out from under the shower curtain." (T.33.17-.46) "Q. How far did you notice it streaming out across to the toilet? A. How far did I notice? Q. Yes? A. Probably where the wall - where that wall is on the right hand side on the bottom page of 80. [This is a reference to CB 80.] Q. And to make that clear if we go back to the photograph on the bottom of 77, so you can see the water streaming out to a point lined up with the wall? A. Yes. [This is a reference to CB 77.] Q. On the right hand side of the photograph on the bottom of page 77? [CB 77] A. Yes. Q. And tell me if I have got this right or wrong the combination of the mat and the towels that you put down did they go about halfway across that doorway? A. Probably a little bit further. Q. So from the time … that you put them down and got out of the shower and went to get dressed, you knew that there had been water streaming out beyond where you had put down the mat and the towels? A. Yes but I thought I had collected all the water with the towels. Q. What did you do to try to do that? When you say you thought you had - what did you do to do that? A. I put - I spread the towels out in front of me to mop up the water. … Q. But in any event as I understand it the mat was soaked? A. Yes. Q. And the towels I assume became soaked as well? A. They were quite wet, yes. Q. And they remained that way, did they not, until you went back in to collect your toiletries? A. They would have been yes. Q. You could see them couldn't you, you were still on the ground? A. Yes. Q. You can see they were still wet? A. Yes." (T.34.1-.50) … Q. And you're aware from you have said that you had to be careful when you got out of the shower? A. Yes. Q. When stepping on the wet tiles because you knew they could be slippery? A. Yes. Q. And you were aware when you went back into the bathroom to get your toiletries that you had to be careful to avoid stepping on wet tiles or at least be careful when you stepped on wet tiles because again they could be slippery? A. Yes. … Q. Had you on that morning also applied some make up or done your hair? A. I had all that set up in the bedroom when I was having my cup of tea and I want to listen to the News in the morning so I was doing my hair and make up in the bedroom. Q. When you were heading back in to collect your toiletries, what had you been doing just before that? A. Packing." (T.35.1-.11, .44-.50) "Q. I want to suggest to you that you hadn't put down any mat or any towels. Do you agree or disagree with that? A. I totally disagree. Q. Right. When you were going back into the bathroom to collect your toiletries, is it the case that you didn't look to see where you were putting your feet? A. I was cautious of where I was going. An hour later, though, I wasn't expecting to be a puddle where I had slipped. Q. But you knew there was a reasonable chance, didn't you, that the floor would still be wet? A. Yes, but I assumed that by placing all the towels down where I had, that I had mopped up as much water as I could see at that time. Q. Didn't you say you'd seen the water go beyond where - that is, out to where the door was, and you only put the towels halfway across the doorway? A. No, I put the towels more than halfway and from memory the water was heading towards the doorway - the side of the door. I can't recall how far the water had gone, but I felt that I had contained it as best as I could with the towels. Q. But you knew there was still a reasonable chance, didn't you, at the time even when you came out of the bathroom, that there was still water beyond where you'd wiped up? A. I wasn't expecting there to be as much water an hour later after I went back in. Q. You talked about the water streaming out of the shower? A. Yes. Q. By that you were intending to convey the impression of it being a lot of water; correct? A. It was a stream of water, yes. Q. And to the extent that the mat you had put down had been soaked, the towels - the two towels - that is, the one off the rack and the one you were using they became very wet as well? A. Yes. Q. So a reasonable chance, even if you had got up most of the water, still there would be - the floor would still be wet when you went back in an hour later; correct? A. Yes." (T.40.2-.46) "Q. … I asked you some questions yesterday about where you saw the water when you got out of the shower, do you remember that? A. Yes. Q. And I think you said in evidence that there was water in the thoroughfare towards the basin, the vanity basin end. That is the thoroughfare, all the way through to the vanity basin? A. It was heading in that direction. Q. And that was when you went to collect your toiletries or not? A. No, that was when I was getting out of the shower." (T.63.29-.40)
10. In her evidentiary statement of December 2018, the plaintiff described what happened as follows: "12 On 13 August 2013 I planned to travel home to Wagga which was approximately 5.5 hour drive as I had no other appointments in Moruya. I was not due to commence my new job until the end of August 2013. I woke up at around 6am and had a shower in the motel bathroom at about 6.15am. Water flowed out from the shower area and onto the adjacent tile floor as there was no hub [sic] or lip to prevent the flow of water under the shower curtain. I used the bathmat provided on the floor outside the shower. It was soaked with water. I also placed a spare towel on the floor to absorb the excess water which had flowed from the shower recess out across the floor. 13 Following my shower I moved into the bedroom area of the motel where I got dressed, had a cup of tea and prepared myself to return home by packing items into my suitcase. I estimate that it was approximately an hour before I returned to the bathroom to get my bathroom items to pack them. I was fully dressed wearing flat soled boots. I was not in a rush as I had plenty of time before I had to vacate the room and I had no plans for that day other than to drive home to Wagga Wagga, a 5.5 hour drive. I walked into the bathroom, I walked towards the vanity bench and as I did I slipped landing heavily on my right hip and back."
11. In support of the plaintiff's claim, two reports by Mark Dohrmann dated 14 August 2014 and 22 July 2019 were tendered. The only difference between the reports is that the second report comments on a report of Dr John Cooke relied upon by the defendant. The second report also sets out some additional results of testing.
12. Mr Dohrmann was a professional Consulting Engineer with additional post graduate qualifications in ergonomics. He had post graduate qualifications in ergonomics and had practised in that field since 1976.
13. Mr Dohrmann travelled to Moruya on 26 June 2014 and made measurements, carried out tests and took photographs of room 4 in the Motel. He also photographed a manual provided for guests which included in its contents - "floors can be slippery when wet, please use mats provided". That manual was in use at the time of his inspection. At trial there was no evidence as to when that information was placed in the manual and whether it was in the manual at the time of the plaintiff's accident.
14. Mr Dohrmann made his assessment of liability by relying upon the following assumed facts. 1. On or about 13 August 2013, the plaintiff was a paying guest at the Moruya Motel and was assigned room 4. 2. She took a shower in that room at approximately 6.15am. 3. While showering, a quantity of water made its way under the shower curtain and onto the floor of the surrounding, tiled recess, which led towards a toilet and vanity basin. 4. After her shower, the plaintiff laid a number of towels on the floor outside the shower, which she then stood on while she dried herself. 5. She proceeded into the main room where she dressed, packed her bag, and breakfasted. She then went to collect her toiletries, which were still on the bench in the bathroom. She walked from the adjoining room into the bathroom. 6. As she stepped on to the tiled bathroom floor she slipped on the tiles, falling heavily onto her right side. 7. She realised after she fell that she had stepped onto a patch of water which had not been visible to her on the tiled floor. 8. The water on which she slipped was a remnant of the spillage which occurred during the earlier shower.
15. None of those assumptions were challenged when the plaintiff was cross-examined, except to the extent set out in the extracts of evidence above.
16. In his report, Mr Dohrmann set out the relevant slip resistance standards and described the methods of measuring slip resistance used at the present time and in the past. When dealing with the current approach to assessing slip resistance, he said: "6.5 A notable change in the new version of AS/NZS 4663 was the addition of the word 'notional' to the header of the right hand column in each of the tables reproduced here from the Standard. The Standard notes that the term 'notional' has been added 'to highlight the need to consider all potential contributing factors to a slip incident'. This includes factors such as walking speed, shoe type, gait, floor contaminants, etc."
17. Relevant features of motel room 4 can be best seen from the photographs taken by Mr Dohrmann.
18. The photographs showed a single room with an adjoining bathroom/toilet/shower entered by a single door. The bathroom area and its access immediately outside its door was tiled in 100mm square, well grouted ceramic tiles. The shower was at the southern end of the recess. A photograph of the shower head showed it to be of variable height and angle and its outlet was situated 1.73m above floor level. There was a drainage hole in the floor of the shower, 53cm distant from the back. The single curtain on the shower was approximately 90mm short of the floor. The floor around the drainage hole sloped down from all directions towards the hole at 3 degrees. There was a bathmat provided on the wall of the shower. It was made of cotton and measured 50cm by 68 cm. The toilet and basin area were to the north of the shower recess immediately facing the shower. An unusual feature of the shower itself was that there was no hob or small step separating it from the rest of the tiles in that recessed area.
19. Based on the facts which he assumed and on his inspection of the premises, Mr Dohrmann expressed his conclusion as follows: "7.2 Test results, as set out in an Appendix to this report, support a conclusion that the tested surface exhibited a low notional contribution to a risk of slipping when dry, and a very high contribution to a risk of slipping when wet. 7.3 Access to the wash basin and toilet in this room requires a person to walk across a tiled area immediately adjacent to the shower. There is no way of avoiding the area straight in front of the shower. 7.4 It is clear that water coming from the shower head is prone to being dispersed onto the tiled area close to the door; that is, where people will inevitably walk. This comes about through the fact that the shower head projects forwards (under most expected conditions), and that the curtain does not extend all the way to the floor. 7.5 In my opinion, it could not be assured that a person entering the room would see that there was water on these tiles as they walked towards the bathroom area (although this may be affected to a small degree by what lights were on at the time). 7.6 Ms Rodd was evidently aware that there had been some water on the floor, and had taken some steps to deal with it by placing towels on the floor. 7.7 An hour later, she was unaware that there was still water on the floor which could present her with a risk, and regrettably, it has evidently caused her to slip and fall, suffering injuries. 7.8 I consider that Kim Rodd was placed at risk of injury by the Moruya Motel in the circumstances described. The basis of the reasoning process leading to that concluded opinion consists in the high and unsafe level of slipperiness exhibited on the tiles in the shower/toilet/wash area of this motel room, when wet. I consider that the risk was increased by the relatively large difference in traction between the carpeted floor and the tiled area, which change would increase the likelihood that a person would be unable to alter their gait and maintain control when they stepped onto the (relatively) more slippery tiled area when wet. … 7.10 I note that information about the risks of slips, trips and falls (including risks associated with slippery surfaces), together with advice on the control of risks and measures for fall prevention had been widely available to occupiers and employers (through publications in the trade, industrial and general media) for years prior to the occurrence of this injury. In my opinion, an occupier or employer could not claim reasonably to have remained unaware of (or unable to access) this advice."
20. Mr Dohrmann set out the measures which the defendants could have taken to prevent exposing the plaintiff to a risk of injury.

• By ensuring that the surface met the slip resistance standards set out in the applicable Australian Standard.
• By testing and assessing the slip resistance properties of the surface. A competently-conducted audit would doubtless have identified the area concerned as creating a very high risk of slipping when wet, and may have prompted earlier intervention.
• By applying the helpful advice given in the Australian Standard Handbook HB 197 - An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials (Standards Australia, Sydney, New South Wales).
• By ensuring that the surface in question was treated, replaced or designed to provide adequate slip resistance when wet (likely cost of applying a commercially available slip resistant compound is about $60).
• By placing adhesive, slip resistant strips on the tiled area, to provide traction for pedestrians when it was wet (likely cost about $10).
• By providing a shower curtain or other means of ensuring that water did not escape from the shower and wet the tiles elsewhere on the floor in the bathroom area (likely cost about $10).
• By installing a swing glazed door to retain water inside the shower (likely cost about $400).
• By putting a hob or step at the entrance to the shower (noting that this may introduce a small risk of a trip, and reduce the ease of access for a guest with a mobility impairment, so it is not considered an ideal measure).
• I do not agree with the assertion of Ms Hall that a shower curtain extending to the floor would create a trip hazard.
• By providing a shower head whose direction could be limited to reduce the likelihood that water would be directed or transferred into an area where people could be expected to be walking later (likely cost about $50).
• By providing clear signs and warnings in the tiled area itself, where tiles were subject to becoming wet and slippery.

1. In relation to the report of Dr John Cooke, prepared on behalf of the defendants, Mr Dohrmann said: "8.1 I have read Dr Cooke's report dated 5 October 2017. 8.2 Essentially, he says that no relevant codes, standards or the like existed at the time of construction, and points out that a 1999 guide (HB 197) does not give directions about bathroom floors, and assumes people will exercise care on them. 8.3 He concludes that had the defendants consulted a relevant guide, they would not have been prompted to make any change. 8.4 However, he acknowledges and agrees that the wet floor was very slippery. 8.5 He suggests that I attribute fault to the defendant[s] in their failure to comply with Australian Standards. I do not attribute fault on that basis. 8.6 I say (like Dr Cooke) that the floor tested as very slippery when wet. The standards give a numerical guide to just how slippery it was, and one countermeasure is obviously to bring the floor up to the slip resistant level they specify. That is not difficult or expensive. 8.7 He says the floor (and its wet slipperiness) is "typical". That is for evidence. I say that since it is slippery, there are various steps the Defendant[s] could have taken to reduce that slipperiness by treatment, floor tapes, etc. … 8.9 I also stand by my views about what could have been done to better control the water flow direction and shower screening."
2. Additional assumptions made by Dr Cooke, which were not relied upon by Mr Dohrmann were: 1. The premises were constructed in the 1970s. 2. The bathroom floors had not been altered since the premises were constructed. 3. The plaintiff was running late for a job interview and rushed into the bathroom immediately before the incident occurred. 4. The plaintiff was wearing high heeled boots at the time of the incident.
3. Dr Cooke set out his conclusions as follows: "33 In my experience, the subject bathroom is typical of motels built in the 1960s and 1970s. The tiled floor has the usual properties for a tiled floor in a motel or domestic bathroom. The level of slip resistance reported by Mr Dohrmann (0.48 when dry; 18 BPN (0.17 dynamic coefficient of friction) when wet) is within the predictable range for a tiled floor in a motel or residential bathroom (based on numerous tests I have carried out on similar floor surfaces). … Slip resistance 35 Mr Dohrmann's opinion is that one measure was "ensuring that the surface met the slip-resistance requirements set out in the applicable Australian Standards"; and by "testing and assessing the slip-resistant properties of the surface". In my opinion, the motel was built before any of the Australian Standards applicable to the measurement and evaluation of slip resistance of pedestrian surfaces were published. … By ensuring that the surface in question was treated, replaced or redesigned to provide adequate slip resistance when wet 40 The tiled surface, as found, is described as making a very high notional contribution to the risk of slipping when wet (because the BPN of 18 is within the range 0-24) (AS/NZS 4663:2004 Table 1 in Appendix C). 41 The bathroom floor has levels of slip resistance under dry and wet conditions that are within the predictable range for a motel bathroom floor (and for a typical domestic bathroom floor), based on my extensive testing experience. 42 In my opinion, the motel bathroom floor surface provides the predictable level of slip resistance when wet, and is typical in that respect to motel and residential bathroom floors. No action is indicated by reference to the current advice in HB 197:1999. By providing a shower curtain or other means of ensuring that water did not escape from the shower and wet the tiles on the floor in the bathroom area 43 It is not possible to ensure that a bathroom floor is kept dry. Some water will escape from a shower cubicle onto the floor from time to time. Further, users of the shower will have wet feet after showering and some water will be tracked onto the floor. For that reason, users of the bathroom need to take care to use a bathmat and to take reasonable care when in the bathroom. Rushing into a bathroom is not taking reasonable care, in my opinion. By providing a shower head whose direction is limited to reduce the likelihood that water would be directed or transferred into an area where people could be expected to walk later 44 The type of shower head provided is of a usual type, with the direction of the water within the control of a shower user by adjusting the angle of the shower rose. It is within the normal experience of shower users that some water is likely to be deposited on the floor outside the shower cubicle during and after showering. In my opinion, no change to the shower head is warranted. … CONCLUSIONS ... 47 At the time of construction, the bathroom floors complied with Ordinance 71 land Ordinance 70. No other Codes, Regulations or Australian Standards applied. 48 In the period prior to the Incident, it would have been possible to test the bathroom floors in accordance with AS/NZS 4663:2004 Slip resistance measurement of existing pedestrian surfaces. Tests in accordance with AS/NZS 4663:2004 would have established that the floors are described as making a very high notional contribution to the risk of slipping when wet, as is typical for motel and domestic bathroom floor. … 50 For the purposes of this report, I assume that the tests conducted by Mr Dohrmann are reliable. The finding that the tiles are described as making a very high notional contribution to the risk of slipping when wet is in accordance with the typical results obtained on motel bathroom floors and is consistent with results obtained from tiles of the type shown in the photographs, in my experience. … 52 It follows from my opinions above on Mr Dohrmann's suggestions for preventative measures that I can see no substance in the allegations of negligence in paragraph 7 of the Amended Statement of Claim. 53 The advice to architects and other building designers in HB 197:1999 is that it is assumed that most bathroom users are conditioned to exercise some caution when using such facilities. The Foreword to AS/NZS 3661.2:1994 also gives advice on appropriate behaviour by pedestrians to avoid slipping on potentially slippery floors (Appendix F). There is no need for the Plaintiff to have read AS/NZS 3661.2:194 as it contains common-sense advice about appropriate pedestrian behaviour that pedestrians learn through experience. By rushing into the bathroom, the Plaintiff did not behave in an appropriate manner in a bathroom and therefore contributed to the incident, in my opinion. She could have avoided slipping if she had made sure that the floor was dry after she had used the shower, and or walked on the floor with reasonable care."

• By placing adhesive, slip resistant strips on the tiled area to provide traction for pedestrians when it was wet (likely cost about $10).
• By providing a longer shower curtain (likely cost about $10).
• By installing a swing glazed door to retain water inside the shower (likely cost about $400).
• By putting a hob or step at the entrance to the shower (noting that this may introduce a small risk of a trip, and reduce the ease of access for a guest with a mobility impairment, so it is not considered an ideal measure).
• By providing a shower head whose direction could be limited to reduce the likelihood that water would be directed or transferred into an area where people could be expected to be walking later (likely cost about $50).
• By providing signs and warnings in the area itself, where it was subject to becoming wet and slippery.
• By replacing the tiles with a type which would provide adequate slip resistance when wet (likely cost per square metre of approximately $130, estimated by Dr Cooke, but not necessary if one of the other measures was taken).

1. Dr Cooke's opinion was that the above measures were unnecessary because it could be assumed that most people are conditioned to exercise some caution when using bathrooms: HP 197:1999 page 8. Having regard to the matters identified in the preceding questions, was it more probable than not that the bathroom tiled floor when wet was reasonably safe for a person taking reasonable care for their own safety. 1. The experts considered this to be an ultimate question for the Court. Mr Dohrmann considered the answer to be "no". Dr Cooke considered the answer to be "yes", on the basis that a person taking reasonable precautions (using bathmat/towel on the floor or walking at a cautious pace) would be unlikely to slip. In support of that opinion, Dr Cooke noted that, by extrapolation from Table 1 of HB 197:1999, a floor with a dynamic co-efficient of friction of 0.17 when wet is described as "noticeably slippery", "marginally unsafe", "safe for reduced stride and cautious pace" and "non slip with caution". Having regard to the slip resistance of the tiles on which the plaintiff slipped, was anything more than the provision of a floor mat and/or towels reasonably required? 1. Dr Cooke said "no" for the reasons set out in his answer to the preceding question. Mr Dohrmann said "yes" referring to his earlier report as served.
2. Two of the assumptions relied upon by Dr Cooke were not made out on the evidence. I do not accept that the plaintiff was running late for a job interview and rushed into the bathroom immediately before the accident occurred and I do not accept that the plaintiff was wearing high heeled boots at the time of the incident. As the plaintiff explained in her evidence, she had already been successful in obtaining the job and the purpose of her visit to the Eurobodalla Shire Council was to complete a final orientation meeting. This took place on the previous day so there was no need for the plaintiff to rush into the bathroom on the occasion when the accident occurred. On this issue, I accept the plaintiff completely.
3. Similarly, I accept the plaintiff's evidence that she was wearing boots with a square heel, as shown in Exhibit A, at the time of the accident. I do not accept that she was wearing high heeled shoes. This accords with the evidence of Ms Hall, who despite writing something different on the claim form, agreed in her evidence that when she came to the assistance of the plaintiff she did not see any high heeled shoes and observed that the plaintiff was wearing block heeled boots.
4. Evidence was given on behalf of the defendants by Peta Ann Hall, the first defendant. She identified her evidentiary statement prepared in May 2019. Ms Hall also identified an incident report which she said she completed for the insurer shortly after the accident. That incident report described the accident as follows: "The client reported rushing in wet bathroom with high heeled shoes on."
5. Ms Hall said that this accurately recorded what the plaintiff had told her after the incident when the plaintiff was on the floor.
6. Ms Hall, who was also a qualified nurse, gave this evidence: "Q. Ms Rodd has given evidence that while she was on the floor you didn't make available to her a blanket or a pillow. Do you agree with that? A. Yes, I didn't want to move her. Q. Why was that? A. She was in a lot of pain. Q. Ms Rodd has also given evidence that whilst she was on the floor waiting for the ambulance to arrive you went into the bathroom and with your foot dragged either a mat or a towel to wipe up some water. What do you say about that? A. No. I didn't leave Ms Rodd. Q. Did you go into the bathroom at some stage? A. No. Q. Sorry, I'll clear that up. Did you go into the bathroom at any stage while she was still there and injured? A. No. I stayed with her. Q. After she was taken away by the ambulance, did you go into the bathroom? A. Yes. HIS HONOUR Q. How long were you with her then, can you remember, before the ambulance arrived and she was taken away? A. It was definitely five to ten minutes. Q. You make reference in your evidentiary statement to your cleaning of the bathrooms at the motel. Could I ask you this: the tiles on the floor in the bathroom in room 4 where Ms Robb was staying, are they the same or different to the tiles in all the other rooms? A. They're the same as all rooms. Q. The shower curtain in room 4, was that the same or different to the shower curtains in the other rooms? A. All the same. Q. In the time that you were managing the motel and cleaning the bathrooms, on how many occasions did you find floor mats or towels soaked on the floor in the bathrooms? A. Never. Q. On occasions when you went into any of the bathrooms, on how many occasions did you find water having spread beyond the shower and extended out to near the doorway? A. Never." (T.105.35-106.33)

Contributory negligence

1. The CLA provides for contributory negligence as follows: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
2. Section 5R gives legislative emphasis to the principle that the standard of care in determining both negligence and contributory negligence is the same. According to the Ipp Committee [at 8.10] this is the legal manifestation of the fundamental idea that people should take responsibility for their own lives and safety and that they should take as much care for their own safety as they expect others to take for them. Applying the same standard of care, however, does not require a court to ignore at least some of the particular attributes of the plaintiff. It is well recognised at common law for example that in considering whether a child is guilty of contributory negligence, the standard of care is tailored to the age of the child. So much was acknowledged by McHugh J in Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [32]): "32 The test of contributory negligence is an objective one. Contributory negligence, like negligence, "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question." (Glasgow Court v Muir (1943) AC 448 at 457). One exception to that rule is that, in considering whether a child is guilty of contributory negligence, the standard of care is tailored to the age of the child. …"
3. In this case the plaintiff was aware of the presence of water streaming in the direction of the toilet and the vanity and was also aware that the shower mat was "totally saturated" and that the floor was so wet as to require her to put down two towels. The plaintiff saw water apparently go beyond the point at which she placed the towels. The plaintiff was aware that the tiles could be slippery when wet.
4. When the plaintiff re-entered the tiled area, she was aware that it had been wet and the saturated mat and wet towels were still where she had placed them. The effect of her evidence is that she knew there was still water present but she did not expect it to be located near the vanity. She knew that there was a reasonable chance that parts of the floor were still wet even if she had soaked up most of the water. In those circumstances, in order to take reasonable care for her own safety, it was necessary for the plaintiff to keep a proper lookout for water when she was walking towards the vanity. She did not keep that proper lookout in that she did not see the water on which she slipped, even though she was being cautious. After she fell, she looked back and "I could see a black scuff mark on the floor where I had slipped, slipped and I could see water from the light because it was very light at that time in the morning" (T.16.27). Accordingly, I have concluded that the plaintiff did fail to take reasonable care for her own safety in that she did not keep a proper lookout for the presence of water on the tiles as she walked towards the vanity, albeit that she did not on the basis of her earlier observations expect water to have reached that point.
5. The relevant principles have been succinctly set out in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34. There the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said at 494: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd (1953) AC 663, at p 682; Smith v McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v Millman (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. …"
6. Applying those principles and having regard to the plaintiff's culpability and the causal contribution made by her failure to keep a proper lookout, I would assess her contributory negligence at 20 per cent.

Factual background - damages

1. Except as otherwise indicated, I make the following findings as to damages. The plaintiff was initially taken to Moruya Hospital and then transferred to Bega Hospital. The fall had caused a fracture of the neck of the right femur requiring immediate surgery. The plaintiff stayed in hospital for about a week recuperating from the surgery which was required to treat the fracture.
2. While in hospital, the plaintiff contacted her friend, Peter, who came to visit her regularly and made arrangements to remove her car from the motel. When the plaintiff was discharged from Bega Hospital, she went to live with him for a period of time. She was on crutches at the time and was unable to do very much for herself. She was unable to cook, wash or clean anything. These tasks were performed by Peter.
3. The plaintiff had been scheduled to commence work at the Eurobodalla Shire Council two weeks after the original fall but postponed her return to work by one week. Although what she could do was limited, the plaintiff worked for the following twelve months without any loss of time. She was still on crutches when she commenced her employment with the Council.
4. At some time after she commenced work, she went to live in a furnished granny flat in Moruya. She experienced considerable difficulty in looking after herself and in particular, cooking, cleaning and washing. Peter would visit and bring groceries for her and take her washing back to his place to wash. He would do that for her a couple of times a week. The plaintiff was initially on crutches and was non weight-bearing for approximately six weeks after the surgery following which she progressed to using one crutch and then a walking stick. She required the use of the walking stick for approximately 12 months due to ongoing pain and the challenge of walking. The plaintiff returned to work as soon as she could because she did not want to risk losing her job with the Council.
5. Following her return to work, the plaintiff underwent extensive physiotherapy but the pain in her right hip did not subside. She was in constant pain. The plaintiff continued to attend doctors for treatment and complained to them about her ongoing right hip pain. Things did not seem to be improving and she was becoming very stressed. In May 2014, she was referred for follow up x-ray scans on her right hip which revealed a vascular necrosis of the head of the femur with a collapse of the femur head. She was referred to an orthopaedic specialist who recommended a total right hip replacement.
6. The plaintiff was a member of HCF but was advised by that health fund that there would be a 12 month waiting period before it would pay for the surgery. The plaintiff was in such pain that she arranged to withdraw $25,000 from her home loan and superannuation fund to pay for the surgery and rehabilitation costs.
7. Her pain had become excruciating and continued to increase while she remained on the surgery waiting list. She ultimately underwent hip replacement surgery at Nowra Private Hospital under the care of Dr Davison, orthopaedic surgeon, on 20 August 2014. During that surgery, the metal plate, rod and screw components which were inserted in her first emergency surgery on 13 August 2013, were removed.
8. Immediately after the hip replacement surgery, the plaintiff was very unwell and did not recover for weeks after she was discharged. She suffered nausea and migraine headaches which her doctors attributed to a reaction to anaesthetic. She was unable to go back to work after utilising all her sick and other leave and spent most of the six weeks following the operation in bed or lying on a lounge recovering. She relied heavily on her friend Peter during that time to perform all domestic tasks, including cooking, cleaning, washing and assisting her with personal care. She was unable to afford her rental property in Moruya and had no income. As a result, she moved to Central Tilba to reside with Peter.
9. Due to her illness immediately after the hip replacement surgery, and her ongoing disabilities and restrictions as a consequence of that surgery, she had to resign from her fulltime position with the Eurobodalla Council. The hours of work combined with a one hour drive each way from Central Tilba to Moruya caused her significant pain. The resignation took effect in November 2014. The Council put her on a casual register in a different role but she did not get many shifts. At this time she was increasingly reliant upon Peter for both financial and domestic assistance.
10. The plaintiff before her injury on 13 August 2013, had enjoyed running, kayaking, horse riding, bushwalking, snorkelling, swimming and attending the gym. She has not been able to return to any of those activities in her pre-injury capacity. She attempted to stay fit and healthy but has had to significantly reduce her activities and modify her exercise to accommodate her pain and restrictions.
11. I accept that due to her ongoing pain, and the feelings of isolation, she was unable to participate in her pre-injury social, recreational and work activities and as a result became quite depressed. She said that she continued to feel frustrated with her physical restrictions. The plaintiff was taking anti-inflammatory pain medication for a period of time following the injury up to her hip replacement surgery. After that surgery, she reduced the use of chemical medication and utilised homeopathic support. At the present time she uses natural remedies and supplements as often as she can.
12. The plaintiff undertook a physical and emotional rehabilitation program of walking and swimming in the Narooma area and attended a psychologist in 2015. At that time, she was obtaining very limited casual work of a few hours per month with the council. In August 2015, the plaintiff moved from Central Tilba to Canberra in an attempt to find suitable work.
13. The plaintiff gave the following evidence: "Q. And how long were you on a walking stick for? A. Probably continuously for about 12 months, until I had the total hip replacement, and then ongoing after that. Q. Right. You said in your statement that despite having the surgery to correct that is, the first surgery by Dr Ahren - you continued to have pain. A. Mm. Q. Where was that pain? A. In my right hip. Q. Did you notice pain anywhere else, apart from your hip? A. Across my back, yes. Q. Right. When did you first notice that back pain? A. So the back pain, I feel, was - well, it was always there, but it was overcome by the right - by my right hip, because that was more intense at the time. So I didn't worry about any other pain, it was just the hip that was the main painful part." (T.20.6) "Q. No. All right, thank you. And so with this pain that you were experiencing, were you able to carry out all the aspects of the job that Eurobodalla Shire Council required of you? A. I was. It was just a longer day, because being on crutches and the constant pain that I was in, it took me longer to complete my daily tasks. Q. After you finished work, what sort of state were you in when you got home? A. I was very, very exhausted and then I had an hour's drive back to Pete's place. Q. To get down to Moruya. A. So it was just bed, work, bed, work. Q. Right. Were you able to look after yourself, in the sense of cooking, cleaning, washing, shopping? A. No, no. Q. Who did that for you? A. Pete did. Q. Right, thank you. And you say that went on throughout the period of time even when you had a stick, which you had for about 12 months? A. Yes." (T.21.30-22.2)
14. The plaintiff gave evidence concerning her condition before she moved to Canberra: "Q. Now, did you gradually regain some strength after the hip surgery? A. I did. Q. What about pain, were you still feeling pain in the hip or had that resolved? A. I still had pain but I needed to increase my fitness to help with the muscles, so the exercise regime that I had at the time was the best time, and I guess because I wasn't working I had all those hours to be able to perform those exercises. Q. All right. Did you still have some pain nonetheless? A. Yes. Q. Whereabouts did you have the pain? A. So it was in both groin areas and my lower back, and then from the whole compensation on my right hand side, I was getting pain in my left shoulder and left hip. Q. And has that stayed with you on and off to this day? A. Yes." (T.24.20)
15. After her move to Canberra, the plaintiff obtained two casual positions performing hotel agent and receptionist work. She found it difficult to cope with the work due to her right hip injury, as standing for long periods caused significant pain. She also worked as a Rental Sales Agent with Hertz for approximately 10 hours per week. At the end of the day, she was extremely tired and in pain from her lower back region. She could not sustain the work due to fatigue, pain and financial stress.
16. Financially she had difficulty living on a casual wage in Canberra and paying high rent. She had no funds left after payment of necessities for regular medical treatment. She attended a clinical psychologist while living in Canberra, Dr Justine Bannister, but could not afford to continue those consultations.
17. The plaintiff had difficulty performing hotel work because there were times when she had to lift suitcases and put them into storage, or take suitcases to the rooms. The first hotel where she worked did not have a lift. She had to negotiate a flight of stairs while carrying suitcases. The hotel did not have a porter. This resulted in the plaintiff leaving that job and finding employment in another hotel on the other side of Canberra which had a lift. Although the work was easier at that hotel, the plaintiff still had difficulties lifting suitcases. The plaintiff spent approximately seven months in Canberra.
18. In April 2016, the plaintiff returned to the NSW South Coast to take up a casual position offering almost fulltime hours at the Narooma Beachfront Resort as the office manager. The job involved taking cabin reservations, checking in and out resort patrons and compiling rosters. She worked in that role for approximately six months. Her duties included walking over a large unlevelled site and standing for long periods at reception, as well as daily laundry duties. These parts of her work aggravated her hip and lower back pain. Her employment was terminated when she took a sick day off from work.
19. The plaintiff described the work at the resort as follows: "Q. What did that entail physically? A. So, physically, working in reception, managing the staff rosters, walking, it was a large resort, so there was a lot of walking that needed to be done to and from the cabins, and there was laundry work as well. We were going into the quieter time of the year, so we had to do all the laundry, laundering of the sheets and towels, so it was a matter of putting these into the washing machines and then taking them out very wet and putting them into the dryers, so it was very heavy work. Q. You say in your statement that you noticed that doing these duties aggravated your hip and lower back? A. Yes. Q. You say your employment was terminated when you took one sick day; how did that come about? A. Correct. Well, I wasn't on a contract, and they heavily relied on me at that time. The other person that was the office manager had resigned and gone to another resort, and there was no one else available to fill in that day, so the manager panicked and rang the girl that had left and gone to another resort and asked her to come back, and she said she would only come back if she came back in my role." (T.26.23)
20. The plaintiff was having difficulty coping with ongoing pain and living on her own. She found it difficult to perform cleaning and cooking tasks. As a result, she moved to Brisbane to be near her brother who could provide her with some support. She applied for many jobs and obtained a casual role in October 2016 as a customer service agent in the events section of Queensland Stadiums located at the Gabba. The plaintiff said that due to her injuries, she was only able to work for limited hours and income was limited. She was unable to afford to continue to live in Brisbane on the reduced income.
21. The plaintiff remained in Brisbane for approximately six months. She applied for jobs at Brisbane Airport because of her background in hotels and travel. Her efforts were unsuccessful so she moved back to Wagga Wagga in early April 2017.
22. After her return to Wagga Wagga, she was offered a position, initially as the hotel events co-ordinator, at the Pavilion Hotel. The work involving co-ordinating events held at the Hotel with some duties on reception. She was subsequently required to perform bar and waitressing duties which she could not perform due to her injuries. The plaintiff said that she found that the bar work did not appeal to her at that stage in her life and waitressing was simply too hard. The problem with waitressing work was that the Hotel used heavy pottery platters that had to be passed around. These imposed a lot of pressure on the plaintiff's shoulders and hips and caused her pain.
23. The plaintiff gave evidence that her relationship with Peter had finished when she moved to Canberra. Thereafter, she was required to look after herself which she was able to do with considerable difficulty. When she was working at the resort in Narooma, she was living in a fully self-contained little granny flat, attached to a house owned by friends. She was paying a nominal rent.
24. On or about 15 April 2017, the plaintiff obtained a position at Wagga Wagga Airport with AusFlight Handling working for Regional Express (REX) and Jetgo Airlines. She worked on a permanent part-time basis approximately 25-30 hours per week. Her job involved some standing, however she was provided with a chair/stool to use while at the counter taking reservations and checking in passengers. She was also required to walk around the airport and onto the tarmac and to lift luggage. This involved twisting and bending movements which she had difficulty performing. Pushing wheelchair passengers out to the aircraft caused pain. At the end of a work day, and at the end of the week, she found her hip and lower back symptoms were aggravated and she had to rest rather than perform domestic duties at home. She said that she could not attend social engagements with friends due to pain and was unable to increase her working hours due to her pain.
25. In March 2018, the plaintiff was offered a permanent part-time position with REX in Melbourne at Tullamarine airport. The twelve months of regional airline and operational experience in Wagga Wagga assisted her with this job application and she was successful in obtaining the REX role. She has continued to work in that role on a part-time basis, living in Melbourne not far from the Airport until the present time.
26. The job involves shift work, including split shifts and double shifts. The job includes handling luggage and "things like that" which the plaintiff has found to be difficult.
27. The plaintiff said that on occasions she had to move bags and lift them for weighing purposes. She also had to push wheelchairs. She did not think she would be able to keep working into the future with that job. She was working approximately 35-36 hours per week at the present time.
28. The plaintiff complained of suffering the following symptoms at the time of the trial:

• a constant dull ache in her right hip and leg;
• left hip, groin and shoulder pain causing her to favour her right side;
• constant neck muscle knots and shoulder pain;
• pain and stiffness at the right hip when sitting for long periods of time;
• altered sensation;
• difficulty walking up and down stairs;
• disturbance in her sleep due to pain and discomfort in the right hip;
• difficulty walking on uneven ground and on slippery or wet surfaces such as sand or when it rained;
• pain in her right hip and back when standing still for long periods;
• difficulty returning to pre-injury exercise activities. She can no longer run and has been unable to return to the gym;
• gaining weight due to her inability to exercise has caused frustration;
• she had difficulty performing household duties, in particular heavier tasks such as changing bed linen, hanging out washing, vacuuming and cleaning the bathroom;
• she had difficulty doing grocery shopping. She found it difficult to manage the trolley and many heavy bags so usually she engaged in smaller visits to the shops during the week;
• there was pain in her right hip and back when driving long distances. She uses a TENS machine for relief when driving to and from work and when driving long distances;
• she experienced financial stress, chronic pain, anxiousness, depression, a lack of confidence, frustration with her limitations, and a feeling that she was hopeless, useless, fragile, and a general feeling of loss; and
• there was a considerable reduction in her social life.

1. The plaintiff said that she continued to experience a loss of self-confidence. She was unsure of her future, both physically and emotionally. She found herself being tearful and anxious when she used to be a calm, independent and strong organised and collected person with a professional working career, surrounded by friends and family.
2. The plaintiff gave evidence concerning the possibility of a promotion while working with REX: "HIS HONOUR Q. One of the rehabilitation experts referred to you having an expectation of a promotion, working with Rex? A. Yes. Q. What's happened there? A. I've just lost all my confidence. Q. Have you applied for it? A. No, it was in operations, and I thought there would be a great opportunity, but I just lost all my confidence. Q. Was it a predominantly sedentary job, more sedentary that what you are doing? A. Yes. MR CRANITCH SC Q. Is that job still going, do you know? A. It is. Q. How long has it been open for you to apply for it? A. They've had a couple of people leave in between, so it seems to be constantly someone needing to fill the role, but it's not permanent, it is part time. But it does have a higher pay rate. Q. Would it give you the same number of hours as you are currently doing, or less? A. Probably similar, similar hours, but on a higher pay rate. Q. Do you envisage at some stage you will try and aim for that job, or have you given up the idea of it? A. I don't think so." (T.30.6)
3. The plaintiff is currently living in Melbourne in another granny flat. She is looking after herself as best she can, doing the laundry, shopping and tasks of that kind. The plaintiff agreed that if a sum of money were available to enable her to receive some assistance with domestic duties, she would be prepared to pay for that assistance.
4. The plaintiff was extensively cross-examined to the effect that she did not make any complaint to doctors concerning low back pain until approximately the middle of 2015. There was no complaint of back pain to Dr Davison when he saw her in November 2014, nor to Dr Bodel when he saw her on 29 April 2015. It was on the basis of that material that the defendants submitted that any symptoms of back pain and pain in those parts of the body which were unrelated to the right hip were not caused by the fall in August 2013 and therefore could not be taken into account when assessing the plaintiff's damages.
5. There are a number of problems with that submission by the defendants. The plaintiff was adamant that she did experience back pain following the fall. As earlier indicated, I found the plaintiff to be a reliable witness and I accept her evidence that she did in fact experience back pain following the fall. A probable answer for why the plaintiff did not make any complaint to her treating doctors concerning back pain until 2015 emerges from her evidence as follows: "Q. Right. You said in your statement that despite having the surgery to correct that is, the first surgery by Dr Ahren - you continued to have pain. A. Mm. Q. Where was that pain? A. In my right hip. Q. Did you notice pain anywhere else, apart from your hip? A. Across my back, yes. Q. Right. When did you first notice that back pain? A. So the back pain, I feel, was - well, it was always there, but it was overcome by the right - by my right hip, because that was more intense at the time. So I didn't worry about any other pain, it was just the hip that was the main painful part." (T.20.10)

Non-economic loss

1. When considering non-economic loss, it needs to be kept in mind that the physical effects of the fall are still significantly affecting the plaintiff. She still experiences some pain in her right hip. While she is able to walk and perform light exercises, she has never returned to her pre-accident active lifestyle. She cannot run and has been warned against lifting heavy weights, i.e. in excess of 15kgs. For both physical and psychological reasons, her capacity to work has been reduced. Although she is able to look after herself, it takes her longer to perform household tasks and doing them can cause pain. Her psychological and psychiatric deficits have been set out above. Taking all those matters into account and having regard to the plaintiff's age, I would assess her entitlement to non-economic loss at 35 per cent of a most extreme case, i.e. $222,250.

Past out-of-pocket expenses

1. It has been agreed between the plaintiff and the defendants that past out-of-pocket expenses amount to at least $46,741.65. The plaintiff's total claim is based on HCF and Medicare history statements and amounts to $54,341.00. I have been provided with no information as to what amounts and what treatment the plaintiff received to make up the difference. In those circumstances, there being insufficient evidence before me, I award the plaintiff the agreed amount, i.e. $46,741.65.

Future out-of-pocket expenses

1. There is support for continuing psychiatric treatment. I allow 10 psychiatric sessions at $325 per session, i.e. $3,250.00. There is no basis in the evidence for a claim for "exercise" nor has a basis been provided for occupational therapy. No basis has been provided for personal care costs in the event of another surgery, removal costs, the provision of a shower chair and Vital Call.
2. Since the plaintiff has been successful in her claim, she should have available money to regularly attend her doctors in respect of both her right hip and back pain. The plaintiff has just turned 61 and accordingly has a life expectancy of 27 years (multiplier 783.0), I allow the plaintiff $30 per week for medical expenses, i.e. $23,490.00. I am not prepared to further reduce that amount to have regard for vicissitudes since the life tables have already made such an adjustment.

Past domestic assistance

1. The unchallenged evidence of the plaintiff is that she has been able to manage all of her domestic activities, albeit more slowly than before the fall and with difficulty. Accordingly, the only claim put forward by the plaintiff in this category relates to services provided by Peter. Those services can be broken into two periods. The first followed the occurrence of the injury in August 2013 and the second covered the period following the total hip replacement when the plaintiff moved in with Peter so that he could care for her.
2. The problem with the first period is that we do not know over what length of time Peter provided assistance, we do not know anything about the assistance which he provided, other than when the plaintiff was living in a granny flat in Moruya, he would visit and bring groceries for her and take her washing back to his place. He used to visit the plaintiff a couple of times a week.
3. The only other evidence which appears to relate to this first period is as follows: "Q. … And so with this pain that you were experiencing, were you able to carry out all the aspects of the job that Eurobodalla Shire Council required of you? A. I was. It was just a longer day, because being on crutches and the constant pain that I was in, it took me longer to complete my daily tasks. Q. After you finished work, what sort of state were you in when you got home? A. I was very, very exhausted and then I had an hour's drive back to Pete's place. Q. To get down to Moruya. A. So it was just bed, work, bed, work. Q. Right. Were you able to look after yourself, in the sense of cooking, cleaning, washing, shopping? A. No, no. Q. Who did that for you? A. Pete did." (T.21.30)
4. That evidence is not sufficient to make out the six month/six hour test required by the CLA. Apart from the reference to "groceries", "laundry", "cooking, cleaning, washing and shopping", we have no information as to what else Peter did. Most importantly, however, we have no evidence as to the period of time over which this assistance was provided and for how long each day. Accordingly, the claim in respect of assistance provided by Peter following the August 2013 fall has not been made out.
5. More information is available concerning the second period, i.e. following the plaintiff's discharge from hospital after the hip replacement surgery in August 2014. The plaintiff was discharged from the Nowra Private Hospital on 5 September 2014. The plaintiff had an adverse reaction to the anaesthetic and spent most of the first six weeks after discharge from hospital in bed. Peter performed all domestic tasks including cooking, cleaning, washing and assisting the plaintiff with personal care during that period. Because the plaintiff was unable to afford her rental property in Moruya, she moved to Central Tilba to reside with Peter. It was during this period that the plaintiff chose to resign from the Council.
6. Apart from the plaintiff engaging in her own rehabilitation, walking and swimming, there is again no information as to what exactly Peter did for her and over what period of time. All that we know is that in August of 2015, the plaintiff went to Canberra and this marked the end of her relationship with Peter. On that state of the evidence, as with the first period, it is simply not possible to assess for how many hours or weeks Peter assisted the plaintiff, what assistance was provided over how many hours each day.
7. It follows that I can award no damages for past domestic assistance.

Future domestic assistance on a paid commercial basis

1. The defendants were successful in adducing evidence that the amount of care calculated by Ms Ravagnani was excessive because it was based on the maintenance of a three bedroom house as distinct from a small granny flat which is where the plaintiff is currently living. Since the plaintiff has chosen to reside in granny flat accommodation in the past, a reasonable basis exists for concluding that she will do so in the future.
2. The plaintiff's evidence as to the difficulties she has experienced in looking after herself is consistent and persuasive. As Dr Selwyn Smith and Dr Lewin accepted, the plaintiff's perception of pain and difficulties in looking after herself are genuine. This is particularly so after a day's work in a demanding job which is also associated with pain.
3. I accept the plaintiff's evidence about the amount of pain she has suffered in the past and continues to suffer when performing domestic tasks and looking after herself. In any event, there is no doubt (and I so find) that both psychiatrists accepted that she has a Pain Disorder and Adjustment Disorder which adversely affects her capacity to look after herself even though she continues to do so.
4. As Dr Lewin said (CB 406): "Both Dr Smith and I found evidence of Pain Disorder and an Adjustment Disorder. … I agree with the observations of Dr Smith that the impact of the Adjustment Disorder upon her psychological functioning has been significant. It is likely that a change in her mood state contributed to the relationship difficulties by way of irritability, loss of libido and withdrawal from the intimate relationship. I also agree with Dr Smith with regard to heightened levels of anxiety and apprehensive expectation."
5. Dr Smith accepted that: "Ms Rodd has experienced ongoing pain with restrictions of movement. The fall has markedly intruded into her inter-personal social and occupational functioning. … Her mood has been persistently depressed, sad and unhappy … Her self-esteem and self-confidence have been markedly lowered. She has experienced a markedly diminished interest and pleasure in her activities. She spends a considerable amount of time at home. Her sleep patterns have remained interrupted. She also experiences fatigue and loss of energy." (CB 190-191)
6. Not only did the psychiatrists accept that evidence as credible, Dr Bodel had no difficulty in accepting that the plaintiff's back symptoms could have been at least triggered, or aggravated, by the fall. I accept that the plaintiff experiences pain and discomfort in her day to day life which limits her ability to conduct her activities of daily living in a fashion that she might otherwise have preferred. No evidence was adduced to the contrary.
7. In those circumstances, I find that it is likely that the plaintiff will avail herself of her success in this case by engaging professional assistance to help her in performing domestic duties. I would assess three hours per week as an appropriate expenditure by her, i.e. 3 hours pw at $52 per hour with a multiplier of 783, i.e. $122,148.00.
8. The parties have agreed as to the amount of economic loss to which the plaintiff is entitled should she establish that her injuries have caused a loss of earning capacity. The defendants, however, have not agreed that the plaintiff has such an entitlement. It was the defendants' position that as a result of her presentation to Dr Davison in November 2014 and on subsequent occasions, the plaintiff has largely recovered from the effects of the fall and that there has been no loss of earning capacity on her part since that date.
9. The defendant relies upon the plaintiff's evidence that in the two years leading up to trial, she had only taken two days off work. The defendants submitted that given the nature of the work which the plaintiff has been performing, which involved some heavy lifting, if she were genuinely suffering from physical problems relating to the fall which adversely affected her earning capacity, she would have taken far more time off work.
10. The defendants submitted that although the plaintiff asserts some difficulty in performing her current job and made similar complaints concerning the work at Wagga Wagga Airport, she has in fact been able to do this work over the last two years with virtually no time off. On that issue, the defendants relied upon the evidence of Drs Anthony Smith and Bodel to the effect that she was capable of performing her present work and would be able to continue in that work at least until she turned 67.
11. I have already indicated that I accept the plaintiff as a witness of truth. It follows from that that I accept the plaintiff genuinely suffers pain. There is a basis for that pain established both in the reports of Dr Bodel and in the reports of Dr Selwyn Smith and Dr Lewin, the psychiatrist. What emerges clearly from the plaintiff's evidence and medical history is that she is a stoic person who has managed to look after herself, albeit not as well as she would like, and to maintain employment, despite pain. There is no issue that a comparison between her earnings since the fall and that of a comparable employee with the Council show a clear economic loss having been suffered by her over the years.
12. The report of Dr Bodel when he assessed the plaintiff on 29 April 2015 is instructive. At that time he said: "It is now eight months since the surgery was done and she has made very good progress. The hip is by no means normal but is much more comfortable than it was prior to the surgery."
13. Under "Current Complaints" Dr Bodel recorded "This lady is still left with an ache and muscle soreness in the right hip and thigh". He noted that she could drive an automatic vehicle and was able to do housework as long as she did it slowly. His conclusion was: "In the meantime she needs to continue to exercise and take analgesic medication as required. This injury has severely compromised her social and recreational activities. With improved physical fitness levels she should be able to return slowly to most of those activities, although she would have difficulty running, but she should be able to do some gentle bushwalking and swimming which she is currently doing and should be able to return to her pre-injury style of work."
14. When Dr Bodel saw her in December of 2017, her physical presentation had deteriorated. She had developed low back pain, in addition to the symptoms she was experiencing in her right hip. Dr Bodel summarised the position as follows: "When I saw her last she indicated that the pain following the injury never really settled. She also indicated that in addition to groin pain and hip pain over the greater trochanter and iliac crest she also had back pain which she [didn't] really mention so much when I saw her last. That has been present right from the very beginning."
15. I have already referred to the likely explanation for the onset of the back pain, i.e. degenerative changes in the low back which were aggravated and rendered symptomatic by the fall. Before the total hip replacement, the plaintiff did not make any complaint of back pain because the back symptoms were largely masked by the severity of the right hip problems. As the problems in the right hip improved, the plaintiff became increasingly conscious of the low back problem. That was the explanation given by the plaintiff as to why she may not have complained about back pain at an early point in time and her complaints in that regard are confirmed by the results of the CT scan and the degenerative changes in her low back revealed by that investigation. Dr Bodel's opinion shows that he fully accepted the plaintiff's complaints and their reasonableness. "This lady's main complaint at the moment is the back and that is much worse than the groin pain. This is currently under investigation and will need further treatment including medication and physiotherapy. … Her prognosis remains guarded as I have indicated. This lady's ongoing disability has arisen entirely as a consequence of the effects of the injury on 13 August 2013. She was asymptomatic in these areas and quite active in her day to day activities prior to this. All activities have now been severely curtailed by the effects of the injury. Her complaints are quite genuine and related back to that injury. … This lady's work capacity has also been compromised by the effects of injury. She is now working part-time at the airport in Wagga Wagga but she is struggling with that because of her pain in the back."
16. Importantly, when Dr Bodel was in conclave with Dr Anthony Smith and when giving his evidence at the trial, he was of the opinion that the plaintiff should not engage in work which involved heavy lifting. That is fully consistent with the plaintiff's evidence. She has no problem checking in customers, it is only when she is required to move cases that she experiences difficulty. Her complaints in that regard have been consistent over the years.
17. Accordingly, for the reasons which I have set out above, i.e. my acceptance of the plaintiff, the explanation for the onset of back pain which I also accept, and the fact that such pain would limit the plaintiff's employment, particularly at an airport where she is required from time to time to do heavy lifting, provides adequate support for the differential which the parties have agreed to between what the plaintiff would have earned had she remained in employment with the Eurobodalla Shire Council and what she has actually been able to earn over the years. I am satisfied that this difference adequately reflects the loss of earning capacity suffered by the plaintiff as a result of the fall. Accordingly, in line with the agreement between the parties, I find that the plaintiff is entitled to the following amounts for past economic loss: November 2014 - 30 June 2015 - $14,280.00 1 July 2015 - 30 June 2016 - $17,000.00 1 July 2016 - 30 June 2017 - $36,800.40 1 July 2017 - 30 June 2018 - $36,800.40 1 July 2018 - 30 September 2019 -$10,880.00
18. The above figures produce an amount for past economic loss of $115,760. When allowance is made for past superannuation at 9.5% pa, the plaintiff has a further entitlement for past economic loss of $10,997. This gives the plaintiff a total entitlement to past loss of earning capacity of $126,757.
19. In relation to future economic loss, the parties have agreed that if the plaintiff is entitled to economic loss for the future, her loss is $170 per week. The plaintiff turns 67 in approximately 6 years. Using a multiplier of 271.4 and deducting 15% for vicissitudes produces a figure for future economic loss of $39,217. If one then makes an allowance for superannuation at 11.5% pa, the plaintiff has a further entitlement of $4,510. This provides a total for future economic loss of $43,727.
20. Accordingly, my assessment of the plaintiff's entitlement to damages is:
21. Accordingly, the orders which I make are: 1. Verdict in favour of the plaintiff against the defendants in the amount of $470,690.92 and judgment accordingly. 2. The defendants are to pay the plaintiff's costs of these proceedings, as agreed or assessed.

---

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: 01 October 2019