Safar v Sutherland Shire Council - [2016] NSWDC 232 - NSWDC 2015 case summary — Zoe

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Safar v Sutherland Shire Council

[2016] NSWDC 232

District Court of NSW|2015-12-10

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At a glance

Source facts

Court

District Court of NSW

Decision date

2015-12-10

Catchwords

(1961) 106 CLR 340 Jackson v McDonalds Australia Ltd [2014] NSWCA 162 Malec v JC Hutton Pty Ltd [1990] HCA 20
(1990) 169 CLR 638 Mason v Demasi [2009] NSWCA 227 Medlin v State Government Insurance Commission [1995] HCA 5
(1995) 182 CLR 1 Miller v Galderisi [2009] NSWCA 353 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61
205 CLR 254 Penrith City Council v Parks [2004] NSWCA 201 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34

Source

Original judgment source is linked above.

Catchwords

(1961) 106 CLR 340 Jackson v McDonalds Australia Ltd [2014] NSWCA 162 Malec v JC Hutton Pty Ltd [1990] HCA 20(1990) 169 CLR 638 Mason v Demasi [2009] NSWCA 227 Medlin v State Government Insurance Commission [1995] HCA 5(1995) 182 CLR 1 Miller v Galderisi [2009] NSWCA 353 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61205 CLR 254 Penrith City Council v Parks [2004] NSWCA 201 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 3459 ALJR 492 Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42(2007) 234 CLR 330 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Vairy v Wyong Shire Council [2005] HCA 62

Judgment (44 paragraphs)

[1]

Table of Contents Nature of case [1] Claim [2] - [4] Defence [5] - [6] Issues [7] - [8] Evidence overview [9] - [11] Credibility and reliability of testimony [12] - [31] The plaintiff [13] - [19] Mr Carl Safar [20] Ms Christine McCarthy [21] Mrs Gina Walsh [22] Mr Paul Brien [23] - [28] Mrs Robyn Turner [29] - [31] Facts [32] - [114] Plaintiff's background circumstances [33] - [36] The premises [37] - [49] Expert inspections [50] - [54] Observations by plaintiff on entry [55] - [67] Fall [68] - [70] Wet floor [71] - [81] Injuries [82] Initial treatment [83] - [86] Subsequent medical assessments [87] - [92] Disabilities that remain [93] - [99] Effects on work [100] - [105] Effects on domestic activities [106] - [110] Mitigation [111] Most likely future circumstances [112] - [114] Issue 1 - Whether obvious risk [115] - [129] Issue 2 - Whether negligence [130] - [157] Issue 3 - Whether contributory negligence [158] - [181] Issue 4 - Assessment of damages [182] - [223] Plaintiff's probable life span [183] Non-economic loss [184] - [188] Past economic loss [189] - [190] Future loss of earning capacity [191] - [208] Future loss of superannuation [209] Future treatment expenses [210] - [214] Future domestic assistance [215] - [221] Out-of-pocket expenses [222] Summary of damages assessment [223] Disposition [224] Costs [225] Orders [226]

[8]

The plaintiff

In summary, I found the plaintiff to be a witness whose evidence was given in a straightforward manner. The content of her evidence was unembellished. She made reasonable concessions on matters where it was against her interests to do so, for example, her concession that when she had entered the premises, she knew the floor was wet from dropped water, but at the time immediately before her fall, she did not give that matter conscious thought whilst she was walking on that floor: T152.5 - T152.45; T153.9 - T154.16. I found her evidence credible and reliable and I accept it in its entirety.
Apart from the question of whether the floor where she slipped was wet, the areas of challenge to the plaintiff's evidence appeared to me to be of relatively minor significance. In my view, in considering those challenges, the plaintiff's credit was not damaged.
Examples of those challenges to the plaintiff's evidence are as follows. It was suggested that she had left the auditorium to smoke a cigarette, which she denied, stating instead that she was proceeding to the toilet: T86.1 - T86.11; T87.17. It was suggested to her that it took Mr Brien about 5 minutes, rather than her own estimate of 20 minutes, for him to come to her aid: T91.32. It was suggested to her that Mr Brien was the one who had raised the prospect that her leg could be broken, whereas she was adamant he had said that he thought it was not broken: T92.6. It was suggested to her that Mr Brien came and sat next to her on the floor rather than laying down next to her as she stated, a proposition she denied, in the context that she felt Mr Brien's presence was agitating her: T93.18. She also disagreed with the suggestion that it was not raining at the time she was taken out of the hall and placed in an ambulance: T101.47.
In my view, all of those challenges involved peripheral matters, including matters of perception, upon which nothing of any credit significance turned.
The defendant raised a factual dispute concerning whether the plaintiff had in fact seen areas of water droplets on the floor after she had fallen, as she had claimed. In that regard, the plaintiff denied having "made up" that account after the event: T93.11 - T93.14. I accept the plaintiff's denial of that proposition. The defendant's challenge on this point appears to have been based on the evidence of Mr Brien, who did not see the actual spot where the plaintiff had slipped. It appears that Mr Brien had made assumptions in that regard as the plaintiff had moved from where she had fallen by the time of his arrival. I am not satisfied that Mr Brien and the plaintiff were describing the same spot on the floor where the plaintiff slipped.
Another dispute emerged as to the significance of a conversation between the plaintiff and the defendant's employee, Mrs Turner, about a week after the fall, in which it was claimed the plaintiff had said she had "just slipped": T100.35 - T101.2. In my view, nothing of a credit significance turns on the recounted detail of that conversation.
In the course of cross-examination, the defendant had intended to confront the plaintiff with some video footage relevant to damages issues. However, for the reasons given during the course of the trial, a ruling was made that the defendant could not make use of that material on account of non-compliance with the Rules for service, and consequently, nothing turns on the existence of that material with regard to the plaintiff's credit: T165.10; UCPR 31 r 10(1) and r 10(2)(a); MFI "9".

[12]

Mr Paul Brien

At the time of the plaintiff's fall, Mr Brien was employed by the defendant in a managerial capacity as an operations co-ordinator, whose duties were generally to supervise and to direct staff in respect of any physical tasks to be carried out on the premises: T 210.41 - T211.2; T322.33. At the time of the events, in addition to his administrative and supervisory functions, he also had what he described as a roving responsibility to patrol the premises and to relieve other staff from their allocated duties, and to do whatever was required if no cleaning maintenance staff were in attendance: T213.34 - T213.39.
Mr Brien had retired from the defendant's employment in 2014: T211.22. During questioning, understandably, and following his retirement, the accuracy of some of his recollections surrounding relevant events had become faded, and was admittedly absent as a blank in his memory: T325.37; T327.42 - T328.3. On critical matters, he could not recall the exact wording of the initial conversation he had with the plaintiff at the scene of her fall: T384.28.
On occasion, Mr Brien ventured speculative explanations as to why ushers in the premises had not notified him of other slip incidents that had occurred in the auditorium on the day in question. Those explanations were of limited probative value as Mr Brien had not interviewed the ushers after the plaintiff's fall: T392.45; T393.12.
Alone, and in combination, those various matters caused me to doubt the accuracy and reliability of Mr Brien's recollections generally on critical matters in dispute. Further doubts emerged in that regard concerning the reliability of his evidence when he resorted to argument in order to seek to defend the defendant's position in the litigation, for example, at T396.15 - T396.18; T398.15.
Some of the issues explored through the evidence of Mr Brien ultimately fell away and became irrelevant, for example, the details of the maintenance history of the premises, and as to which particular doors had been used by patrons to enter the premises on the day in question, when the material circumstances were that many people had entered the premises from the outside, and in doing so, carried into the premises water that dripped from their clothing, shoes, bags and umbrellas, as they moved about within the premises.
The relevant questions that arose within the evidence of Mr Brien, and which require consideration for resolution when compared with other evidence, are: whether, at the time of the plaintiff's fall, the parquetry floor in the vicinity of the plaintiff's fall was wet from water that had dripped or dropped onto it (T329.37 - T329.45); whether it was such wetness which caused the plaintiff to fall; whether the lighting in the auditorium was fully illuminated or was dim at the time when he had attended upon the plaintiff, as distinct from when she fell (T330.15 - T330.18); and whether he was truly in a position to reliably make the statement he made to the effect that there was no water observed to be present on the floor in the vicinity of the plaintiff's fall.

[15]

The premises

The eisteddfod organisers had hired the premises and the auditorium within the premises from the defendant pursuant to the terms of a contract: Exhibit "E". That contract provided for the defendant to make ushers or safety attendants available (T215.31). The duties or functions of the ushers were to enforce safety procedures in the premises. This included by reference to ticketing, directing patrons to their seats, prohibiting the bringing of glass vessels into the premises, and ensuring there were no encumbrances, such as prams, strollers or walkers, that could block aisles in the auditorium: T387.1 - T387.5.
On the day in question, outside, it had been raining for most of the day: T124.2.
In addition to the presence of ushers or safety attendants, the defendant also employed cleaning or maintenance staff at the premises on the day in question: T388.12; T389.36. Those persons were equipped with buckets, brooms, squeegees, mops and the like to remedy any cleaning issue such as spillages or water on the floor: T389.35 - T389.40. Those persons worked under the direction of Mr Brien.
Entering into the premises was made possible by access through a number of doors, including the main entrance and rear entry doors (T217.4 - T217.5) but only one door was open as was requested: T217.5 and T217.29. However, it appears patrons used an alternative means of access, across a carpeted area before entering the parquetry floor area of the auditorium. In doing so, they carried droplets of water that had dripped from their belongings.
Mr Brien stated that he had observed patrons entering the building with wet clothes, shoes and umbrellas, and going in different directions within the building, including along the passageway towards the change room: T332.29 - T332.45.
Mr Brien stated that he had placed a single standard blue or black garbage bin and bin liner into which an umbrella had been placed in an area adjacent to the ticket box. He said the purpose of the umbrella in the bin was intended to suggest that the bin was an umbrella receptacle and not a garbage bin: T333.20 - T333.29. This may have given rise to an ambiguity, as there were no signs displayed having the effect of requesting patrons to place their wet umbrellas in the single bin he said he had provided for that purpose: T395.49. In such circumstances without specific direction by appropriately worded signage, it was quite possible that people observing an umbrella in a garbage bin could have wrongly assumed the umbrella was either broken, or had been abandoned as being no longer useful. The general observations of the council employees who gave evidence were that patrons were generally reluctant to leave their umbrellas in such a bin in the premises: T361.36; T362.2 - T362.8; T401.39 - T401.42.
Mr Brien stated that in the lead up to the incident involving the plaintiff, he was aware that there had been a number of complaints, or at least reported incidents, about water or liquid on the parquetry floor resulting in slips; T390.41. Consistent with the opinions of the liability experts, he agreed that the general proposition that the combination of water on parquetry flooring could potentially cause slippage: T390.46.
Mr Brien acknowledged the likelihood that the floor of the premises could become wet if persons came in from the rain with wet shoes and clothing: T395.20. In addition to that concession, commonsense suggests that wet umbrellas should also be included in that category as a source of water dropping onto the floor.
Mr Brien agreed that in the premises, the defendant had available to it some signs displaying words like "Caution, slippery when wet", but as there was no area which was deemed (apparently by him) to be slippery, the signs were not deployed on the occasion in question. Instead, those signs remained stored in a maintenance cabinet located on the ground floor of the premises: T396.30 - T396.47.
Mr Brien also confirmed that the area in the premises intended for use as a cloakroom had never been used for that purpose, and had instead been used for storage of anything but wet coats, umbrellas and the like: T397.5 - T397.22.
Mr Brien was familiar with equipment used for the bagging of wet umbrellas. He said it did not occur to him to ask (the defendant) for such a machine to be provided as it did not occur to him as being necessary: T406.28.
The evidence of Mrs Turner, Mr Brien and the council records, confirms that the defendant was aware that over time, there was a prior claims history of persons slipping on wet parquetry flooring in the premises: T216.35; T288.41 - T288.49.
There was evidence that shortly before the eisteddfod, some remedial work had been carried out on the premises by way of replacement and repairs to the sections of the parquetry flooring, along with the application of Tung oil, waxing and polishing of those areas. There is nothing to suggest that the effects of those works, which were at a different spot to where the plaintiff had fallen, had in any way contributed to the plaintiff's fall on the day in question.

[17]

Observations by the plaintiff on entry

On the day of the accident, the plaintiff attended at the premises in order to accompany her daughter who was a participant in a scheduled dance eisteddfod. She was not familiar with the premises beforehand. I accept that on that day, it had been raining heavily outside. The plaintiff had arrived at the premises at about 8.30am. The defendant relied on meteorological evidence to suggest it had not been raining. That evidence did not relate to the geographical location of the premises and I do not accept it as evidence that was probative of the contention relied upon by the defendant.
The plaintiff entered the auditorium and sat at the rear of the hall, where she remained from about 9.00am, watching the performances of the competitors until an interval break was called by the adjudicator at about 10.45am: T30.38 - T32.37.
The plaintiff said that on entering the premises, she had not seen any bins for the storage of wet umbrellas, nor had she seen any equipment for drying umbrellas, or for bagging them so that they would not drip water onto the floor: T38.30 - T38.50. Similarly, the plaintiff said she had not seen any mats deployed (to soak up water) on the parquetry flooring (T39.2), nor had she seen anyone mopping up the parquetry floor area: T39.9.
On entering the premises, the plaintiff was aware that there was no cloakroom facility for people to leave dripping umbrellas and raincoats: T39.16. On entering the auditorium, the plaintiff was aware that people entering the premises were carrying umbrellas, coats and dance costume bags that were wet from rainwater, which had dripped or dropped onto the parquetry floor: T39.24 - T39.42.
Mr Brien accepted that in conditions of low lighting, with people walking amongst others, it would have been difficult for persons within the premises to see the presence of droplets of water on the floor in the auditorium as their view of the floor could have been obscured: T390.18 - T390.36.
Mr Brien agreed that there were mats available within the premises, but he disagreed with the proposition that the mats could have been put down on the floor at the entrance to the auditorium, saying that they were instead used on carpet and not on the parquetry because they would slip underfoot on a smooth surface: T397.27 - T397.36. When that view was explored in the context of the mats having a rubberised under surface, he nevertheless maintained the view that a rubber under surface on an absorbent mat would move on a smooth parquetry floor. He maintained that view even though he had no experience concerning such matters: T398.1 - T398.15. In my view, that lack of experience had the effect of devaluing and rendering unreliable that aspect of the opinion of Mr Brien.
Mr Brien agreed that the mats that were in use in the premises were serving no useful purpose because they were located near the main entrance, which was not in use at the time: T398.19 - T398.41; T405.44 - T406.2.
The argument that Mr Brien put forward against the use of mats on the parquetry floor was that once people had traversed some 20 metres or so of carpeted area on entering the premises, that was sufficient opportunity for the wetness on their shoes to be absorbed into the carpet: T398.44 - T398.47. That argument represents an incomplete consideration of the prevailing risk of slipping.
In my opinion, the argument identified by Mr Brien is spurious because it does not fully address the problem. It does not address the risk posed by water dripping onto the parquetry floor from raincoats and other garments, as well as from umbrellas. It may be that Mr Brien did not fully think through that evidence, which resulted in that spurious view being proffered. I take that view because the evidence in question was given in the context of Mr Brien being, in his own words, flustered due to the communication difficulties that arose in taking that part of his evidence by telephone link with Norfolk Island, where he was residing at the time he gave his evidence: T399.10.
Mr Brien did not see himself as having any role in making pro-active recommendations to management against the risk or probability of falls occurring when it was raining and when parquetry flooring might become wet and slippery: T400.10 - T400.16.
Mr Brien agreed with the proposition that after water had been brought into the premises on umbrellas, coats and shoes, and after it had dripped onto the floor during the progress of the performance, the inference would be that the floor would be wet from such water: T403.32.
Notwithstanding that concession, Mr Brien sought to argue that there was no evidence of water having been there: T403.33. In my view, that argument is met and answered by the observation of Mrs McCarthy who saw water being dripped onto the parquetry floor (T124.19), who had slipped earlier (T124.50; T143.28), and the evidence of the plaintiff of having seen water on the floor and having felt the side of her leg become wet after she had fallen: T34.22.
The defendant relied upon drawings, photographs and descriptions of the premises, and of entry points in the premises, as well as measurements of various carpeted and parquetry areas in the premises. These matters were of little relevance to the question of whether the specific location of the plaintiff's fall comprised parquetry flooring that had become wet from water that had dripped from the belongings of patrons on the premises.

[19]

Wet floor

Whilst the plaintiff was laying on the floor after the fall, she noticed that her left leg had become wet. At the time she also noticed that several puddles of water, about 2 inches in diameter, were distributed over the parquetry floor near the entrance to the auditorium: T34.6 - T35.47.
There was a question raised by the defendant as to whether the wetness of the plaintiff's tights was a residue of the plaintiff having been outside in the rain earlier that morning. There was a difference between the evidence of the plaintiff and Mrs McCarthy on the one hand, and that of Mr Brien on the other, on this issue.
I accept the plaintiff's evidence that only her outer garments had been wet from the rain, and that her leg tights had been dry before she fell. I accept her evidence that she only noticed the wetness to her tights and her legs after she had fallen: T93.6; T95.42.
I accept that whilst the plaintiff was laying on the floor after her fall, she found that she was unable to get up. I accept that she then proceeded to drag herself to the carpeted area of the premises as people continued to come out of the auditorium: T34.39 - T34.44. On my reading of the plaintiff's evidence in this regard, I find that the plaintiff moved a significant distance from the spot where she had fallen, by dragging herself towards that carpeted area before Mr Brien had arrived on the scene.
It is in that context that the differing evidence of the plaintiff and that of Mr Brien stands to be reconciled.
In those events, some people who were leaving the auditorium came to the plaintiff's aid: T34.47. However, according to the plaintiff's perception, about 20 minutes had passed before someone from the Centre Management came to the plaintiff's aid: T34.49 - T35.4. The precise interval of time is not of crucial importance. The plaintiff identified that person as Mr Brien, who at that time, identified himself to her as the manager of the centre: T35.6 - T35.8. I accept Mrs McCarthy's evidence that the usher that was supposed to be located near the downstairs auditorium was not at that location: T126.11 - T126.18; T126.25; T129.36; T150.34. I consider this to be the explanation for the time taken by Mr Brien to attend at the scene.
It was suggested to the plaintiff that Mr Brien had attended to her after about only 5 minutes following her fall: T91.30. The plaintiff disputed that estimate. In my view it is difficult to see how Mr Brien could have accurately estimated that interval of time in which it took him to reach the plaintiff, which he described as "less than a minute" (T394.9) as he was not present when she fell. However, nothing turns on that discrepancy in the description of the time interval, other than during that interval of elapsed time, the plaintiff had moved herself away from the place where she had slipped and fallen.
In my view the contrasting evidence of Mr Brien and the plaintiff on the question of whether there was water present on the parquetry flooring can be reconciled in a number of ways.
First, the area where the plaintiff was located when Mr Brien arrived was different to the spot where the plaintiff had slipped. This is because the plaintiff had dragged herself away from the area where she had slipped. This fact, which I accept, readily accounts for Mr Brien not having seen the droplets of water on the floor which the plaintiff had seen after her fall. It also readily accounts for why Mr Brien did not see the slide mark that the plaintiff described: T34.37.
There are other possible explanations as well, such as the likelihood that as the crowd of people gathered around the plaintiff, the moisture on the floor had become spread, dissipated or less noticeable, or that the plaintiff's clothing had soaked up and absorbed the moisture in the vicinity.
Of those possibilities, I consider, the above possibilities to be the most probable explanations for the differing observations of the plaintiff, compared to those of Mr Brien.

[22]

Subsequent medical assessments

Reports from the plaintiff's treating doctors were significantly absent from the evidence tendered in the proceedings.
On 6 August 2013, a post-operative follow-up x-ray of the plaintiff's right ankle revealed that the fixation screws and plate were in situ, and that the bony alignment appeared satisfactory, and that the ankle mortise was intact: Exhibit "A", p 20.
On 11 November 2013, at the request of her solicitors, the plaintiff was examined for medico-legal purposes by Dr James Bodel, a consultant orthopaedic surgeon. He noted the plaintiff was complaining of aching, stiffness and swelling of the right ankle, with associated difficulties walking for prolonged periods, and difficulty managing uneven surfaces. He noted the presence of disfiguring surgical scars and foreshadowed future hardware removal. He anticipated it would take some 18 months for the plaintiff's condition to stabilise: Exhibit "A", pp 11 - 15.
On 8 October 2014, Dr Bodel re-examined the plaintiff and essentially found the plaintiff's previously recorded symptoms, but with added complaints of aggravation of right foot problems on prolonged standing, some right knee and back pain, the latter being ascribed to an abnormal gait pattern. He also noted redness and swelling in the right leg. He expressed a guarded prognosis because of the intra-articular nature of the ankle fracture: Exhibit "A", pp 6 - 10.
On 19 June 2015, at the request of the solicitor for the defendant, the plaintiff was examined for medico-legal purposes by Professor Frederick Ehrlich, an orthopaedics and rehabilitation specialist. Professor Ehrlich obtained a history of the plaintiff's current right ankle complaints as comprising swelling, aching particularly in changeable weather, inability to stand or walk long distances, difficulty on stairs and the avoidance of challenging recreational activities, such as dancing. He considered the plaintiff presented in a straightforward manner, and that her complaints were consistent with the manner of occurrence of the subject accident. He noted the presence of surgical scarring, with limitation of ankle eversion and the continued presence of plates and screws in the lower tibia and fibula: Exhibit "1".
On 24 August 2015, the plaintiff was again re-examined by Dr Bodel. At that time he reviewed the plaintiff's earlier complaints and noted that the previous knee pain had settled, but that the earlier described foot and ankle symptoms remained, as did the intermittent low back pain. He also noted the complaint of early morning stiffness, which related to the right ankle. He again flagged the future possibility of surgery for hardware removal. He noted there was an increased risk of the plaintiff developing post-traumatic arthritis which was difficult to gauge, but if it occurs, it will curtail her work over time: Exhibit "A", pp 1 - 5.

[23]

Disabilities that remain

Given that I have accepted the plaintiff as a credible witness, I am satisfied that the medical and allied practitioners who have provided reports following their examinations of the plaintiff, have accurately summarised her complaints. I take those summaries to be evidence of her injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.
In essence, the plaintiff continues to suffer from right ankle pain, discomfort and swelling. She has difficulty weight bearing on her right foot. She continues to experience throbbing, swelling and aching in her right foot: T47.42. She experiences a reduced standing tolerance: T154.46. She has gained at least 10kgs in weight in the last 2 years, apparently due to a decrease in her level of physical activity: T48.49 - T49.1. This has caused her to experience unhappiness as well as a reduced level of confidence which has impacted on her attitude to her work: T49.4 - T49.7. The plaintiff's loss of confidence and experience of continual pain has affected her work motivation: T60.9; T61.1 - T61.12; T160.6 - T160.21; T176.12.
The plaintiff no longer wears high-heeled shoes as a result of her injury: T49.14. Her foot swells when she travels: T51.45. It also swells and becomes painful when she exercises or carries out household chores: T54.48; T176.30. She needs to elevate her foot for 20 - 30 minutes for the swelling to subside: T177.9. She needs to take anti-inflammatory medication: T52.21 - T54.25. At times her foot feels unstable and the indwelling hardware screws cause her irritation: T55.30 - T55.45.
The plaintiff has experienced problems walking on the beach, including loss of balance on uneven surfaces: T56.40 - T56.45; T57.1. She experiences a worsening of her pain in cold weather and experiences swelling of her foot in warmer weather: T58.1 - T58.6. She experiences difficulty negotiating stairs: T58.10; T155.39 - T155.45. She is now reluctant to undertake risky physical leisure activity with her daughter: T156.34.
The plaintiff finds she walks with a limp after prolonged sitting: T112.26. When she walks she sometimes has a need to tape up her right foot as was recommended by her physiotherapist: T113.30. She avoids walking on grassed areas and tries to stick to walking on hard surfaces: T114.1 - T114.7.
The tendered photographs of the plaintiff's swelling and scarring to her right foot do not adequately portray those problems: Exhibit "C"; T55.6 - T55.32.
I am satisfied all of those described problems were caused by the subject fall and the plaintiff's subsequent need for treatment. Such matters would not have arisen but for the fall in question.

[25]

Effects on domestic activities

Before the subject accident, the plaintiff attended to all of her household cleaning and other tasks without assistance: T120.50 - T121.5. Since her injury she has not been able to maintain that regime. She now pays a cleaner to do her housework: T110.40.
In the six or seven months that followed the plaintiff's accident, Mr Safar had struggled to manage the household chores and to also attend to the plaintiff's needs: T190.19 - T190.26; T191.8. There is no claim made by the plaintiff for the value of past domestic assistance, whether provided by Mr Safar, or by family and friends, or by the paid cleaner Mr Safar had employed to carry out household tasks. No adverse inferences arise from the absence of such a claim or evidence of such payments in view of the existence of the known statutory threshold for such claims (s 15 of the CL Act) and the reluctance of the paid cleaner to provide proof of payment for her services: T111.5 - T111.27.
Mr Safar described some of the plaintiff's difficulties that followed her injury, including agitation when in pain (T192.26), a tendency to swelling in her foot (T192.40), being emotionally upset (T193.6 - T193.23), difficulty joining in dancing at parties and functions (T193.34), changes in their interpersonal relationship (T194.19 - T194.29), and the plaintiff's significant weight gain (T194.49).
Mr Safar's work commitments meant he was not readily available to carry out domestic cleaning (T200; T206.33 - T206.39), and at the times he carried out cleaning tasks, he could not carry out those activities to the plaintiff's satisfaction: T202.16.
The plaintiff has difficulty managing the household washing due to foot pain (T166.23) and swelling in her right foot: T177.6. She can no longer clean the floors in her home: T57.38. She no longer cleans the bathroom in her home due to the pain she experiences in her leg: T63.37. If she attempts to carry out vacuuming she experiences leg pain and cannot continue: T117.29. She cannot carry out cleaning activities such as scrubbing in the bathroom: T118.19 - T119.5; T119.50 - T120.17. I accept that she intends to have a cleaner carry out this work on a commercial basis so it is done properly as she does not consider her husband to appropriately carry out those tasks: T120.35.

[28]

Issue 1 - Whether the condition of the floor involved obvious risk

The defendant submitted that it did not have a duty to warn the plaintiff of the slipping danger posed by the wet condition of the floor of the premises because the wet and slippery condition of the floor was an obvious slipping risk: s 5F, s 5G and s 5H of the CL Act.
Section 5F of the CL Act relevantly provides: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
Section 5G of the CL Act relevantly provides: 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
Section 5H of the CL Act relevantly provides: 5H No proactive duty to warn of obvious risk (1) A person ("the defendant" ) does not owe a duty of care to another person ("the plaintiff" ) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
The determination of the obviousness of a risk of harm requires an objective test to be applied by reference to the position of the plaintiff: s 5F(1) of the CL Act. This means that it is not what the plaintiff had in mind at the time, but rather, what a reasonable person in her position would regard as obvious: Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482, at [59], [61].
In this case, the slipping risk posed by the partially wet and therefore slippery condition of the floor would only be obvious if it was either known to the plaintiff that the floor had water on it, or if it was observable that this was so to a reasonable person in the position of the plaintiff when walking over the area of the floor in question. On either of those two scenarios, it was incumbent on the plaintiff to proceed with due care.
The plaintiff gave evidence, as cited at paragraph [13] above, that she knew that the floor had upon it water that had been dropped or dripped from umbrellas, raincoats, or bags brought into the premises in circumstances where there were no cloakroom facilities, and no umbrella drying or storage facilities.
In those circumstances, I consider that it must have been obvious to the plaintiff, and obvious to a reasonable person in the position of the plaintiff, that the condition of the floor was likely to have been affected by water that had been dropped or dripped onto its surface, so as to render the surface of the floor slippery, thus rendering identifiable, a risk of slipping on that floor.
In my view, the plaintiff's pre-existing awareness of the obviousness of the risk of slipping on a floor that was wet in places has been established on the evidence: T152.5 - T152.45. I find that this awareness extended to knowledge of the floor being wet in the general area comprising the parquetry where she had fallen, although she was not thinking about it at the time of her fall: T153.9 - T154.16.
In those circumstances, I consider that a reasonable person in the position of the plaintiff ought to have realised that the water that she had observed to have dripped onto the parquetry floor had created a risk of harm from slipping on that water: s 5F(1) of the CL Act.
The recognisability of the risk of slipping on a parquetry floor with water on it was patent, or a matter of common knowledge, that did not require particular expertise: s 5F(2) of the CL Act.
The fact that the plaintiff saw water dripped onto the floor obviates a consideration of whether the wet condition of the floor was not prominent, conspicuous, or physically observable: s 5F(3) of the CL Act.
Although the defendant did not display warning signs or objects, such as witches hats or other signage, to draw attention to the slippery condition of the floor, I consider that such omissions are irrelevant to the circumstances of this case. This is so because the slippery condition of the parquetry floor was something that was obvious to the plaintiff by reason of her observations, as cited in the preceding paragraphs. In those circumstances, any such warnings as to the risk of slipping on the floor with water on it, whilst they would have been prudently placed for the benefit of other patrons, were unnecessary or superfluous so far as the plaintiff was concerned, because it must be presumed that she was aware of the risk of slipping: s 5G(1) of the CL Act.
Given the plaintiff's acknowledged awareness that water was on the parquetry floor of the premises, she is unable to prove on the balance of probabilities, that she was unaware of the risk of slipping on the floor onto which water had dripped: s 5G(2) of the CL Act.
Accordingly, as the risk of slipping on the wet portions of the floor was an obvious one, in this case, I find that the defendant did not owe this particular plaintiff (as distinct from others in the premises at the relevant time), a duty to warn her of that obvious risk: s 5H(1) of the CL Act.

[29]

Issue 2 - Negligence - the duty of care owed and the alleged breaches

As occupier of the premises, the defendant owed the plaintiff a duty to take reasonable care with regard to maintaining the safety of the floor of the premises for pedestrian traffic where the condition of the floor, of which the defendant either knew or ought to have known, posed a foreseeable risk of injury by slipping on the floor when wet, and which could have been avoided by the exercise of reasonable care. That duty presupposed that for her part, the plaintiff would take reasonable care for her own safety: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, at p 488; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, at [13], [18]; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [45]. That duty subsisted in the present case in relation to the premises, which had many entrants on the day in question: Jackson v McDonalds Australia Ltd [2014] NSWCA 162, at [82].
In this case, the duty owed is not abstract, and is to be viewed in the context of the surrounding circumstances, which involved wet weather conditions outside, which in turn meant that some of the persons who were entering the premises did so with wet umbrellas, raincoats, shoes and bags that would foreseeably deposit water on the floor.
In the absence of appropriate hanging, storage or drying facilities for the coats, umbrellas and bags, this meant it was very likely that water would drip from those items onto the parquetry floor of the premises, thereby posing a significant potential slip and fall hazard to persons such as the plaintiff, who would be foreseeably walking on that floor.
In summary, without repeating the entire text of the pleaded particulars of negligence (a) to (n), in essence, apart from the matter of warning signs, which is no longer relevant as a result of the consideration of Issue 1 concerning obvious risk, the claim is that the defendant failed to discharge the owed duty by failing to take reasonable steps to make the floor safe, either by the placement of mats, or by detecting, isolating, cleaning or mopping up water, that had dropped onto the floor surface.
The assessment of those allegations in order to determine whether on the evidence, a finding of negligence on the part of the defendant should be made, must proceed according to the requirements of s 5B and s 5C of the CL Act.
Section 5B of the CL Act provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
The three pre-conditions required by s 5B(1) of the CL Act must be satisfied before there can be a finding of negligence.
As to the identification of the relevant risk of harm, the defendant accepts that in this case it is the risk of a person slipping on the wet floor of the auditorium in the centre and sustaining injury: T415.21 - T415.29.
As to the first pre-condition, I find that, as was conceded by the defendant, on the evidence, there was a reasonably foreseeable risk of harm from slipping on the parquetry floor when wet: s 5B(1)(a) of the CL Act; T415.34.
As to the second pre-condition, I find that, as was also conceded by the defendant, the relevant risk of harm was not insignificant: s 5B(1)(b) of the CL Act; T417.13.
As to the third pre-condition, I find that a reasonable person in the position of the defendant would have taken the precautions contended for on behalf of the plaintiff, as the evidence of Mr Brien, and a commonsense analysis, indicates that such precautions were not unduly burdensome in the prevailing circumstances: s 5B(1)(c) of the CL Act; T417.15 - T423.
I take that view having regard to the indication within the contract issued by the defendant which provided that it would have an usher positioned near the downstairs auditorium, together with Mr Brien on site as a roving co-ordinator, as well as cleaning staff. The defendant also had mats that could have been strategically placed. In addition, it could have arranged the placement of bins and made other arrangements for the safe storage of items of wet apparel that were likely to drip water onto the floor to render it slippery. The circumstances required vigilant observation and remedial action. The defendant had personnel on hand to facilitate those steps.
The defendant did not have umbrella bagging equipment. It had only placed one bin for the storage of umbrellas, without explanatory signage, and there was no provision for the hanging of wet raincoats and costume bags away from the parquetry floor in the premises which was foreseeably liable to become very slippery when wet with water.
I consider that on a prospective view, in the context of the consideration required by s 5B(1) of the CL Act, such precautions were reasonable, and were steps that should have been taken: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [105].
Having reached that conclusion, it is necessary to then turn to a consideration of the further requirements of s 5B(2) of the CL Act.
In my assessment, a reasonable person would have taken the contended precautions against the risk of harm from slipping on the moisture affected parquetry flooring because of the patently high probability of slipping if care was not taken to seek to avoid such occurrences: s 5B(2)(a) of the CL Act. This is confirmed by the first report of Dr Cooke at par 41.
Absent the taking of precautions, serious harm in the form of personal injury was a likely outcome. It is not necessary to show that the precise injuries sustained by the plaintiff were predictable as a likely outcome. It is sufficient that serious injury was a likely consequence if no precautions were taken, or were inadequately taken: s 5B(2)(b) of the CL Act.
In large commercial premises where it is anticipated that hundreds of patrons would attend for the eisteddfod, and where the defendant had personnel and other resources available as already described, I consider that the burden of taking the precautions contended for on behalf of the plaintiff, were not unduly burdensome. It is difficult to see how the provision of sufficient and strategically placed umbrella storage, with signage, umbrella bagging facilities, wet raincoat and bag hanging areas, including making use of an available cloak room, could be seen to be unduly burdensome in the circumstances: s 5B(2)(c) of the CL Act.
Taking an overview of the circumstances, there is significant positive social utility in the defendant providing the council premises it occupies for communal events such as an eisteddfod. Where the defendant ordinarily employs staff to supervise, inspect, clean and maintain such premises, which are hired for a fee covered by an entry fee, there is no social utility in excusing a want of the exercise of reasonable care in such circumstances: s 5B(2)(d) of the CL Act.
It also becomes necessary to consider the requirements of s 5C of the CL Act, which relevantly provides: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
The cost burden on the defendant in this case is to take appropriate measures for the provision of appropriate receptacles, not just one, to provide for 200 people, for their dripping umbrellas, including umbrella bagging facilities, and to provide reasonable hanging facilities for dripping raincoats and costume bags, and to lay out absorbent mats on the parquetry flooring between the carpeted area and the parquetry flooring of the auditorium where patrons would walk for access and egress in respect of their seats.
Absent the provision of those precautions, I consider that in the prevailing wet weather conditions, the risk of water dripping onto the parquetry floor remained inadequately addressed. Mr Brien thought that the carpeted foyer would soak up the water from wet shoes: T398.44 - T398.47. However, that assessment did not address the risk posed by water that would drip from the raincoats and bags of patrons. A facility that had provision for ushers, and cleaners with mops and the like, and the provision of a roving inspector or supervisor, ought to have provided a more appropriately considered response, as was contended on behalf of the plaintiff: s 5C(a) of the CL Act. Such precautions were reasonably required: s 5C(b) of the CL Act.
I find that the defendant's system represented an inadequate response to the risk that was identified. An ordinarily vigilant usher, if present, would have recognised the problem and called for remedial help from Mr Brien and the cleaners on site. An ordinarily vigilant roving supervisor, if present, or made aware of the presence of water on the floor, ought to have also recognised the risk of patrons slipping, and addressed it either by remedial action himself, or by directing the application of remedial attention from cleaners on site.
The foregoing analysis leads me to conclude that the successive failures to implement the identified reasons should be characterised as a breach of the duty of care the defendant owed to the plaintiff.
I now turn to the issue of causation, which is governed by the provisions of s 5D of the CL Act, which provides as follows: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation" ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability" ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
The analysis of causation is a retrospective one: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124].
In my view, the plaintiff has discharged the onus of proof required for establishing a breach of duty of care, and that the negligence of the defendant was the cause of the harm she has suffered: s 5D and s 5E of the CL Act.
I reach that conclusion because, but for the failure of the defendant to take the earlier described precautions, the plaintiff would not have been injured (s 5D(1)(a) of the CL Act) and because it is appropriate for the defendant to bear the responsibility for the injuries suffered by the plaintiff as the scope of the defendant's liability should be seen as extending to its occupation of the premises, and because the plaintiff was a lawful entrant onto the premises in question: s 5D(1)(b) and s 5D(4) of the CL Act. This is not an exceptional case: s 5D(2) of the CL Act.

[30]

Issue 3 - Whether contributory negligence

The findings in respect of Issue 2 to the effect that the defendant was negligent in permitting the parquetry floor to remain wet at the time of the plaintiff's fall requires a consideration of the defence of contributory negligence. The defendant pleaded the following particulars of alleged contributory negligence against the plaintiff: 1. Failing to take due care in all the circumstances; 2. Failing to keep any adequate or proper lookout for her own safety; 3. Failing to have regard for the condition of the area; 4. Failing to keep any or any reasonable lookout.
In final submissions, on behalf of the defendant it was submitted that there should be a finding that the plaintiff was contributorily negligent, to the extent of the order of 20 per cent to 25 per cent: T437.10. In making that submission, the defendant lightly touched upon the question of contributory negligence. In contrast, in the submissions made on behalf of the plaintiff, a finding of contributory negligence was resisted: MFI "15", par 39.
The question of whether the plaintiff had been contributorily negligent in the circumstances of her injury is to be determined according to the provisions of s 5R and s 5S of the CL Act by reference to the circumstances when taken as a whole.
Whilst the initial impression was that the case for a contributory negligence finding was weak, a different impression emerges from a closer examination of the evidence concerning the state of the plaintiff's knowledge of the fact that on the day in question, there was water on the parquetry floor.
Section 5R of the CL Act provides 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.
Section 5S of the CL Act provides as follows: 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.
The medical evidence tendered in the proceedings included a copy of an ambulance transport report which recorded the history of occurrence of the accident as being that the plaintiff was wearing high heel shoes when she slipped on the polished timber floor: Exhibit "A", p 27.
Having due regard to the purpose of that record, namely injury assessment and transport to hospital rather than a legal liability investigation of the cause of the plaintiff's injuries, I do not take that simplistic summary to be a definitive or reliable description of the way in which the accident occurred: Mason v Demasi [2009] NSWCA 227, at [2].
In my view, the evidence concerning the plaintiff's footwear at the time of her fall has no bearing on the question of contributory negligence. This is because it was not explored in the evidence, and because the defendant has not pleaded a case based on the nature of the plaintiff's footwear.
In her evidence, the plaintiff conceded that before her fall, she was aware that the presence of water on a hard surface could render the floor surface slippery, and she also conceded that she had, in this instance, observed water on the floor that had dripped from wet raincoats belonging to people who had entered the premises from the rain outside (T152.5 - T152.45), including water that had dripped in the area where she was walking before she fell, although at the time, she was not giving that matter conscious thought: T153.9 - T154.16.
The plaintiff also said that when she was leaving the auditorium at the break in the performance, she was not aware that the water (which she had seen earlier) was still on the floor: T154.12. That evidence must be read in the context that the evidence does not provide any reasonable basis for the plaintiff to assume that in the meantime, the water she had seen on the floor had been mopped up, covered, absorbed, or had evaporated.
In those circumstances, I consider that a reasonable person in the position of the plaintiff, knowing that the floor had earlier been made wet from water that had dripped from the coats, bags and umbrellas of persons who had entered the premises from the prevailing rainy weather conditions outside, would have taken precautions such as keeping a proper lookout by selecting a walking route on a portion of the floor that was not affected by water, or by avoiding walking in the wet areas, or if that was not possible, then taking care not to step on wet areas so as not to slip on the wet floor. I find that the plaintiff did neither of those things.
Instead, the effect of the plaintiff's evidence is that she conceded that she was not thinking about the wet floor at a time when she should have been doing so. In my assessment, the plaintiff's failure to remain alert to the risk of slipping on the wet floor should be characterised as a failure to keep a proper lookout for her own safety. I find that this amounted to contributory negligence on her part: s 5R of the CL Act.
I reach the conclusion that the plaintiff was contributorily negligent through the same process of prospectively analysing whether the defendant had been negligent: s 5B of the CL Act; Collins v Clarence Valley Council [2015] NSWCA 63, at [188] - [191].
In that regard, the risk of slipping whilst walking on a parquetry floor that was affected by water or moisture was one of which the plaintiff knew or ought to have known: s 5B(1)(a) of the CL Act. The risk of injury from a fall by slipping on such a floor was not insignificant: s 5B(1)(b) of the CL Act. The circumstances of the presence of water or moisture on the parquetry floor required that a reasonable person in the position of the plaintiff would take precautions to seek to avoid or minimise the risk of a slip and fall when walking on a floor so affected by water or moisture: s 5B(1)(c) of the CL Act.
In my view, the need for the plaintiff to take the precautions referred to in paragraph [170] and [172] above was amply justified because, on a prospective consideration of the circumstances, the probability of harm from injury from a slip and fall was significant as was the likelihood of such a slip resulting in serious injury such that the burden on the plaintiff to take care to avoid the risk of slipping, by keeping a proper lookout, was minimal: s 5B(2) of the CL Act.
Having reached the conclusion that the plaintiff was contributorily negligent, it is necessary to say something concerning the just and equitable apportionment of the respective culpabilities of the parties: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492, at p 494.
The determination of the respective degrees to which the defendant and the plaintiff culpably departed from the standard of what was reasonably required of them in the circumstances, requires an evaluation of the whole of the circumstances.
An occupier in the position of the defendant, allowing persons such as the plaintiff onto the premises, was entitled to assume that the plaintiff would, for her part, exercise reasonable care for her own safety: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, at p 488; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [45]; Jackson v McDonalds Australia Ltd [2014] NSWCA 162, at [82].
The defendant had onsite personnel including an operations manager, cleaning staff and ushers. The presence of those personnel on site persuades me that the defendant had overall control of what occurred on the premises, particularly concerning the safety of patrons entering onto the premises on the day in question.
The defendant was objectively well aware, from the prior history of occurrence of incidents at the premises, that when persons entered onto the parquetry timber floor portion of the premises, falls could occur. On the evidence, it is clear that the defendant must also be taken to have been aware that when the parquetry floor became wet, by whatever means, this meant that the floor posed a significant slip risk when walked upon.
On the question of control, the defendant not only had the means of permitting or limiting access to the premises if they were considered to be unsafe, but it also had the means, by the presence of its maintenance co-ordinator, cleaning staff, and ushers, if properly deployed, to take precautions against the risk of patrons such as the plaintiff slipping.
Since the defendant had the capacity to exercise control over the premises in a systematic way by those means, I consider that on a consideration of what is a just and equitable apportionment in the circumstances, its share of responsibility for the plaintiff's fall should be significantly greater than the plaintiff's share.
In that regard, I assess the respective culpabilities to be 80 per cent to be borne by the defendant, and 20 per cent to be borne by the plaintiff.

[35]

Future loss of earning capacity

The defendant's initial position concerning the claim for future loss of earning capacity was that there should be no award of damages for this head of damage: MFI "3". Subsequently, that position was also abandoned by the defendant, and instead, the defendant ultimately submitted that damages for future loss of earning capacity should be assessed at $25,000: MFI "4". On a consideration of the evidence, I consider that amended submission does not represent fair or adequate compensation for the plaintiff in respect of her claim for future impairment of her earning capacity.
In my view, in light of the plaintiff's evidence as to her work difficulties and having regard to the general tenor of the medical evidence cited at paragraphs [87] - [92] above, that submission should be rejected.
In contrast, on behalf of the plaintiff, it was submitted that damages for future loss of earning capacity should be assessed at $209,555. That submission is based upon two assumed components.
First, it was submitted that the plaintiff has, by reason of her injuries and disabilities, suffered a loss in her ability to compete for employment on the open labour market due to her physical restrictions, and in respect of how she would now be seen as presenting to a prospective employer seeking employment at a senior management level. That submission is difficult to quantify in monetary damages.
Secondly, on behalf of the plaintiff it was submitted, based on the successive propositions, that the plaintiff might develop post-traumatic arthritis in her right ankle, and because she "will struggle with commuting to and from work", she will probably retire earlier than usual, at age 60 rather than at age 67 years, thus incurring a terminal period of lost earning capacity. That submission was based on the latest 2015 opinion of Dr Bodel: Exhibit "A", p 5.
The plaintiff sought to quantify that second submitted component by a projection of her present net weekly wage of $1656.58 at 5 per cent over 7 years (x 309.4) but deferred for 15 years (x 0.481) and then discounted for vicissitudes (unstated, but it appears by 15 per cent) to yield an amount of $209,550.
In my assessment, for the reasons which follow, none of the respective submissions of the parties should be accepted.
The defendant's submission fails to take into account the effect of Dr Bodel's opinion that by reason of the plaintiff's possible increased risk of incurring post-traumatic osteoarthritis in her right ankle, she will have to curtail her work over time if that risk materialises. The defendant's submission also fails to reflect the estimation expressed by Dr Bodel to the effect that the plaintiff "will struggle with commuting in the latter part of her 50's and early 60's": Exhibit "A", p 5.
Whilst Dr Bodel had expressed an opinion that the plaintiff would be able to continue her present work indefinitely (Exhibit "A", p 9) and that her fitness for employment was near to normal for her pre-injury duties, with minimal compromise of her ability to compete for work on the open labour market (Exhibit "A", p 15), overall, his opinions suggest an impairment in earning capacity. In that regard, I do not accept the opinion that the plaintiff has suffered no adverse future impact on her earning capacity: Exhibit "1", p 6.
In my view, those matters require a much greater allowance for loss of earning capacity than that which the defendant concedes, namely, $25,000. This is because I consider there is a significant risk of adverse economic impact to the plaintiff which requires monetary assessment: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at [7].
The submissions made on behalf of the plaintiff involve speculation about her possible early retirement. It is a fundamental requirement that in order to prove a claim for future economic loss that not only must it be shown that there is an impairment in earning capacity, but also that such impairment is likely to be productive of a quantifiable financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, at [10]; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, at [7], [13].
The fact that such a loss is difficult to quantify does not mean that the loss should not be assessed monetarily, taking a broad approach, including in the form of a buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
If the plaintiff were to retire early, on account of her injuries as postulated by Dr Bodel, she would incur such a loss. That is a significant matter that must be taken into account as a possible vicissitudes that operates adversely to the defendant in the assessment of the plaintiff's economic future following her injuries.
The plaintiff's first claimed component of future economic loss is not readily quantifiable. Although her employment is a matter of real concern to her, I consider that the most appropriate way for the plaintiff to be compensated for that element is for it to be taken into account as part of a buffer award.
The plaintiff's second claimed component of future economic loss involves some speculation as the prospect of an early retirement based on the stated propositions, is not compelling in the short term, especially when the plaintiff's strong work ethic and historical mitigation to date is taken into account. Nevertheless, the possibility of early retirement must be taken into account and included in the assessment of an appropriate buffer amount.
In that regard, the cited opinions of Dr Bodel cannot be ignored. Furthermore, the plaintiff's evidence as to her work difficulties, as cited at paragraphs [100] - [105] above, cannot be ignored.
Of particular relevance is the plaintiff's concern over the possibility of being passed over for advancement or promotion on account of her disabilities, her limited choice of footwear at work, and the impression this creates in the professional environment, limitations on her travelling, and her need to periodically rest her leg. Such factors, which I consider to have been realistically described by the plaintiff, must also be taken into account in the selection of an appropriate buffer amount.
Taking those factors into account, I consider the appropriate buffer sum to compensate the plaintiff for impaired earning capacity to age 65 years, to be an amount of $100,000. I therefore assess the plaintiff's damages for future loss of earning capacity in the buffer amount of $100,000.

[38]

Future domestic assistance

The defendant initially submitted the plaintiff should receive no award for future domestic assistance: MFI "3". Subsequently, the defendant submitted the plaintiff should be awarded a buffer amount of $5000 for that head of damage: MFI "4".
In contrast, on behalf of the plaintiff it was submitted that there should be an allowance of 4 hours per week of domestic assistance, at the commercial rate of $40 per hour, over the plaintiff's remaining life span (x 938.2) resulting in a calculation of $150,112 for this head of damage.
It is not to the point that the plaintiff's husband provides her with assistance with regard to domestic and cleaning activities, as was observed by Dr Bodel: Exhibit "A", p 13. I accept the plaintiff's evidence that her husband does not fulfil those duties to her satisfaction: T45.48; T46.1 - T46.2. I also accept that in the very near future, if funds are available for that purpose, the plaintiff will most probably have those services fulfilled on a commercial basis to avoid adverse effects on her relationship with her husband and to reflect the limited time her husband has for such tasks because of his own work commitments.
That approach requires the application of a discount for vicissitudes to reflect the possibility that other events might intervene: Miller v Galderisi [2009] NSWCA 353; ANZ Banking Group Ltd v Haq [2016] NSWCA 93, at [50].
An award in respect of this head of damage does not require a medical prescription or a reference to an objective standard: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [51] - [57]. I accept the plaintiff's evidence in which she describes an injury-related need for the provision of domestic assistance. I also accept the plaintiff's evidence concerning her reasoning for the future pursuit of that assistance on a commercial basis.
Given the plaintiff's descriptions of her difficulties with domestic tasks, which I have accepted, I consider that the projection of an allowance for 4 hours per week as submitted, is reasonable, but I consider it should be discounted by 15 per cent to reflect the conventional possible adverse vicissitudes.
I therefore award the plaintiff damages for future domestic assistance in the buffer amount of $142,596.

Safar v Sutherland Shire Council

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