Schultz v McCormack

Issues 4Apart from specific matters concerning the credibility and reliability of testimony, the principal issues calling for decision may be conveniently summarised as follows: Issue 1: Whether the plaintiff's fall and injury was due to the materialisation of an obvious risk; Issue 2: Whether the defendants were negligent; Issue 3: Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent: Issue 4: The assessment of damages.

Credit 5The plaintiff, her husband, and the defendants, have been friends of longstanding. This litigation, and the differing perspectives of the parties concerning the events giving rise to the claim have placed an obvious strain upon that friendship. This was plain from the manner in which aspects of the oral evidence was given. 6I consider that the plaintiff and her husband each gave credible and reliable testimony on matters relating to both liability and damages. Mr Schultz's evidence on the liability issues was limited because he had not actually seen the plaintiff fall. 7The evidence of the defendants was subject to challenge as to the truthfulness of aspects of their account of the events. The first defendant reacted angrily to such suggestions, and sought to deflect some questions. I draw no adverse inferences from his reactive and combative demeanour in that regard, given the manner in which he was cross-examined. 8The evidence of the defendants has to be considered and evaluated in light of the fact that during the dinner beforehand, they had consumed significant quantities of alcohol. In my view this had affected the accuracy of their perceptions of the events on the night in question. I also considered that in parts the evidence of the defendants was guarded and defensive. 9I gained the impression that some of that evidence had been tailored to suit the case for the defendants. At first, Mr and Mrs McCormack said in their evidence-in-chief that they could not recall a conversation with the plaintiff on the night in question to the effect that she should make a claim on their insurance in respect of the incident: T54.19; T67.46. In cross-examination they each went further and denied that such a conversation had occurred: T62.5; T63.46. I considered that those denials had been tailored to suit their case. I have therefore preferred the evidence of the plaintiff and her husband on that issue. That said, nothing of significance turns on that conversation. I do not accept as appropriate the description of the evidence of Mr McCormack as "furtive" and "cunning", as was submitted by Mr Lidden SC. 10The plaintiff relied upon an expert report from Mr Neil Adams dated 22 May 2012. On 6 February 2010, which was the day after the plaintiff's fall, the stairs question were inspected by an expert retained by her solicitor: T9.19. According to the expert report of Mr Adams, he inspected the steps in question on 18 May 2011. 11Nothing of significance turns upon that unexplained discrepancy in the dates. The report of Mr Adams was not the subject of cross-examination but it was the subject of critical submissions made on behalf of the defendants. His report therefore stands to be evaluated according to the cogency and persuasiveness of its content.

Facts 12Unless otherwise qualified, my findings of fact are set out as follows.

Plaintiff's pre-accident circumstances 13The plaintiff is presently aged 59 years. She had completed her secondary schooling to Year 9 level at age 15. She then attended a secretarial college. The plaintiff's work history was interrupted by her childcare responsibilities. The plaintiff has worked in a range of positions, including as a despatcher, a cook, an assistant in nursing, and as a disability support person. At the time of her injury she was working in the latter position for Macarthur Disability Service, earning an average of $650 per week net. 14The plaintiff and her husband were married in 1976 and they have three adult sons who live independently. Before the subject accident, the plaintiff managed the majority of her domestic and household tasks without the need for assistance. She also did some volunteer work with a drag racing association as this was also a family interest. She also used to attend a gymnasium in the mornings before work. For exercise she also used to walk and ride pushbikes. Those activities have ceased since the subject accident.

Pre-accident medical issues 15Before the subject accident the plaintiff had a history of heart problems. In 1974 she received an implanted cardiac pacemaker to address that issue. Since then her cardiac condition has been under regular specialist review and the evidence does not suggest that condition has any adverse impact on her pre-injury earning capacity, or any identifiable adverse impact on her overall life expectancy. 16As a result of her indwelling pacemaker, since the accident she has been unable to take painkilling medication. Another legacy of the pacemaker is that the plaintiff on occasion experiences breathlessness when she lifts her arms above her head. Despite this, she has nevertheless managed to carry out her pre-accident work, and housework, without problems. 17In 1998, the plaintiff suffered a broken right arm in a work accident when she fell on a wet floor in a kitchen. The evidence does not suggest that injury has had any lasting adverse effects upon her earning capacity, or her capacity to perform her pre-accident domestic duties. 18In 2009, the plaintiff had experienced a sore right shoulder and left elbow problems, but she could not recall the cause of those problems. There was no evidence to suggest these matters were of any lasting significance. 19Before the subject accident the plaintiff occasionally experienced tension in her neck and shoulders, for which she used to seek treatment from a chiropractor. There is no suggestion those matters interfered with her ability to work or to perform her domestic tasks.

Circumstances of the accident 20At about 6:30pm or 7:00pm on the day of the accident the plaintiff arrived at the home of the defendants for a social visit. The weather had been overcast at that time, but it had not been raining. 21The plaintiff was not aware of it having rained whilst she was in the premises, but at the time she left, around midnight, she could see the concrete pathway at the front of the house was damp, and that her nearby vehicle looked a bit wet. It was not raining at that time. 22The photograph appearing immediately below shows the general configuration of the accident scene at the front of the house of the defendants: 23On leaving the defendant's house, the plaintiff stood near the wall located at the verandah landing at the top of the stairs. After bidding farewell to the defendants, she turned to her left and stepped forward towards the stairs. At that time, she then turned to her right in preparation to descend down the stairs. She then stepped forward and her right foot slipped from under her. She went down onto her bottom, and came to rest on the second step. Before she fell, she did not see that the edge of the step on which she had slipped, was wet. There was no handrail in the vicinity. There were no anti-slip strips or nosings on the steps. 24The photograph appearing below shows a closer view of the steps. The photograph is marked 'X' to represent the spot from where the plaintiff stepped forward towards that step. The spot marked with an ellipse shows the approximate place where the plaintiff had slipped: 25After the plaintiff fell she realised that the surface of the steps was wet, but that the top of the landing was dry. 26The overhanging roof covering the verandah did not protect the steps from becoming wet from windblown rainfall. There was an overhead light on the verandah. This generally illuminated the area where the accident occurred. 27After the fall, the plaintiff remained sitting on the steps. She experienced pain in her right ankle and she realised it was in a deformed position. She could not get up and she declined all offers to assist her to get up. Instead, she insisted that an ambulance be called. At that time she was experiencing pain in her right ankle, left shoulder, her left hip and in her back. 28At the time the plaintiff fell her footwear comprised rubber thongs. There was no evidence that her footwear was in an unsafe condition. She had not experienced problems with slipperiness when wearing that footwear beforehand.

Post-accident non-slip treatment of steps 29Some weeks after the plaintiff's fall, Mr McCormack purchased, and then painted a non-slip coating onto the steps. He did as an inexpensive precaution against the possibility of similar accidents following the plaintiff's fall, which was the first time such an incident had occurred to the knowledge of the defendants. 30I accept the evidence of the defendants that the application of a non-slip coating made no real difference to the slipperiness of the steps when wet:T64.9. That evidence is also borne out by the inspection carried out by Mr Adams on 18 May 2011, at which time he identified a very low co-efficient of friction with an associated high risk of slipping in the area when wet, even after the non-slip coating had been applied to the area: Exhibit "B", pp 6, 10-11. 31There is no evidence that shows, or permits the reasonable inference, that the defendants either knew or ought to have known there was a very low co-efficient of friction in the area in question before the plaintiff fell.

Post-accident medical and allied assessments 32After the plaintiff fell she requested that an ambulance be called. The ambulance took her to Campbelltown Hospital for emergency assessment and treatment. She was later transferred to Campbelltown Private Hospital, where she came under the care of Dr Tim O'Carrigan, a specialist orthopaedic surgeon. No ambulance report or hospital clinical notes were tendered. 33A summary of the successive reviews and treatments provided by Dr O'Carrigan, including four surgical procedures he has carried out on the plaintiff's right ankle, is as follows: (1)On 10 February 2010, Dr O'Carrigan examined the plaintiff's right ankle under anaesthetic at Campbelltown Private Hospital, at which time he carried out a closed reduction of the plaintiff's tri-malleollar fracture. It appears that an open reduction of the fracture was not possible at that time because of significant associated soft tissue problems; (2)On 22 February 2010, at Campbelltown Private Hospital, Dr O'Carrigan carried out an open reduction and internal fixation of the plaintiff's right ankle and debridement of the fracture; (3)On 4 March 2010, Dr O'Carrigan carried out a post-operative review and noted the ankle fracture was a difficult one; (4)On 29 April 2010, Dr O'Carrigan reviewed the plaintiff again and noted swelling, stiffness and restriction of movement in the plaintiff's right ankle; (5)On 23 July 2010, Dr O'Carrigan noted ongoing pain and tenderness in the ankle and suggested an arthroscopy debridement procedure be carried out; (6)On 8 September 2010, at Campbelltown Private Hospital, Dr O'Carrigan carried out a right ankle arthroscopy and anterior debridement procedure on the plaintiff; (7)On 15 December 2010, Dr O'Carrigan examined the plaintiff 3 months post-right ankle arthroscopy, at which time he identified considerable movement impairment of the ankle. He also anticipated the plaintiff would have significant long term symptoms, as well as work restrictions and would need further surgery; (8)On 28 July 2010, Dr O'Carrigan noted the plaintiff had a painful right shoulder and referred her to a Dr Arash Nabavi for assessment. No report was tendered from Dr Nabavi; (9)On 8 August 2011, Dr O'Carrigan identified right ankle instability and suggested the possibility of a need for a right ankle joint replacement; (10)On 9 January 2012, Dr OCarrigan reviewed the plaintiff's right ankle problems and suggested moving towards a right ankle replacement procedure; (11)On 23 February 2012, Dr O'Carrigan suggested removal of the implanted plates and screws and reconsidered the earlier suggestion of an ankle replacement as he felt it was unlikely to achieve the desired outcome; (12)On 7 March 2012, at Campbelltown Private Hospital, Dr O'Carrigan carried out a procedure for removal of screw implants in the plaintiff's right ankle; (13)On 19 March 2012, Dr O'Carrigan reassessed the plaintiff following the recent removal of the implants and he noted the plaintiff reported feeling a lot better since the removal of the implants; (14)On 13 June 2013, Dr O'Carrigan reviewed the imaging studies of the plaintiff's right ankle and noted the presence of arthritis and as a consequence, he recommended an ankle fusion procedure be performed; (15)On 15 July 2013, at the Campbelltown Private Hospital, Dr O'Carrigan performed a fusion and bone graft internal fixation procedure of the plaintiff's right ankle. Post-operative reviews revealed a concern that the plaintiff's right foot was in an equinus position. He suggested discontinuation of the use of the moon boot in favour of a cast; (16)On 15 August 2013, Dr O'Carrigan reviewed the plaintiff's right ankle equinus deformity and considered that if she could not compensate for that position then revisionary surgery may be required to get the ankle into the plantigrade position; (17)On 19 September 2013, Dr O'Carrigan reviewed the healing process. He considered that the healing processed had progressed, but remained incomplete although the ankle was close to the optimal position. Until that time the plaintiff's right ankle had remained in a cast and a moonboot; (18)On 31 October 2013, Dr O'Carrigan carried out his final review of the plaintiff. He noted that the plaintiff was slowly improving and was accommodating the slight equinus position of the fusion. In light of that finding his opinion was that revision of the fusion surgery was no longer necessary. He foreshadowed a need to further review the plaintiff in 12 months time to see how the plaintiff was accommodating the equinus position in which her ankle had been left following the fusion surgery. In that regard, at the time of the hearing, Dr O'Carrigan's opinion on the plaintiff's final status and prognosis necessarily remained incomplete. 34The plaintiff has been assessed by a number of non-treating medico-legal experts as follows: (1)On 27 June 2011, at the request of his solicitor, the plaintiff was examined by Dr Raymond Wallace, a consultant orthopaedic surgeon. In Dr Wallace's opinion, the plaintiff has sustained a significant injury which carried a poor prognosis for further recovery; (2)On 12 December 2012, Dr Wallace re-examined the plaintiff after her surgery to remove indwelling surgical hardware in her right ankle. He noted the plaintiff had developed post-traumatic osteoarthritis in the right ankle. He also noted that a further operation for ankle fusion was being planned and he agreed that such surgery was indicated in the plaintiff's situation as she had a poor prognosis for further recovery with a conservative treatment programme. (3)On 8 January 2014 (mistakenly described as 2013), at the request of her solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad, considered that notwithstanding the four surgical procedures undertaken by the plaintiff, she had developed pain in her right knee and in her back due to her irregular gait. He also observed ongoing stiffness in the right ankle. He foreshadowed the possibility of further surgery to remove screws impinging into the ankle joint space; (4)Dr Conrad considered that the plaintiff had sustained 35 per cent loss of the efficient function in her right leg at or above the knee, taking into account the problems below the knee, as well as a 20 per cent impairment of the back due to secondary back pain, in addition to significant surgical scarring; (5)On 17 January 2014, at the request of her solicitor, the plaintiff was examined by Dr D Rea, a consultant plastic surgeon, who noted that that the plaintiff's surgical scarring, which is evident from the photographs comprising Exhibit "B", was sensitive to tapping; (6)There is no dispute that at the request of the solicitor for the defendant, the plaintiff was examined by Dr Barrett, a consultant orthopaedic surgeon, on two occasions that were not identified by date. The defendant has not served or tendered any medical reports from Dr Barrett. 35Following the surgical procedures undertaken by the plaintiff, for the various periods involved, she was required to refrain from weight-bearing, and she was required, variously, to use moon boots and crutches, which hindered her mobility and increased her need for domestic assistance.

Disability findings 36Given my findings on the credibility of the evidence of the plaintiff, and my acceptance of her evidence on damages issues generally, I propose to treat the history summarised in the medical evidence as evidence of the plaintiff's post-injury difficulties: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. 37The plaintiff's remaining disabilities from her ankle injury are extensive and significant. I gained the impression that her evidence on those matters was understated and stoic. 38In addition to surgical scarring to her right ankle from the multiple surgical procedures she has undertaken, she continues to suffer pain in that ankle, sharp at times, together with discomfort and restriction of movement in her right foot, ankle and knee. One of the surgical procedures resulted in a prolonged period of infection before the operation to fuse the ankle. 39Following the fusion procedure, the plaintiff has been left with indwelling hardware in her right ankle, which causes her difficulty. Furthermore, her right foot has assumed an equinus deformity, which has not completely resolved despite extensive surgical and rehabilitation treatment. She has an altered gait and she walks with a permanent limp. As a result, she has developed soreness in her left hip. These problems, which afflict her on a daily basis, have also caused her to suffer from back pain. 40The plaintiff continues to experience reduced mobility and agility. She has reduced standing, walking and sitting tolerance. She experiences difficulty in ascending and descending stairs and when negotiating uneven ground. These remaining problems will be permanent. She is required to elevate her right foot from time to time in order to address the problem of right ankle swelling. 41The plaintiff finds it difficult to drive a motor vehicle. She has difficulty performing her housework on a sustained basis and she cannot undertake home maintenance tasks. Un-contradicted medical opinion is to the effect that she should not perform tasks requiring repeated bending, crouching, kneeling, prolonged standing in one position or stair climbing. She feels as if she has difficulties with balance when walking on uneven ground and she is concerned about the possibility of falling. Her ankle swells when she stands for sustained periods of standing and sitting. 42The prognosis for the plaintiff's problems remains poor and guarded. She faces the prospect of further surgery to her right foot and ankle for removal of indwelling screws and to further attempt correction of the equinus deformity in that foot. The plaintiff feels her ankle has not become more stable since the most recent surgical procedure, and she feels that the pain in her ankle is becoming worse rather than better. The effects of the plaintiff's disabilities have had a considerable curtailing effect on her ability to pursue he leisure activities, and she also suffers from sleep disturbance resulting from her disabilities. 43The described problems have caused the plaintiff some considerable frustration, although she makes no complaint of symptoms of a psychological nature. She has disfiguring scars to her right ankle but did not seek to make anything of this disfigurement. 44There is one aspect of the plaintiff's claim which I do not accept as being related to the accident, namely, her complaints of problems with her right shoulder. Whilst I accept that the plaintiff has right shoulder problems, in the absence of medical evidence linking those problems to the accident, the medical evidence is deficient in that regard, and I find that there was no relevant connection between the subject fall and those particular problems: Strinic v Singh [2009] NSWCA 15. 45The plaintiff was referred to Dr Nabari for the specific purpose of evaluating the problems she was experiencing with her right shoulder. No reports have been tendered from that practitioner. In the absence of such reports, I am not prepared to draw an inference that the plaintiff's ongoing right shoulder problems are in fact related to the subject accident.

Mitigation 46The plaintiff has a duty to mitigate her damages. There is no reasonable basis from within the evidence to suggest a finding that the plaintiff has failed to take appropriate steps to mitigate her post-injury losses. She has submitted to all the recommended surgical and allied treatments that have been suggested to her. As a result of the accident, she has lost her employment. There are obvious accident-related difficulties in the path of her gaining alternative employment. Accordingly, the plaintiff's damages should not be discounted on account of any mitigation considerations.

Issue 1 - Whether materialisation of an obvious risk 47The defendants submitted that the plaintiff's injury had been caused by the materialisation of an obvious risk within the meaning of s 5F of the CL Act. It is convenient to address this issue first, along the lines suggested in Paul v Cooke [2013] NSWCA 311, at [53] - [54], which dealt with a case involving inherent risk. 48Just before the plaintiff fell, when she was preparing to leave the premises, she saw that the concrete pathway leading from the house was damp and she saw that a vehicle parked nearby was wet: T9.12. At that time she must be taken to have realised that it had rained earlier in the evening although she had not noticed that it was raining when she had been inside the house. 49At that time she was leaving the house it must have been obvious to the plaintiff that there was a reasonable prospect or possibility that the steps she was about to descend could possibly have been wet and slippery due to previous rainfall. 50In my view, the plaintiff ought to have known of that possibility before she commenced to descend the steps. The plaintiff was able to see that the roof over the verandah did not have a significant overhang covering the steps. She ought to have realised the roof might not have prevented rain falling onto, or being blown over, onto to the steps. In my view, such matters were obvious to a reasonable person in the position of the plaintiff at that time, just before her fall: s 5F of the CL Act. 51The plaintiff tendered a expert report from Mr Neil Adams dated 22 May 2012: Exhibit "B". At section 2.2.8 of that report, Mr Adams stated: "As may be seen in photograph 8, the ceiling of the porch has a light fitting. I understand that light was operating at the material time. However, as Mrs Schultz turned and approached the top of the stairway, that light would have been behind her, and she would have been casting her shadow ahead of her and over the tiled surface." 52The evidence of Mrs Schultz did not include any description of a shadow having been cast onto the steps ahead of her so as to impair her ability to recognise that those stairs were wet. 53 In my view the above-cited passage from the report of Mr Adams involves unproven speculation that did not reflect the evidence of the plaintiff. The position may have been different if the lighting field had been identified by measurements or calculations and if shadow drawings had been prepared based on the plaintiff's standing position, her height, and other relevant measurements. In the circumstances, I find that the plaintiff's ability to recognise the wet state of the steps ahead of her was not in any way impeded by any shadows cast ahead of her due to the presence of lighting from behind. Instead, it appears from the evidence that the lighting was from above. 54In my view, it is plain that if the plaintiff had looked ahead of her at the time she moved towards the steps, she would have recognised the obvious presence of rainwater on the steps: s 5F(1) and (2) of the CL Act. 55In my view, at that time, it would have been obvious to a reasonable person in the position of the plaintiff that the wet state of the stairs posed a risk of slipping: s 5F(1) and (2) of the CL Act. 56In those circumstances I find that the defendants did not have a duty to warn the plaintiff of risks associated with stepping onto the wet stairs. Such risks ought to have been obvious to the plaintiff at the time: s 5H(1) of the CL Act. 57In my view, the plaintiff has not established on the balance of probabilities that she was not aware of the stairs being wet. Nor has it been established that the plaintiff was not aware that there was a risk that she might slip on the steps that were wet: s 5G(1) of the CL Act.

Issue 2 - Whether the defendants were negligent 58The plaintiff claims the defendant was negligent in the following respects: (a)Failing to take reasonable steps to ensure that the premises were safe; (b)Failing to take reasonable steps to ensure that the tiles on the landing were not excessively slippery; (c)Failing to take reasonable steps to prevent rain water from reaching the landing, in circumstances where the defendants knew, or ought to have known, that the tiles on the landing were unusually slippery when they became wet; (d)Failing to warn the plaintiff that the tiles on the landing were unusually slippery when they became wet; (e)Failing to treat the tiles on the landing with non-slip material, in circumstances where the defendants knew, or ought to have known, that the tiles on the landing were unusually slippery when they became wet; (f)Failing to place water-absorbent matting, or a similar material, on the tiles in circumstances where the defendants knew, or ought to have known, that it had been raining and the tiles on the landing were therefore likely to have been excessively slippery; (g)Failing to warn the plaintiff that the tiles were likely to be excessively slippery, in circumstances where the defendants knew, or ought to have known, that the tiles had become wet due to rainwater reaching them; (h)Failing to install an appropriate handrail; (i)Failing to install a more extensive awning so as to avoid the tiled porch and stairway becoming wet. 59These matters will be considered shortly along the lines suggested in the formulation set out in the expert opinion of Mr Adams dealing with those matters. 60In order to base a finding of negligence the plaintiff must satisfy the requirements of s 5B of the CL Act. 61Section 5B of the CL Act relevantly provides as follows: "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." 62There can be no issue that the risk of slipping on wet steps was foreseeable: s 5B (1)(a) of the CL Act. Similarly, there can be no issue that the risk of slipping "was not insignificant": s 5B(1)(5) of the CL Act. 63The real issue is whether, in light of the obvious risk of slipping on a step that was wet, a reasonable person in the position of the defendants would have taken precautions against that risk as was contended by the plaintiff: s 5B(1)(c) of the CL Act. 64That question must be considered in light of, first, the evidence of the defendants to the effect that there had been no prior slipping incidents on the stairs, which evidence I accept, and secondly, in light of the expert opinion evidence of Mr Adams. 65In that regard, Mr Adams stated: "4.2 As may be expected, considering the prevalence of falls as causes of injury, there have been provisions in various legislation and Standards over the last several decades that were aimed at preventing falls in workplaces, in domestic situations, and in public areas. The porch and stairway provided the only means of people gaining access to and from the front door of the house. It is reasonable to expect that the pedestrians surfaces of those structures would be appropriately safe for normal use during foreseeable conditions of use, including when the outer tiles at least were wet due to a rainfall event. 4.3 It is reasonable to expect property owners to provide for safe pedestrian movement within their property, as far as it is practicable to do so within the built environment, including by adhering to recommendations/requirements with respect to the slip resistance of pedestrian surfaces. As indicated in Section 3 above, there are relevant Australian Standards and other useful documents available to assist property owner in that regard. I am confident that, had the owners effectively implemented a reasonable and relatively basic hazard identification and risk control process in relation to safe access to and from the premises, the combination of all of the relevant characteristics of the situation - including the slippery when wet nature of the tiles and the fact that the would obviously become wet from time to time - would have been identified as a potential hazard to pedestrians, and appropriate preventative measures could have been implemented." 66None of the above general statements by Mr Adams involve controversy. 67The opinion of Mr Adams went on to identify a number of preventative measures that in his view could have been taken by the defendants in order to address the risk in question: "4.5 Among the reasonable preventative measures that could have been implemented, I would include appropriate combinations of the following: (i) The porch could have been resurfaced with materials that were more highly slip resistant in wet conditions than the existing tiles; (ii) Suitable anti-slip products (such as paint-on products or anti-slip strips) could have been applied, at least to the outer sections of the tiled surface of the porch as well as the step nosings, and reapplied from time to time as the treatment became less effective due to wear; (iii) Suitable matting could have been provided at the top of the stairway; (iv) At least one handrail could have been installed beside the stairway, to provide a means by which users of that area might retain their balance in the event of experiencing an instance of slipping or tripping on or close to the stairway; (v) A more extensive awning could have been installed to more effectively ensure that the tiled porch and stairway did not become wet as a result of rainfall events; (iv) Mrs Schultz could have been warned that the porch tiles could be expected to be slippery when wet, that they were, or could be expected to be, wet due to an earlier rainfall event, and to exercise particular car when walking in that area." 68In my view, the matters set out in sub-paragraphs (iv) and (v) of paragraph [67] above can be excluded from the consideration. This is because first, where the risk of slipping on wet tiles was obvious, a warning was not required (s 5F(1) of the CL Act) and secondly, the suggestion that a more extensive awning could have been installed to cover the stairs seems to me to be an unreasonable and unnecessary hindsight suggestion based on a counsel of perfection rather than being based upon prospective notions of reasonableness: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422. Furthermore, there is no evidence that would reasonably suggest that such a wider awning would necessarily prevent the steps from becoming wet due to the presence of windblown rainwater. 69In my view, the suggested precautions issue paragraphs (i) and (ii) of paragraph [67] above can also be excluded from the consideration. This is because, first, the evidence of Mr McCormack at T64.9 was to the effect that the application of a slip-resistant coating made little difference to the slipperiness of the stairs, and secondly, the result of the testing of the non-slip coated area by Mr Adams after the accident revealed the same slippery condition of the steps when wet. Furthermore, there is no evidence that either of the defendants knew or ought to have known that the steps required the application of an anti-slip coating, or anti-slip strips or nosings. 70Mr Lidden SC argued, without a basis in the evidence, that the protective coating which had been applied by Mr McCormack after the plaintiff's accident, had worn off by the time Mr Adams had carried out his tests: T74.25. In the absence of supporting evidence to that effect, I do not accept that submission. 71Mr Adams expressed the opinion that any wet pedestrian surface with a co-efficient of friction of 0.29 cannot be regarded as being adequately slip resistant for use in an external location that can be expected to because wet from time to time: Exhibit "A", p 10, par 3.1.6. It is noteworthy to observe that opinion did not appear to be based on any recognised standard that applied to domestic premises. 72A critical matter to be established in order for the above opinion to be engaged is either an actual or an imputed knowledge on the part of the defendants that the stairs were the subject of such a low co-efficient of friction when they were wet. That knowledge on the part of the defendants has not been established on the evidence in this case. 73Mr Adams expressed the truisms that a slip can easily occur if a pedestrian encounters a surface that is inadequately slip resistant, and that a slip is more likely to occur when there is a mismatch between the expectations of a pedestrian concerning the likely level of friction and the level that is actually available, such as walking in a zone of transition from a dry to a wet surface where the person walking is not aware of the transition from a dry surface to a wet surface: Exhibit "B", pp 10-11. 74In view of my findings on Issue 1 with regard to obvious risk, the opinion of Mr Adams suggesting that the defendants should have provided a warning (Exhibit "B", p12, per 3.2.1.3 and pp 13-14, para 4.5) is not relevant to the consideration. 75This is because the plaintiff ought to have realised, by keeping a proper lookout, and from the surrounding circumstances of her observations of the damp path and the wet car, that it was possible the steps on which she was about to walk, were wet. 76As to the suggestion in subparagraph (iii) of paragraph [67] above that the defendants should have provided matting or a hand rail, I consider those arguments to be convenient hindsight arguments that do not satisfy the prospective test required by Vairy v Wyong Shire Council. This is because the defendants had previous long experience of the steps, in both dry and wet conditions, and they had no notice or reasonable cause to suspect that such measures were required as an incident of reasonable care arising out of their duties as occupants to the premise. 77If it had been established that the defendants knew the stairs could be slippery a case for the provision of matting may arise, although it is difficult to conclude that non-slip matting would have made a material difference as it is not readily apparent from evidence as to how such matting could have covered any more than the edge of the verandah. It would have been difficult to safely cover the tread surface of each step with matting. Furthermore on the evidence, the presence of matting was unlikely to have altered the fact that the plaintiff did not look where she was placing her feet and walking when she fell. 78As to the prevision of a handrail as suggested in subparagraph (iv) of paragraph [67] above, on the required prospective analysis, absent knowledge of undue slipperiness, the stairs do not appear to have been unduly steep or numerous so as to have required the defendants to have installed a handrail before the plaintiff's fall. 79I therefore conclude that the plaintiff has not established that the defendants were in breach of their duty as occupiers. I therefore find that the defendants were not negligent as alleged. 80Notwithstanding my findings on the negligence issue, lest it be found on an appeal that those findings are erroneous, and in accordance with convention, I will proceed to address the remaining issues of contributory negligence and damages.

Issue 3 - Whether there was contributory negligence 81The defendants pleaded the following particulars of contributory negligence: (a)Failure to take any, or any adequate precautions for her own safety; (b) Failure to avoid risk of injury (c) Failure to keep a proper lookout; (d)Failure to take more care, particularly wearing rubber thongs in the wet; (e)Failure to take care for their own safety; and (f)Failure to follow safe procedure. 82In essence, those allegations may be distilled to a more unified formulation of a failure on the part of the plaintiff to take adequate steps to ensure her own safety by looking to where she was about to place her foot, namely on a wet area on the landing at the top of the stairs. 83In my view a significant contributory cause of the accident was the plaintiff's own failure to look where she was about to place her foot or she walked towards the steps. Had she paused before stepping forward given the area was wet, she would have seen the wet edge of the steps and she would have then appreciated there was an associated risk of slipping which required that she therefore needed to take care for her own safety in respect of that risk. For example, she could have taken greater care in the manner of placing her leading foot when transitioning from the dry to the wet area, including by taking small steps, as well as possibly placing her hand against the adjacent wall to steady herself. 84In those circumstances, on the assumption (contrary to my findings) that there was negligence on the part of the defendants, I consider that in not looking ahead and thereby failing to avail herself of the opportunity to see the wet steps and to take precautions accordingly, the plaintiff was also substantially culpable, at least to the extent of 50 per cent. I do not accept that the plaintiff's conduct accounted to a casual act of negligence due to momentary inattention. Descending stairs required that a proper lookout be kept, and the plaintiff failed to maintain a proper look out.

Issue 4 - Assessment of damages 85The parties made disparate submissions concerning the assessment of the plaintiff's entitlement to damages. The monetary submissions made on behalf of the plaintiff totalled $853,359. The submissions made on behalf of the defendants totalled $174,891.15. 86In his opening address, Mr Lidden SC indicated that the plaintiff wished to proceed with the hearing of case notwithstanding that in the circumstances, and absent to existence of other circumstances that engaged the extended jurisdiction provisions of s 51(2) of the District Court Act 1973, the proceedings would be subject to a jurisdictional limit of $750,000. 87In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of damages.

Plaintiff's probable life span 88In approaching the assessment of to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of 59 years, the plaintiff has a rounded down probable median statistical life span of a remaining 29 years.

Non-economic loss 89On behalf of the plaintiff, it was submitted that damages for non-economic loss should be assessed at 40 per cent of a most extreme case under s 16 of the CL Act, which is the equivalent of $220,000. In contrast, on behalf of the defendants it was submitted that damages for non-economic loss should be assessed at 25 per cent of a most extreme case under that assessment regime, namely $36,000. 90In view of the findings as to the plaintiff's ongoing disabilities, as outlined in paragraphs [36] - [45] above, I consider that when those matters a considered against the required standard of a most extreme case, also taking into account the plaintiff's age and pre-accident medical condition, a finding of substantial impairment is justified. 91The plaintiff's disabilities are permanent, and she also faces the prospect of further surgery. With a fused ankle joint she faces permanent difficulties with gait which also have flow on effects. Despite her stoic presentation, it is obvious that she has suffered and will continue to suffer considerable impairment in the enjoyment and amenity of her life. This is likley to continue for her considerable remaining years. 92I therefore find the plaintiff's to damages for non-economic loss should be assessed at 38 per cent of a most extreme case. In making that assessment I have made no allowance for the plaintiff's claim of right shoulder problems and I have taken into account the sigifincance of the plaintiff's disfiguring scars. 93Applying those findings to the applicable scale of damages as is required by s 16 of the CL Act, this is the monetary eqqivalent of $209,500. I therefore assess damages for non-economic loss in the amount of $209,500.

Past economic loss 94On behalf of the plaintiff, it was initially submitted that damages for past economic loss should be assessed in the amount of $145,340. That submission was as based on a calculation of a loss of $650 per week net over 4.3 years. 95In contrast, the defendants submitted the claim for past economic loss should be limited to a period of 225 weeks at $650 per week net, thereby intending to allow for loss of income until shortly after the time of the operation which fused the plaintiff's right ankle, namely $73,125. 96The defendant's submission is based on a mathematical error as a loss of $650 per week over 225 weeks amounts to the sum of $146,250. 97Recognising that mathematical error, but allowing for a corrected rendition of the defendant's submission, I consider that the submitted assumption of fitness for work, either in part or in whole, is based on an arbitrary analysis that is not justified on the evidence and therefore it should not be accepted. 98If the plaintiff had not fallen and sustained injuries the subject of these proceedings she would most probably have continued to work for Macquarie Disability Service, or in similarly paid work, until the age of 65 years. The accident has intervened and caused her to lose her job. The ongoing effects of the accident have prevented the plaintiff from pursuing other work. 99The plaintiff's training and work experience has been limited to categories of employment which she is now unable to follow. Her potential suitability for alternative light work has been impaired by her considerable disabilities with mobility, standing and sitting. 100In my assessment, having regard to the ongoing problems the plaintiff experiences with standing, sitting, walking, and swelling of her right ankle, together with the prospect of further surgery to the right ankle as foreshadowed by Dr O'Carrigan in his last report, to the present time, the medical opinions suggesting a capacity for light duty part-time work, are based on theoretical considerations. 101I consider that the evidence of the plaintiff provides a more reliable insight into the issue of her earning capacity based on her own experience of her physical limitations which she has experienced until the present time without significant remission. 102In that regard, there is no suggestion that until now, the plaintiff has unreasonably failed to mitigate her accident-related loss of earnings. I find that her inability to work since the accident has been caused by and continues to be caused by the effects of that accident and the effects of the multiple surgical procedures that have followed that accident. 103I do not accept that the plaintiff's claim for past loss of earnings should be limited to the sum submitted on behalf of the defendants. The period between 6 February 2010 and 4 June 2014 is the equivalent of 4.32 years or 224.64 weeks. 104It is common ground that the plaintiff's average pre-accident earnings were $650 per week net. There is no evidence of there having been any CPI or other increments in that base rate over the last 4 years. I therefore consider that sum is conservative and it should therefore form the basis for the assessment of the plaintiff's damages for past loss of earnings. 105The loss of $650 per week net over 224.64 weeks amounts to $146,016. I therefore assess damages for past economic loss in the amount of $146,016.

Future economic loss 106On behalf of the plaintiff, it was submitted that damages for future economic loss should be assessed at $650 per week net projected at 5 per cent over a remaining 6 years until age 65 years which, after allowance for a discount for vicissitudes of 15 per cent, amounted to $149,948. 107In contrast, the defendants submitted there should be a buffer allowance of $25,000 in respect of future economic loss. 108In my view, for the reasons that follow, the argument for a limited buffer award, including for the amount contended on behalf of the defendants, should not be accepted. 109First, the plaintiff's continuing loss is specific and not general. She remains unable to work in her pre-accident occupation, and there is no reasonable likelihood of that position changing in the remaining 6 years whereas, uninjured, she would have retired from work. 110Secondly, the opinion expressed by Dr O'Carrigan on 27 January 2014, which is to the effect the plaintiff could only perform office work close to home and involving mainly desk work with minimal walking with minimal driving or use of public transport, must be read as being inconclusive, and tentative in view of the plaintiff's ongoing symptoms which suggest the contrary. Furthermore, Dr O'Carrigan considered that the plaintiff would not reach her point of maximal medical improvement for a further 12 months from the time of his opinion. Therefore, a definitive assessment of the need for the plaintiff to have a further operation on the ankle would not be possible until that 12 month period had passed. This tends to undermine the suggestion of fitness for work. 111Thirdly, the assessment of a partial residual earning capacity along the lines suggested by Dr O'Carrigan, Dr Wallace and Dr Conrad, has to be read down in light of the tentative nature of those opinions. In his report dated 27 January 2014, Dr O'Carrigan foreshadowed that it would be difficult to predict the pain outcome of future surgery. 112Fourthly, in his report dated 20 January 2103, the opinion of Dr Wallace, which preceded the plaintiff's ankle fusion, to the effect that the plaintiff was fit to return to part-time light duties for up to 20 hours per week, was based on the assumption that contemplated work would have significant restrictions which included unfitness for repeated bending, squatting, crouching, kneeling with the right leg, standing in one position for prolonged period, and periods of prolonged walking or stair climbing. That opinion did not discuss the plaintiff's problems with sitting, and with swelling of the right ankle, which are matters that suggest the opinion was not a reliable basis for finding a definitive residual earning capacity. 113Fifthly, the work fitness opinion of Dr Conrad dated 9 January 2014, which is more recent, and therefore more reliable, was expressed in very tentative and uncertain terms. Dr Conrad thought that "... at the most, she might be able to do some very light part-time work for 10-12 hours per week." That opinion was also the subject of significant limiting conditions, namely, provision for standing or sitting at will, absence of prolonged standing, walking, or the use of stairs. His opinion concerning the possibility of light reception or clerical work has to be read in light of the plaintiff's lack of recent training or experience in such work, and her age. 114Sixthly, the opinion of Dr Rea dated 22 January 2014, was broadly along the lines of the opinion expressed by Dr Conrad. 115Seventhly, the above opinions remained uncontradicted by other evidence. 116In my view, the effect of the foregoing considerations is that any suggested capacity the plaintiff might have for residual employment is vague, tentative and uncertain. I therefore consider that the extremely limited potential for residual earnings should be allowed for by applying a slightly higher than usual allowance in favour of the defendant for vicissitudes, namely 20 per cent instead of the conventional 15 per cent. 117In giving effect to the foregoing matters, the projection of a loss of $650 per week net at 5 per cent over 6 years (x 271.4) less an allowance of 20 per cent for vicissitudes, yields the sum of $141,127. I therefore assess damages for future economic loss in the amount of $141,127.

Past loss of superannuation 118On behalf of the plaintiff it was submitted that past superannuation should be assessed on the conventional basis of 11 per cent of the damages assessed for past loss of earnings, namely $146,016. I accept that submission and I therefore assess damages for past loss of superannuation in the amount of $16,061.

Future loss of superannuation 119There is no dispute that the appropriate assessment percentage for identifying the amount of future loss of superannuation is 12.07 per cent of $141,127. I therefore assess damages for future loss of superannuation in the amount of $17,034.

Past domestic assistance 120On behalf of the plaintiff it was submitted that damages for past domestic assistance should be assessed in the amount of $52,088. That sum comprised an initial allowance of 14 hours per week at $27 per hour over 52 weeks, namely $19,656, and a further allowance of 7 hours per week at $27 per hour over 3.3 years, namely $32,432, totalling $52,088. 121When analysed, in respect of the period 6 June 2010 and 17 November 2012, the hourly rates underpinning those submissions are recognised as being in excess of the maximum hourly rates claimable pursuant to s 15(4) of the CL Act. 122The defendants submitted that there should be no allowance for this component of the claim. 123On the evidence, I consider that that position taken on behalf of the defendants in respect of claim for past domestic assistance is untenable. 124The plaintiff and her husband live in a sizeable house, which has cleaning, domestic and maintenance requirements that were substantially carried out by the plaintiff before the subject accident. The division of labour that applied to those tasks before the accident was that Mr Schultz, who worked full-time, did not do much in the way of housework, and did so only very rarely. He mowed the lawns and involved himself in maintaining the garden, although the plaintiff also did some weeding and some tidying of the garden. 125After the plaintiff's injury that domestic dynamic changed in that Mr Schultz attended to housework tasks, including cleaning, vacuuming, washing and the like. The plaintiff also required personal assistance, including with tasks such as showering, dressing and the like when she was in a cast and when she was required to wear a moon boot. 126I accept as reasonable the claim that in the first year or so after the accident Mr Schultz was called upon to assist the plaintiff with meals, housework and personal care tasks for at least 2 hours per day for seven days per week. 127I therefore accept the first component of the plaintiff's submission that there should be an allowance of 14 hours per week for domestic assistance provided by Mr Schultz in the first year after the accident. 128Appendix I sets out the effect of the rates prescribed by s 15(4) of the CL Act in respect of that component of the claim, namely the amount of $18,317. 129The plaintiff also makes a claim for the remainder of the period from after that first year until the time of the hearing. In that period the plaintiff's need for domestic assistance continued, although at a lesser level. The claim for that period is for 7 hours of assistance per week. 130In that second period, and to the present time, the plaintiff's ability to carry out her normal housework activities such as vacuuming, sweeping, mopping, cleaning the bathrooms, gardening involving crouching down, weeding and the like. The plaintiff is unable carry out do her allotted housework in a single day and needs to space things out over the week, which understandably, is an unsatisfactory arrangement for her. Those difficulties have been compounded by the successive episodes of surgery, reduced mobility and the related recuperation she has undergone in the past 3 years. 131I accept the reasonableness of the claim that as a result of her injuries, in the past 3 years, the plaintiff has required the assistance of her husband with domestic tasks for at 7 hours per week. 132Appendix II sets out the effect of the rates prescribed by s 15(4) of the CL Act in respect of that component of the claim, namely the amount of $33,061. 133The total amount of these two sums is $51,378. I therefore assess the plaintiff's damages for past domestic assistance in the amount of $51,378.

Future domestic assistance 134On behalf of the plaintiff it was submitted that damages for future domestic assistance should be assessed in the amount of $194,304. That sum comprised a projection of 6 hours of such assistance at $40 per hour, the equivalent of $240 per week, at 5 per cent over 29 years (x 809.6), undiscounted. 135In contrast, the defendants submitted that there should be no allowance for this component of the claim. The defendants submitted that the claim made by the plaintiff's claim was not supported by the medical evidence. Whilst the opinions of Dr O'Carrigan and Dr Wallace were not in the same terms as the submission on behalf of the plaintiff, the opinions of Dr Conrad and Dr Rea did provide a measure of support for the claim made. 136Notwithstanding the divergence of medical opinions, the submission on behalf of the defendants overlooks the evidence of the plaintiff which I accept and which I consider reasonably justifies the claim. 137Medical opinions are not prescriptive in relation to this component of the claim. I consider that the evidence of the plaintiff is more accurately indicative of this component of her accident related needs. As I consider the evidence of the plaintiff to be satisfactory on this issue, there is no need for that evidence to be validated by objective evidence or medical evidence: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55]. 138In my view the evidence of the plaintiff and that of her husband provides a satisfactory basis for the acceptance of the claim for 6 hours of domestic assistance per week into the future. On the evidence it seems unlikely that this accident-related need is likely to decrease in the foreseeable future. 139Against this is the fact that the plaintiff has a pre-existing cardiac condition. Whilst that condition does not contribute to her disability, it does impair her ability to perform certain activities involving elevation of her arms as this causes her to become breathless. I consider this factor is best accommodated by a slightly higher than conventional allowance for vicissitudes, namely 20 per cent rather then the convention discount of 15 per cent. 140The defendants submitted that the domestic assistance being provided to the plaintiff would probably be continued to be provided by Mr Schultz so that commercial rates of costing should not be applied when qualifying this head of loss: Miller v Galdaresi [2009] NSWCA 353. 141I do not accept that submission, as it is not satisfactorily grounded in the evidence. I accept the evidence of Mr Schultz that he would rather not perform those duties. In that regard, I also accept the evidence of the plaintiff that she is not satisfied as to the standard to which her husband carries out those tasks. 142That position is not surprising given Mr Schultz already has a full time job, and he is not always in the mood to do additional household tasks well. In light of those matters I consider that the plaintiff justifiably claims the commercial cost of the domestic assistance she requires as a result of her accident. 143Furthermore, I do not accept the argument that it is unlikely that domestic assistance will be obtained by the plaintiff at commercial rates in view of the fact that such assistance has not been engaged to date. The plaintiff had no financial capacity to engage such assistance until now. That impecuniosity is not a barrier to the claimed assessment. 144The defendant mounted an argument that Mr Schultz was unlikely to engage domestic assistance at commercial rates. In my view that argument is misdirected and it is based upon a misconception as the need and the loss in question is that of the plaintiff, and not that of Mr Schultz. Therefore, it is the decision of the plaintiff which is the relevant one, and not the decision of Mr Schultz. 145Accordingly, the projection of the value of 6 hours per week at $40 per hour, or $240 per week at 5 per cent over 29 years (x 809.6) less 20 per cent for vicissitudes, yields the amount of $155,443. I therefore assess the plaintiff's damages for past domestic assistance in the amount of $155,443.

Future treatment expenses 146On behalf of the plaintiff, it was submitted that damages to allow for the plaintiff's future treatment expenses should be assessed in the buffer amount of $30,000. 147In contrast, the defendants submitted that there should be a buffer allowance of $5000 in respect of the claim for future treatment expenses. 148The evidence as to the costs the plaintiff is likely to face with regard to future treatment expenses is imprecise and indistinct. The likely costs associated with the possibility of a further surgical procedure to the right ankle have been identified at about $5000. 149In addition, the plaintiff will require intermittent medical and allied supervision with regard to her right ankle, left hip and back problems. Although the evidence is to the effect that the plaintiff's heart condition at present precludes her from taking painkilling medication, this does not necessarily mean that she will not be prescribed other kinds of ameliorating medications in the future. 150The evidence does not permit a precisely formulated calculation of an allowance for such sources of potential expenditure. In those circumstances, and in view of the plaintiff's permanent impairments I consider that a buffer allowance of $10,000 would be appropriate in the circumstances. I therefore assess damages for future treatment expenses in the amount of $10,000.

Past out-of-pocket expenses 151It was agreed that the plaintiff has incurred out-of-pocket expenses in the total amount of $37,132.65. The defendant conceded that the plaintiff was entitled to the amount of $35,856.15, and disputed the sum of $1276 in respect of the claim for chiropractic treatment. 152There is no evidence that the chiropractic expenses are accident related. Therefore, they should not be allowed. I therefore assess damages for past out-of-pocket expenses in the sum of $35,856.65.

Summary of damages assessment 153My assessment of the Plaintiff's damages is summarised as follows: (a) Non-economic loss $209,500 (b) Past economic loss $146,016 (c) Future economic loss $141,127 (d) Past loss of superannuation $16,061 (e) Future loss of superannuation $17,034 (f) Past domestic assistance $51,378 (g) Future domestic assistance $155,443 (h) Future out-of-pocket expenses $10,000 (i) Past out-of-pocket expenses $35,856.65 Total $782,415.65

Defendants' application to re-open 154On 16 June 2014, the defendants sought to have the matter re-listed to apply to re-open their case. That application was listed for argument on 17 June 2014. At that time I indicated that my reasons for refusing the application would be incorporated into my reasons for judgment. Those reasons follow. 155The application by the defendants to re-open related to an issue arising out of a conversation between Mr Schultz and Mr McCormack on 5 June 2014, after judgment had been reserved. In reviewing the application it is plain that the new material sought to be relied upon by the defendants would have had no material effect on the conclusions I had reached in my consideration of the issues that arose for determination in the proceedings. I therefore considered it futile to grant the application.

Disposition 156If the plaintiff had been successful establishing liability on the part of the debt she would have been entitled to a verdict and judgment in the assessed amount of $782,415.65. The effect of the jurisdictional limit on the proceedings is that the plaintiff would only have been able to recover an amount of $750,000 from the present defendants: Richards v Cornford [2010] NSWCA 99, at [12].

Costs 157As the defendants have prevailed in the litigation, they are entitled to have their costs of the proceedings paid by the plaintiff, unless a party can show an entitlement to some other costs order.

Orders 158I make the following orders: (1)Verdict and judgment for the defendants; (2)The plaintiff is to pay the defendant's costs on the ordinary basis unless either party can show an entitlement to some other order for costs; (3)The exhibits may be returned; (4)Liberty to apply on 7 days notice if further orders are required. I CERTIFY THAT THIS AND THE PRECEDING 40 PAGES CONSTITUTE A TRUE COPY OF THE REASONS FOR DECISION OF HIS HONOUR JUDGE LEONARD LEVY SC DELIVERED IN THESE PROCEEDINGS. Associate 20 June 2014 APPENDIX I CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE CIVIL LIABILITY ACT 2002, s 15 (14 hours per week between 6 February 2010 and 5 February 2011) PERIOD WEEKS WEEKLY HOURLY AMOUNT FOR s.15 s.15 14 HOURS PER RATE RATE WEEK

1. 06.02.2010 to 19.02.2010 03.28 $969.40 $24.23 $1112.64
2. 20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $4450.72
3. 22.05.2010 to 20.08.2010 12.85 $986.90 $24.67 $4438.13
4. 21.08.2010 to 19.11.2010 12.85 $985.50 $24.63 $4430.93
5. 20.11.2010 to 05.02.2011 11.14 $996.40 $24.91 $3884.96 TOTAL $18,331.38

APPENDIX II CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE CIVIL LIABILITY ACT 2002, s 15 (7 hours per week between 6 February 2011 and 4 June 2014) PERIOD WEEKS WEEKLY HOURLY AMOUNT FOR s.15 s.15 7 HOURS PER RATE RATE WEEK

1. 06.02.2011 to 20.05.2011 14.71 $1025.90 $25.64 $2640.15
2. 21.05.2011 to 19.08.2011 12.85 $1026.00 $25.65 $2307.21
3. 20.08.2011 to 18.11.2011 12.85 $1027.10 $25.67 $2309.01
4. 19.11.2011 to 17.02.2012 12.85 $1016.30 $25.40 $2284.73
5. 18.02.2012 to 19.05.2012 12.85 $1054.70 $26.36 $2371.08
6. 20.05.2012 to 16.11.2012 27.71 $1054.50 $26.36 $5113.04
7. 17.11.2012 to 17.05.2013 25.85 $1081.20 $27.03 $5458.70
8. 18.05.2013 to 04.06.2014 54.57 $1107.80 $27.69 $10,577.30 TOTAL $33,067.22

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: 20 June 2014