Shanice Titus v MHC Leisure Fund Services Pty Ltd trading as MHC Property Trust No. 1 Op Trust No. 1 & Anor

The evidence

1. The plaintiff and her mother, Ms Jennifer Titus, were the only witnesses to give evidence in the proceedings. The following summary of that evidence encompasses my findings of fact, unless otherwise stated.
2. The plaintiff was born on 7 February 1999 and in 2015 was a student at the Newtown School of Performing Arts.
3. On 25 June 2015, the plaintiff and her brother caught a bus to school. They alighted just before the intersection of King Street and Missenden Road, Newtown, on the corner of which is located the Hotel Marlborough. They commenced to walk down Missenden Road on the southern footpath in a westerly direction. The plaintiff's brother was on her right and there were people walking in front of them and also people walking in an easterly direction along the same footpath, towards King Street.
4. What occurred next was caught on CCTV footage, the disk of which became Ex A. The film showed the plaintiff from behind, walking next to her brother, and holding her mobile phone in front of her at approximately chest height. It showed her falling into the keg chute, situated adjacent to the defendants' premises. Having viewed the film, the plaintiff was asked what she was doing immediately before she fell. She said: "A: I was, I remember just talking to my brother as we were walking down and then just falling. Q: What is your recollection, if any, of when you were falling? A: I remember moving side to side as I was falling down and then there was a padlock and I hit my head on the padlock."
5. The plaintiff gave evidence that she landed on her feet, but suffered loss of consciousness for about 10-15 seconds. She indicated that she hit her head on a padlock attached to the keg chute cover on the left temple. She fell 4 metres onto a concrete floor.
6. The plaintiff was wearing tights, which were ripped on her upper right thigh, and she suffered cuts to her right thigh and on her right calf, near her ankle. She felt pain immediately, and described her legs as "burning, they were stinging". Her right knee was also painful and her right arm was hurting, and her right wrist was burning. She also suffered pain in the middle of her back and in her shoulders.
7. One of the witnesses, who was a doctor, assisted the plaintiff, and took her to school after dropping her brother off at his primary school. She was picked up by her mother and taken to Royal Prince Alfred Hospital ("RPAH"), where she was admitted. She described the pain as "getting worse", and was placed in a neck brace.
8. She was discharged from hospital the following afternoon, however, that night, as a result of neck pain, she was taken back to the hospital.
9. The plaintiff gave evidence that she continued to have neck pain on a daily basis. She described it as a "throbbing pain", and she had some restriction of movement of her neck. When she was writing or using a computer, and in one position for too long, her neck would get "really stiff".
10. The plaintiff attended physiotherapy at the RPAH for six months and was referred to the gym and given exercises for her knee and back.
11. When asked to describe her back now, the plaintiff answered: "A: It's very painful all the time. Even when I'm walking I'll just get sharp pains that shoot up my back. It'll tense up as well. When I'm sitting in a position for too long or even if I'm standing in a position for too long, I'll need to get up and stretch. It cracks a lot. Just everyday stuff that I do, it affects it."
12. The plaintiff also described problems with her right arm, including her wrist and elbow. She was not able to write at school, and required a scribe for her assignments and examinations. She described getting sharp shooting pains from her wrist down her right forearm. When asked how her right knee felt, she answered: "A: It feels as though there's something wedged between the kneecap and the bone that's underneath every day. Sometimes I get like a pins and needles behind my kneecap and it burns sometimes. When I'm walking it will start to burn or it will tense up and all start cracking and feel like it's out of place and yeah, it's just when I'm sitting in a position too long, it will tense up and I'll need to go up and stretch, but then it starts cracking. It affects pretty much everything I do."
13. When asked to describe the condition of her right ankle, the plaintiff answered: "A: It cracks a lot even when I'm walking. It will just start to click. Sometimes it feels like there's a coin that's stuck between that bone that sticks out on the ankle and it just cracks all the time."
14. When asked about how her jaw felt, the plaintiff answered: "A: It's sore. It cracks all the time even when I just open my mouth, it will start to crack or if I'm yawning it'll pop. Even just simple things like eating toast or hard things, I just stay clear of because it's painful. It throbs."
15. The plaintiff went on to describe having trouble eating hard foods such as meat, which had to be cut into really small pieces. She described an overbite on the right side of her mouth, and believed that her jaw was misaligned to the right. The plaintiff gave evidence that subsequent to the accident she had had her bottom wisdom teeth removed surgically, but that was different pain from the pain she felt in her jaw following the accident.
16. The plaintiff had remained under the care of her family general practitioner, Dr Mikhail.
17. The plaintiff gave evidence that after finishing her Higher School Certificate in 2016, she applied for entering into a Nursing Degree at Wollongong University, UTS and University of Western Sydney. She was accepted into the University of Western Sydney, but turned it down, as she found that she could not stand for long periods of time working in a retail store, and therefore did not feel that she was capable of working as a nurse.
18. Prior to the accident, the plaintiff had worked part-time in a bridal store on Saturdays and sometimes on Sundays. She lost that job as she was unable to work for three to four months following the accident, following which, she obtained a part-time job at a retail store in Broadway, working part-time shifts. She found it hard to cope as she could not stand for too long because of the pain in her right knee and back. She now works one shift of three and half hours per week at a different store.
19. Since leaving school, the plaintiff had also done some modelling work. She attended a casting for a Samsung advertisement, but it required dancing, and she found it hard to dance. She had done some modelling for her mother, however, she was unable to wear high heels for more than 20 or 30 minutes.
20. After attending physiotherapy once a week for about six months, she was told by the physiotherapist that there was nothing more that could be done for her.
21. The plaintiff was referred to an orthodontist for her jaw, but gave evidence that her mother could not afford the treatment.
22. The plaintiff gave evidence that it was her ambition to become a mid-wife. She did not know if she could physically do that work because of the pain in her knee, her back and her neck. She had signed an agency agreement to work in modelling, but she regarded that as a fall-back position.
23. The plaintiff was asked about her recollection of her surroundings just prior to her fall. She answered: "A: As I was walking to the left of my brother there were people walking towards us and there was people walking about a metre in front of me in the same direction that we were walking. Q: What was your view of the surroundings in front of you? A: All I could really see was that person in front of me. I couldn't see anything else. I was just following them. Q: What about other pedestrians? A: Yes, there were people walking towards us on the right of us. Q: What was your observation if any about the ground in front of you? A: It's very - it's a very dark grey concrete and there's heaps of black spots and different mouldings of concrete on the ground and it, it looks like a big black mark on the, on the ground. Like you can't really tell there's a hole."
24. When asked how she felt about the accident, the plaintiff said that she still got flashbacks sometimes. She also said: "A: I get anxious quite a lot. I don't really like to put myself in situations where I think if something bad can happen. I just try and stay clear of that kind of stuff. I feel depressed sometimes. I just like to be by myself and not really engage with anybody, yeah."
25. Exhibit D was an Exclusive Talent Agreement dated 29 November 2016, and a Contract Agreement dated 7 December 2016, signed by the plaintiff.
26. The plaintiff was cross-examined at some length. She agreed that she had walked past the Hotel Marlborough on Missenden Road many times before the accident between 2012 and the time of the accident. She had seen kegs of beer being delivered to the hotel two or three times per week over that period of time. She was asked: "Q: What did you observe when you saw those deliveries taking place? A: I just saw men getting barrels off trucks and putting them into a keg chute."
27. The plaintiff had seen the keg chute was an opening in the footpath and that was something that she was aware of before the accident. She had seen the keg chute open two or three times a week prior to the accident.
28. On the day of the accident, the plaintiff gave evidence that she did not recall seeing the truck laden with kegs of beer on it parked on Missenden Road. When asked why she did not observe a large semi-trailer with a wall of kegs of beer on the back of it, she answered: "Well because my focus wasn't on what was - like I was just talking to my brother, I wasn't really focussing on if there was a truck there or not."
29. The plaintiff gave evidence that she was looking at her brother as she was talking to him, and she was not looking at the ground ahead of her. She said: "A: There was a person walking in front of me, so all I could see was them and my brother who was standing next to me."
30. The plaintiff admitted she had her phone in her hands, but could not recall what hand she was holding it in.
31. The CCTV footage (Ex A) was replayed to the plaintiff. She acknowledged that it showed her holding her phone, and a number of still photographs taken from the CCTV footage were tendered showing her holding the phone right up until the time that she fell (Exs 1-7). In respect of Ex 2, the plaintiff conceded that she was holding her phone in her left hand, but denied that she was looking down at it.
32. The plaintiff gave evidence that she was holding the phone in her hand as she spoke to her brother, but was not looking at it. When she looked away from the phone to look at what was in front of her, she saw the person identified in the CCTV footage as wearing a red jumper. As depicted in Ex 4, the plaintiff said she was looking straight ahead at that time, but was not looking at the ground.
33. Just prior to reaching that part of the footpath where the keg chute was located, as depicted in Ex 6, the plaintiff was asked: "Q: Where were you looking at this time? A: I don't recall because if I - can I just say, if I was looking at my phone I'd be able to see in my peripheral vision the hole, and I didn't see that, so. Q: So you're just speculating now I want to suggest? A: No because if you're looking down obviously you can see that there's a hole there, but I wasn't looking down. So I wouldn't, like if I saw a hole there I wouldn't have fallen into it."
34. Exhibit 7 was a photo of the plaintiff actually falling into the keg chute. She acknowledged that the phone was positioned in front of her in that photograph.
35. The plaintiff was cross-examined about particulars provided by her solicitors to a request by the defendant solicitors. In answer to a question, "Was the plaintiff using a mobile phone at the time of the alleged incident?", the plaintiff gave the following evidence: "A: I told them I was holding my phone but I wasn't using it as I was walking up to the incident area." The answer provided by the solicitors was "No". The plaintiff acknowledged that that answer was incorrect. The particulars became Ex 8.
36. The plaintiff was asked whether the footpath was wide, but she said that it was very narrow. She was asked: "Q: You'd agree wouldn't you, that the footpath was wide enough that you could have walked around the keg chute if you wanted to? A: No not in every circumstance. Q: What do you mean by that? A: Well, there's been lots of times where they've left the kegs on the street, like on the footpath so people have no other way of going other than on the road or like clashing with each other with people coming this way and people coming that way and they're just going to walk into each other so there's - plus there's people walking this way there's got to be-- Q: There were no kegs - sorry. A: --there's got to be a way that people can walk that way and it shouldn't have been left unattended. It should have had something there. Q: There were no kegs on the footpath on the morning of the accident, were there? A: Not that I recall. Q: I was to suggest to you that if you had seen the keg chute you could have simply stepped around it. A: Yes, if there were barricades up or if there was something there saying that it was there open, then I would have, yes, walked around it." … Q: There were some people in front of you? A: Yes. Q: The woman in the red jumper that you identified she was some metres ahead of you, wasn't she? A: I'd say so. Q: There were some people coming in the opposite direction? A: Yes. … Q: You've said earlier that you weren't actually looking at the ground were you? A: No. Q: You were looking ahead and because you were looking ahead of you, and not on the ground, you didn't see the keg chute? A: Yes. Q: You know as a matter of ordinary human experience, that when walking in public places you have to keep a lookout for where you're walking? A: Yes. Q: That's because as you walk in public spaces you can encounter obstacles on a footpath? A: Yes, but you wouldn't expect a hole to just be left open. Q; I want to suggest that had you been keeping a proper lookout, you would've seen the open keg chute and you would've simply skirted around it? A. Well you can even see after I've fallen, once the men have closed the keg chute, a man walked straight over it was it closed. People don't recognise that it's a hole; like it's like‑ Q: Is there anything else you want to add to that? A: It just, it looked like a black hole; not a hole, sorry, a black spot on the ground. Like you can't tell that it's a hole unless you're standing directly over it and there's no‑one, no‑one, the men had gone back to the truck; they weren't even standing there to make sure nobody fell inside. They weren't even paying attention. They left open - an old man or a pregnant lady could've fallen down there.
37. The plaintiff was asked about her previous experience of seeing kegs of beer being delivered as follows: Q: Before the accident, when you had seen kegs of beer being delivered to the premises‑‑ A: Do you mean on previous‑‑ Q: Yes, before the accident? A: Yes. Q: On those two or three times a week that you saw kegs of beer being delivered. A: Yes. Q: Had you ever observed the keg chute or walked past the keg chute as it was open? A: Yes. But there was kegs all around it. Q: When you say that there were kegs all around it, what do you mean? A: They actually used kegs; they put the kegs on the footpath around it and so that blocked the footpath, so people had to walk on the road. Or there was just nothing there. Q: There was nothing there? A: There was times where there was nothing there and the men would just get it off the truck and then move it across; there was times where there was just kegs blocking the whole path. Q: Those times when there was nothing there, there would just be an open keg chute? A: No, there would be men standing; sometimes there was men standing there collecting the barrels from the person passing it to them from the truck and they would put it in, but the men had finished doing that when I fell.
38. The plaintiff acknowledged that when the keg chute was open the door would be positioned as shown in the photograph (Ex 7), connected to the wall by chains. She acknowledged that she knew it looked like that when the keg chute was open. She also acknowledged that she would have seen that if she had been looking in the direction of the keg chute. It was put to the plaintiff that had she observed the open door, that would have alerted her to the open keg chute. She answered: "You'd also expect for somebody to be standing there guarding it, or like at least have a sign saying it's open. You wouldn't like, you don't expect to just walk someone to school and fall in a hole; like a hole just being in the ground."
39. The plaintiff confirmed that as she fell through the hole she hit the left side of her face. She described getting shooting pains from the top of her back to the bottom, and could not sit for too long or stand for too long. She described what she felt was nerve pain in her back which she had had since the accident.
40. The plaintiff also described the pain that she had behind her kneecap since the accident, which prevented her from standing for long periods of time or sitting down for long periods of time. Both her back and her knee caused her problems with lifting. She described her problems with lifting as follows: "A: Well for example, as I work at a retail store, there's times when we have to unpack boxes that have been delivered with clothes; I can't bend down and unpack them because my back cramps up, I can't bend down like fully onto the floor because my knee gets stuck in that position and it gets all tense and starts burning."
41. The plaintiff also described the problems that she had with her jaw. She had not told anyone at the RPAH that she had a problem with her jaw because she did not know at that time that she had a problem. It was put to the plaintiff that she had first reported a problem with her jaw to her GP, Dr Mikhail, on 28 September 2015. She said that she had mentioned the problem with her jaw to other doctors. The plaintiff did recall telling Dr Mikhail that a dentist had told her she was having pain because of grinding her teeth, which had commenced following the accident, when she was sleeping. She was able to distinguish that pain from the pain she had because of her wisdom teeth being extracted. That pain had stopped.
42. The plaintiff was cross-examined at length about the travel she had undertaken, first on a cruise with her family, and also on car trips with her mother to Canberra and Bowral.
43. The plaintiff knew the ATAR score for nursing at UTS was 89, and that she achieved a score of 36. She acknowledged that no doctor had told her since her accident that she could not physically do the work of a nurse, however, she said: "A: No, but it's what I've been feeling, the pain that I've been feeling so I, I'm the only one that knows how my pain feels. So if I feel like I can't physically do a job then I don't think I can."
44. It was put to the plaintiff that she did not undertake nursing studies at UWS for reasons unrelated to the injuries, which she denied. She had started studying acting part-time in January 2017, on Mondays and Thursdays of each week. It was put to her that she had aspirations to become an actor, to which she answered: "A: It's more of something that I want to have as a skill that I've studied so if that opportunity does arise then of course I'd take it, but I, my dream is to become a mid-wife. Q: Have you done any acting work since the accident? A: Not like a, like a job or anything it's just been classes."
45. The plaintiff gave evidence that she had lost her job at the bridal store because the employer got someone else to do her job in her absence. She described that as being "fired". She had trouble physically working up to four shifts a week at Portmans because she needed to have breaks. She did the work because she needed the money. She had, however, looked for work closer to home. She had also signed with Romel Modelling, who had sent her to a casting towards the end of 2016. She could not dance in the same way as she was able to prior to the accident. She had told Dr Lee, an orthopaedic surgeon qualified by her solicitors to provide a report, that activities involved in modelling caused her pain in her back. Those activities she described as doing poses, as having to stay in one position for a long time caused her back to cramp up and her knee pain.
46. The plaintiff was also challenged about her evidence concerning her inability to wear high heels. She said she loved to wear them and would wear them all the time, however, she could not now do so.
47. The plaintiff was cross-examined on the document she understood to be an acceptance into UWS Nursing course. It was put to her that it was not acceptance to a Nursing Degree, but a Pathways Course. That was not the plaintiff's understanding, however, the document became Ex 10. The plaintiff was asked: "Q: It's the case isn't it that you didn't accept the Pathways Course at University of Western Sydney that had been offered to you because you decided you wanted to pursue acting? A: No. It wasn't to pursue acting. I wanted to I wanted to do that as something that I would have as a skill, but it wasn't, I didn't not go because I didn't, I wanted to pursue acting. I didn't, I didn't go because I didn't think I was capable of doing it. Q: Of doing the course or doing the work of a nurse? A: Well both. Like attending classes, you sit there for lectures and I can't sit for, like I can't sit down for that long. I need to move around as well as actually having the job of a nurse."
48. When asked why she would not complete the Pathways Course and then see how she was after those studies, the plaintiff answered: "A: Because I'm, I'm the one that feels the pain. No one else can tell me how my pain feels or how I'm meant to feel about it, or how much I can take, and how much I can handle, because I'm the one feeling the pain, and I didn't think I was ready to sit in lectures or even just do that as a career path right now, because I still get heaps and heaps of pain all the time and there's no improvement. May be once there's an improvement then I might actually consider starting, like starting to study."
49. The plaintiff was then cross-examined about her involvement on social media. Exhibit 11 was a screenshot from her Instagram account which she described herself as a model/actress/singer. It was put to her that she was physically capable of modelling, which she denied. She had received no enquiries for work through that account. The plaintiff was further cross-examined about a number of photographs downloaded from her social media account. They depicted various scenes in 2016. Those photos included photos taken on the occasion of her 18th birthday, and at a horse riding ranch, a llama farm, and on the cruise, referred to above. A bundle of photos became Ex 12.
50. The plaintiff was asked whether she continued to be treated by Dr Mikhail. She said she had seen Dr Mikhail twice this year, the last time a couple of weeks ago. She also had physiotherapy in 2016. The last occasion was towards the middle of that year.
51. In re-examination, the plaintiff was asked about her earnings from her part‑time work in the bridal shop, which amounted to $120 for a Saturday. She also gave evidence that if she had not sustained the fall, she would have accepted the offer from UWS to engage in the Pathways Course, and once it was completed, she would have started studying nursing.

The evidence of Jennifer Titus

1. Ms Titus was the mother of the plaintiff. On 25 June 2015, after receiving a phone call, she went to the plaintiff's school. She observed the plaintiff to be lying down and noticed that her stockings were torn and ripped, and that she had bruising and was upset. She took her to RPAH, where she was kept overnight for observation. In the weeks following the accident the plaintiff complained constantly of pain. She told her mother that she had pain in her back and it was painful to move. Standing doing retail work had aggravated her pain, and at times she could not do her household chores because of pain.
2. The plaintiff also complained to her mother about pain in her neck. The day after leaving hospital, she complained of having a lump on her neck and was taken back to hospital where she stayed for further observation. She had continued to complain about pain in her neck and pain in her right knee up until the present time. She also complained about a clicking in her jaw, and difficulty chewing hard foods.
3. Mrs Titus described problems the plaintiff had at school, including needing a scribe to do her exams.
4. Mrs Titus also observed the emotional effect the injuries had had on the plaintiff. When asked what she had observed about her daughter's mood since the accident, she said: "A: A lot. She's very outgoing and she's very comical and she loves life, and it's just put a dampener on that; well emotionally its affected her and because of the pain as well, sometimes she'll downplay some of the pain because I've brought them up to be positive and always look for the good in things. But sometimes I guess it just gets to boiling point where she may be wants to talk about it, and I know the pain because I've had accidents myself with similar kind of things, and as a mum, I don't want my child to go through the pain that I had to endure. And I know the jaw thing, I know the knee thing, I've had tears in my knees, I know what it's like, feeling like your leg's twisted. And her moods have just yeah, it's kind of irregular, like she will, it's caused a bit of tension at times between us, and she gets very irritable; sometimes she'll just want to lie in bed and because of the pain and she'll go to bed early and even after a shift, just for three or four hours, and having to travel there, she'll just want to go to sleep. It's totally changed."
5. Mrs Titus gave evidence that her daughter had an interest in becoming a mid‑wife, which meant studying nursing. She was aware that the plaintiff had declined the Pathways Course offer at UWS. When asked why she gave the following evidence: "A: For several reasons. She's been through a lot in the last year of her high schooling years and she's not only wanted to take a break from study because of all the pain she's been through, and going through this process of still healing and things still not seen to, such as the jaw, yeah to be sitting there in a full time course is not really where she's at right now. So in the meantime she's undertaken some acting still with the desire to do that."
6. Mrs Titus also gave evidence that the plaintiff had a casting in 2016 for a TV commercial.
7. In cross-examination, Mrs Titus was asked about a contract that she signed on her daughter's behalf in December 2016, which did not proceed, but not because the plaintiff was injured. She described signing the contract as a developmental step for the plaintiff.
8. There was no re-examination.

The plaintiff's medical evidence

1. The plaintiff's medical evidence comprised clinical notes from the Broadway General Practice (Ex E), hospital records from Royal Prince Alfred Hospital (Ex F), clinical records from the Sutherland Medical Centre (Ex G), and two reports of Dr Lee dated 19 August 2016, and Dr Szomor dated 14 September 2015, which comprised Ex H. Dr Szomor was an orthopaedic surgeon who examined the plaintiff on 14 September 2015 on referral from her local medical officer, Dr Mikhail. He made a provisional diagnosis of right knee medial meniscus posterior contusion caused by the plaintiff's fall on 25 June 2015. At that time, the plaintiff's current symptoms were recorded as: "Back has improved. Right knee continues to feel tense with "cracking" and occasional stiffness. The pain is worse by the afternoon. Unable to sit or walk for long periods. Unable to run."
2. The only abnormal findings on examination of the plaintiff's right knee were medial joint-line tenderness at posterior aspect and medial tibial condyle tenderness. Dr Szomor noted an MRI study of the right knee dated 29 July 2015, which concluded: "Medial meniscus posterior horn contusion." He concluded that the right knee symptoms and MRI findings were consistent with an impact injury to the right knee and recommended continuing physiotherapy, including low impact exercises and avoiding deep knee flexion position for a prolonged period.
3. Dr Y K Lee provided a report to the plaintiff's lawyers dated 19 August 2016. He examined the plaintiff on 17 August 2016 and recorded her complaints as: "Ms Titus still has pain in her back and right knee. The neck is still sore. She notices a clicking in the jaw and sometimes it hurts. It is more annoying than painful. The back pain affects her sitting the most and she has to move around during lessons. She also has some abdominal pain which cannot be fully explained."
4. At the time of his report, the plaintiff was in year 12. Dr Lee recorded that she was a part-time model and her plan was to model eventually in the US. He stated: "Her back pain does make it difficult for her to pursue her modelling career because she could not wear high heels and could not walk or stand for extended periods of time."
5. Dr Lee provided an opinion that the plaintiff may not be able to fulfil her aspirations to pursue a career in modelling. His prognosis for symptomatic relief was "fair". He stated: "I expect her to continue to improve. The prognosis whether she can return to wearing her high heels and therefore continue her modelling career, is uncertain at this stage."
6. Dr Lee recommended that the plaintiff would require physiotherapy for at least another three months, at about $80 per session.
7. The clinical records of the plaintiff's GP, Dr Mona Mikhail, record that on 29 June 2015, Dr Mikhail examined the plaintiff. At that time, the plaintiff was limping and tender over her back. Dr Mikhail recommended a nuclear medicine bone scan and physiotherapy. On 27 July 2015, Dr Mikhail recorded that the plaintiff "Still gets pain in her neck, back, right knee since her fall".
8. She was again advised to have a bone scan and was referred for an MRI of her right knee.
9. On 19 August 2015, Dr Mikhail recorded: "Still has pain over upper neck, in her right knee, right wrist all since she had her fall in the hole in front of the pub. Discussed MRI results of her knee and bone scan."
10. On 28 September 2015, Dr Mikhail recorded: "Still has pain on her back and right knee, has meniscus tear. Could not have operation. Had wrist support which helped her but still complains of pain from knee and back. She is seeing physio at RPA. Was seen by the dentist who said she had pain secondary to the accident (the fall) and pain because she grinds her teeth. Needs a referral to Dr Neil Peppitt for her jaw dysfunction.'
11. On 15 November 2016, Dr Mikhail recorded as follows: "Since the accident 22 June 2015, still has pain in right knee, also has pain in right jaw. Notice when she bite her teeth does not go in line, she said never had problem with her jaw before the accident. She remembered it hurts her at the time because while falling in the hole she hit her face. She's going to see dentist? May need to see dentist specialised in TMJ if she needs orthodontist (sic)."

The defendant's medical evidence

1. The defendant's medical evidence (Exs 13.2 - 13.8) include two reports of Dr J B Stevenson, orthopaedic surgeon, dated 24 November 2016 and 3 January 2017. In his first report, Dr Stevenson took a history that the plaintiff had neck stiffness and pain, and low back pain since the accident. He was told that a meniscal tear on the right knee had been diagnosed, but the plaintiff was advised that because of her youth, an operation would not be undertaken. The plaintiff also suffered abrasions of the right thigh, leg and right arm. Because of wrist pain, she was unable to write initially and needed a scribe for her examination in year 11. Physiotherapy was undertaken, but caused pain at the knee level and was stopped. There was also some discomfort over the TMJ area of the jaw. She had seen a dentist, but had not sought advice from a specialist, owing to the potential cost of that treatment. The plaintiff reported to Dr Stevenson that she had applied for nursing University studies at UTS Sydney.
2. Dr Stevenson opined that there was a direct relationship between the incident and the plaintiff's injuries and disabilities. His diagnosis was consistent with musculo skeletal injury, including soft tissue injury, contusion and abrasions to the relevant areas of complaint. That is, the plaintiff's neck, lumbar spine, both wrists, both ankles and right knee. He opined that a dental opinion about the right tempero mandibular joint discomfort would be relevant.
3. Dr Stevenson was of the opinion that the plaintiff should be treated conservatively and no further treatment was required.
4. In his second report dated 3 January 2017, Dr Stevenson commented on the report of Dr Lee, dated 19 August 2016, and documents produced under subpoena by Dr Ian Harris, Professor of Orthopaedic Surgery, documents produced by the Broadway General Practice, and documents produced by the Royal Prince Alfred Hospital. Having reviewed that material, which included the MRI report of the right knee dated 31 July 2015, requested by Dr Mikhail, Dr Stevenson commented that the documents reviewed did not cause him to alter the opinion expressed in his prior report.
5. The MRI report dated 31 July 2015, was contained within Ex 13.4. Under the heading "Findings", the report stated: "There is a patch of increased T2 signal within the posterior horn of the medial meniscus. An impression that part of this touches the tibial surface of the meniscus suggesting a short meniscal tear 6mm long on a background wider meniscus contusion, outer one-third. Questionably, a tiny meniscus cyst lying next to the posterior edge of the posterior horn root of the medial meniscus."
6. The report concluded: "Small region of abnormal intra-meniscal signal within the posterior horn of the medial meniscus, a tiny component of which touches the tibial surface of the meniscus - suggest say meniscus contusion with a short tear located in the outer third of the meniscus. No acute bony injury is seen."
7. The report of Professor Ian Harris dated 26 October 2015, addressed to Dr Mikhail, was also within Ex 13.4. Professor Harris examined the plaintiff on 22 October 2015, at which time she had full range of motion of the right knee, no effusion, no instability and no tenderness thereof. Professor Harris gave the plaintiff and her mother reassurance regarding her injuries, stating there was no indication for surgical intervention at that stage, nor for future investigations. He reassured the plaintiff's mother "that some ongoing symptoms may be expected, but these are not necessarily indicative of future problems or ongoing damage".

The plaintiff's submissions

1. The plaintiff submitted that this was a case in which liability should have been admitted from the defendant from the outset. The CCTV footage and still photographs confirmed that the keg chute was not easily visible, detectable or observable, and that there was no barricades in place. It was submitted that this amounted to "gross negligence" on the part of the defendants. Further, the open keg chute did not pose an obvious risk within the meaning of s 5F of the CLA. It was not easily discernible, visible, detectable or observable, and could be described as "almost camouflaged". The plaintiff's Counsel referred to Schultz v McCormack [2015] NSWCA 330, where it was found that a finding of obvious risk under s 5F of the Act was not a complete answer to the plaintiff's claim, but merely eliminated the part of the defendants' duty of care that involved warning of the risk. Here, there was no warning.
2. The plaintiff submitted that there should be no finding of contributory negligence by the plaintiff. She gave evidence that there was a person walking in front of her which was all she could see. She was not using her mobile phone at the time of the incident, but was holding it in her hand. In the seconds prior to her fall, the plaintiff had been looking straight ahead as she was entitled to do, and she was taking reasonable care for her own safety. She was walking on a busy footpath in a busy inner-city suburb and her view was obstructed by the number of pedestrians in front of her.
3. In respect of damages, the plaintiff submitted, having regard to the evidence referred to above, the following schedule of damages: Non-economic loss $109,000.00 29% of a most extreme case Past out of pocket expenses agreed $2,268.00 Future treatment expenses $25,000.00 Past wage loss $2,160.00 First 18 weeks at $120 per week $20,000.00 $22,160.00 From 1 July 2016 to 13 June 2017, $400 per week x 50 weeks Future economic loss - loss of ambition to become a nurse/mid-wife, or alternatively diminution of earning capacity as a model and actress - cushion $250,000.00 Total $408,428.00

The defendant's submissions

1. In a thorough written outline of submissions, counsel for the defendant submitted that the plaintiff was guilty of contributory negligence and that a deduction of 25% should be made to any damages awarded to her. In applying s 5R of the CLA, the risk of harm was submitted to be the risk of injury to a pedestrian walking into an open keg chute. It was submitted that the standard of care required of the plaintiff was that of a reasonable person in the position of the plaintiff, and that the matter is to be determined by reference to what the plaintiff knew or ought to have known at that time. At the time the plaintiff was 16 years and 4 months, and therefore was not a child of tender years. She had walked along the area outside the hotel every week day since 2012, and knew the location of the keg chute before the accident, and had seen deliveries of kegs of beer occurring at the hotel two to three times per week before the accident. She knew that when deliveries were taking place there would be a semi-trailer or truck laden with beer kegs parked on the kerb outside the hotel, and she had observed the open keg chute before the day of the accident. She knew that it would be positioned at an angle against the wall of the hotel when opened, with chains connecting the door to the wall. She conceded that had she been looking on the morning of the accident, she would have observed the chains and the door in that position, and that would have alerted her to the fact that the keg chute was open.
2. Prior to the accident, the plaintiff had a mobile phone in her hand and although she was not using that phone, it was positioned approximate to her chest level and she conceded that she was looking down at her phone at times prior to the accident. The plaintiff also conceded that she was not looking at the ground.
3. It was submitted a reasonable person in the position of the plaintiff would have seen the open keg chute had she been watching where she was walking. The CCTV footage showed people walking around the keg chute before and after the plaintiff's accident, and a man in a grey suit reaching out for the plaintiff before she is seen falling down the keg chute. The court would infer that had the plaintiff been watching where she was walking, she would have observed the open keg chute and avoided it. In those circumstances, a finding of 25% contributory negligence should be made.
4. Having regard to the medical evidence, the defendant submitted that the appropriate range of damages for non-economic loss pursuant to s 16 of the CLA, was between 15 and 18% of a most extreme case, which equated to a monetary award of $5,000.00 to $13,000.00. For past wage loss, the defendant submitted that an award of $500 was more than an adequate allowance for her past economic loss, given that her taxation returns disclosed that her income had increased from the financial year ending 30 June 2015 to the financial year ending 30 June 2016.
5. With respect to future economic loss, the defendant submitted that none of the medical doctors, treating or medico-legal, opined that there was going to be any deterioration in the plaintiff's back and/or right knee. The court would not be satisfied that the plaintiff's injuries had resulted in a diminution of her earning capacity, which will be productive of financial loss in the future. Therefore, there should be no allowance for future economic loss. If the court did not accept that submission, then applying s 13 of the CLA, the court would have to make a factual finding about the plaintiff's most likely future circumstances, but for the injury. The evidence at Ex 10 established the plaintiff had only been offered a place in a pathways course, the successful completion of which would guarantee her place into the first year of a degree at the University of Western Sydney. The only medical evidence of what could be described as work restrictions was found in the report of Dr Lee, which was confined to difficulties for her pursuing a modelling career because of her inability to wear high heels. Further, the plaintiff had not particularised the future economic loss claim she now advocated.
6. The defendant acknowledged that past out of pocket expenses had been agreed, but that the plaintiff's claim for $25,000.00 for future out of pocket expenses was not supported by any medical evidence. At most, the plaintiff was entitled to physiotherapy treatment for a period of three months, based on Dr Lee's report. The plaintiff had in fact undergone little by way of treatment for the injuries she sustained since 2015. There should be therefore no allowance for future treatment expenses.

Determination as to contributory negligence

1. Division 8 of the CLA is headed "Contributory negligence". It provides: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose; (a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) The matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of the reduction in damages by reason of contributory negligence, a court may determine a reduction of 100 per cent if the court thinks it is just and equitable to do so, with the result that the claim for damages is defeated."
2. In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (Barrett and Gleeson JJA agreeing) said as follows: "161 The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. 162 As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a) - (d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 138(3) required the court to reduce the damages recoverable 'by such percentage as the court thinks just and equitable in the circumstances of the case.'"
3. Here, the plaintiff knew that there was a keg chute located on the footpath of Missenden Road, and she had seen it being used for the purpose of delivering kegs of beer to the hotel, two or three times a week, over a period of some 3 years. However, during those three years, she was a child aged 13 years to 16 years at the time of the accident. I accept the plaintiff as a witness of truth, and I accept that on occasions when the deliveries were being made, that open keg chute had been surrounded by beer kegs or by a workman directing pedestrians around it. That was not the case here.
4. The CCTV footage clearly shows that there was no warning that the keg chute was open and no barrier to it. Further, it was a busy weekday morning with pedestrians walking in both directions along a footpath which had been narrowed by the very fact that the keg chute was open. The CCTV footage, and stills taken from it, have to be approached with caution, and are to be used only as an aide` in understanding the evidence - see Blacktown City Council v Hocking [2008] NSWCA 144. In fact, the CCTV footage is taken from above the footpath and the pedestrians walking upon it. It does not give a true perspective on what the plaintiff faced as she walked west along Missenden Road that morning. I accept her evidence that all she saw was the person walking in front of her at a distance of some 2-3 metres.
5. I do not find that the plaintiff was using her mobile phone at the time she approached the keg chute, and I accept her evidence that she told her solicitors, in answer to the request for particulars (Ex 8), that she was not using her mobile phone. The photographs, Exs 2-7, do not establish otherwise. I accept that she was talking to her younger brother as they walked towards his school, however, in doing so, the plaintiff failed to observe the semi-trailer parked on the curb side, and the deliverymen standing adjacent to it. She also failed to observe the door of the keg chute in an open position attached as it was by chains to the wall of the hotel. However, the opening to the keg chute was not at all obvious. It merely looked like a discoloured part of the footpath surface, not unlike other parts of that surface.
6. Applying the statutory prescriptions in s 5B to that situation, there was a risk of harm to the plaintiff if she did not take reasonable care for her own safety by failing to observe the open keg chute. She knew that the keg chute was used two to three times per week for the delivery of beer kegs and was aware that the door to the keg chute, when opened, was attached by chains to the wall. She failed to observe on this occasion the semi-trailer truck and the open door, and given the knowledge she had, I find that on this occasion she did fail to take reasonable care for her own safety and was contributorily negligent. However, when assessed against the defendant's breach of its duty of care to the plaintiff, I find that it is just and equitable to reduce the plaintiff's damage by 10% by reason of her own contributory negligence.

Damages

1. In assessing the plaintiff's damages for non-economic loss pursuant to s 16 of the CLA, I have had regard to the nature of the plaintiff's fall and the injuries she received in it. It was a nasty fall for a 16 year old girl, who fell through the hole a distance of 4 metres onto a concrete floor. I accept, on the basis of the medical evidence outlined above, that she sustained a frank injury to her right knee, which according to the MRI report, involved a short meniscal tear, 6mm long on a background of wider meniscus contusion on the out one-third. That finding was accepted by the plaintiff's treating GP, Dr Mona Mikhail, and orthopaedic surgeon, Dr Smorov.
2. I also accept that the plaintiff suffered musculo skeletal injuries to her neck and back, and has suffered pain in her right knee and leg, neck and back, from the date of the accident until the present. The plaintiff also suffered soft tissue injuries to her right arm and wrist, bruising and abrasions to her right upper leg and I find that she suffered an injury to her jaw, which has led to her suffering a mal-alignment to her jaw, with an overbite on the right side. That has caused pain in the right temporo mandibular joint, for which she has been referred for specialist orthodontist advice and treatment, however, she has not been in a position to afford that treatment.
3. The plaintiff's injuries have affected her in all of her physical activities. I accept her evidence that it has restricted her movement, including that of dance, standing on her feet for long periods of time during her shifts as a shop assistant, and sitting for long periods of time. I also accept her mother's evidence about the effect the plaintiff's injuries have had on her mood, however, I acknowledge that there is no psychiatric opinion underpinning that aspect of the plaintiff's claim. The plaintiff was an impressive witness who gave her evidence, some of which was distressing for her, in a mature and understated fashion. Having regard to the nature of the plaintiff's injuries and their enduring impact on her, I assess the plaintiff's injuries as 25% of a most extreme case pursuant to s 16 of the CLA. Pursuant to the Table in s 16, that results in an award of damages of $39,500.00.
4. The plaintiff's past treatment expenses are agreed at $2,268.00. There is no medical opinion supporting the plaintiff's claim for future treatment other than Dr Lee's opinion that she will require physiotherapy for a period of three months. I find that she will require physiotherapy and advice from her local medical officer from time to time, as well as advice and treatment from an orthodontist in respect of her jaw mal-alignment, and award the sum of $5,000.00 for future treatment.
5. For past wage loss, the plaintiff was unable to work for a period of 18 weeks following the accident in her job at the bridal salon, for which I award her the sum of $2,160.00 as claimed. Thereafter, the plaintiff did do part-time work, and at times worked four shifts per week, which was more work than she had previously carried out. I accept that she has difficulty being on her feet for an 8 hour shift as a sales assistant, and that she would have restrictions in lifting in that work. For the period from 1 July 2016 to 13 June 2017, I do not accept that the plaintiff's loss was $400 per week. I accept, however, that she has had to reduce her shifts and that that amounts to a loss of approximately $200 per week. I therefore award $10,000.00 for that period of time. The total award for past wage loss therefore will be $12,160.00.
6. The plaintiff's claim for future economic loss was completely overstated. She applied for, and was accepted into a pathways course to undergo a preliminary course to qualify her for a nursing degree at the University of Western Sydney. Her ATAR score was not sufficient to gain her entry directly into a nursing degree at any other tertiary institution. In assessing damages pursuant to s 13 of the CLA, I find that but for the injuries, the plaintiff would have pursued her ambition to become a nurse/midwife by completing the Pathways course and gaining entry into a nursing degree. There is no evidence that the plaintiff will suffer in the long term from her injuries. She is only 18 years of age, and will, when she is well enough, pursue her ambition. The appropriate test at law is whether the plaintiff's injuries and disabilities are, or may be, productive of financial loss - see Medlin v State Government Insurance Office (1995) 182 CLR 1. In Kallouf v Middis [2008] NSWCA 121, the Court of Appeal set out the principles to be applied in assessing damages for economic loss at [46] - [50].
7. I find that the plaintiff has established a diminution of her earning capacity by way of a deferment of her ambition to become a nurse/midwife. In addition, her ability to pursue work in retail and modelling has been impaired. That also has to be taken into account. In State of New South Wales v Moss (2000) 54 NSWLR 536, the Court of Appeal held that where earning capacity has been unquestionably reduced, but its extent is difficult to assess, it is not open to the Court to abandon the task of assessing damages for loss of earning capacity. The fact that the quantum of damages is difficult to assess, does not mean that the plaintiff is only entitled to a nominal sum (see [72]). In the case of a young person where there is no real earning history, given that she was a school student involved only in part‑time work at the time of her accident, the court said at [84]: "But it is conventional to rely on the occupations, attitude to life and work histories of parents and other relatives."
8. In this case the plaintiff's mother impressed the Court as a role model for the plaintiff, earning money in the creative arts and encouraging a strong work ethic. In assessing the plaintiff's diminished earning capacity as a lump sum, I take into account that her ambition to study nursing may be deferred by up to five years, that she will have difficulty obtaining work that might otherwise have been available to her alternatively, in either retail or modelling, and I assess those damages as a lump sum at $75,000.00. There will therefore be an award of damages to the plaintiff made up as follows. Non-economic loss $39,500.00 Past treatment expenses $2,268.00 Future treatment expenses $5,000.00 Past wage loss $12,160.00 Future loss of earning capacity $75,000.00 Total $133,928.00

Conclusion and orders

1. I therefore assess the plaintiff's damages at $133,928.00. Having found the plaintiff contributorily negligent to the extent of 10%, there will be an award of $120,535.00.
2. I therefore make the following orders: 1. There will be a verdict and judgment for the plaintiff in the sum of $120,535.00. 2. The defendant is to pay the plaintiff's costs of the proceedings. 3. The exhibits are to be returned forthwith. 4. If either party is to apply for a special costs order, such application is to be made by Notice of Motion, together with affidavits in support, served on the other party with 5 days' notice.

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: 03 July 2017