Medlin v State Government Insurance Commission [1995] HCA 5
182 CLR 1
127 ALR 180
Graham v Baker [1961] HCA 48
106 CLR 340
35 ALJR 174
Strong v Woolworths Limited t/as Big W [2012] HCA 5
Judgment (6 paragraphs)
[1]
Judgment
By Statement of Claim issued 2 June 2016 the plaintiff seeks personal injury damages for loss resulting from injury to his left knee suffered when he fell because his left foot slipped as he walked down a tiled ramp from the exit to the St. George Masonic Club ("the Club") to its car park on 21 April 2015. The defendant, St. George Masonic Club Ltd (ACN: 000 680 651) operated the Club.
The defendant did not contest that the plaintiff suffered injury to his knee in that fall, or that the defendant slipped. It was raining at the time. The ramp was undercover from above but open to the weather on one side.
According to the report of expert ergonomist and building consultant Dennis Cauduro dated 20 December 2016 (Exhibit B) the downward slope of the ramp was 4.1 degrees and the tiles were ceramic with an overall average raw coefficient of friction of 0.24 (Cauduro report [3.4]); whereas, considering the gradient and Australian Standards, the desired equivalent coefficient of friction was 0.55 when wet (Cauduro report [3.5]). Mr Cauduro summarised his opinion at [3.6] as follows:
… in my opinion it is reasonable to accept that the pedestrian surface in the subject area would have been adequately slip resistant when clean and dry, it was not dry at the material time. Ceramic tile floors that (sic) are reasonably smooth and are generally inadequately slip resistant when wet, and (sic) is therefore my opinion (sic) inappropriate for use in the external entrance to St. George Masonic club (sic) that will almost certainly be wet from time to time, based upon general cleaning requirements, and inclement weather conditions. Measurements confirm that the ceramic tile floor generally were (sic) in the very high category of non-slip resistance when wet, in accordance with table number 2 of AHB197: 1999 and generally was inadequately slip resistant.
There was no evidence of either contamination of the tiles at the time of the incident, or of the defendant's system for the cleaning of the tiles.
Immediately I would add that Mr Cauduro observed that one of the four major components contributing to causing slip and fall incidents is the actual static coefficient of friction between the pedestrian's shoe soles or heels at the instant of leading foot contact (Cauduro report [3.7]); but in this case there was no evidence of the type or condition of shoe soles or indeed of shoes worn by the plaintiff. When I drew this matter to the attention of the parties, counsel for the plaintiff did not make an application to reopen. Counsel for the defendant, appropriately in my view, conceded that the Court might properly assume that the plaintiff was wearing shoes, given immediately beforehand, he had attended within the Club premises for approximately three hours.
The ramp is depicted in photographs contained within Exhibit A. "X" shown in Exhibit A photograph 4 marks the spot of the plaintiff's fall. The photographs show that whilst the ramp is undercover of the soffit of the building, the area is not protected from external weather in that it is open to the side, in the direction of the street.
The particulars of negligence pleaded in [6] of the Statement of Claim include:
1. (d) Failing to take reasonable steps to ensure that the tiles on the exit ramp were not excessively slippery.
2. (e) Failing to take reasonable steps to prevent rainwater from reaching the exit ramp, in circumstances where the defendant knew, or ought to have known, that the tiles on the exit ramp were unusually slippery when they became wet.
3. (f) Failing to warn the plaintiff that the tiles on the exit ramp were unusually slippery when they became wet.
4. (g) Failing to treat the tiles on the exit ramp with a non-slip material in circumstances where the defendant knew, or ought to have known, that the tiles on the exit ramp were unusually slippery when they became wet.
5. (h) Failing to place water absorbed matting or a similar material, on the tiles in circumstances where the defendant 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 (I assume that the plaintiff intended to plead "absorbent").
6. (i) Failing to warn the plaintiff that the tiles were likely to be excessively slippery, in circumstances where the defendant knew, or ought to have known, that the tiles had become wet due to rainwater reaching them.
7. (j) Failing to install a more extensive awning so as to avoid the tiled exit ramp to become wet.
By its Defence filed 5 October 2016 the defendant did not admit that it owed the plaintiff a duty of care, denied that it breached a duty of care owed to the plaintiff and denied that it was negligent as alleged in [6] of the Statement of Claim (Defence [3]).
At the hearing the defendant did not deny that it owed a duty of care. Given that the plaintiff attended the Club to play poker, the duty owed by the defendant to the plaintiff upon the plaintiff entering its premises at its invitation to participate in its facilities was a duty to take reasonable care to prevent harm to an entrant exercising reasonable care: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479.
[2]
Liability - Facts
As the defendant written submissions at the close of the case put it, there is no real controversy as to what occurred when the plaintiff slipped and fell suffering injury on 21 April 2015 at approximately 10:30pm when upon the Club's premises. The plaintiff had visited the Club, of which he had been a member for over 4 years. His habit was to visit about three times per week on Tuesday and Friday evenings and on Sunday afternoons to play poker. He was a committed poker player. Indeed prior to his injury he was an umpire of poker games. He had attended the Club hundreds of times prior to the incident.
Usually the plaintiff drove from his home the three or four kilometres to the Club. He would park in the car park and walk up the ramp upon which he fell at the time of the incident. He would exit the Club by descending that ramp to the car park. He was very familiar with the access and egress between the car park and the entrance doors of the Club. He had used the tiled ramp between the car park and the Club entrance in all sorts of weather prior to his injury. He had never before experienced slipping when using it.
On 21 April 2015 at about 6:30pm-7:00pm the plaintiff arrived in the car park. It was windy and sprinkling with rain but it was not raining heavily. The plaintiff did not then notice whether the surface of the ramp was wet or dry as he ascended the ramp to the entrance doors of the Club. He did not recall seeing any warning signs.
There was one Club employee within the entrance performing doorman and security duties.
At about 10:00pm-10:30pm the plaintiff exited the doors of the Club. On prior occasions, when it was raining, the plaintiff had taken care of his footing as he walked down the tiled ramp and, on the occasion of his injury, he conceded that he knew to take care when walking down the tiled ramp if there was water on it.
At this point I interpose that whereas the report of Mr Cauduro (Exhibit B) contained photographs of puddled water upon the tiles of the level section outside the exit doors; that water is not upon the sloping section of the ramp where the plaintiff fell, depicted in Exhibit A photograph 4. Therefore, the evidence in that photograph is of no persuasive value. It cannot be assumed that puddled water on the level section outside the exit doors would indicate that there would be puddles on the slope of the ramp where, obviously, water could run off. The photographs are not evidence of what was visible at the time of the incident. The plaintiff's evidence was that he did not see any water on the tiles as he exited the doors.
[3]
Liability - Consideration
Section 5B Civil Liability Act 2002 (NSW) ("CLA") must be applied to the question of breach of duty of care.
The parties properly engaged with the risk being that a person in the course of egress between the exit doors of the club and the car park might be caused to slip and fall and suffer harm, by the slipperiness of the wet tiled surface.
In this regard, counsel for the defendant in written closing submissions efficiently put:
[5] Accepting that the ramp was, when wet, slippery, it is necessary to consider whether or not in such circumstances, the defendant breached its duty of care owed to the plaintiff.
[6] It is conceded that, in the circumstances, the risk that someone might fall was foreseeable and the risk was not insignificant. The real question is whether or not, in the circumstances, a reasonable person in the defendant's position would have taken the precautions suggested by the plaintiff's expert [Exhibit B report of Mr Cauduro] (s 5B(1) of the [CLA]).
In oral closing submissions, counsel for the defendant put that the plaintiff's evidence did not include evidence of a skid mark or observation that the sole of his shoe was wet in support of his case that the mechanism of the slip or the fact which caused his foot to slip was that the tiles were wet. The defendant submitted that the evidence was insufficient to infer that the plaintiff slipped on wet tiles: Transcript Day 2 p 128 line 10. I had earlier in the day, referred the parties to the recent decision of Springfield v Duncombe [2017] NSWCA 137 and also to Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431. The defendant said that the plaintiff had failed to prove causation as required by s 5D CLA.
Mr Cauduro described his understanding of the mechanism of a slip at [3.8] of his report in the following terms:
Slips occur when the friction force available between a pedestrian's shoe sole/heel and the pedestrian surface is insufficient to either overcome the usual very brief period of horizontal movement of the foot (or micro-slip) that occurs at heel-strike, or to counteract the horizontal force involved in accelerating the body forwards at toe-off. For slipping to be avoided, the available friction must exceed the maximal horizontal forces (or peak frictional demand) of the foot. …, if the slip is sufficiently rapid or continues for a sufficient distance and/or time, a loss of balance and fall is a likely outcome.
[4]
Damages - Agreed Components
The parties agreed out of pocket expenses in the sum of $12,432.00.
The parties agreed that the assessment of past and future economic loss be made on the basis that the plaintiff was earning $1,040.00 net per week at the time of his injury.
The plaintiff did not claim compensation for past gratuitous assistance.
At point 6 of the Plaintiff's Schedule of Damages, the plaintiff claimed compensation for past paid domestic assistance for the 6 months following injury at the rate of $70.00 per fortnight for cleaning and 6 lawnmower man attendances at $60.00 each making a total claim of $1,270.00. In defendant closing written submissions at [53] the defendant calculated ten attendances by a cleaner at $70.00 per fortnight making a total sum of $700.00. When during oral submissions it was drawn to counsel's attention that the defendant's suggested calculation of compensation omitted the 6 lawn mowing attendances at $60.00, counsel for the defendant acknowledged the difference between the plaintiff's claim and the defendant's view of the evidence to be insubstantial: transcript day 2, page 139, lines 10-34.
The evidence is not so precise as to warrant a preference between the defendant's (adjusted) calculation of $1,060.00 and the plaintiff's calculation of $1,270.00. Nor should the court's time be occupied for such a small difference. I award compensation for past paid domestic assistance in the average and rounded sum of $1,100.00.
The parties agreed the mathematical calculation of the plaintiff's past economic loss were it to be awarded at full loss of earnings calculated at the net figure of $1040.00 per week less monies actually earned, to be in the sum of $79,745.00. The plaintiff's entitlement to and the assessment of past and future economic loss was however hotly contested.
As to assessment of percentage of a most extreme case for the award of non-economic loss pursuant to s 16 CLA, the plaintiff submitted 32% and the defendant submitted 25%.
[5]
Damages - Facts
The plaintiff was born in Bankstown Sydney on the 14th of December 1976 and attended St Joseph's Catholic Primary School, then De La Salle College Kingsgrove. He achieved his Higher School Certificate in about 1994 when attending Benilde Catholic High School. In 1995 he attained an Administrative Certificate from Metropolitan Business School. Until this time he had worked short periods as a golf driving range assistant, Pizza Hut food assistant and a Woolworth's customer service assistant.
The plaintiff's principal employment prior to injury was with New South Wales Department of Finance and Services. He commenced as an accounts clerk in 1995. In 2003 the Department employed him as a Credit Card Officer and Cashier. In 2007 he was employed by the Department as a Business Support Officer. At the time of his injury on the 21st of April 2015 the plaintiff had been continuously employed by the Department for 20 years.
The plaintiff was cross examined in detail about his pre-existing medical health. The hearing proceeded on the bases that only those parts of documents to which the court was directed would be considered in the evidence. In the records of the plaintiff's treating general practitioner, produced by Riverwood Medical, the court was taken to, and the plaintiff conceded in cross-examination, that he required ongoing medical supervision of his diabetic and neuropathic conditions including idiopathic muscle cramps but his condition was not so serious as to require treatment by insulin. His neuropathy was peripheral and probably related to his diabetes. The condition was not such as to require medication. Albeit he suffered low back pain and left side headache as a result of a motor vehicle accident on the 8th of November 2014 those injuries did not require ongoing treatment worthy of note. He did not make a claim for compensation in relation to that accident.
During 2013 the plaintiff was away from work for approximately 6 months. He was involved in disciplinary action and a Return to Work Plan conducted by the Department and during this period he suffered a significant psychological ailment. Aside from that matter, which will be considered in further detail below; none of the plaintiff's pre-existing medical conditions caused significant affectation of his amenity of life, impaired his abilities for recreation or diminished his earning capacity. The relevance of those conditions, for the purposes of assessing damages in this case is, in my view, that the plaintiff will continue to require regular consultations with his general practitioner monitoring, particularly of his diabetes and will not, in addition to the frequency and regularity of those visits require further visits on account of the orthopaedic injuries he received in the subject fall, except possibly in relation to the future knee surgery.
[6]
Economic loss and Non-economic loss
The plaintiff's entitlements to past and future economic loss and to non-economic loss are the major components of his claim for damages. The (above) agreed net weekly earnings at the time of injury is $1,040.00. His rate of earning does not excite consideration of the maximum loss of earnings cap provided by section 12 CLA.
At the outset, it is to be remembered that the irregularity of bone surface with which the plaintiff is left following surgical treatment for his injury is to the patella. It is not an irregularity in the weight bearing articular surfaces of the tibial plateau or of the femur. Simply stated, but for running, climbing ladders, squatting and kneeling the plaintiff for the medium term of at least 15 years, that is until his mid-fifties, will enjoy fairly normal mobility. Thereafter the prognosis is that he will be prone, because of arthritis, to some deterioration of mobility. In a nutshell, the whole of the plaintiff's working career has been sedentary office work. He does not suffer and in the future but for the possibility of orthopaedic treatment intervention, is unlikely to suffer any significant impairment for that work, so long as the physical work environment is not unsuitable on the basis of those limitations.
The evidence of the plaintiff, which is consistent with the medical evidence in the case, is that he is presently not fit for labouring work. His oral evidence was that he would do labouring work but for his knee disability. As I understood his answer when that hypothetical proposition was put to him; he would, even if he was not injured, not choose to do labouring work but he would suffer it if there was not less physical work available to him.
A significant event in the determination of the plaintiff's past and future economic loss was his acceptance of voluntary redundancy pursuant to a scheme offered in his workplace very soon after his injury. The defendant submits that the plaintiff's claim for damages compensating him for economic loss clear of the valuable redundancy package, is an attempt to "double dip".
The two main questions for determination of the plaintiff's claim for damages compensating for past and future economic loss are:
1. what is the amount which reasonably compensates the plaintiff for his diminution of earning capacity resulting from the injury; and
2. to what extent, if any, is the plaintiff's election to accept the voluntary redundancy package, to be taken into account?
Whilst he did not notice water on the flat section outside the exit doors, the plaintiff did notice water on the sloping part of the ramp. In response to this he moved to the right hand side of the ramp nearer to the handrail but he did not, other than in the sense of placing himself in close proximity to it, make use of the handrail: Transcript Day 1 Cross-Examination p 37 line 29 to p 38 line 5.
The plaintiff insisted that he walked carefully and that he took sufficient care on this occasion: Transcript Day 1 34.48 to 35.01.
The plaintiff conceded in cross-examination that he knew to take care and that he did not need a sign to tell him that if it was raining the ramp could be slippery: Day 1 Transcript p 36 lines 10 to 14.
The plaintiff said that whilst he could not remember whether when entering there was a warning sign at the bottom of the ramp (the car park end); when he fell he observed there was a sign on a big white pole where the ramp met the car park. The white poles can be seen in Exhibit A photographs 2 and 5.
In my opinion, the particular of negligence of failure to warn pleaded in the plaintiff case is of little consequence to the outcome of the case. Neither party went to the message of warning on the sign seen by the plaintiff nor as to what message should have been given. In any event the plaintiff's concession that he knew to take particular care when it was raining and noticed water on the ramp means that events were unlikely to have been affected by a warning advising him of the risk of which he was already aware, that the wet tiles might be slippery: see Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at [44]-[45] where McHugh JA referred to the following passage of the judgment of Kirby J in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 478 [123] as not a statement of principle of law but as an observation of what might be reasonable approaching the question of breach of duty of care;
Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.
The plaintiff described his fall as he having lost the grip of his footing on the left side and his foot going forward and up and he landed on his left knee. He said that as he was falling he tried to grab onto "the pole that went across" and he "landed" on the tile/gutter/pole all at once: Transcript Day 1 p 13 lines 15 to p 14 line 4.
When laying on the tiles the plaintiff noticed that his pants were wet: Transcript Day 1 p 15 line 29.
At [4.14] of his report Mr Cauduro identified "reasonable preventative measures" available to the defendant. Defendant closing written submissions, at [6], described as the focus of a real question in the case: whether in the circumstances a reasonable person in the defendant's position would have taken those precautions. Mr Cauduro proposed:
1. Surfacing the ramp with tiles of adequate slip resistance for use when wet;
2. Coating the tiles with a slip resistive treatment;
3. Applying water absorbent floor mats;
4. Applying grip tape to the surface of the tiles;
5. Closing the ramp sufficiently to "minimise rainwater entering onto the ceramic tiles in inclement weather";
6. Provide warning signs.
I have rejected the relevance of the precaution of warning signs.
The defendant submission denying that it breached its duty of care was that it was not negligent in having failed to take any of the precautions identified by Mr Cauduro because approached prospectively, there was no evidence of any person having previously been injured by slipping on the ramp and the evidence was that the plaintiff himself had used it hundreds of times including when it was wet but had not experienced the ramp being slippery.
The defendant said that it was not unreasonable for it to have assumed that the plaintiff would have used the handrail by hovering his hand along it as he descended the ramp in the circumstances of him knowing water was present upon the ramp and that the tiles might be slippery: defendant closing written submissions [8]; defendant oral closing submissions Day 2 Transcript p 129 line 45 to p 130 line 01.
The defendant did not submit that the taking of any of the precautions identified by Mr Cauduro (pleaded as particulars to [6] of the Statement of Claim) would have incurred a burden upon the defendant, raised a question of social utility or otherwise required detailed consideration of s 5B(2).
In essence the defendant opposed a finding of breach on the basis of s 5B(1)(c). In oral submissions, the defendant put it that whilst in fact the friction coefficient was deficient according to Australian Standards, the accident-free history spoke against the proposition that the defendant was required to take those precautions.
The plaintiff tendered the NSW Ambulance Service electronic medical record (Exhibit G) which was admitted with the limitation pursuant to s 136 Evidence Act 1995 (NSW) that "slipped" the excluded from evidence. Without objection (defendant counsel concession Transcript Day 2 page 143 line 17) the ambulance report evidenced that the officers found the plaintiff laying on a wet ramp. Exhibit G was not admitted as evidence of truth of the fact of how the incident occurred: Transcript Day 2 p 144 lines 23 to 29.
The plaintiff submitted that the tiles posed a significant risk of harm when wet due to the low coefficient of friction which was a hazardous condition of which the defendant, if it didn't actually know, ought to have been aware. The plaintiff pressed, not unreasonably, that it was not available to the plaintiff to visibly perceive degree of slipperiness. Further, the fact that the plaintiff had used the ramp hundreds of times in all weather was not numerically significant evidence of security for pedestrians upon the ramp in wet conditions; because for instance, unlike stairs (the subject of consideration in Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705), the security for pedestrian passage of the ramp was highly dependent on whether they were wet or dry.
In my opinion, that there was no evidence of prior reported injuries of pedestrians slipping, whilst of assistance to the defendant, does not, standing alone, require the conclusion that the defendant was relieved from the burden of taking reasonable precautions. That history is to be weighed in the balance of what was a reasonable response, viewed prospectively: Jandson Pty Ltd v Welsh [2008] NSWCA 317 at [21], [23] and [25], referring to Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 309; Drotem Pty Limited v Manning [2000] NSWCA 320.
As properly conceded by the defendant's closing written submissions [5] and [6] (quoted above), on the prospective approach, the defendant was required to take reasonable precautions in response to the foreseeable and significant risk that pedestrian patrons might suffer harm by slipping and falling on the ramp. The defendant put its denial of breach on the basis that it was not unreasonable for the defendant to assume that in the circumstances where it was obvious that the tiled sloping surface of the ramp was wet (defendant closing written submission [8]), the provision of handrails and a warning sign that the bottom of the ramp was an adequate response by the defendant to the risk, the duty not being to make the premises as safe as reasonable care and skill on the part of anyone can: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166.
The injury suffered by the plaintiff, resulting from him slipping in the conditions of the slipperiness of the ramp, which the defendant conceded, was an illustration of the risk eventuating. Falling was well known to carry a significant risk of injury. Viewed prospectively, these matters were known or ought to have known to the defendant. The foreseeable, significant risk included both the probability that harm would occur and that the harm was likely to be serious if reasonable precautions were not taken.
The evidence of the sign which the plaintiff conceded he saw once he had fallen is inadequate to identify it as a warning sign or as a sign of sufficient warning. For completeness, even assuming it to have been a sign providing adequate warning, there was no evidence that it was available for patrons entering the club at the time of the plaintiff's arrival. There was no warning sign at the top of the ramp, for patrons, at the time of the plaintiff's departure. I repeat that because of his subjective appreciation of the risk, the provision of warning to the plaintiff would have been unlikely to have increased his knowledge of the risk and therefore would not have ameliorated the risk to him.
In my opinion, whilst the risk of slipping on wet tiles of a sloping ramp might have been obvious to a patron of the Club taking reasonable care for themself; the degree of that risk was not obvious. The degree of slipperiness was not visible. The inadequacy of the friction coefficient of the tiles was certainly not visible. The slipperiness was a hazard. For these reasons, patrons taking reasonable care for themselves were not to have an appreciation of the degree of that hazard.
In my opinion, the precautions identified by Mr Cauduro (set out above) but particularly, coating the tiles with slip resistive treatment, grip tape or absorbent floor mats; were precautions which the defendant ought reasonably to have taken pursuant to the principles set out in s 5B(1)(c) and (2) CLA.
I find the defendant to have breached its duty of care. The taking of those precautions would not have been burdensome. It was not put that the taking of those precautions would have been burdensome in proportion to the risk. No s 5C CLA issue arose in the contest at the hearing.
It was not just a rainy night but also windy. The ramp was not, to the side, protected from windblown rain. The plaintiff noticed visible water on the tiles. His pants were wet from being on the ground in the immediate vicinity of his fall. The ambulance officers recorded that the ramp was wet. The plaintiff's left foot slipped in the sense which he described of it losing "grip" whilst he was taking particular care walking upon the tiles because of his awareness that they might be slippery when wet. These factors when combined with the uncontested measure of undesirably low friction coefficient are factors supporting a positive inference that the wet tiles where the plaintiff walked were hazardously slippery and that the plaintiff's fall was caused by that hazard. In my opinion the evidence supports that conclusion as more probable than not, rather than as a matter of mere conjecture: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 304-305 per Dixon CJ; Springfield v Duncombe [2017] NSWCA 137.
The plaintiff was taking care in his walking and chose the right side of the ramp to be further away from the side of the ramp open to the street in his attempt to reduce the risk presented by wet and slippery tiles. The evidence does not support a finding that by so proceeding he eliminated the risk, which risk the defendant has properly conceded was not insignificant.
It is most likely that had the ramp been possessed of reasonable friction for footing by the defendant having taken the precautions, or any of them, identified by Mr Cauduro, the plaintiff's foot would not have lost grip and he would not have fallen.
I find that the defendant's failure to take the reasonable precautions (above) was a necessary condition of the occurrence of the harm to the plaintiff and that it was appropriate for the scope of the defendant's liability to extend to the harm because the defendant owed the duty above stated to take that reasonable care for entrants to the Club. Accordingly I find that the plaintiff has established causation pursuant to the provisions of s 5D CLA.
In the result I find that the defendant was negligent and is liable to the plaintiff for damages resulting from his fall on 21 April 2015.
The defendant submitted that by failing to maintain his hand upon or hovering near the handrail the plaintiff was contributorily negligent.
The cross-examination of the plaintiff was as follows:
Q. I suggest that had you been exercising proper care as you were walking down that ramp in that particular circumstance you would have availed yourself of the handrails which existed on either side of that ramp as depicted by the photographs. What do you say about that?
A. I always use the handrails.
Q. You weren't using the handrail on this occasion, were you?
A. Yes, I was, as I was falling.
Q. As you fell you went to grab the handrail, correct?
A. Yes.
Q. You weren't using the handrail as you walked down the ramp?
A. But I don't always or have used the rails to walk down in previous occasions.
HIS HONOUR
Q. Sorry what was that? You don't always or you do?
A. I haven't used the handrails previously, my knowledge.
O'DOWD
Q. Given that it was wet on this particular day, it was a downward slope and it was a tiled surface, common sense isn't it to make use of the handrail not as a reaction to slipping but to prevent you slipping. Would you agree with that?
A. I've never done it on previous occasions.
The plaintiff's answers in this passage of the evidence show his awareness of, what was, in any event, obvious, being the availability of the handrails. He did not reach for the rail until he fell: Transcript Day 1 p 38 line 5.
The question of contributory negligence is then confined to whether the plaintiff ought have kept his hand in the vicinity of the rail in the course of his taking particular care because of his awareness of the risk of slipping.
The standard of care expected of the plaintiff was not that he do all that he was in fact capable of, it was only that he take reasonable care: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 per McHugh J AT [34].
The substance of the defendant's submission is that had the plaintiff so proceeded he would have been able to grab the handrail in order to avoid or reduce injury suffered in falling because he would have been able to hang on.
The proposition that if the plaintiff's hand had been ready at the handrail he would have hung onto it and thereby avoided his knee coming into contact with the tiles/pole/gutter, all in one - as the plaintiff put it - was not specifically put. However, common sense dictates that support from gripping the handrail was likely to have reduced the force and energy of the fall and impact.
In the circumstances of the plaintiff having moved to the right hand side of the ramp in close proximity to the handrail and walking carefully in order to exercise particular caution against the risk of slipping on wet tiles which he realised; it was not unreasonable for the defendant to submit that the plaintiff ought have placed his hand on or near the handrail as he proceeded. It was an ordinary thing to do. True it is that the plaintiff could not be aware of the degree of slipperiness, it not being something visible to him; but the appreciation of the unquantified risk was good cause for him to have made use of the immediately available handrail for security of his passage. That was a standard of care which a reasonable person in his position ought have taken on the basis of what he knew: s 5R CLA.
Exercising the evaluative judgment which is incumbent upon the Court to do, in my opinion it is just and equitable (s 5S CLA) that damages to which the plaintiff would otherwise be entitled should be reduced by reason of contributory negligence by 10%.
Following the fall the plaintiff was conveyed by ambulance to St George Hospital and transferred the next day, 22 April 2015, to St George Private Hospital. On 24 April 2015 the plaintiff underwent surgery to his left patella performed by Dr Zoltan Szomor. Exhibit F contains two reports of Dr Szomor dated 18 July 2017. The injury was identified as left patella comminuted fracture which was repaired with the use of wires and a screw. Surgery included patella tendon repair.
On 3 March 2016 the plaintiff underwent further surgery when Dr Szomor, at St George Private Hospital, removed that hardware.
Following surgery and whilst in hospital the plaintiff was taught how to conduct his activities of daily living including washing his body whilst his leg remained fixed in the straight position by a brace. In regard to washing his body he was to use a shower stool, cover the knee and brace with a bag or, because he had a bath at home, to sit on the edge of the bath. Although the plaintiff would have been able to undertake those procedures with the readily perceived difficulty, he did not have to do so because his mother attended to sponge wash him and to cook his meals as well as to wash his clothes and provide any other assistance he required. She attended about 3 days per week.
The plaintiff was discharged from hospital, wearing the brace and ambulating with crutches. The plaintiff's recovery was relatively uneventful. The period of the plaintiff's significant post-surgery physical restriction, on the evidence, is roughly measured as the 16 weeks during which he was required to wear the brace. In the last 6 weeks of that period, the brace was adjusted to permit 70 degrees of flexion.
By 25 June 2015 the plaintiff could shower and complete all activities of daily living without the assistance of his mother.
His rented house had two steps to the clothesline which he could manage.
On 7 July he was reported by his treating general practitioner to be riding an exercise bike for short periods, flexing his knee to 90 degrees comfortably and walking "like a cowboy" to rehabilitate his quadriceps musculature control and also demonstrating single leg standing and deep squatting to increase knee flexion.
By late July 2015 the plaintiff was able to drive himself to medical appointments but would walk to physiotherapy with Ms Tina Koutsoullis. By July 2015 the plaintiff could walk including handling his own shopping up to 5 kilograms. He used a disability permit for close parking. He did not utilise, as was available, home delivery of shopping.
By July the plaintiff could cook for himself, wipe down surfaces, sweep but not under furniture, vacuum in open areas, wash dishes and do his own clothes washing if he handled it in small bundles. His mother was doing most services for him. He denied this was out of love and affection and not because of his inability to perform them for himself. On the basis of the medical literature recording his function, I do not accept that he required the level of assistance his mother provided to perform most everyday household tasks.
The plaintiff complained that a restricting nature of his impairment was that he did not know what things weighed 5 kilograms; he was not confident to handle and carry things for himself. He gave the following evidence during cross examination:
Q. In fact most of what your mother did for you was done, it's fair to say, because she was your mother and loves you and she was trying to help you as much as she could, correct?
A. No.
Q. Could I suggest it wasn't because there were things that you couldn't do‑‑
A. Well I wasn't allowed from my physio and my surgeon to do anything over a certain way.
Q. Yes indeed, I accept that but‑‑
A. So am I going to be there with a scale with a bundle of clothes and say, "That's more than 5 kilos I can't do it."
Q. What was the weight restriction and who told you what you could and couldn't carry?
A. My physio and my surgeon.
Q. What was the weight restriction?
A. 5 kilos.
Q. So as long as you didn't exceed that you were able to carry‑‑
A. How do I know what 5 kilos is like?
Q. I suggest that you would have a fair idea when you carry‑‑
A. But it's a confidence thing too. If I wasn't confident in doing it I didn't want to do it.
In my opinion the plaintiff's answers including his denial that his mother was performing duties for him out of love and affection which he could do for himself, and his complaint that he was fearful of lifting more than 5 kilograms; displayed either argumentative answers or a tendency to exaggerate. A 5 kilogram weight restriction must have been known to him to be eminently workable. He could wash clothes by handling them in not large bundles.
In total, Dr Szomor reviewed the plaintiff on a treating basis 7 times and on 18 July 2017 on a medico-legal basis. Dr Szomor reported that the plaintiff had achieved a reasonably good recovery however he experienced an occasional locking sensation and a clicking behind the kneecap. Dr Szomor accepts that the plaintiff has to walk for a little before the knee is comfortable, that the knee suffers occasional swelling and that the plaintiff is unable to run or to kneel. Dr Szomor's prognosis includes that patellofemeral arthritis is likely to progress with age. Dr Szomor expresses the opinion that the plaintiff is fit for office based work.
In his medico-legal report dated 20 October 2016 (Exhibit C) (6 months post-injury) Dr Lee, orthopaedic surgeon, reported that the plaintiff complained that he could not mow the lawn, that when having a shower he had to sit on a bench and that he could not run or go to the gymnasium as regularly as he did before suffering his injury.
In fact, the plaintiff's oral evidence was that he did try to mow lawns commencing about September or October 2015 and that he completed the task but with difficulty over the summer of 2015 to 2016 until March 2016 when following the hardware removal surgery, he again retained the same lawn mower man he had paid during the first 6 months post-surgery. After that period, the plaintiff moved into his mother's home and he was no longer required to mow lawns. When asked whether he could mow a lawn with the knee as it presently is, he answered in the affirmative: Transcript Day 1 p 27 line 45. His friend Mr Hole, who helped the plaintiff clean up his rented house for his move in January 2017 confirmed that the plaintiff could do all but the heaviest moving of heavy furniture and jobs which required kneeling: Transcript Day 1 pp 86-87.
On examination Dr Lee found a 13 centimetre surgical scar which he reported as on the front of the right knee but we can assume it was on the left knee, some mild swelling, no loss of upper thigh musculature and about ten degrees of reduced flexion (120 degrees left side/130 degrees right side).
I note that Dr Harvey, orthopaedic surgeon whose medico-legal report dated 23 January 2017 was tendered by the defendant (Exhibit 1) did not find restricted flexion but otherwise his findings on examination were consistent with those of Dr Lee. When I say consistent, in the absence of having the opportunity of hearing the doctors give oral evidence, the court can only take the medical reports at their face value and not interpret medical significance of items such as Dr Harvey having found the right thigh to measure one centimetre more in circumference than the left thigh, whereas Dr Lee found them to be equal.
Generally, and doing the best that can be done with the medical report evidence, the doctors consistently opine that the plaintiff's condition is static and that he suffers some permanent disability in his left leg which will give him difficulty with work involving much climbing up and down steps especially when carrying loads, extensive kneeling and squatting. Further that the irregularity of the articular surface of the patella will expose the plaintiff to the development of patellofemoral arthritis in years to come possibly requiring surgical treatment of either patellofemoral arthroplasty or knee replacement (Dr Harvey) or probably (not possibly) knee replacement in the future at between 15-30 years (Dr Lee).
The medical literature is consistent with the plaintiff continuing to suffer mild left knee discomfort. The medical opinion is consistent with the plaintiff being fit for office work and all work not requiring extensive left leg exertion such that, for example, he remains fit for his work as a building manager, which he was performing at the time of Dr Lee's assessment.
The plaintiff's treating physiotherapist Ms Tina Koutsoullis, in her report of 10 July 2017 (Exhibit E) added that after 6 months the plaintiff was able to negotiate stairs normally and that he is presently able to walk for 30 minutes and sit for more than 30 minutes at a time. Ms Koutsoullis said that physiotherapy provided only short term relief. She stated: "he just needs to pace his daily activities".
In the report of the plaintiff's treating GP Dr Kim Koutsoullis 10 July 2017 (Exhibit D) it was opined that the plaintiff is fully capable of returning to his employment as an office worker and that the only restriction would be if he had to walk long distances or climb a lot of stairs in the course of his work.
It seems reasonable given that his injury has left him with a compromised articular surface of the patella and a prognosis including development of arthritis, that the plaintiff may from time to time suffer exacerbations of pain, swelling and restriction, perhaps with use. It is reasonable for the plaintiff to receive physiotherapy for relief of temporary exacerbations.
Dr Lee reported on 20 October 2016 that the plaintiff had finished physiotherapy and did not need active treatment for the time being. This is consistent with Ms Koutsoullis' assessment of physiotherapy need. He proposed six hours of domestic assistance per week would have been appropriate for the initial six months after the surgery. In his opinion the plaintiff will require help with lawn mowing in the future, but as noted above, Dr Lee was not aware that since the injury the plaintiff had mowed his own lawn.
Dr Harvey, in his report of 23 January 2017 did not express an opinion contrary to this when he said he could see only "little need" for physiotherapy in the future, that the plaintiff did require a check of the condition of his knee once or twice a year with his General Practitioner and "if there were increasing symptoms" he may require referral to an orthopaedic surgeon.
Dr Harvey supported the plaintiff's requirement for domestic assistance for the first six months after the accident at about six to seven hours per week immediately following discharge from hospital reducing to one hour per week by 6 months post discharge. Dr Harvey described the plaintiff's situation for the future as: "…he might have difficulty with heavier maintenance about the home which involved climbing ladders or squatting down and this on an average would amount to approximately one hour per week".
The plaintiff volunteered during evidence in chief that his knee is "not too bad". He said it does swell but he is able to walk unrestricted distance. He is not yet kneeling or running and he said that in colder months he feels it a bit more. He said that he needs to be careful sometimes when he turns his body because his knee can lock and if it does, he loses feeling in it for a few minutes. This had happened two weeks before the hearing and prior to that, it happened following the second operation more than one year before, in March 2016.
He described his knee pain at worst as 8 out of 10 but it no longer interrupted his sleep. He said that the scar at the front of his knee (measured by doctors at about 12 or 13 centimetres) did not bother him.
The plaintiff does not like taking pain killers because when in hospital, analgesics caused him bowel problems. He takes Panamax on an as-needed basis: Transcript Day 1, pages 30-31.
The plaintiff put a claim for future out of pocket expenses in a buffer sum of $25,000.00 without providing the Court with the benefit of calculations or rationale other than "he will probably need some further physiotherapy", general practitioner review once or twice per year and in the event of increased symptoms, referral to an orthopaedic specialist.
In closing written submissions the defendant conceded future out of pocket expenses only on the basis of a 50% probability of knee replacement surgery at 20 years.
Starting with the substantial item of the cost of future knee replacement which Dr Lee put at $30,000.00, a conservative approach is warranted because the court only has the benefit of inconsistent medico-legal report evidence. Dr Harvey thought that future surgery was only a possibility and considered the alternative, less significant procedure identified above.
I have found, on the evidence, the plaintiff will generally not require general practitioner review of his knee requiring attendances beyond the frequency of those already required for treatment of his pre-existing medical conditions including diabetes and associated neuropathy.
I have found a need for physiotherapy, on the evidence, will only arise for short term treatment in the event of exacerbation of symptoms. Likewise for orthopaedic specialist consultation in regard to which there is no evidentiary basis for the calculation of the cost.
I am assisted by the defendant submission that the cost of future surgery at $30,000.00 occurring on the midway point of Dr Lee's prognosticated term at 20 years and with a 50% contingency of occurring, calculates to a total of $5,655.00.
Taking the possibilities of general practitioner attendance, physiotherapy and orthopaedic review consequent of progressive arthritis and in the event of exacerbation, and taking into account that such exacerbation would itself be deferred significantly into the future given the plaintiff's above described state of symptoms and mobility; I award the rounded figure of $8,000.00 for future out of pocket expenses.
In January 2017 the plaintiff moved from his rented accommodation to live with his mother. He is not required to mow lawns or to clean the house. His mother pays for services. She does his washing and cooks his meals. The plaintiff explained during evidence in chief that (Transcript Day 1, page 25, line 47) he can cook but his mother wants to cook for him. His mother will turn 70 in October 2017. His father is in a nursing home. The plaintiff said that he enjoys living with his mother. He expressed no real intention of moving out of her home: Transcript Day 1, page 27, lines 23 to 43.
In relation to future cost of paid care, counsel for the plaintiff submitted that an allowance of 4 hours per week, deferred for 15 years because of his present living circumstance with his mother, should be allowed. Plaintiff counsel acknowledged that the plaintiff's evidence conceded away any need for present domestic assistance: Transcript Day 2, page 156, line 10. The plaintiff put the future claim on the basis of the arthritic deterioration of function of the knee prognosticated by doctors.
The difficulty with the plaintiff's submission in relation to future care is that there is no occupational therapy or even medical evidence assessing it; other than by orthopaedic opinion (above) that the plaintiff might need assistance with heavy housework and lawn mowing.
The plaintiff put this at 2 hours per week. The defendant properly relies on what was said in Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 per Basten JA at [93] that expertise required to attribute hours and needs for domestic assistance is not normally attributed to orthopaedic surgeons.
In my opinion, the evidence does not provide a basis for the court to make an assessment other than on a buffer basis, for provision of compensation on account of future domestic assistance.
The evidence indicates that after 15 or 20 years there is a real possibility that the plaintiff will suffer increased impairment of function of his left knee. One can readily accept on the medical evidence that he will continue to suffer some discomfort with kneeling for instance. One can readily accept the real possibility that after 15 years (as put by the plaintiff) he possibly will live independently and be required to perform occasional heavy maintenance requiring left leg exertion such as climbing a ladder. A court cannot be more qualified than an orthopaedic surgeon in identifying what the need for a service might be, the nature of the service provider, the frequency, time required for provision of the service and what the cost of service will be.
The evidence establishes, in my opinion, that a reasonable provision of compensation would allow for one hour of paid domestic assistance per week.
One hour per week at $38.50 per hour for 20 years, deferred by 15 years, calculates to $12,340.00. A discount of 50% should be applied on the above expressed real possibility basis, and a further discount of 15% for vicissitudes of aging, that need of assistance would have occurred regardless of the injury. I award $5,244.00 for future paid domestic assistance.
At the time of injury the plaintiff was in his late thirties living alone in a semi-detached cottage which he rented. He was employed as a Business Support Officer with the New South Wales Government Department of Finance and Services. The duties of his team were to assist about forty engineers in their tendering to Councils for work according to, as I understood it, the Department's tender proposal guidelines. If the work was won then the team of which the plaintiff was a member would manage the finances of that project and bill the client Council according to the terms of the tender proposal. The work tendered for included anything built by government, including roads, schools, hospitals, dams, water services, and sewage treatment.
From 1995 until about one and a half years before his injury the plaintiff worked under manager Ms Misheva Webster. His next manager was Mr Ravindra Achary, who remained his manager up until the time of his accepting a redundancy package.
Ms Webster said that when working under her, the plaintiff was paid as an Acting Grade 5/6 pursuant to the applicable Public Works Enterprise Agreement. That was his Team Leader rate of pay but his substantive rate was as a Grade 3/4. That was a lesser rate. As a manager, she was paid as a Grade 12. She found the plaintiff to be a conscientious, efficient and positive thinking worker who required little supervision and took on extra projects as required. She could rely on him. She considered him to be a good supervisor. In that acting role he supervised up to 8 accounts staff.
Ms Webster reported that shortly before her retirement in March 2013, the plaintiff had applied for promotion to permanent Team Leader, Grade 5/6. He had been in the acting position for several years. The Department was going through a restructure and other people applied for the position. The plaintiff missed out. She said that he was disappointed, but that he was okay.
The plaintiff did not enjoy good working relations with Mr Achary. He described that difficulty as:
A. Well, I felt like he would tell his staff one thing and be thinking of another thing because of what people above him were directing him to do and what their agendas were.
Whilst the plaintiff's evidence and Ms Webster's evidence are not identical as to timing; there were two issues which caused the plaintiff significant distress in his work environment, on his evidence. Those matters were:
1. Firstly, despite Ms Webster's assessment that the plaintiff appeared to be OK with him being overlooked for the permanent position of Team Leader; his evidence was that after the Department advertised the position and he learned that he was unsuccessful:
"…then I just became someone that was working as part of the team and I felt that the relationship from then, that time forward was jeopardised and stuff like that so I did go into a bit of a depression".
1. Secondly, Mr Achary made complaints about the plaintiff's work performance which instigated an upsetting disciplinary process.
During cross examination the plaintiff was taken to several of the Department's documents regarding the disciplinary process taken by the Department. Significant in the case is that he suffered depression triggered by work environment stressors. His medical treatment included prescribed anti-depressant medication and his staged return to work was extensive, incorporating three Return to Work Plans spanning the period 17 December 2013 until about the end of March 2014.
By the time he returned to work the plaintiff had utilised six months of leave entitlements.
The disciplinary action involved his managers' complaints, prosecuted by the Department, of inappropriate comments concerning timesheets, falsification of timesheet entries and excessive time spent outside the building for smoking breaks and in the plaintiff's capacity as a union delegate to meet and greet union officials (Exhibit 4). At a disciplinary meeting on the 17th of May 2013 the plaintiff acknowledged the factual bases for the complaints but explained mitigating circumstances. On his being unhappy with the outcome he wrote on the 24th of July 2013 to Ms Kirsten Watson, Director, People Workplace complaining. On 30 August 2013 Ms Watson responded that the Conduct and Ethics Committee of the Department met on 14 August 2013 when they determined that the approach taken by the plaintiff's managers had been appropriate (the plaintiff letter Exhibit 3: Ms Watson's letter Exhibit 2).
The Department involved the plaintiff's treating GP Dr K Koutsoullis in the development of his Return to Work Plans (letter of Ms Gamack, Injury Management Consultant to Dr Koutsoullis dated 12 November 2013 - Exhibit 14). On 23 September 2013 treating psychologist Ms Paras assessed the plaintiff as suffering severe depression, extremely severe anxiety and severe stress (Exhibit 15).
The plaintiff's evidence was that he suffered great difficulty working with his managers because of his distress with both the change in his role from acting Team Leader and the disciplinary action. During the return to work period, when he was working within the McKell building, despite normal Departmental policy (see the extract of evidence below) the plaintiff was temporarily permitted to work on Level 20 of the building and then on the eastern side of Level 14 so as to avoid contact with his managers who were at his normal work location at Level 14 western-side.
A very significant issue in the plaintiff's claim for economic loss was the defendant's challenge, fairly put to the plaintiff, that he accepted the voluntary redundancy offer, which became available very soon after his injury because he was so unhappy in his workplace and because of other life stressors.
During cross examination the plaintiff conceded the difficulties he suffered. The following is typical of that evidence:
Q. Unfortunately they noted there was a department policy that didn't allow for employees to be transferred to another area under those circumstances and therefore you would have to return to work at some time in the future to your substantive position for your continued employment.
A. Yes.
HIS HONOUR
Q. Is that correct?
A. Yes.
Q. That of course was a matter of great distress for you, wasn't it?
A. No, I put up with it.
Q. Well, you filled out various psychological assessments in that period of time, didn't you?
A. Yes.
Q. You ended up seeking and having psychological cognitive behavioural therapy with a mob called Seasons of Growth Psychological Services. Do you recall them?
A. I don't, no. Who was the practitioner?
HIS HONOUR
Q. Would you--
O'DOWD
Q. Dr Helen Parai(as said.)
HIS HONOUR: How do you spell that?
WITNESS: Helena Paras? Helena Paras.
O'DOWD
Q. Sorry, Ms Helen Paras.
A. Helena Paras.
Q. Helena Paras, thank you. And she scored you in September of 2013 as having severe depression, extreme anxiety, and severe stress.
A. Yes.
Q. The background history was reactive depression, severe anxiety with panic, adjustment disorder. Do you recall that?
A. Yes.
Q. The problems they were treating they recorded as work-related stress triggering anxiety and panic attacks.
A. Yes.
Q. Unable to return to work. They also included health issues including sleep apnoea and diabetes.
A. Yeah.
Q. And also stresses in relationship.
A. Yes.
Q. Father has dementia and is in a nursing home?
A. Still is, yes.
Q. The relationship that was causing the stresses, was that with your then partner?
A. Yes.
Q. And that relationship broke down when?
A. Just prior to the accident.
Q. How long had you been in that relationship?
A. It was a total of four and a half years.
Q. You had cognitive behavioural therapy and psycho education?
A. I was seeing Helena.
Q. They gave you relaxation strategies?
A. Yeah.
Q. And solution focused therapies, is that something they discussed with you?
A. Yeah.
Q. That continued in December 2013 along the same line. Dr Katsoullis was your referring doctor; is that right?
A. Yes.
Q. It was recorded here that the most recent panic attacks were exacerbated by the new manager?
A. Yes.
Following his return to work, the plaintiff worked in his usual location and under the management of Mr Achary for about one year prior to his injury.
The plaintiff's best friend, Mr Hole, presented as an honest witness but as a witness who was understandably concerned for the interests of the plaintiff in the proceedings. Mr Hole agreed during cross-examination that he recalled the plaintiff being depressed in about 2013. Mr Hole was, however, only able to identify that period of depression as lasting about two weeks.
The documentary evidence of the Department's Return to Work Plans, plainly shows that the plaintiff was seriously psychologically affected for a period of approximately one year and not only a few weeks as recalled by Mr Hole.
In my view Mr Hole's inaccuracy of description of the plaintiff's behaviour and personal wellbeing from time to time required his evidence to be treated cautiously and not to be preferred to other evidence of the effect of the plaintiff's injury upon him.
It was common in the plaintiff's evidence and in the evidence of Mr Hole that shortly before his injury the plaintiff was significantly emotionally down and depressed with the grief and emotional turmoil from the breakup of his relationship with his partner of four and half years.
On the whole of this evidence, at the time of the plaintiff's injury and when he elected to accept the voluntary redundancy, he was very unhappy with his work environment, distressed from the breakup of his long term relationship, and upset about his father's dementia.
At the time of his injury the plaintiff had very little long service leave, sick leave and annual leave accrued. In chief (Transcript Day 1 p 18 line 29) he described that his entitlements were coming to an end by late May 2015.
Whilst he was off work, the NSW Government offered a Voluntary Redundancy Program. It had not been offered prior to his injury. It included four weeks' pay in lieu of notice, severance pay on account of his many years of service at the maximum 39 weeks, superannuation retrenchment benefits and a further incentive payment of eight weeks pay, again on account of his many years of service.
The terms of the offer were that his acceptance could not be conditional and could not be rescinded and further that he would not be re-employed or re-engaged in any capacity in any NSW public sector agency for one year without first repaying the relevant proportion of the redundancy payment.
I have used the disqualification period of one year because the parties adopted it at the hearing. A strict reading of the redundancy acceptance documentation (Exhibit 1) would indicate that the disqualification period was equal to the 39 weeks of the severance payment component of the redundancy package.
The plaintiff said that he applied for but was denied unpaid leave: Transcript Day 1 p 18 lines 30-50.
The plaintiff then applied for the redundancy offer. By letter of 26 May 2015 the Department forwarded to the plaintiff the acceptance form. The plaintiff's Voluntary Redundancy Acceptance Form, countersigned by Mr Achary, is dated 2 June 2015.
In his evidence-in-chief the plaintiff described his accepting the redundancy as "life changing". He said that at the time he was in pain, undergoing physiotherapy two to three times per week and just getting by, staying around the house: Transcript Day 1 p 19 lines 30-37.
In response to a leading question during his examination-in-chief, he said that whilst he was unhappy at work, but for his injury, he would not have accepted the voluntary redundancy unless he had already secured other employment. That evidence was:
Q. If you hadn't had your accident, would you have applied for a voluntary redundancy with the Department of Finance?
A. To be honest, I probably would have; I don't know if I would've been successful; it would've, it would've led to a - making a decision based on if I had secured something else, or what the environment, work environment was at the time.
Q. Just following on from your last answer, would you have applied for a voluntary redundancy without making steps to secure other employment?
A. No.
The defendant quite properly tested this proposition and during what in my opinion was a very fair cross-examination, put to the plaintiff that he wanted the voluntary redundancy because he was unhappy at work and distressed by the recent breakup of his longstanding relationship. That, therefore, the plaintiff would have taken the voluntary redundancy even if he had not been injured. The defendant submitted this to be the factual finding the Court should make on the evidence.
The first part of the plaintiff's answer given above caused me to observe the plaintiff carefully as he gave his evidence of motivation for his choice to accept the voluntary redundancy. I came to the view that the evidence amounted to: if he had not been injured he would have been very attracted by the voluntary redundancy because it basically equated to a whole year's pay and, in addition, an opportunity to get out of the workplace in which he was unhappy; but, that the plaintiff would not have taken that step if he had not secured alternative employment.
I accept the plaintiff's denial that he accepted the redundancy only because of those work and life stressors.
The plaintiff's maintenance of that position in his evidence during cross-examination was, in my view, in keeping with his having been a person basically of the single employment experience, of 20 years with the Department in the public service. He was a person of a conservative approach to security of employment. I accepted him as a person for whom the decision to step out into the employment marketplace would unlikely have been made unless he had employment to go to.
What did trouble me about the plaintiff's evidence and, in my opinion, a significant matter when assessing his claims for past and future economic loss; was that despite his fitness from the latter part of 2015 for a broad spectrum of work except heavy work such as labouring, his education at a Higher School Certificate level, his financial clerkship qualification and 20 years of experience in a financial and accounting role including raising to the level of supervising other workers; since his injury he had achieved only sporadic work.
The plaintiff retained an employment agency. He completed a curriculum vitae. Starting in about September 2015 he obtained six months work at a call centre for an organisation named Crisco. When asked how many jobs he had applied for in the four months after leaving Crisco (April to August 2016) his answer was that he did not remember: Transcript Day 1 p 23 line 26.
In April 2016 he worked for ARA Security, 35 hours per week, for two weeks in a temporary position. He went on the Newstart Allowance. In about August he was employed short-term at Dyson. In about September to October 2016 he worked a few weeks for Pacific Building Management performing building manager duties.
The first week he shadowed a building manager at a Parramatta site, the second week he was building manager of a site at Riverwood and then he was employed as building manager for about four weeks at Wentworth Point. He said, and it is confirmed in the medico-legal report of orthopaedic specialist Dr Lee, that he was able to perform those duties.
He said that the duties did not include excessive walking and albeit stairs were involved that activity was not excessive or troubling. He found going up and down ladders was hard such as when he was required to check light fittings. Nevertheless, the plaintiff said that he did not think that he could pursue an occupation in the future in building management work.
He did not work between October and December 2016. Then he obtained through his employment agency a data entry operator position for one week within the Department of Education. He said this was because his 12 month restriction according to the terms of his redundancy had expired. He had not during that 12 months sought employment with the government.
Since that time he had applied for a couple of positions as an administrative officer within the NSW Police. In January 2017 he worked for a brief period in the Department of Births, Deaths and Marriages performing data entry. Between that date and the hearing, except for one week in May 2017, working as a telephone operator for BIR Security, the plaintiff had remained unemployed. He said that in compliance with his Newstart and employment agency obligations he had been looking for work which was "anything to do with accounts" and call centre work: Transcript Day 1 p 28 line 15.
The plaintiff's work experience indeed displayed the ability to work clerically, in credit control, in account management and in duties which required moderate physical activity such as a building manager so long as there was not extensive ladder climbing and heavy manual work such as labouring.
Neither party relied upon expert vocational assessment evidence. Neither party relied upon evidence of an occupational therapist. In these circumstances, the Court was left to employ worldly experience in the imprecise assessment of diminution of earning capacity.
In my opinion, the plaintiff's earnings between the date of injury and the hearing are not a true measure of his diminished earning capacity. His evidence was very general in content. There was not, for the most part, evidence of detail of failed work applications, interviews for work in regard to which he was unsuccessful due to his impairment or jobs attempted or investigated but for which he was unfit because of his left knee impairment.
The principle which I apply was stated by the NSW Court of Appeal in Kallouf v Middis [2008] NSWCA 61 at [50]. Damages are to be awarded because the diminution in the plaintiff's earning capacity is or may be productive of financial loss. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed. Conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she is not incapacitated from performing. It is for a defendant who contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person.
As a person of just 40 years of age equipped with an excellent employment history and a broad skill set and capacity; he should have been able to achieve more regular employment than he did at about his pre-injury rate of pay and if not full time; then for most of that period. The plaintiff's schedule of damages claims a loss of about 46% earnings during the 2016 Financial Year and about 77% earnings during the 2017 Financial Year. In my opinion, that measure of economic loss does not reflect his diminution of earning capacity.
I note that, after 12 months, the plaintiff applied for public service positions of Grade 2/3 and 3/4 when he was a 3/4 at the time of his injury. The plaintiff's diminution of earning capacity is to be assessed in the pool of the employment marketplace. It may be that he wishes to regain employment working in accounts and that he would prefer to work in the public service; but in the interim his diminished earning capacity is the measure of his inability to maintain employment for which he is suited where he can find it, at least for the purpose of assessment of damages.
This evidence makes it difficult to assess with specificity the plaintiff's most likely future circumstances for the purposes of s 13 CLA. That assessment is complex because the plaintiff has not in his evidence exposed the real measure of his diminution of earning capacity. In the circumstances I propose to assess future economic loss on a buffer basis: Penrith City Council v Parks [2004] NSWCA 201, per Giles JA at 5; Zorom Enterprises Pty Ltd v Zabow & Ors [2007] NSWCA 2016 at [49].
The defendant's submission concerning the voluntary redundancy package affects assessment of both past and future economic loss.
The defendant submitted that unless the plaintiff's claim for damages for income loss is reduced by the amount of the redundancy the plaintiff will be permitted to "double dip".
The entitlement to the voluntary redundancy was based on the plaintiff's employment service preceding the injury. Had he accepted the redundancy prior to his injury it would not be deducted from his damages for diminution of earning capacity because he would have received it in any event: Jandson Pty Ltd v Welsh [2008] NSWCA 317 at 317.
This case is unlike Jandson's case both because the offer of redundancy became available after his injury and because circumstances inflicted upon the plaintiff by his injury caused him to accept it. Having accepted it, he was entitled to, in addition, earn income from any employer other than the State of NSW. In this sense he made an election depriving himself of employment with the State for a period of 12 months but that deprivation was only subject to him having to repay on a pro-rata basis if he was successful in obtaining that employment.
The principle for assessment of the plaintiff's past economic loss to be applied in these circumstances is that repeated by the plurality in Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1; 127 ALR 180 from the plurality in Graham v Baker [1961] HCA 48; 106 CLR 340; 35 ALJR 174:
The plaintiff can only recover damages for the loss … of salary if he can prove that his earning capacity has been diminished … Although the defendant must take the plaintiff as it finds him, … , the plaintiff nevertheless has this burden to discharge. He will be entitled to recover only if he can prove a diminution in his earning capacity which has been or may be productive of financial loss. If, notwithstanding any impairment, his contract of employment and his right to draw a salary continue, his impairment has not resulted in any financial loss.
The plaintiff is not entitled to be compensated for diminution of earning capacity as a distinct and additional head of economic loss unless the diminution has had and will have an adverse effect on actual earnings and will be productive of economic loss. He is unentitled to be compensated to the measure of that loss: Medlin supra at p 4.
In my opinion that the plaintiff accepted the voluntary redundancy was a circumstance of significance. It represented approximately a years' income paid as a lump sum.
On the whole of the evidence, the plaintiff accepted the redundancy at a time when he was very unhappy in his work environment and when his life had been recently disrupted by the breakup of his relationship with his long term partner, which event caused him significant distress. However, I have accepted the plaintiff's evidence that he would not have accepted the voluntary redundancy without the security of alternative employment, but for his injury. He had been in his employment for 20 years and had remained in it for approximately two years whilst unhappy with his work environment. Indeed by the time he accepted his redundancy two of his supervisors, with whom he was unhappy to work, had left and Mr Achary was the only superior with whom he was unhappy to work, who remained in that environment.
That the plaintiff applied for unpaid leave is inconsistent with a want to terminate his employment. It was only that he was disabled and in pain and he believed he was, due to his injury, unable to return to work but was refused more leave; that he elected to take the voluntary redundancy option. He described his situation as:
Q. So what did you do about that?
A. Well I called my manager, Ravindra and asked if I could be considered for some leave without pay cause I, I was told that I am probably about six weeks away from being comfortable getting on public transport, I couldn't drive to work so - cause it was in the city and they said they'll get back to me in a couple of days…
…
Q. Were you given leave without pay?
A. No.
Q. So what were your options at that point as you understood them to be?
A. I didn't think I had any options left.
Q. What was the next involvement you had with your employer after that?
A. Well they told me they were going through a redundancy program and would I be interested.
Q. Who did you have that conversation with?
A. Ravindra.
Q. Were you interested?
A. Well I didn't think I was in another position - I didn't really want to leave even though I wasn't happy there but I was in a lose lose situation in my opinion. I needed some more time off to, to recover from my injury.
Q. So what did you do?
A. I submitted a form to be considered for voluntary redundancy.
I am satisfied that the injury was, in that sense, a necessary condition of the occurrence of his terminating his employment. Albeit those other influences contributed to his choice to accept the redundancy offer; his injury completed a set of conditions which were jointly sufficient for him to make that choice. Accordingly I find that the plaintiff's injury was a necessary cause of his termination of his employment with the Department: Strong v Woolworths Limited t/as Big W (2012) 246 CLR 182; [2012] HCA 5 at [20]. The loss which he suffered is equal to the diminution of his earning capacity caused by the injury against that which he would have earned had he remained in his employment with the Department or in alternative secure employment which he required before he otherwise would have accepted the redundancy.
It was not directly put to the plaintiff that having being placed in funds by the voluntary redundancy, he was relieved to some degree of the need to find employment and therefore inadequately directed his energy in that regard. He conceded that he refrained from applying for public service employment for 12 months because of the conditions of the redundancy. The defendant did not prove positions of employment open to the plaintiff, public service or otherwise, which the plaintiff did not take up.
The plaintiff's submission is advanced within the absence of evidence that plaintiff, being a person aged 40, had ever sought employment in physically demanding workplaces. Indeed after his injury he was able to cope with building management work, both on his own evidence and in the opinion of medico-legal expert Dr Lee, save only to the extent that he was required to use a ladder in one of the three workplaces at which he was posted.
In my opinion the plaintiff retains most of his pre-injury opportunity to find employment in the workplace of the types for which his training, skills and experience suit him and which he prefers. I repeat that I considered his evidence as I observed him give it, to be not persuasive, that he had exhausted his efforts to achieve employment for the whole of the period since he was injured. He has been living with his mother and free of the everyday expenses such as rent, to which he was subject at the time of accepting his redundancy, for instance. He has achieved further decreased employment since moving into his mother's home.
Employing the impressionistic task which is incumbent upon the Court, I find that the evidence requires the following assessment of past economic loss, employing the agreed mathematical approach contained in the Plaintiff's Schedule of Past Economic Loss as follows:
1. 24 April 2015 to 30 June 2015; ten weeks at $1,040.00 net per week - $10,400.00. The plaintiff is entitled to be compensated for this loss.
2. 1 July 2015 to 30 June 2015; in this period, the plaintiff was employed for approximately half the time and claimed the loss of $24,607.00 whereas I have found that the employment he achieved, particularly from about September or October 2015 when he was fit enough to be able to mow his lawn was not a true measure of his diminished earning capacity. I accept that he is entitled to be compensated for periods of interruption during which he did not earn income, whilst seeking suitable work. The plaintiff's claim is not a measure of his diminished earning capacity for the reasons stated. I assess that loss at $13,000.00.
3. 1 July 2016 to 28 July 2017; in this period, the plaintiff claimed to have earned less than 25% of that which he would have earned had he remained in employment at his regular rate of pay; whereas in my opinion the plaintiff's real diminution of earning capacity was equal to that of a person seeking all but heavy physical work and with a very broad opportunity and competitive position to achieve employment given his skills, training and experience. Again, I accept that he might suffer periods of unemployment if searching for suitable work with which he was reasonably satisfied and to that extent it is not unreasonable that compensation provide for a period of job searching. I assess the plaintiff's claim as not a measure of his diminished earning capacity for the reasons stated. I allow $8,000.00.
I award total past economic loss in the sum of $31,400.00.
The plaintiff submitted that future economic loss should be assessed on a special damages basis, calculated at a rate of $600.00 per week, representing a monetary compensation equal to about 60% loss of earning opportunity in the employment market. The plaintiff calculated his loss on the 5% multiplier to age 67, less 15% for vicissitudes in a total of $399,330.00.
In my opinion, the plaintiff's submission overlooks that the plaintiff's impairment is confined to limiting his capacity to deal with only heavy and leg specific physical demands of a workplace and that he is otherwise competitive in the labour marketplace on the basis of his training, skills and experience for office work, office systems work, financial management, project management and generally administrative, clerical and accounting roles.
The defendant's submits that the evidence does not support that his capacity to take on work in clerical or administrative roles has been affected by the accident.
Plainly the plaintiff has suffered a diminution of earning capacity for which he is entitled to compensation and that impairment may reveal itself from time to time in his future working career such as where the place of employment does involve excessive climbing and descending of steps. Take for instance, a small business operating out of an old building or a building without a lift to the second or third floor of the offices. Common sense dictates that there would only need to be a small component of the work environment in regard to which the plaintiff by his left knee impairment, was or became unable to cope for the whole work placement to be lost to him. In addition, the medical evidence indicates that there is a real possibility that after 15 years he will suffer increasing impairment in his left knee and may come to medical treatment which would interrupt his opportunity to earn employment during that treatment and associated recuperative period.
For the reasons stated; applying s 13 CLA and assessing a buffer, in my opinion the plaintiff's most likely future course in the circumstances is that he will suffer a diminution of earning capacity for office work which is the sort of employment for which he is suited by skill and which he chooses to pursue. He has the opportunity to work in administrative and supervisory tasks as long as they do not require extensive kneeling, squatting, ladder-climbing and excessive stairs. In my opinion that leaves the vast majority of employment types which he would choose to do, available to him. I accept that there is a real possibility that the plaintiff will suffer degeneration of his left knee and accordingly time off for exacerbations and for surgery.
I award a buffer of $90,000.00 for future economic loss including superannuation.
In summary form, for the purposes of assessment of non-economic loss pursuant to s 16 CLA, these reasons observed that the plaintiff suffered the painful injury to his left knee which subjected him to the discomfort and inconvenience of a recovery, particularly for the period of 16 weeks during which he was required to wear a brace on his left knee. Ten months after the principal surgery he underwent a second surgery for the removal of fixtures. He has lost amenity in his life to the degree of his present restrictions in regard to running, kneeling and exertion of his left leg due to the irregular surface of his patella. He suffers pain and some swelling. It must be accepted that he will suffer periods of exacerbation through use of his left leg. These deprivations diminish his amenity of life. Occasionally, when twisting, he feels his knee lock and go numb for some minutes. This is an illustration that he is burdened in his life with an ongoing impairment. There is a real possibility that after 15 years the progressive onset of arthritis will increase his discomfort and thereby increase his loss of amenity. There is a real possibility that he will come to future surgery and have to suffer the pain and inconvenience of that process including a period of recuperation. The plaintiff is in the active years of adulthood, according to his age. I assess the plaintiff's non-economic loss at 26% of a most extreme case. The amount of damages awarded is $48,500.00.
I calculate damages as follows:
1. Out-of-pocket expenses as agreed - $12,432.00;
2. Past gratuitous assistance - none claimed;
3. Past paid domestic assistance - $1,100.00;
4. Future out-of-pocket expenses - $8,000.00;
5. Future paid domestic assistance - $5,244.00;
6. Past economic loss - $31,400.00;
7. Future economic loss including superannuation - $90,000.00;
8. Non-economic loss - $48,500.00.
9. Interim Total: $196,676.00
After a discount of 10% for contributory negligence: $19,667.00
Final Total: $177,009.00
Orders
1. Judgment for the plaintiff against the defendant in the sum of $177,009.00.
2. Defendant to pay the plaintiff's costs.
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Decision last updated: 13 October 2017