Stanford v Chester Hill Bowling & Recreational Club Ltd

These proceedings 3. The plaintiff commenced these proceedings, claiming damages against the defendant in respect of her injuries and their consequences sustained as a result of the accident on 24 October 2002. The action was commenced in 2005.

4. The Statement of Claim alleges negligence and breaches of the Trade Practices Act 1974 (Commonwealth). At the conclusion of the evidence, in addresses, the plaintiff abandoned the claim under the Trade Practices Act 1974.

The plaintiff alleged that she suffered injuries to her head, neck, back and right ankle, as a consequence of which she suffers from a number of serious ongoing and permanent disabilities, resulting in a loss of enjoyment of life.

The disabilities alleged consisted of headaches, pain in the neck, back and shoulders, restriction of movement and use of her neck, back and upper left limb, pins and needles in the upper left limb and an ache in the right lower limb. It was also alleged that she continues to suffer from anxiety, nervousness, loss of confidence and feelings of insecurity.

She claimed a restricted capacity for outings, a need for anti-inflammatory medication, a need for ongoing medical care, including physiotherapy. She claimed for past medical, pharmaceutical and other out of pocket expenses.

It was the plaintiff's case, as opened, that prior to the accident the plaintiff was healthy and active, suffering only from some minor anxiety for which she took Valium. As a result of the accident, however, she now has a high level of disability, which prevents her from undertaking various daily activities such as housework and social outings.

It was also alleged that her condition required the provision, by her family, of considerable additional domestic care and assistance, which is ongoing. It was alleged that she will require significant continuing care into the future.

It was the defendant's case that the plaintiff suffered minor and temporary injuries, the effects of which abated within some six months. Any ongoing disabilities are the consequence of gross pre-existing osteoporosis in the bones and other degenerative changes.

The defendant also said that there has been no need for domestic care since the symptoms referable to the accident resolved. In any event, to the extent that any domestic care has been provided since then, it was not care that was needed, or did not relate to activities in respect of which she did not have the capacity to perform herself, but was mostly in the nature of voluntary assistance provided to an ageing parent out of family concern and consideration for her age and fragility. Accordingly, the plaintiff failed to meet the threshold requirements, prescribed under the Civil Liability Act 2002 (NSW) for the award of any damages for domestic care and assistance.

The accident on 24 October 2002 13. On 24 October 2002 the plaintiff accompanied her former husband, Trevor Stanford, to the defendant's bowling club at Chester Hill, where he was a member, arriving at about 6.00pm. They first went to the raffles till about 7.30pm, and then they went to the bistro dining area. They sat down at a table but the plaintiff was not happy with the location, and they moved to another table, next to the wall.

The plaintiff sat down on a chair at this second table, leant backwards in the chair to make herself comfortable, whereupon the chair fell backwards. She fell and as she fell, her head hit the wall behind the chair. She fell to the floor, with the chair ending up on top of her.

She felt pain in her back, neck and shoulders and cut her ankle. The barman was called and came to her assistance, bandaging the cut ankle.

It was the plaintiff's evidence that she felt dazed and sick and she then went home straight away.

However, it emerged in other evidence that following her fall she in fact stayed and had a meal with Trevor Stanford and his son, Glen Stanford, and only went home after that.

Trevor Stanford confirmed that the plaintiff fell when she sat in the chair and it went back on her. Her ankle was bleeding and he went to the barman for assistance.

After the barman had attended to the bandaging of the plaintiff's ankle, Mr Stanford looked at the chair. He noted that the legs were bent about 3 inches back from "where they should have been". He referred initially in evidence to the front legs of the chair but it is clear that he meant the back legs; he subsequently corrected himself and confirmed that it was the back legs that were bent back (see Exhibit G). He carried out an "experiment" by putting his finger on the back of the chair, and as soon as he did so the chair collapsed backwards again. He pointed out to the barman what was wrong with the chair; the barman then took the chair away and put it somewhere out the back.

The barman was Craig Graham. He was one of two head stewards permanently at the club. Mr Graham has since died, and was not available to give evidence.

At the request of Mr Graham, the plaintiff and Mr Stanford went back to the club in the next few days where they met with the Club Treasurer, Mr Sinclair. Mr Sinclair gave evidence that the chair was thrown out a few days after the incident, because the legs were useless and not susceptible to repair.

Mr Sinclair also gave evidence that the other head steward, Paul Kelly, made a verbal report to the Club board not long after the accident, and also carried out an inspection of all the chairs in the dining room at the board's request. Mr Sinclair was not asked as to the content of Mr Kelly's report, and Mr Kelly did not give evidence, so that the substance of his report to the board is unknown.

The chairs in the dining room were pink (see the photos in the report of H L Burn dated 9 February 2006). The chair involved in the plaintiff's accident was one of these pink chairs. At the time of the accident these pink chairs were 2 years old. There had been no previous problem with any of the chairs. There was no system at the Club for the regular inspection of the furniture and indeed Mr Kelly's inspection was the first. A secretary-manager, Mr Barry Hammond, who has also since died, then managed the Club. However, according to Mr Sinclair there was no risk management process in place pursuant to which furniture, including chairs of the type involved in the plaintiff's accident, was the subject of regular or systematic inspection and checking. The only evidence of any risk management process in place at the time was the provision of an incident book, and if the incident was sufficiently serious, the Club board discussed it. The incident involving the plaintiff was recorded in the incident book (see Exhibit C).

The expert's evidence 24. The plaintiff relied upon the expert opinion of Mr Ian Burn, of H L Burn & Associates. His two reports dated 12 September 2005 and 9 February 2006 were tendered and admitted into evidence (Exhibit A). Mr Burn was not required for cross-examination.

Mr Burn is an engineer with experience and expertise in occupational health and safety and risk management.

He was retained on behalf of the plaintiff to investigate and report on her accident. On 27 August 2004 he attended at the defendant's premises at the Chester Hill Bowling Club, in the company of the plaintiff.

Mr Burn records that he inspected the bistro dining area where the plaintiff's accident occurred. He noted that the floor surface comprised of commercial carpet and that in that area pink high backed chairs were in use. These had a padded vinyl back and seat, supported by 22mm square steel tube legs.

Mr Burn inspected three of the chairs in the area taken at random and measured the outside dimension of the feet of the four legs of these chairs (depth x width) and found them to measure as follows:

Chair 1 455 mm x 455 mm Chair 1 405 mm x 455 mm Chair 1 400 mm x 455 mm

He went on to state that the "difference on leg spacings indicates the legs have been bent during usage at the club", and that "the shorter the depth measurement the lower the chair stability against tipping".

He also inspected the base of the chairs and found holes (from the manufacture process). Some of these holes were distorted. He stated, "The distorted holes generally appeared to be associated with chairs that had been bent during use".

He then tested the three chairs for balance, by placing a spring balance hook on the top beading on the chair finish, and gently pulling backwards whilst observing the spring balance reading. He recorded the following tipping loads:

Chair 1 455 mm x 455 mm 1.5kilogram Chair 1 405 mm x 455 mm 1 kilogram Chair 1 400 mm x 455 mm 0.5 - 1 kilogram

He concluded: " Based on my observations and measurements it would appear the chairs in use show varying degrees of "damage". Chairs without any significant damage had maximum leg spread (and hence stability). Chairs suffering greatest damage (those with reduced leg spread) were also the least stable and most likely to tip as a person either sat or stood. An assessment of the impact of changing the displacement of the chair rear legs from being vertically under the back of the seat to being 70mm behind the back of the seat is included at the back of this report. It will be noted that there is a significant increase in stability obtained by moving the rear legs back by 70 mm, meaning the force required to tip the chair with splayed legs is higher than for near vertical legs. This confirms force measurements taken on the day of the view.

The type of chair in use at the club is normally manufactured to allow for stacking and provide stability during use. This means the chair's rear legs splay outwards. For "the legs at the rear of the chair were facing inwards" indicates damage to the chair during use."

The quote is from instructions given to Mr Burn by the plaintiff or her solicitors.

Mr Burn then expressed the view that the chairs, being of identical manufacture, the only difference between them must be associated with damage during use. Therefore, the plaintiff's accident could have been prevented by periodically examining the chairs to determine whether any have suffered damage during use or as a result of "any anti-social incident" involving club furniture. He went on to say: re was a 92% probability.

The submissions 34. Counsel for the defendant submitted that the pink chairs were in regular use on a daily basis and there is no evidence of any previous problem or incident. The only chair as to which there was any complaint was the one involved in the accident. There is no evidence of damage to the chair or if it was damaged, there is no evidence as to how such damage occurred. There was no foreseeable risk of injury to which the defendant should have responded. Even if there was, there is no evidence as to what should have been done, or whether there was anything that could have been done that would have prevented the injury. It submitted that even if some distortion of the legs of the chair could be inferred, it could not be concluded that a regular inspection would have detected it. For example, what sort of inspection and testing would be required to discover a 5 mm differential?

35. The defendant was critical of the evidence of Mr Burn. It pointed, for example, to very general conclusions being drawn based on an inspection of three chairs, not being the subject chair, and contended that there was no factual basis for the opinions expressed It pointed to the absence of any evidence as to the tolerance level set by the manufacturer of the chair, and contended that there was no evidence of damage to the chair, either from usage or otherwise. Indeed, it is equally consistent that the leg spread was a result of a manufacturing defect. In short, the defendant submitted, the cause of any instability in the chair was not proved.

36. Counsel for the plaintiff submitted that the fact that the chair was defective is clearly established by the evidence. More probably than not this was caused by wear and tear. The defendant had a "cavalier" attitude towards safety and should have had in place a formal system of regular chair inspection, particularly given the heavy use in the club of the chairs. If there had been such a system the defect in this chair would have been discovered. (Assuming a two monthly inspection, there was, statistically, a 92% probability of discovery).

The "Shirt" analysis 37. In his classic text, "The Law of Torts" Ninth Edition, Professor Fleming sets the scene in this way (at page 127):

" Negligence, it will be recalled, consists in conduct involving an unreasonable risk of harm…Whether the act or omission in question is one which a reasonable person would recognise as posing an unreasonable risk must be determined by balancing the magnitude of the risk, in the light of the likelihood of an accident happening and the possible seriousness of its consequences, against the difficulty, expense or other disadvantage of desisting from the venture or taking a particular precaution."

The issue of the magnitude of the foreseeable risk of injury to the plaintiff was one to which both counsel paid particular attention in the course of addresses.

I was referred to the decision in Wyong Shire Council v Shirt (1979-80) 48 CLR 40, in particular those paragraphs in the judgment of Mason J (as he then was) at pages 47 - 48, sometimes characterised as the "Shirt calculus":

" …foreseeability of the risk of injury and the likelihood of that risk occurring are two different things…A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. In deciding whether there has been a breach of duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is more remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

The gravity, frequency and imminence of the recognisable risk are among the most important factors in the balance: Flemingat page 127.

It is not necessary to show that the precise event that resulted in the injury was foreseeable: Caledonian Collieries Ltd v Speirs [1957] HCA 14 at [12]. It is only necessary to consider whether it was reasonable to foresee in a general way the kind of thing that occurred: Thomson v Bankstown Corporation (1953) 87 CLR 619 at 630.

The absence of past mishaps does not entitle a defendant to ignore safeguards against dangers, although it is equally true that years of experience without accidents may tend to confirm that the risk of harm was negligible: Romeo v Conservation Commission of the Northern Territory [1998] HCA 5 at [128].

Inferences 43. Facts may reasonably be inferred and others presumed as a matter of probability provided there is a foundation for doing so: Holloway v McFeeters at [8] and [110]. The circumstances must lead to a satisfactory inference, even though resting on a balance of probabilities, that the accident was caused by some negligence: Holloway v McFeeters(1956) 94 CLR 470 at [10].

An inference as to how precisely an accident occurs is not required, but it must be a reasonable conclusion that it occurred as a result of negligence and not otherwise: Holloway v McFeetersat [10].

Where direct proof is not available it is enough if the circumstances proved give rise to a reasonable and definite inference. But they must do more than give rise to conflicting inferences of equal degree of probability, so that the choice between them is mere matter of conjecture: Richard Evans & Co Ltd v Astley (1911) AC 674 at 687.

Causation is a question of fact to be determined by the application of commonsense to the facts of each case. It is not sufficient merely to show that it is possible that the damage was caused by default. Mere default followed by damage does not show that the defendant caused the damage: Schneider v Hoechst Schering Agrevo Pty Ltd[2001] FCA 102 at [19].

A process of inference from circumstantial evidence can establish causation. A finding of causal connection may be open without expert evidence to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible, as long as the expert evidence does not exclude a finding of causation: Commonwealth v McLean (1997) 41 NSWLR 389 at 410.

The evidence will be sufficient if, but only if the materials offered justify an inference of probable connection as opposed to possible connection: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 at [83] - [91].

Foreseeability 49. I am satisfied that the evidence establishes that the chair involved in the plaintiff's fall was unstable. The balance test carried out by Mr Stanford, the fact that the legs of the chair were bent about 3 inches back from "where they should have been", and the fact that after the accident the chair was removed and subsequently thrown out are sufficient to establish that the chair was unstable. I am satisfied that this defect was present before the plaintiff sat on it, and that this was the reason for her fall. I do not consider that it might equally be inferred that the displacement of the rear legs of the chair was caused by the plaintiff's fall.

I find that the displacement of the rear legs of the chair was more probably than not was caused by some damage occasioned to the chair. I do not consider that it might equally be inferred that the displacement of the rear legs of the chair was a manufacturing defect, and I find that the displacement occurred more probably than not at the premises of the defendant.

In this regard I find myself in agreement with Mr Burn that more probably than not the displacement of the legs of the chair, designed to splay outwards, but now 3 inches back from "where they should have been", is consistent with damage having occurred during use.

Applying the principles discussed above, I am satisfied that a reasonable person in the position of this defendant would have foreseen that furniture, in particular chairs, might become damaged or defective over time from constant use at the club premises, resulting in instability, and that there was a risk of injury, of the general kind as that which in fact occurred, to the plaintiff or to those persons like the plaintiff who used the dining area, particularly frail and elderly people.

A reasonable response to that risk would have been to have a proper system of inspection, consisting of regular checking of furniture, in particular the chairs. Such a system would not have involved any particular expense, difficulty or inconvenience.

There is no evidence as to what regularity such inspection of furniture might reasonably be appropriate. However, I do not think this issue involves the findings of fact that require expert evidence, and it is something to which I can apply common sense and my own experience. Breach of duty is a question of fact and in this regard, in my view, a formal monthly inspection of chairs was not inappropriate to the circumstances of this club and the risk of injury.

Preventability 55. The critical issue, it seems to me, is whether such a proper system of inspection would have detected the defective chair that caused the plaintiff's accident.

56. This was the issue confronting the court in Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241, when McHugh JA (as he then was), said at 256B-C:

" The critical question, however, is whether the evidence raises an inference that the plaintiff's injuries were the result of the defective system. This in turn reduces itself to the question as to whether the evidence gives rise to an inference that the appropriate inspection…system would have avoided the plaintiff's injury. For it is no comfort to the plaintiff to show that the defendant did not have a proper system unless she can show that the existence of a proper system would have avoided her injury. That is to say, the critical issue is causation."

57. Although the plaintiff is not relieved of the necessity of offering some evidence to establish causation, in appropriate circumstances "slight evidence" may be enough, unless explained away by the defendant: Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at 35] - [36]. I consider that principle has appropriate application to the present facts.

58. In my view it can be inferred that a proper system of inspection would probably have detected the instability in this chair, having regard to the evidence of Mr Stanford that the mere placing of a finger on the back of the chair caused it to collapse backwards.

59. More difficult to determine is the temporal issue, namely when it was that the chair became unstable. I am, however, satisfied that on the balance of probabilities the defect in this chair was not of recent origin but was occasioned over time, such that it would have been discovered by a proper system of inspection: Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Reports 80-121 at 68,928. The defendant led no evidence "explain away" the defect in the chair and when it was occasioned.

Liability 60. I find, therefore, that the defendant was negligent and in breach of its duty of care to the plaintiff as an entrant upon its premises in that it failed to take reasonable steps to protect her from foreseeable injury by not instituting a system of regular inspection of chairs by which the defective chair that caused her fall would have been discovered thus preventing her injuries.

61. I turn, therefore to assess the damages to which the plaintiff is entitled.

The plaintiff before the accident 62. It was the plaintiff's case, as opened, that prior to the accident the plaintiff was healthy and active, suffering only from some minor anxiety for which she took Valium.

In evidence, the plaintiff said she could do everything, including housework, shopping, visiting friends and socialising at clubs for dancing and Bingo. She did suffer from some bronchitis, but had no problems with her back or neck, or her right wrist which she broke in 1988.

She used to clean the house regularly, dusted, vacuumed, swept, cleaned cobwebs, changed the bed linen, washed, hung clothes, ironed and gardened. Her house suffers from a lot of dust, as it is located near a main road. She did "spring cleaning" of windows, curtains and blinds three times a year. Her evidence was that since the accident she has been unable to do such housework and gardening.

She used to go shopping on her own, went to the doctor and went out on social visits. She went on outings which included dancing and playing Bingo at clubs. Her evidence was that since the accident she has been restricted in her ability to shop alone or visit friends, and unable to go dancing or play Bingo, by reason of the disabilities caused by her accident.

She required little assistance from her family, apart from occasional help, mainly in respect of lawn mowing and tidying the yard. She alleged that she now requires considerable regular family assistance.

The reality, as emerged from the evidence, was that the consequences of the plaintiff's injuries were exaggerated to a considerable degree and that she had in fact already been a frail woman, in poor general health, with chronic bronchitis and eye problems, suffering from gross osteoporosis exaggerated by heavy smoking, with a kyphotic spine, and longstanding neurotic features, including hypertension and claustrophobia.

The plaintiff after the accident 68. Following the accident the plaintiff did not go straight home, as she said she did. She in fact remained at the club and had dinner with Trevor and Glen Stanford, then went home. She did not seek medical treatment until the next day when she visited her general practitioner, Dr Scott, complaining of a painful right thumb and right ankle, and some nausea. Medication was prescribed.

She consulted Dr Scott again four days later, on 28 October 2002, complaining of headache and a painful back. In addition to analgesics, Dr Scott sent her for X-rays. These showed the osteoporosis, but no "bony trauma" in the cervical spine. In the thoracic spine there was scoliosis of the upper thorax and "minor wedging of T10 involving its superior margin which would be consistent with recent trauma". The bony and other disc structures were otherwise normal.

Dr Scott did not see the plaintiff again until 13 May 2003 when she wanted some medication for her anxiety. He saw her twice in 2004 and four times in 2005, when he prescribed medication for pain relief.

Much of the evidence was devoted to what the plaintiff is no longer able to do by way of housework, shopping and socialising, and the large amount of assistance that is provided by family members. The picture painted was of a woman considerably disabled by reason of her injuries, in need of constant care and attention. This was simply not true.

The plaintiff's credibility was severely damaged in cross-examination. Having claimed an inability to play Bingo any more, it clearly emerged that the real reason was her poor eyesight. Indeed, the plaintiff presented in the witness box with a partially closed eye, which required her to squint in a most extreme way. She also presented with a marked shoulder "hunch" which is clearly a manifestation of her spinal deformity, but there was simply no evidence that this has not been long-standing.

The plaintiff was adamant in her evidence that she could not walk or stand for any length of time, and was unable to bend, kneel or squat. A video film of her taken on 30 January 2006, however, depicted her doing all of these things (Exhibit C).

The case on damages was dependent to a large extent on the evidence of the plaintiff. In the light of the proven exaggeration of her problems, her evidence must be treated with extreme caution, particularly as to subjective factors where her complaints were uncorroborated by the medical evidence.

The medical evidence 75. The specialist orthopaedic evidence in the plaintiff's case is that of Dr P Conrad, a surgeon, whose two reports dated 9 November 2005 were tendered. He was not required for cross-examination. Dr Conrad saw the plaintiff on 7 November 2005 for medico-legal purposes. In his opinion the plaintiff sustained a head injury, neck strain, right shoulder strain and an injury to her thoracic spine, "which may be associated with some wedging of T6 and T7 vertebral bodies". He went on to say that she has ongoing pain in her head, neck right shoulder and thoracic spine and needs conservative treatment, with occasional physiotherapy.

Dr Conrad assessed the plaintiff as having significant permanent impairments of the neck, back, right arm and shoulder, and, there being no evidence of previous problems or pre-existing degenerative disease, attributed her problems to her accident.

Other than the absence of a history of previous problems or pre-existing degenerative disease, Dr Conrad made no analysis of any cause of the ongoing pathology, except for his findings of wedging of the T6 and T7 and he made no direct reference to the gross osteoporosis evident to the other doctors. The basis for his diagnosis of wedging of the T6 and T7 is unsupported by any explanation. No other doctor found wedging of the T6 and T7 as being attributable to any cause other than pre-existing problems, not of recent origin.

The defendant tendered reports from Dr J Matheson, a consultant neurosurgeon, and Dr F Harvey, an orthopaedic specialist. Neither of these doctors was required for cross-examination.

Dr Matheson provided two reports dated 23 November 2005 and 18 January 2006. In the first report he expressed this opinion:

" As far as the fall is concerned she has grazed the ankle and has probably bruised the occiput. She has long since recovered from that. This did not produce a thoracic wedge fracture. However she is grossly osteoporotic… The fall she had has just produced some local bruises. It did not produce any structural damage or even a muculoligamentous strain as Dr Salka has suggested. She had simply recovered from that incident without disability. Her problems lie elsewhere and relate to her osteoporosis. On top of that her symptoms are unconvincing and appear to be exaggerated. Widespread spinal pain and right arm and leg symptoms are not convincing and there is no reason she should have those symptoms. However, she is an ageing lady. Her spine is slowly crumbling into kyphosis and she will continue with symptoms but none of this is due to the fall she describes. Mrs Stanford is able to continue to live in her own home. If she runs into problems it will be due to ageing and general health matters."

In his second report, Dr Matheson makes the following further relevant observations:

" If she had a compression fracture of the T10 injury (sic) from this fall it would not have produced her widespread symptoms. Particularly it can not produce neck symptoms, nor headaches, or pins and needles in the upper limbs… …there is a report from Dr P Hudson on the x-rays of her neck and thoracic spine noting demineralisation indicating osteoporosis and degenerative changes in the neck. In the thoracic spine there was minor wedging of lower vertebral bodies noting that probably T10 (sic) involving a superior margin would be consistent with recent trauma. On the 26th November 2002 there is a bone scan which shows no evidence of acute fractures and I have already made the point that if this T10 was a recent injury it would have been hot on the bone scan and thus we can discount this as being a recent injury. There is a report from Dr Conrad dated the 9th November 2005. He diagnosed a head injury, neck strain, right shoulder strain, and a thoracic spine strain with wedging of T 6 and T7 from this fall. He did not include the T10 wedging. Basically he is describing known pathology in the thoracic spine. He is not describing a new injury. This report does not suggest any cause for her symptoms from the fall and only demonstrates degenerative changes and osteoporosis."

Dr Harvey saw the plaintiff on 18 January 2006 for medico-legal purposes, and provided two reports with that date. He diagnosed possible soft tissue injuries to the plaintiff's neck and thoracic region:

" Soft tissue injuries to these regions could have been caused by the fall described. The patient has quite marked osteoporosis for which she is now being treated. She also has evidence of osteoporotic compression type fractures in several thoracic vertebrae. However, I do not believe these compression fractures were caused by her fall on 24.10.02. Fractures from this fall are excluded by the fact that the patient had a normal bone scan on 26.11.02. Bone scans have a very high sensitivity and even minor fractures cause quite intense uptake of isotope… This patient is elderly, frail and obviously would only be capable of a limited amount of physical activity. However, I would see little reason to relate this to an isolated fall that occurred on 24.12.02…I don't believe…her lack of mobility could be attributed to the physical effects of this fall. She does of course have quite marked osteoporosis of the spine with a marked dorsal kyphosis which would limit her physically. I don't consider the fall has had any long term effect on this osteoporotic condition…"

" The patient is elderly, frail and has quite marked osteoporosis and I would expect her to become increasingly less mobile with time, and within a few years she could well require nursing home care. However, I wouldn't attribute this need for care to her isolated injury in October 2002… I consider this patient has a 20% whole person impairment…this impairment is unrelated to her fall on 24.10.02. Because the patient has multiple osteoporotic compression fractures in the thoracic region, she would be regarded as having a multi level structural compromise… This impairment clearly existed prior to the accident because she did have compression of a number of thoracic vertebrae when first examined radiologically on 31.10.02 and it was proven by the negative bone scan that these compression fractures were not the result of her fall on 24.10.02 and must have existed previously."

83. Overall, I find the opinions expressed by Dr Matheson and Dr Harvey compelling, and I prefer their evidence to that of the plaintiff's doctors. Dr Conrad's reasoning is superficial and inadequate, whereas the opinions of Dr Matheson and Dr Harvey are more reasoned, are based on objective assessment, and they accord with my own assessment of the facts established in the case, as filtered from the exaggerated evidence of the plaintiff. Unlike the opinion of Dr Conrad, which depended largely upon subjective criteria, their analysis is logical and based on recognised diagnostic criteria.

84. I find that the plaintiff's injuries sustained in her fall on 24 October 2002 were limited to bruising, soft tissue injuries and strains to the neck and thoracic regions, and a graze to the ankle, all of which resolved within a short period of time, no longer than six months. She sustained no bony or skeletal damage. All her continuing problems are due to other causes, in particular the gross osteoporosis present, which condition pre-existed her accident, and was not precipitated, accelerated or aggravated by it.

Damages 85. On the basis of these findings, this plaintiff falls victim of the Civil Liability Act 2002 in that she fails to meet the thresholds required for damages in respect of non-economic loss and for domestic assistance.

The plaintiff claimed substantial damages for past domestic care and assistance for the past and future commercial care. Damages are recoverable for services provided gratuitously by others such as family members where it is reasonably necessary for those services to be provided: Griffiths v Kerkemeyer (1977) 139 CLR 161. It is for the plaintiff to satisfy the court of the need for the services: Fenton v Van Gervan (1992) 175 CLR 327.

The evidence does not support a need for any future domestic care and assistance on either gratuitous basis or on a commercial basis. But even if it did, I would not award damages for future care: in this regard I agree with the defendant's submission that:

" … the plaintiff has never had commercial care to date of trial and is never likely to engage commercial care in the future. Her family has and always will provide any care needed and therefore she is hardly likely to have a level of commercial care supplementing the care provided by her family and that will continue to be the case into the future. The reality is she will always rely upon her family members to provide gratuitous care to her."

Nor is the plaintiff entitled to such damages for past care and assistance in this case, for the following reasons.

The care provided by the plaintiff's family to date has greatly exceeded the level of care based on need caused by her injuries, rather it has been largely provided out of the love, care and concern those family members have for her.

In cases falling under the Civil Liability Act 2002, as this case does, the recoverable damages for such services are limited by reference to threshold requirements as to the number of hours (6) per week and the number of months (6) for which the services were provided: s 15.

The plaintiff can only recover damages if both thresholds continue to be met: Geaghan v D'Aubert [2002] NSWCA 260.

I find that the plaintiff's need for care did not meet the required thresholds under s 15 of the Civil Liability Act 2002 in that her need for such services did not exceed 6 hours a week for more than 6 months, and that she may not therefore be awarded damages for gratuitous attendant care services.

For these reasons, I make no award of damages for any need for past or future services or assistance.

I come now to general damages. The assessment of damages for non-economic loss is also regulated by the Civil Liability Act 2002: s 16. No damages may be awarded unless the severity of the non-economic loss is at least 15% of a most extreme case.

I am not satisfied that the plaintiff meets the threshold requirements under that section. Having regard to the minor nature of the plaintiff's injuries caused by her fall, the limited period of the duration of any consequences associated with those injuries, and the absence of any permanent consequences, the severity of the non-economic loss must be assessed at less than 15% of a most extreme case.

It follows that the plaintiff's entitlement to general damages under the general law has been taken away by the enactment of the Civil Liability Act 2002.

The plaintiff is not entitled to any damages for future medical, pharmaceutical or other out-of-pocket expenses. The only damages which the plaintiff is entitled to recover, therefore, are limited to any medical, pharmaceutical or other out-of-pocket expenses incurred as a result of those injuries and consequences attributable to her fall, during the period of her recuperation, for a period not exceeding six months after the accident.

Disposition 98. For these reasons I find a verdict in favour of the plaintiff. I invite the parties to bring in short minutes of order in accordance with these reasons as to the amount of the verdict and the judgment to be entered.

Judgment and Costs (4 August 2006) 98. I direct the entry of judgment for the plaintiff in the sum of $2,390.75.

99. I order the defendant to pay the plaintiff's costs as agreed or assesed on the ordinary basis.

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