Strike v Fiji Resorts Limited & Anor

Liability 22Even though the fall occurred in Fiji, neither party sought to prove the applicable law of Fiji. Instead they both submitted that I should proceed on the basis that it was the same as the law of New South Wales and that, consequently, I should apply the Civil Liability Act 2002 (the "CLA"). Presumably they did so on the basis that, in the absence of evidence as to the content of Fiji law, I should apply a presumption that the law of Fiji is the same as Australian (and New South Wales) law (Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; 223 CLR 331 at [125] per Gummow and Hayne JJ). 23The first matter to address in determining whether either or both of the defendants are liable in negligence is to consider their respective responsibilities for the area of the stairwell in which Mrs Strike fell. 24It was conceded in final submissions on behalf of Mrs Strike that there was no evidence of any connection between the second defendant, Yanuca, and control of, or responsibility for, the stairwell where she slipped. It follows that there must be a verdict for Yanuca. 25In respect of the first defendant, Fiji Resorts, it was submitted on behalf of Mrs Strike that it was the relevant "occupier" of the stairs. I have described the position of the two duty managers who were working on the day of the accident and the next day (Mrs Naisua and Mr Mudaliar). In October 2006 they were both employees of Fiji Resorts. In their affidavits they each describe themselves as the "duty manager at Shangri-la Fijian Resort", positions they had both held for a number of years. The underlying assumption in their affidavits is that, as duty managers, they were exercising responsibility for and control over the publicly accessible areas of the resort. 26Mrs Strike relied on their positions as employees of the Fiji Resorts and duty managers at the resort, as well as their descriptions of the activities they performed on the day of and following the accident. It was submitted by Mrs Strike that the inference should be drawn that, at least through these employees, Fiji Resorts exercised a sufficient degree of control over the areas of the resort accessible to guests (including the stairwell) to constitute it the, or at least, an occupier (State of New South Wales v Broune [2000] NSWCA 3 at [70] per Mason P). To be an occupier it is sufficient that the relevant party have "the immediate supervision and control and the power of permitting or prohibiting the entry of other persons" (Wheat v E Lacon & Co Ltd [1966] AC 552 at 578) and that control need not be total (Broune at [69]) nor exclusive (Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [83] per McColl JA, Ipp JA agreeing). I accept Mrs Strike's submission. No submission to the contrary was put on behalf of Fiji Resorts. 27Next arise the inter-related questions of the scope of Fiji Resort's duty of care and the relevant breach. Sections 5B and 5C of the CLA provide: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 28In Novakovic v Stekovic [2012] NSWCA 54 at [37]-[42] McColl JA (Whealy JA and Tobias AJA agreeing) stated: "37 The question whether the respondents were guilty of breach of duty turns first on determining whether the risk in question is one of which the defendant knew or ought to have known: s 5B(1)(a). This means the risk must be defined. Before doing so, however, it is essential to determine the scope of the duty of care the respondents owed the appellant. 38 The respondents, as occupier of the land onto which the appellant entered, owed her a duty to take reasonable care to prevent injury to her on the assumption she was using reasonable care for her own safety: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 487-488) per Mason, Wilson, Deane and Dawson JJ; Jones v Bartlett; [2000] HCA 56; (2000) 205 CLR 166; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [47]) per Gummow J. There was no suggestion that the appellant had fallen short of the last requirement. 39 What was reasonable turns on the circumstances of her entry upon the premises: Australian Safeway Stores Pty Ltd v Zaluzna (at 488). The duty to take reasonable care required the respondents to protect the appellant, or the class of person of which she was a member, from a "not insignificant" risk which could reasonably be foreseen and avoided. The measure of the discharge of the duty, at common law, was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 663) per Deane J. The measure is now prescribed by s 5B of the Civil Liability Act. 40 The inquiry about whether the respondents ought to have taken the precautions for which the appellant contends turns on (amongst other relevant matters) the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person's position would have taken those precautions. The inquiry is not to be undertaken in hindsight (Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [126]) per Hayne J), but must be answered prospectively, before the incident occurred: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [31]). 41 The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is necessary to ask also: would it have been reasonable for the respondents to take those measures?: Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 (at [93]) per Hayne J. In other words, the knowledge of how the appellant actually came to sustain her injury has to be excluded when considering whether the respondents were obliged to take any precautions in the circumstances of having a dog in the house to which guests had been invited: Neindorf v Junkovic (at [96] - [97]) per Hayne J. 42 A person does not breach his or her duty of care merely because there are steps that he or she could have taken to avert the risk that actually materialised: Thornton v Sweeney [2011] NSWCA 244; (2011) 59 MVR 155 (at [131]) per Sackville AJA (Campbell JA and Tobias AJA agreeing)." 29As Fiji resorts was the occupier of the relevant stairwell, the existence of a duty to take reasonable care to prevent injury to persons such as Mrs Strike cannot be doubted. In considering the content of that duty, a number of matters need to be borne in mind. 30As I have stated, the area of the stairwell was part of a resort which paying guests were utilising. The stairwell was a thoroughfare between guests' rooms and the hotel facilities. Although persons can be expected to use reasonable care for their own safety, the persons who are doing so are not engaged in commercial work, but are there for personal enjoyment. At the time of the accident there was a wide class of persons who it could be expected to use the stairwell. The very old, the very young and persons subject to some infirmity were all within the class of potential guests of the resort. It is common ground that the stairwell was outside and exposed to the elements. It is obvious that such a stairwell will be exposed to rain, leaving aside any preconceptions about the tropical nature of Fijian weather. The duty to take reasonable care that was imposed upon Fiji Resorts required it to take reasonable steps for the safety of persons using the stairs within the class that I have referred to on the assumption that they were using reasonable care for their own safety (Novakovic at [38] and cases cited thereat). 31Having identified the duty it is then necessary to consider breach, which is addressed by ss 5B and 5C. For the purposes of s 5B the relevant "risk of harm" was of someone suffering personal injury from slipping on the wet stairs or in their immediate vicinity (Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [24] per Meagher JA and [123] per Tobias AJA; Sibraa v Brown [2012] NSWCA 328 at [39]-[42] per Campbell JA). This risk was both foreseeable to Fiji Resorts and foreseen (s 5B(1)(a)). No doubt for that reason it had available signs and non-slip mats. Further, the risk was "not insignificant" (s 5B(1)(b)). There was a realistic likelihood that persistent or even intermittent rain on the steps would result in the steps becoming slippery and would occasion falls. This assessment of the likelihood of this risk eventuating informs the next step of evaluating the response that the exercise of reasonable care required (s 5B(2)(a)). 32At this point in the analysis, it is necessary to consider the precautions (s 5B(1)(c)) which Mrs Strike alleges should have been taken to ascertain whether they are steps a reasonable person would, in the circumstances, have undertaken by way of response to the foreseeable risk of harm posed by slippery wet stairs and surrounds (Novakovic at [39]). This involves a prospective inquiry that "seek[s] to identify what the response would have been by a person looking forward at the prospect of the risk of injury" (Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126] per Hayne J cited in Novakovic at [40]). 33Although a number of matters were particularised, the submissions made on her behalf identified two precautions. The first was the use of signage, temporary or permanent, indicating the slippery nature of the steps when wet. The second was the use of non-slip mats. For present purposes, I am only considering the locating of mats in the immediate position at the bottom of the steps and immediately before the steps. Whether it would have been possible to secure non-slip mats over the steps was not explored in the evidence and, is in light of the description of how the accident occurred, not relevant. 34In relation to s 5B(2) of the CLA, it follows from the finding at [31] that there was a realistic probability that the risk of harm would materialise if these precautions were not taken. Mats were more likely to be effective than signs given the class of people affected. The likely seriousness of the harm, or magnitude of the risk, that would ensue if care was not taken (s 5B(2)(b)) can vary. No doubt many slippages that occur on steps or in their immediate vicinity can be uneventful, but some can lead to significant, indeed serious injury. The burden of taking precautions of the kind suggested to avoid the risk of harm was, in my view, not great (s 5B(2)(c)). The placement of temporary plastic warning indicators and rubber mats was easily capable of being undertaken at the resort. As the evidence indicates, it was undertaken in the immediate aftermath of the fall. The items were maintained in close vicinity to the steps. There was no evidence as to how many other steps there are in the resort or its size, but there was no suggestion that there was any excessive cost involved, or that there were insufficient warning signs or mats to cover all similar style steps throughout the resort. 35The last consideration in s 5B(2)(d), namely the social utility of the activity that creates the risk of harm, is not relevant to the circumstances of this case. 36The end result is that the risk posed to guests at the resort by the exposure of the stairwell to persistent rain could have been substantially reduced by the use of mats and reduced to an extent by signs. The risk was real and, if it materialised, the consequences could be significant. The ameliorating precautions were not burdensome. I am satisfied that, in the circumstances, the exercise of reasonable care on the part of a person in Fiji Resort's position required taking the precautions of placing the non-slip mats at the top and the bottom of the steps, and putting up some form of warning advising that the steps were prone to be slippery in wet conditions. I do not consider that merely placing signage was sufficient, given the wide class of persons potentially using the stairs, and the fact that the stairs were on a thoroughfare leading to the resort's restaurant. 37One question that arises is when Fiji Resorts should have undertaken the step of placing signage and mats at the stairwell. The trite answer to that question is that those precautions should have been taken within a reasonable period of the risk of slippage becoming apparent. The time required to place similar signage and mats in similar areas should be borne in mind when determining what was a reasonable period of time. It is not necessary to dwell on this in great detail. The accident occurred at 6.30pm and the rain had persisted from the previous night throughout that day. In my view, that was more than sufficient time for Fiji Resorts to place mats at the stairwell. It either knew or should have known that by 6.30pm guests at the resort would be starting to use its restaurants and other areas with a consequential increase in the traffic along common areas and down the steps. The exercise of reasonable care required the placing of signs and mats well prior to then. 38In so far as this analysis concerns the identified precaution of placing signage, the next provision that requires consideration is s 5H of the CLA which provides that Fiji Resorts did not owe a duty of care to warn Mrs Strike of an "obvious risk", as defined. I will pass over this provision at present and consider whether the causation requirements in s 5D of the CLA have been established. 39Sub-section 5D(1)(a) of the CLA is said to constitute a statutory statement of the "but for" test of causation (Strong v Woolworths Ltd [2012] HCA 5, 86 ALJR 267 at [18]), bearing in mind the two limitations on the "but for" analysis, noted in that passage. 40In this case I am not satisfied that the failure to place any form of warning signage was a "necessary condition of the occurrence" of the harm to the plaintiff (cf s 5D(1)(a)). Such a warning sign need not have stated anything more complicated than "Caution: Slippery When Wet". It follows from the finding at [18] that such a sign would have done no more than confirm that which was already at the forefront of Mrs Strike's mind as she descended the stairs. She knew that the steps were wet, that other hotel guests had slipped on them, and that she should take extra care as she did so. Thus, the placing of a sign would not have told Mrs Strike anything she did not already know (Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [75] per Gummow J) and would not have led to a different outcome. Accordingly it is not necessary to address s 5H (or s 5G in light of the finding at [18]). 41There remains, however, the question of the non-slip mats. I have already concluded that it was negligent of Fiji Resorts not to have placed non-slip mats at, inter alia, the bottom of the stairwell for persons to place their feet on immediately as they come off the stairs. I am satisfied that that was a "necessary condition of the occurrence" of her harm within the meaning of s 5D(1)(a) of the CLA. At the bottom of the stairwell was a concrete surface which had been rendered slippery with water. Mrs Strike was taking suitable precautions as she descended. As she placed her right foot on the ground immediately below the last step, it slipped out in front of her. It was probable that this was a result of a combination of the slippery state, her weight and her footwear. I am satisfied that if had she placed her feet while descending cautiously on a surface that was not slippery, then there was no reason or occasion for her right foot to slip in front of her in the manner which she described. This is sufficient to satisfy s 5D(1)(a). Once I make that finding, s 5D(1)(b) is satisfied in this case (see Strong at [19]). 42I find that Fiji Resorts was negligent by reason of its failure to place non-slip mats in the area immediately below the last step of the stairwell following persistent rain, and that that failure was causative of Mrs Strike's fall.

Contributory Negligence 43Sub-section 5R(2) of the CLA prescribes a standard of care for the purpose of contributory negligence, namely that of a reasonable person in the position of the plaintiff to be determined on what the person knew or ought to have known at the relevant time. 44Although a number of particulars of contributory negligence were pleaded, in the end result they were reduced to an allegation about her decision to descend the stairs in an allegedly intoxicated state having regard to the combination of her size, infirmity and choice of footwear. It follows from the finding that I have made at [10] that, in so far as the allegation of contributory negligence rests upon an assertion that she was affected by alcohol, I reject it. 45In relation to the form of footwear, being a pair of rubber thongs, I am not satisfied that her decision to descend those stairs in her thongs amounted to a failure to take reasonable care for her own safety or wellbeing. Thongs are clearly not the most appropriate footwear for descending a wet set of stairs, particularly for someone of Mrs Strike's then size. However, I have already concluded that she sought to do so in a careful manner which involved her placing her hands on the railing. Whether there were any alternatives available to Mrs Strike to descending those stairs in that footwear were not explored. Thus it is not clear whether this was the first occasion on which she had walked down those stairs, nor is it known how far the stairs were from her room, nor how easy or otherwise it would have been for her to return to her room and put on other footwear. 46In the absence of any investigation of those matters, I am not satisfied that it was incumbent upon Mrs Strike, as she arrived at the top of the stairs in the rain, to walk back to her room and change into shoes which she may or may not have had. No doubt with the benefit of hindsight that would have been prudent, but the course she took of descending the stairs while holding onto the rail, did not involve a failure on her part to take reasonable care for her own safety. Unfortunately the railing could not assist her when she alighted from the last step. 47I am not satisfied that there was any contributory negligence on the part of Mrs Strike.

Mrs Strike's medical condition 48As at the date of the accident Mrs Strike was forty-nine years of age. She had left school at the age of fourteen. She first worked as a sales assistant. She then did a typing course and undertook some office work. She was married in June 1976 and had two children, one born in 1977 and one in 1980. She left work to look after her children, but after a few years she returned to work, doing temporary office work. In 1990 she commenced work as a driving instructor. She worked in that position for about five years. In 2000, she commenced work at the Department of Veterans Affairs ("DVA") in its city office as a switchboard operator, at first for two days per week and then for three days. 49Mrs Strike has a complicated medical history with a number of conditions which pre-date the accident. 50As at the time of the accident in 2006, Mrs Strike had been diagnosed with carpal tunnel syndrome for at least twelve years. This affected both hands. She had also suffered from depression for at least fifteen years prior to the accident. She had periodically sought treatment for her depression. 51Mrs Strike made complaints of arthritis in her left knee. In 2004 an arthroscopy was performed on her left knee. In her statement she said her knee recovered. However, in January 2006 an X-ray of her left knee suggested early degenerative change. Her general practitioner, Dr Petroulias, diagnosed osteo-arthritis. Mrs Strike attended Dr Petroulias in May 2006 and July 2006 complaining of left knee pain. 52In August 2005 Mrs Strike was diagnosed with diabetes. She had been suffering from migraine headaches since her teenage years which, by the middle of 2005, were occurring on a daily basis. 53Further, in February 2005 a doctor described her as having evidence of chronic venous congestion in the legs. He suggested she wear compression stockings.

Development of the knee injury 54After the fall, Mrs Strike and her husband stayed at the resort until 30 October 2006. She states that she rested and took panadeine forte for the remainder of her stay, but did not receive any treatment. After an overnight stop in Nadi, she and her husband returned to Sydney on 31 October 2006. In early November 2006 she saw Dr Petroulias. A CT scan of her left knee on 6 November 2006 confirmed that there was no fracture, but there was evidence of degenerative osteo-arthritis. 55On 8 December 2006, Mrs Strike saw Associate Professor Ireland at the Sydney Bone and Joint Clinic. An MRI scan was performed in January 2007 which revealed that the ligaments were intact. In light of her symptoms of persistent pain and significantly restricted movement, he performed an arthroscopy on 7 February 2007. He found that there was "moderately severe arthritic change in the medial compartment with grade IV loss over a two centimetre area of the medial femoral condyle" and that there also appeared to be "acute chondral injury over the trochlea and some grade I/II changes elsewhere in the knee". 56Thereafter she had some physiotherapy but her difficulties continued. When Professor Ireland saw her on 11 May 2007 she complained that the knee was "giving way" and that she had been forced to continue with walking sticks. Throughout 2007 she continued to complain to Professor Ireland of pain. He noticed tenderness on examination around the knee. 57On 28 November 2007 Associate Professor Ireland performed a total knee replacement. Mrs Strike was hospitalised for two weeks after the operation and then had physiotherapy for some months until she could resume driving. By May 2008 Associate Professor Ireland was describing her progress to that time as "fair", but said that her prognosis "remains guarded". It seems that the position worsened. In June 2008 he performed another arthroscopy. After Associate Professor Ireland saw the plaintiff on 27 November 2008 he reported steady improvement in pain and mobility overall, although she was still using crutches. However, he saw her again in November 2009 and then in January 2010, and said she was reporting deterioration in the knee, swelling and pain.

Current condition and prognosis 58There were three aspects of Mrs Strike's medical difficulties which were said to be attributable to the fall in October 2006. 59First there is injury to her left knee. At the hearing Mrs Strike moved very slowly and used a walking frame. She described herself has having trouble going up and down stairs, and this is consistent with how she presented in court. She said she cannot put pressure on her leg, cannot drive a manual car and has had to change to driving an automatic car. There was some debate about the extent of the household chores that she could perform, to which I will return, but it was clear that her movement and activity was extremely limited. She reiterated that she still has knee pain and stated that she took "Oxycontin" and "Tramal" for knee pain. She also uses pain patches. It was not suggested that the restrictions on her movements or her complaints of pain were anything other than genuine. However, it is the defendants' case that they are the result of degenerative change. 60Second, it was contended that the fall had the result of exacerbating Mrs Strike's carpal tunnel symptoms. It is contended that the need to use crutches exacerbated the difficulties she had with her hands. I have described the background to her carpal tunnel syndrome above. In April 2009, she had a release operation on her right wrist. It is suggested that she will also need an operation on her left wrist. 61Third, it was also contended that the use of crutches had resulted in rotator cuff tendonitis in her right shoulder. 62Otherwise, the conditions that I have described in [50]-[53] above have continued. She has continued to see a psychologist when she can for her depression. Her difficulties with migraine headaches are ongoing and she still has diabetes. She has continued to have problems with leg swelling from venous congestion. 63Mrs Strike has lost a considerable amount of weight since that accident. She estimated that her weight as at about 9 September 2012 was 89 kilograms. It appeared to me that this weight loss was not a result of the progression of her medical conditions but, to the contrary, was a consequence of sustained effort on her part. 64Tendered on behalf of Mrs Strike were medical reports from two orthopaedic surgeons, Dr Lee and Associate Professor Ireland, and a vascular surgeon Dr Crozier. Dr Crozier's report concerned the venous issues which I have described. The defendants tendered reports from an orthopaedic surgeon, Dr Cummine. 65Ultimately Dr Cummine and Dr Lee expressed agreement with each other's opinions. There was a minor discrepancy between their reports and that of Associate Professor Ireland which I discuss at [68]. 66Dr Cummine and Dr Lee agree that in the fall Mrs Strike suffered soft tissue injuries to her left knee which aggravated her pre-existing osteo-arthritis. They agree that her total knee replacement on 28 November 2007 has not been effective in providing pain relief. They agree that it is highly likely that, absent the fall, Mrs Strike would have required a knee replacement within five years of the time she fell. They also agree that there are multiple medical co-morbidities contributing to her overall general state of disability, including her obesity, the rotator cuff pathology, her carpal tunnel syndrome, diabetes, depression and her pre-existing osteo-arthritis. 67I will return to consider some of the other aspects of their conclusions in the course of considering the particular heads of damage. Subject to two matters, I accept their joint opinions. The first matter is addressed in [79] below. The second matter of exception concerns a minor area of disagreement between Dr Cummine (and Dr Lee to the extent he agrees) on the one hand, and Associate Professor Ireland on the other. 68Associate Professor Ireland reviewed the plaintiff on 20 July 2012. In his report dated 30 August 2012 he described an instability or extension lag which had not been observed by Dr Cummine. Dr Cummine's most recent examination of the plaintiff was on 13 December 2011. I accept Associate Professor Ireland's observations which are suggestive of a further degree of deterioration since Dr Cummine's examination at the end of 2011. 69Both Dr Cummine and Dr Lee agree that there was some aggravation of the carpal tunnel syndrome in her right hand occasioned by the fall. They also agree that there was some temporary aggravation of the symptoms in her right shoulder from the protracted use of crutches. I accept their opinions on these issues

Economic loss 70As I have stated, at the time of the accident the plaintiff was working as a telephone receptionist at the DVA. She returned to work in early 2007 but stated that she only lasted one day. She stated that she used a walking stick but her knee was too painful for her to continue. On 19 March 2007 she resigned from the DVA due to her inability to continue working. She has not undertaken paid work since. 71In cross examination she was pressed on what it was about her knee affliction that prevented her from continuing her occupation as a telephonist. She nominated two main problems. 72First, she said it was necessary for her to use public transport, but the state of her knee in 2007 was so painful and the restrictions on her movement so significant that she could not manage travelling to work (on the public transport system) using a walking stick. She was asked about the possibility of driving. She said that she made enquiries of the DVA about the potential to obtain a parking space, but was advised that they were only available for employees far more senior to her. 73Second, Mrs Strike also said that because of the continuous knee pain "I could not sit to carry out the job. I couldn't sit too long, I had to get up and walk; when you are a telephonist and you are sitting at a desk it is not a job you can get up and walk away from". 74Mrs Strike was also cross examined about whether her various other conditions were such that they prevented her working. She pointed to the fact that she had had a good work history up until the time of the accident, and that it was only after the accident that she could not work. 75Two opinions of Dr Cummine that were agreed with by Dr Lee were pointed to by counsel for the defendants. First he relied on a statement by Dr Cummine that neither the left knee replacement nor the carpal tunnel issues were sufficient to prevent her from returning to her sedentary occupation as a telephonist at the DVA. Second, Dr Cummine stated that it was quite likely that a combination of Mrs Strike's obesity, diabetes and depression would, in any event, have caused her to retire from work early. 76In relation to the first opinion, Dr Cummine does not appear to have addressed the difficulty Mrs Strike identified in using public transport nor her need to stand up and move around to relieve her pain. More significantly it is not clear whether Dr Cummine (and Dr Lee) were addressing the effect of the aggravation of Mrs Strike's knee condition in combination with her other conditions, or were only addressing whether the aggravation of her knee condition by itself was sufficient to require her to cease work. The fact that there is no attempt in Dr Cummine's report to reconcile this opinion with the fact that Mrs Strike only ceased work following the accident suggests that he addressed the latter question. 77However, I am required to consider the matter on the basis that Fiji Resorts was required to take Mrs Strike as it found her (Watts v Rake [1960] HCA 58; 108 CLR 158 at 160). Prior to the accident, she was a person with a relatively low skills base and a number of significant medical conditions. Nevertheless, she was able to maintain part time employment in a sedentary position. I expect that there were few such positions that she could maintain for any significant period. After the accident her employability effectively ceased. In addition to her low skill base and existing conditions, her mobility both within the workplace and to and from the workplace was significantly affected. I accept her evidence that car parking was not available to her at the DVA. Further it seems to me inherently unlikely that there would be many positions in the greater Sydney area for which she would be suitable for employment and where an employer would make available to her a car space. Pay parking for her own car space near a place of work would be a significant cost to her given her likely rate of pay. 78I am satisfied that the accident was the precipitating event that resulted in Mrs Strike ceasing work and, subject to what follows, being unable to work thereafter. 79In relation to the second opinion of Dr Cummine stated in [75] and relied on by Fiji Resorts, namely that a combination of her obesity, diabetes and depression would have caused her to retire from her work early, I do not accept that opinion directly flows from Dr Cummine's qualifications and experience as an orthopaedic surgeon. However, no doubt his experience as a general practitioner assisted him in making that assessment. In broad terms I accept that opinion, however I consider that the more likely scenario was that, absent the fall, the combination of those matters and the degenerative changes which would have led to Mrs Strike needing to have a knee replacement within five years of the fall were such that she would have had to retire from work early. 80An assessment of when all these conditions would have brought about her early retirement is obviously imprecise. The five year point at which she would have needed a replacement is something of an outer limit. Within those limitations I consider that the continued degeneration of her left knee, in combination with her other conditions, would have led to her ceasing work three years later than she did. 81It follows that I will award an amount for economic loss for a closed period from the date of the accident until 20 March 2010 on the basis of an amount of $430 net per week at the date of her resignation, $454 net for the year from March 2007 to March 2008, and $500 net per week from March 2008 to March 2010. Interest and an amount of 11% should be allowed on the net amount calculated for lost superannuation benefits (see s 15C and Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728). 82There was an unresolved debate as to whether Mrs Strike was entitled to recover amounts representing the period between the accident and her resignation. Although she only worked one day between the time of her accident and the date she resigned, she received sick leave payments. The submissions did not address whether she was entitled to recoup that amount. As it will be necessary for the parties to prepare calculations and short minutes reflecting the terms of my findings, they should address brief submissions to that issue. 83It also follows from my findings that I will not allow any amount for future economic loss. Thus s 13 of the CLA does not arise.

Gratuitous attendant care services 84The plaintiff also makes a claim for gratuitous attendant care services (i.e. Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161). To recover, she must satisfy the thresholds specified in s 15(2) and s 15(3). The latter requires that the services have been or will be provided for at least six hours per week and for a period of at least six consecutive months. The former includes the requirement that the need for the services has arisen "solely because of injury to which the damages relate". In the case of a plaintiff who has a number of pre-existing conditions, these thresholds can be met if they demonstrate that the relevant need only arose because of an increase in the plaintiff's need for services occasioned by the injury (see Woolworths Ltd v Lawlor [2004] NSWCA 209 at [28] to [30] per Beazley JA, Hodgson and Tobias JJA agreeing, and Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409). 85Mrs Strike addressed her need for such services in her statement, as follows: "27. Around the house I do not need a [walking] stick, but outside I need it to go more than a short distance. I have trouble going up and down stairs. I cannot put pressure on my left leg. I cannot drive a manual car, and have had to change to an automatic. I cannot go shopping alone. Peter has to carry the shopping. We live in a 3 bedroom house. I can only do light household tasks. I cannot use the vacuum cleaner, clean the bathroom or make the beds. 28. Peter spends 4-6 hours per week helping me to move around and with household chores. My daughter Sharon comes [once] a week or [once] a fortnight and spends a few hours cleaning the house. Before the accident I could do all this unaided." (emphasis added) 86This evidence presents a difficulty for Mrs Strike in meeting the threshold requirement in s 15(3) based on her past requirements. Perhaps with a view to boosting the estimate of the number of hours per week for which assistance was required, Counsel for Mrs Strike took her to this paragraph in her evidence in chief. She was asked if that paragraph was still accurate. However, she confirmed that it was. Her counsel then directed her to that part of her statement which refers to the assistance provided by her daughter: "Q. The sentence there reads: 'My daughter Sharon comes once a week or once a fortnight and spends a few hours cleaning the house'. A. Right. Q. Is that still accurate? A. Yes, sometimes it could be a month, depending on her children. Q. Could be a month, it may be once a month that she comes; is that what you're saying? A. Yeah, she might do an hour one fortnight and an hour the next fortnight, depending on her children, because her children are older now and they do sports. Q. You see there's a sentence that reads: 'Once a week or once a fortnight'? A. Yes. Q. Think about this year, 2012? A. Right. Q. See if you can give the Court an average, is it average once a week or average once a fortnight? A. Average is a fortnight, sorry. Average is a fortnight, sorry. Q. You've said in your statement 'spends a few hours cleaning the house'. Can you be more specific? How many hours? A. Two." (emphasis added) 87It is not clear from this evidence whether Mrs Strike's daughter is "on average" undertaking two hours work per fortnight or one hour. The first italicised answer suggests that it is one hour, however the latter part of the exchange suggests that on average every fortnight she spends two hours. 88This issue was also addressed by Dr Cummine, with whom Dr Lee agreed. Dr Cummine stated: "Whilst I acknowledge that the patient may not be able to do her housework and I note ... that her husband now is her full time carer, providing both personal and domestic assistance, in terms of the subject fall on 26 October 2006, and noting that in the accident I consider she sustained soft tissue injuries to her left knee, with an aggravation of pre-existing osteo-arthritis which had been symptomatic prior to the fall, I consider three hours per week of domestic assistance could be apportioned." 89Implicit in this opinion is the proposition that, leaving aside the aggravation of Mrs Strike's pre-existing osteo-arthritis, there would have been a need for some domestic assistance for her in any event by reason of her other morbidities and the degeneration of her pre-existing osteo-arthritis. 90In respect of the period between the time of the accident and the date of the hearing I am not satisfied that the threshold in s 15(3) has been overcome. 91Mrs Strike's best estimate of the level of assistance she has received was four to six hours and the additional assistance from her daughter. Obviously, the estimate of 4 to 6 hours is somewhat uncertain. There were no records provided to support even a sample period in which the assistance is provided. There was no evidence from either Mrs Strike's husband or daughter as to the amount of assistance they provided. Mrs Strike bears the onus of proof concerning the threshold in s 15(3). I am not satisfied that it has been overcome. 92In the future, Mrs Strike's need for assistance may increase but, given the evidence as to her need for assistance to date, I am not satisfied that it will increase to the point that her need for assistance that is solely attributable to the aggravation of the osteo-arthritis in her knee will meet the threshold in s 15(3).

Out of pocket expenses 93There was agreement between the parties on an amount of Medicare pay back in the sum of $8,051.65. 94Mrs Strike also sought an amount by way of an allowance for the possibility that she would require a further knee replacement. In March 2011, Dr Lee stated that she may require a further knee replacement in about ten years time. Dr Lee estimated the cost "in today's terms" as being "in the region of $25,000". Dr Cummine stated that he agreed with Dr Lee regarding that possibility, but estimated the surgery to cost around $50,000.00. Two matters should be noted about this evidence. 95First, although both Dr Cummine and Dr Lee stated that a knee replacement was possible, neither of them sought to estimate the likelihood that it would be required. Nevertheless, given the poor condition of Mrs Strike and her equally poor prognosis, then, subject to resources being available, I expect she will need and proceed with surgery in approximately ten years. 96Second, the greater difficulty is whether the need for the surgery arises from the accident or is something that would have been necessitated by arthritic change in any event. It follows from the finding of Dr Cummine that I have stated in [67] above that the effect of the fall was to exacerbate her osteo-arthritic degeneration. Thus it necessitated her first knee replacement in 2007 when the likelihood is that this would not have otherwise occurred until 2012. By the same reasoning, the effect of the fall has been to accelerate the likely timing of the second knee surgery, but it is surgery that would be required in any event. It follows that the amount that can be recovered on account of this condition is the extra cost occasioned by the bringing forward of that further knee surgery by five years. I will allow an amount referable to the bringing forward of the expense stated by Dr Cummine of $50,000.00 by five years, which can be calculated by reference to the appropriate discount rate for that period. 97Mrs Strike also sought an allowance for further surgery to address bilateral carpal tunnel, and for her right shoulder. In his report dated 4 March 2011 Dr Lee stated that such surgery may be required (although he wrongly referred to the left shoulder instead of the right shoulder). In his report of 6 September 2012 Dr Cummine considered that it was unlikely that further surgery on her wrist was required as well as on her shoulder. Dr Lee ultimately agreed with this. I will not allow any amount for these items. 98Mrs Strike also sought an allowance for an amount for chemists' bills for the past and the future. Annexed to her statement was a list of eighteen different medicines that she takes on a daily basis. However, there was little evidence from which one could correlate the necessity to take those medicines to the injuries occasioned by the fall. Eventually Fiji Resorts proposed and Mrs Strike accepted the imprecise methodology of comparing the approximate average chemists' bills she incurred on a weekly basis prior to the accident with those after the accident. This yielded a figure of $6.50 per week for the past and into the future. I will allow that amount. I considered whether some downwards adjustment of the future amount should be made to take into account the likelihood that a further operation on Mrs Strike's knee might lead to a lowering of the pain she experienced, however I consider that unlikely particularly in light of Dr Cummine's findings. It is too speculative to attempt any such reduction.

General damages 99I have already described the findings of Dr Lee, Dr Cummine and Associate Professor Ireland above. All of the doctors agree that a significant aspect of Mrs Strike's ongoing difficulties with her knee are attributable to the fall. Each of them attempted to attribute a whole person impairment rating to Mrs Strike arising from the fall. Associate Professor Ireland opined that she had a whole person impairment of 30% attributable to her knee injury, and allowed for an 8% reduction for her pre-existing osteo-arthritis. Dr Cummine attributed a whole person impairment of 12% due to the aggravation to her knee occasioned by the fall, and 1% to the extra effect on her right hand from the aggravation of carpal tunnel. Dr Lee agreed with these figures. Of course, the attribution of whole person impairment has no correlation with the procedure for assessing damages for non-economic loss provided for in s 16 of the CLA, being the determination of a suitable percentage of a most serious case. However, the significance of the attribution of whole person impairments by each of these three doctors is to confirm, if confirmation is necessary, that all of them accept that there are significant ongoing difficulties for Mrs Strike which are directly attributable to the aggravation of her knee and carpal tunnel conditions occasioned by the fall. 100As I have described, Mrs Strike has a complex medical history with significant other morbidities. However, those other conditions meant that the effects of the aggravation of her left knee condition and her consequential loss of her mobility were that much greater for her to withstand. I have already found that it caused her to depart from the workforce three years earlier than she otherwise would have. 101I have described above Mrs Strike's statements as to the restrictions upon her day-to-day activities. There was some cross examination as to whether she was already restricted in enjoying them prior to the accident. I accept that there were some restrictions which would have worsened in time, but those restrictions became very significant very soon after the fall. The accident has taken her from the position of someone with medical difficulties with some affectation of her free movement to someone whose ability to move freely is radically diminished. Absent the fall she would have continued to derive enjoyment from the activities of everyday life such as shopping and participating in holidays for a considerable period, as she was doing on the day of the fall. After the fall she was robbed of any enjoyment of those activities whatsoever. 102I am satisfied that the severity of the non-economic loss occasioned by the fall is 27% of a most extreme case which satisfies the statutory minimum mandated by s 16(1) of the CLA. This corresponds to an entitlement to 10% of the maximum amount that can be awarded for non-economic loss (see the table in s 16(3) of the CLA).

Conclusions 103Accordingly I find the first defendant, Fiji Resorts, liable to Mrs Strike for negligence. There will be no deduction for contributory negligence. There will be a verdict for the second defendant against Mrs Strike. 104It will be necessary for the parties to confer and provide proposed short minutes and calculations which reflect the above findings and conclusions concerning damages, namely: (i)economic loss for a closed period concluding on 17 March 2010 taking into account the amounts for salary that I have identified in [81] above. The parties will need to provide brief submissions concerning whether or not Mrs Strike can recover an amount for the period from her accident up to the date of her resignation (see [82]); (ii)superannuation and interest on past economic loss (see [81]); (iii)an allowance for Medicare benefits of $8,051.65 (see [93]); (iv)the amount of damages attributable to the need to bring forward Mrs Strike's second knee replacement (see [96]); (v)an allowance for past chemists' payments to reflect the finding in [98] with interest; (vi)an amount for future payments to chemists to reflect the finding in [98] suitably discounted; and (vii)general damages as found at [102]. 105It will also be necessary for the parties to address the question of costs. They will need to give consideration to the appropriate order concerning Yanuca's costs including any Bullock or Sanderson order (Bullock v London General Omnibus Co [1907] 1 KB 264; Sanderson v Blyth Theatre Co [1903] 2 KB 533). In this respect I note two matters. First it may be relevant to whether any costs order is made to ascertain whether any costs were incurred by Yanuca separate to those incurred by Fiji Resorts in defending the claim. Second, if either party seeks to provide evidence concerning whether any offers that have been made, costs incurred separately by Yanuca or material which may have justified Mrs Strike in suing Yanuca, then it should be provided in accordance with the timetable set out below. 106In terms of orders, it is only appropriate that I make orders for directions for the filing of submissions and any further evidence on the issues that I have identified. I will list the matter for a mention date to determine whether the balance of the issues can be determined on the papers, or whether short further oral submissions are necessary. 107Accordingly, the Court orders: (1)On or before 9 November 2012 the Plaintiff and the Defendants file and serve: (a)proposed forms of order; (b)any further submissions on the matters identified in [82] and costs together with any calculations necessary to support the verdict sums identified in the proposed orders; (c)any affidavits in support. (2)The proceedings be adjourned for directions before Beech-Jones J at 9.30am on 15 November 2012.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2012