Thomas v AMP Capital Investors Limited

District Court of NSW|2016-11-16

Introduction

The plaintiff brings proceedings for damages arising out of an injury she suffered when she tripped over a "wheel stopper" in the car park of the Dapto Mall Shopping Centre, premises of which the defendant was the occupier.
The plaintiff alleges that the defendant was in breach of the duty of care owed to her by the defendant as the occupier of the car park to the shopping centre.
The plaintiff pleads the following particulars of negligence: 1. Failing to take reasonable care for the plaintiff's safety; 2. Placing the plaintiff in a position of peril in the circumstances; 3. Having a car park wherein tyre stoppers were located [sic] which had the potential to cause pedestrians to trip and fall; 4. Using concrete tyre stoppers in an area where it was known that pedestrians were likely to trip and fall; 5. Having a car park with tyre stoppers in close proximity to pedestrian walkways.

The circumstances of the plaintiff's accident

The plaintiff went to the defendant's shopping centre, where she regularly shopped, and entered the car park to park her car near the pedestrian walkway. When she found a good spot, she began to park her car. However, the car immediately to her right had parked so close to the white dividing line that she was obliged to position her car to the left of her space.

The issues in these proceedings

The issues on liability were identified by the plaintiff as follows: 1. Whether the relevant wheel stop constituted a hazard. 2. Whether in all of the circumstances permitting and inviting the plaintiff to use the car park with the relevant wheel stop placed where it was constituted negligence on the part of the defendant.
The defendant defined the issues on liability as follows: 1. What was the relevant risk of injury to the plaintiff. 2. Was that risk obvious (ss 5G and 5H Civil Liability Act 2002 (NSW)). 3. Did the defendant breach any relevant duty of care it may have owed to the plaintiff. 4. Did the defendant owe the plaintiff any relevant duty of care in relation to the design of the car park in view of the fact that the design and construction of the car park had been delegated to others. 5. Contributory negligence.
The parties had some difficulties agreeing upon what the issues were. Early identification of the issues in proceedings by parties is an essential part of personal injury litigation. The plaintiff's statement of issues did not identify defences under the Civil Liability Act 2002 (NSW) or contributory negligence. The defendant failed to serve any documents (including the statement of issues) in accordance with the Standard Orders for Hearing. When finally provided, the defendant's statement of issues inverted breach of duty and duty of care. However the defendant did identify the Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 argument as an issue, which the plaintiff did not do.
The issues that I consider to be relevant are: 1. Did the defendant owe the plaintiff any duty of care, and if so, what was it, with particular regard to any duty of care arising from the design of the car park when that design and construction had been delegated to others; 2. Whether the defendant breached any relevant duty of care that it may have owed to the plaintiff; 3. Issues of lighting, visibility and colour of the wheel stops (particulars (a) and (b) of the particulars of negligence in the statement of claim); 4. The relevant risk of injury to the plaintiff; 5. A consideration of the defences under ss 5F, 5G, 5H and 5I Civil Liability Act 2002 (NSW); 6. Contributory negligence; and 7. Damages issues, including causation.
I will deal with each of these in turn.

The colour of the wheel stops and the lighting

Although not identified specifically as a particular of negligence, it is clear from the statement of claim that the plaintiff described her accident as having been caused by three factors: "8. The plaintiff's vehicle was parked in such a way that the "tyre stopper" protruded beyond the driver's side of the vehicle for sufficient distance to permit the plaintiff's right foot to trip on it causing her to fall. 9. On or about the said date and time the lighting in the underground carpark area was very dim. 10. On or about the said date and time the colour of the tyre stopper was similar to the colour of the surface of the carpark." (Paragraphs 8-10 of the statement of claim)
The claims that lighting in the car park was very dim and that the wheel stop was similar in colour to the surface of the car park may be disposed of very quickly. The defendant called Dr John Cooke who provided a report dated 16 December 2014. Dr Cooke gave evidence and was cross-examined.
I will first set out the relevant portions of Dr Cooke's report in relation to lighting: "The level and suitability of the lighting in the car park Opinion: The level of lighting complied with the provisions in the BCA. The level of lighting was found to be between 107.2 lux and 124.4 lux on the top surface at the respective ends of the subject wheel stop, compared with the minimum of 20 lux required by the BCA. The quality of lighting was such that the wheel stops were clearly visible. Levels of illuminance on the first five wheel stops (shown in Photograph No 1 in Appendix A) were found to be at least four times the required minimum (ranging from 84.5 lux to 124.4 lux). Whether the lighting complied with Australian Standards and/or any other applicable codes or regulations Opinion: The lighting complied with the minimum level of 20 lux specified in AS/NZS 1680.0:1998, compliance with which is a BCA requirement, as discussed in the preceding paragraph." (Dr Cooke's report, 16 December 2014, pp 1-2)
In cross-examination, Dr Cooke explained that he had carried out these experiments at the same time of day as the plaintiff's injury had occurred. Accordingly, I am satisfied that this was the level of lighting in the car park. There was ample lighting for the plaintiff to see her way to her car.
This brings me to the issue of the colour of the wheel stop. In response to a Notice to Admit Facts, the plaintiff has admitted that the wheel stop was painted bright yellow. That is immediately apparent from all of the photographs which have been tendered.
The principal argument was, however, whether the size of the wheel stops contravened the relevant Australian Standards and whether they should have been placed in carspaces immediately adjacent to the pedestrian walkway where any person going off the walkway into the car park risk tripping on them.

The size and placement wheel stops

I shall first deal with the question as to whether the size and placement of the wheel stops is negligent at all. This requires an analysis of the evidence (including the expert evidence of Dr Cooke) in accordance with ss 5B and 5C Civil Liability Act 2002 (NSW).
The first question is a precise definition of the duty of care involved. As the occupier of the premises, the defendant owed the plaintiff a duty to take reasonable care to prevent injury to the plaintiff in the class of persons of which she was a member from the risk of tripping over what was acknowledged to be a potential hazard, namely wheel stops designed to stop motor vehicles, on the assumption that the plaintiff, as a member of that class of persons, was using reasonable care for her own safety: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.
The measure of the discharge of the duty involves a consideration of the checklist in s 5B Civil Liability Act 2002 (NSW). The inquiry therefore turns upon whether the defendant ought to have taken the precautions for which the plaintiff contends, in circumstances where consideration of the foreseeability of that risk, whether it was not insignificant and where a reasonable person in the defendant's position would have taken those precautions. That inquiry is not limited to what could have been done to eliminate, reduce or warn against the risk. It is necessary also to ask whether it would have been reasonable for the defendant to take those measures: Neindorf v Junkovic (2005) 222 ALR 631 at [93].
As the High Court pointed out in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [59]-[61] per Gummow J, the plaintiff must identify the risk of harm in which it is alleged the defendant was obliged to take the precautions in question.
The problem the plaintiff encounters here is that the risk of harm the plaintiff complains about is the "commonplace" (to use Dr Cooke's word) brightly coloured wheel stop, which any motorists (including the plaintiff) using the car park would be familiar with, was designed to stop motor vehicles being driven forward outside, or through, parking spots, in circumstances where pedestrians or other vehicles might suffer damage. The wheel stops function as a safety device in this regard. Their presence was obvious, by reason of the bright yellow colour of the paint and by the similarity of their position in every car space.
The first element in s 5B Civil Liability Act 2002 (NSW) is foreseeability (s 5B(1)(a)). There is no evidence of actual or constructive knowledge of the kind identified by the Court of Appeal in Port Macquarie Hastings Council v Mooney (2014) 201 LGERA 314. None of the factors identified in Port Macquarie Hastings Council v Mooney are present in this case. It was a simple matter for the plaintiff to walk around the wheel stop, as she knew it was there and it was painted in bright yellow, whether she saw it immediately prior to her accident or not. There is no evidence that the wheel stop was in an unusual place; they were positioned in exactly the same place all over the car park. The plaintiff must have walked past or across many of these brightly coloured wheel stops on her way to her car on this day alone, let alone on her many other visits to the car park.
On this basis alone, I am satisfied pursuant to s 5B(1)(a) that any risk of harm identified was not one about which the defendant knew, or ought to have known, or was not foreseeable.
I next note that the wheel stops were required to be positioned as a result of the Council's development consent and that Laing O'Rourke Australia Construction Pty Ltd certified that the wheel stops had been installed in accordance with AS2890.1. Those are additional reasons why I am satisfied that I am able to make this finding pursuant to s 5B(1)(a), but I am able to determine this issue without considering those factors.
This brings me to the second step in the analysis which a court must carry out of s 5B, namely to determine whether the alleged risk of harm was "not insignificant".
The plaintiff cannot establish this alleged risk was "not insignificant". The defendant was obliged to provide a car park for members of the public to use when carrying out their shopping. The placement of wheel stops was to minimise risk caused by vehicles accidentally rolling or driving out of the parking bays. The risk of any pedestrian not seeing and avoiding these commonplace wheel stops was insignificant, whether in the context of those greater risks or indeed independent of them.
The remaining issue is s 5B(1)(c), namely an analysis of the conduct of a reasonable person, in all the circumstances, when faced with the relevant risk of harm. While this requires a consideration of the factors set out in s 5B(2), that checklist is not exhaustive, and I add to my findings in relation to s 5B(2) the observation that a reasonable person in the position of the plaintiff would be to look where she was walking, whether she remembered making a particular note of the trouble she had had when parking or not, in that car parks notoriously have a series of safety systems designed to protect pedestrians from motorists, of which brightly coloured wheel stops in each car parking space was only one.
The plaintiff's claim is that the wheel stops were placed where they had the potential to trip, not because they were a hidden hazard, but because they were wrongly located according to the Australian Standards, in that they were placed in a position contrary to the requirements of the specifications, and where they could cause pedestrians to trip, and that the wheel stops were inconsistent with the appropriate standard and were thus too large. These appear to have been raised in relation to s 5B(2). I shall deal with each of these together.

The size and placement of the wheel stops in the car park

The car park where the plaintiff suffered her accident was modified after 2006. In relation to this work, the Development Consent from Wollongong Council specifically stated that the modifications for this 1049-car parking station should include wheel stops in accordance with AS 2890.1 and that "wheel stops must be installed in all vehicle spaces fronting a pedestrian footpath/walkway". (It should be noted that the plaintiff had parked her car beside one such walkway).
As is set out in paragraph 5A of the defence, the defendant contracted with a construction firm (to whom I will refer as "Laing O'Rourke") to carry out the work, including this work. On 26 October 2007 Laing O'Rourke issued a document entitled "Car Park Certification for Occupation Certificate" in which it certified that the car park and associated constructions were completed in accordance with the construction certificate documentation and the relevant Australian Standards (the defence notes that the defendant relied upon this certification: Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161). On 29 October 2007, Laing O'Rourke similarly issued a document entitled "Wheel Stop Compliance Statement for Occupation Certificate" in which it certified that the wheel stops in the Dapto Mall car park were installed in accordance with the construction certificate documentation and the relevant Australian standard (the defendant similarly relies upon this documentation).
The plaintiff submits that Sweeney v Boylan Nominees Pty Ltd may be distinguished because "the defect was obvious to the defendant for four years" (outline of submissions, paragraph 4). The "obvious" defect was that the wheel stop complied with the 1993 standard, but did not comply with the correct standard (namely the 2004 standard), in that it was too long by 280 mm. A shorter wheel stop would have been less likely to protrude into the path of the plaintiff and therefore be less hazardous. Additionally, the wheel stop over which the plaintiff tripped was not placed in a compliant position according to paragraph 2.4.5.4 (2) which stated that wheel stops should be avoided where they may be "in the path of pedestrians moving to or from parked vehicles", which would include vehicles parked in the bays beside pedestrian walkway, as persons alighting from such vehicles would have to pass the wheel stops in order to get to the walkway.
Dr Cooke, the expert retained by the defendant, set out his findings in relation to each of the challenges made by the plaintiff to the size and placement of the wheel stops (including the challenges to the lighting) as follows: "Whether the tyre stopper complied with Australian Standards and/or any other applicable codes or regulations Opinion: The wheel stop complied with the recommendations in AS 2890.1-1993 and AS/NZS 2890.1:2004 in respect of height and colour differentiation. The length of the wheel stop is 20 mm shorter than the minimum of 2 m recommended in AS 2890.1:1993 and 280 mm longer than the recommended maximum of 1700 mm in the current AS/NZS 2890.1:2004. It is not known whether the wheel stops were installed in the period when AS 2890.1-1993 was the relevant edition or after the 2004 edition had been published. The scope of the building works involved in the refurbishment of the carpark is relevant in that respect. The plaintiff's allegations of negligence in relation to the lighting and the tyre - Allegation: The tyre stopper was constructed in such a way that it protruded beyond the sides of a parked motor vehicle with the result that it posed a risk of harm to pedestrians due to its location thereby creating a tripping hazard. Opinion: The wheel stop will protrude beyond one or both sides of a small motor vehicle and will protrude beyond one side of a larger vehicle not parked centrally, depending upon the precise position of the vehicle in the parking space. The wheel stop does not impede a pedestrian's path of travel if reasonable care is taken. - Allegation: The plaintiff's vehicle was parked in such a way that the "tyre stopper" protruded beyond the driver's side of the vehicle for sufficient distance to permit the plaintiff's right foot to trip on it causing her to fall. Opinion: The length of the base of the wheel stop is 20 mm shorter than the minimum of 2 m recommended in cl. 2.4.4.4 of AS 2890.1-1993 (Appendix E) and 280 mm longer than the recommended maximum length in cl. 2.4.5.4 of AS/NZS 2890.1:2004 (Appendix D). A wheel stop with a length in compliance with either edition of the Standard may have one end or both ends protrude beyond the side of a parked vehicle, depending upon the position of the vehicle in the parking space. - Allegation: The lighting in the underground carpark area was very dim. Opinion: The level of illuminance was found to be more than five times the level of 20 lux required by the BCA. - Allegation: The colour of the tyre stopper was similar to the colour of the concrete surface of the carpark. Opinion: The wheel stop was painted bright yellow, providing a colour contrast in conformity with AS/NZS 2890.1:2004 cl. 2.4.5.1. - Allegation: Having a carpark wherein tyre stoppers were located which had the potential to cause pedestrians to trip and fall. Opinion: It is not possible to eliminate entirely the possibility that a pedestrian will trip on an obstruction such as a wheel stop. Wheel stops are used to protect pedestrians, vehicles or parts of buildings from being struck by vehicles as they are being parked. In this case the function of the wheel stops is to ensure that vehicles are not driven too close to, or across, the adjacent elevated walkway. - Allegation: Using concrete tyre stoppers in an area where it was known that pedestrians were likely to trip and fall. Opinion: The subject wheel stop is not on a general pedestrian pathway. It is not possible to avoid the use of wheel stops in some areas used by drivers or passengers of vehicles parked in bays with wheel stops. - Allegations: Having a carpark with tyre stoppers in close proximity to pedestrian walkways. Opinion: To function as a safety device to protect pedestrians it is appropriate for wheel stops to be positioned in close proximity to pedestrian walkways. The entire surface of a carpark is a potential pedestrian walkway, the majority of which is shared by vehicles. In this case, the wheel stops are not in close proximity to the adjacent marked and elevated walkway (Photographs Nos 1-4 in Appendix A)." (Dr Cooke's report, 16 December 2014, pp 2-4)
The plaintiff's submissions are misconceived. The wheel stops were installed in compliance with the construction certificate documentation and the Development Consent, which prescribed the 1993 standard (AS2890). That is sufficient for the defendant in accordance with the principles set out in in Sweeney v Boylan Nominees Pty Ltd.
The placement of wheel stops in close proximity to the walkways was similarly a requirement not only of the construction certificate documentation but also the Development Consent. The general provision that wheel stops should not be placed "in the path of pedestrians moving to or from parked vehicles" in paragraph 2.4.5.4(2) of the 2004 standard (which I note was not the standard directed for use in the Development Consent) needs to be read as being qualified by the particular provisions applying to specific works of this kind which are to be found not only in other provisions of the 2004 standard as well as in the Development Consent.
Counsel for the plaintiff put a number of alternatives to Dr Cooke, to the effect that the hazard of the wheel stops could have been easily avoided by widening the pathway in front to the point where the wheel stops were placed, with the kerb acting to stop the wheels in the same way the stoppers did, but without causing a tripping hazard. Dr Cooke firmly but politely rejected all these proposals.
I am satisfied, from Dr Cooke's evidence, that the risk of harm was not foreseeable to the defendant. The plaintiff's submissions as to foreseeability far-fetched and fanciful, not a risk which was "not insignificant". I am also satisfied that the defendant had no actual or constructive knowledge of a risk of harm. Even if the wheel stops had been installed in accordance with the wrong Australian Standard, all the plaintiff had to do was to look where she was walking for an expected and obvious hazard.
However, I am also satisfied that the wheel stops were in fact installed in accordance with the construction certificate documentation and AS2890.1 1993. I am satisfied that there is no tension between the apparent inconsistency between the Australian Standards and the requirement of the Development Consent from Wollongong Council of 4 September 2007 which provided that wheel stops must be installed in all vehicle spaces fronting a pedestrian footpath/walkway. I am satisfied that the Council requirements mean that such a car space must have wheel stops and that the plaintiff's submissions to the contrary are misconceived.
Accordingly the plaintiff has failed in relation to every element in s 5B.
The amended defence does not refer to s 5C Civil Liability Act. It does refer to ss 5F, 5G and 5H (obvious risk) and s 5I (inherent risk), and I note and agree with Mr Polin SC's submissions at paragraphs 9 - 18. There was, however, no pleaded failure to warn; these provisions appear to have been pleaded in response to the plaintiff's pleading that the wheel stops were not painted bright yellow but were the same colour (cement grey) as the concrete floor and thus indistinguishable. That claim has been abandoned and I was not addressed on issues of obvious risk, colour of the wheel stop or lighting by counsel for the plaintiff.

Conclusions concerning liability

I am satisfied that: 1. There is now no claim that the lighting was dim or that the wheel stops, which were painted bright yellow, were obvious; 2. The plaintiff was aware of the presence of the wheel stops and the risk, particularly since she had noted this in relation to her parking to one side when she arrived; 3. There is no evidence of prior incidents or of knowledge on the part of the defendant of any risk of any kind; 4. The wheel stops were correctly positioned in relation to the development consent and certified by Laing O'Rourke in accordance with AS 2890.1; 5. The plaintiff fell because she failed to look where she was walking and this failure, rather than the position of the wheel stop, was the cause of her accident.

Contributory negligence

If I have erred in my findings as to liability, I note counsel for the defendant's submission that the plaintiff's answer at T 65.45, which is set out above, would warrant an assessment at 100%.
The plaintiff saw the wheel stop when she got out of the car and made a mental note to be careful on her return because she had parked slightly to one side. There was nothing to distract her when she returned. The fact that another car was parking next to hers posed no danger to her. The fact that she could not see straight down to her feet is irrelevant, because she could see forward without difficulty, and the brightly coloured wheel stop was both highly visible due to its colour and the level of lighting in the car park but an expected hazard which she was used to seeing. She tripped because she was not paying attention to where she was walking and was smiling at the driver of the other vehicle.
The plaintiff had particular reason for needing to be careful when she walked because, as her medical history as set out below demonstrates, she had a very long history of falls. In addition, she had just taken oxycontin for her knee pain. She failed to have any regard for her own safety in a car park where she needed to look where she was going (T 65).
Taking any one of the above factors into account would warrant a very high assessment for contributory negligence but taking into account her acknowledgement of failing to look where she was going, I accept the defendant's submission that 100% is warranted.

Damages

The following particulars of injuries are pleaded: 1. Comminuted fracture of the right shoulder; 2. Injury to right arm; 3. Injury to neck; 4. Injury to right knee; 5. Shock; 6. Aggravation of pre-existing anxiety disorder.
The plaintiff pleads the following particulars of continuing disabilities: 1. Pain, discomfort and restriction of movement of the right shoulder; 2. Pain, discomfort and restriction of movement to the right arm; 3. Pain, discomfort and restriction of movement to the neck; 4. Pain, discomfort and restriction of movement to the right knee; 5. Possible need to undergo surgery to repair damaged right shoulder; 6. Need for ongoing medical treatment; 7. Loss of enjoyment of life; 8. Interference with ability to engage in pre-accident social and recreational activities; 9. Restriction in ability to drive; 10. Increased anxiety; 11. Interference with ability to perform tasks of a personal and domestic nature; 12. Onset of rotator cuff injury to left shoulder as a result of overuse consequent on loss of use of right arm; 13. Probability future aggravation of left shoulder injury and other injury to left arm as a result of loss of use of right arm; 14. Impairment with ability to use walking frame in the circumstance of needing to support the spine to achieve mobility; 15. Ongoing aggravation and degeneration of spinal condition caused by inability to support body mass symmetrically when using upper extremities.
The plaintiff is 76 years old and suffers from a constellation of medical problems. The defendant has provided in excess of 500 pages outlining the plaintiff's medical history since 1996 (Exhibit 3) which include: 1. Severe (Dr Limbers, 7 July 2005) osteoarthritis and osteoporosis of long standing; 2. Right hip replacement (2002) and a recommendation of a left knee replacement. The plaintiff had taken oxycontin for her knee pain shortly before her fall (Shellharbour Hospital emergency report 8 April 2011); 3. Recommendations for replacement of both knees; 4. A long history of falls, some of which (for example 20 May 2005) appear to involve fractures; 5. Severe depression (since 2001), anxiety and other difficulties requiring medication from 2003 (Aurorix), including claustrophobia.
These problems have continued since the plaintiff's accident. Unrelated health problems set out in the defendant's 32-page summary of her health problems since the accident include: 1. Arthritic changes to the plaintiff's cervical spine and increasing lumbar spine problems resulting in decompression (L4/5) and laminectomy (L5/S1) in October 2015, reducing her mobility to using a walker; 2. Problems with the plaintiff's right hip replacement; 3. Suspected fracture of the left knee and continuing knee problems (the plaintiff refused to undergo knee replacement surgery); 4. Supraspinatus tendon tear (25 March 2014).
The plaintiff came to court using a walker, which she has had to use since her spinal surgery. These proceedings had to be heard in a ground floor court because of her claustrophobia and inability to use lifts.
The plaintiff currently receives home care, but the list of disabilities and symptoms set out by Mona Vale Hospital (23 November 2015, page 34) and other home care providers are lengthy. The plaintiff's injuries in these proceedings form only a small part of the whole picture.
The plaintiff's daughter gave evidence about the impact of the injury on her mother. She presented as a loving daughter trying to do her best for her mother, but she was unable to identify how it was that, among the many other medical problems her mother had, the injuries the subject of these proceedings had impacted on her mother's ongoing health and need for assistance.

Plaintiff's schedule of damages

The plaintiff has provided the following schedule of damages: Non-economic loss $136,500 (30%) [Note: this figure should be $139,000 after 1 October 2016] Past out-of-pocket expenses $5396.05 Future out-of-pocket expenses $25,000 Past economic loss Nil Past superannuation Nil Future economic loss Nil Future superannuation Nil Past paid domestic assistance $TBC Future commercial domestic assistance $142,911 (6 hours per week at $45 per hour) (5% multiplier 529.3 based on 14 years life expectancy) Total (plus party/party costs) $309,807.05 plus past paid care and party/party costs (Note the correct figure, if applying the post 1 October 2016 economic loss figure should be $312,307.05)

Defendant's schedule of damages

The defendant estimates damages as follows: Non-economic loss (20% MEC) $21,000 Past out-of-pocket expenses To be verified Future out-of-pocket expenses Nil Past domestic assistance Not claimed Future domestic assistance Nil

Observations concerning damages

In view of my findings as to liability, my observations on damages are brief.

Non-economic loss

As to non-economic loss, while it is the case that age is only one of numerous factors to take into account, it nevertheless remains a factor of some importance. In Varga v Galea [2011] NSWCA 76 at [72]-[74], McColl JA stated: "[72] Reece v Reece states the uncontroversial proposition that the plaintiff's age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed). [73] Age, however, is only one of the numerous matters the court takes into account in its assessment of non-economic loss, which is defined in s 3 of the 2002 Act as follows: "non-economic loss" means any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement. [74] The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a "most extreme case". In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71-72) remain cogent: Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables. As Handley JA observed in Dell v Dalton (1991) 23 NSWLR 528 (at 532), although Windeyer J was in dissent, this passage "reflected the previous law"."
McColl JA went on to note at [83]: "[83] As to the future, in particular, her Honour only awarded the appellant future economic loss to age 67 and found he had some residual earning capacity. In those respects her Honour, in my view, clearly accepted the respondents' submissions. The respondents cannot demonstrate error when the primary judge accepted their submissions. I discern no error in her Honour's reasoning as to the past. The appellant's statement about "normal activities" clearly related to life's daily travails, not the hard labour of a bricklayer's toils."
As is set out below, the plaintiff suffered a significant fracture of the right clavicle which did not unite. She already suffered considerable physical medical problems, including the need for another hip replacement and two knee replacements as well as ongoing depression and anxiety.
However, following her fall, she continued to live alone. She continued to be able to undertake domestic tasks, although in a modified and slower fashion. She continued to play bingo (T 76). There is no claim for past domestic assistance.
As is set out below, what changed the plaintiff's life was that in mid-2015 she suffered a severe deterioration of her unrelated back condition, which resulted in surgery and lengthy hospitalisation as well as ongoing disabilities from which she is still recovering.

The plaintiff's orthopaedic injuries

The plaintiff saw Dr Robin Higgs on 5 May 2014, who provided a report of 7 May 2014. Dr Higgs provided the following diagnosis and opinion: "DIAGNOSIS & OPINION My consideration of the history, my consideration of the clinical findings, and my consideration of the investigatory evidence has caused me to conclude that Ms Thomas has suffered from, and continues to suffer from, the following orthopaedic condition(s) - - Ms Thomas has suffered a grossly displaced fracture of the right clavicle. The lady has also suffered a tear of the right supraspinatus tendon. These injuries were suffered in the fall that occurred outside the Dapto Shopping Centre mall. The injury incident has been described in earlier sections of this report. As a consequence of her fall, Ms Thomas continues to suffer from a restricted range of motion that is associated with the suffering of the fracture of the right clavicle. The lady also continues to suffer from pain and I have formed the conclusion that Ms Thomas' fracture has not yet soundly united. It is evident that Ms Thomas does suffer from a significant impairment of her right upper extremity function that is associated with a restricted range of right glenohumeral joint motion. It is evident also that the lady suffers from permanent bodily disfigurement that can be associated with the gross deformity that has been associated with the fracture. … In summary, I have formed the conclusion that there is a direct relationship or causal nexus between the injury incident that occurred on or about 08/04/11 and Ms Thomas' present condition." (Exhibit A, Dr Higgs' report, 7 May 2014, pp 5-6)
The plaintiff also attended Dr John Bentivoglio on 16 June 2014, who provided a report on the same day. Dr Bentivoglio provided the following diagnosis and opinion: "DIAGNOSIS & OPINION This lady would have sustained a comminuted fracture of her clavicle in the incident she described. Her treatment has been appropriate. The fracture has united uneventfully. She has been left with some degree of deformity and some ongoing symptoms as a result of this injury. She is not at risk of developing degenerative osteoarthrosis present in her shoulder at a later stage but will continue to experience symptoms present in her shoulder probably indefinitely." (Exhibit A, Dr Bentivoglio's report, 16 June 2014, p 3)
The plaintiff also saw Dr Y Kai Lee on 3 November 2016, who provided a report on the same day. Dr Lee described the plaintiff's injuries as follows: "3. The nature and extent of the injuries sustained by our client. The osteoarthritic changes in the right shoulder seen on x-ray was longstanding. It probable [sic] pre-dated the fall. She was, however, asymptomatic prior to the fall and this is quite common. The fracture clavicle and the subsequent non-union would definitely aggravate her shoulder arthritis. She had laminectomy in May 2015 for spinal stenosis. She only complained of pain around 2014/5 and on face value, it would have nothing to do with the fall. The degeneration and spinal stenotic changes in her spine and these changes would pre-date the fall. From the series of x-ray reports, she only had compression fracture seen at L4 and developed L1 and L3 fractures in the x-rays in 2016. It is conceivable that her bone would be quite osteoporotic and susceptible to fracture. The L4 fracture could have been caused by the fall directly or secondary to weakening of the bone subsequent to the fall. It is possible that without the fall, it would have taken longer for her to reach the stage requiring laminectomy." (Exhibit A, Dr Lee's report, 3 November 2016, p 4)
The plaintiff consulted the defendant's expert, Dr Roger Pillemer, on 5 January 2015, who provided the following diagnosis: "DIAGNOSIS: Ms Thomas sustained injuries to her right shoulder region on 8 April 2011, now some 3 years and 9 months ago when she fell in a carpark of a shopping centre. She sustained a fracture of the distal clavicle on the right side with widespread separation of the fragments and the fracture has now gone on to non-union. As noted, surgery was offered to Ms Thomas but she was reluctant to consider this. I also note that an investigation apparently showed that she had also sustained a tear of her rotator cuff (supraspinatus tendon). As noted, Ms Thomas has developed significant discomfort in her neck in the last couple of years and according to the history and the notes forwarded to me has had intermittent neck problems over the years. As noted, she has also developed paraesthesiae in her right arm in the last few months. It is difficult to determine whether these symptoms are referred from her neck or due to her local carpal tunnel problem and further investigations would be indicated in this regard. In my opinion these latter symptoms in her neck and her hand would not be related to the fall in April 2011. … PROGNOSIS: … In answer to your specific questions not covered in the body of my report: - In my opinion the only ongoing problems in relation to the injury on 8 April 2011 are the ununited and significantly displaced fracture of the outer end of her right clavicle causing ongoing shoulder discomfort as well as a probable rotator cuff repair with residual weakness and restriction of movement of her right shoulder region. - For the reasons suggested above, I would not relate her neck symptoms nor the symptoms in her right hand to the fall in April 2011. - In addition, Ms Thomas had problems with her knees but she did not aggravate the longstanding problems with her knees at the time of her fall. - In my opinion the treatment she has had including the use of a sling and physiotherapy and her ongoing medications are both reasonable and necessary. - In my opinion no further treatment would be indicated as a result of the injury on 8 April 2011, apart from her ongoing oral medications and seeing her general practitioner intermittently. - With regard to her fitness for pre-accident domestic tasks and chores, as noted, Ms Thomas informs me that despite the problems with her knees she was fully mobile and able to do all her own housework and also do her daughter's housework. She is now moderately restricted, as noted above. - Ms Thomas is obviously a very well-motivated person and was managing with her housework with some assistance for a time but with the development of her other symptoms and the increasing problems with the symptoms in her neck and the increasing problems with her knees she does require more assistance with home duties. In my opinion if it was only for the shoulder injury she would require assistance with home duties noting that prior to the fall she was able to manage all her home duties without a problem and also look after her daughter's house. She has been restricted ever since her fall in April 2011. - I agree with Dr Higgs' report (of 7 May 2014) that Ms Thomas has a grossly displaced fracture of her right clavicle and tear of her supraspinatus tendon and that the fracture has not united. Dr Higgs queried whether or not Ms Thomas had Post Traumatic Stress Disorder but this would be out of my field of expertise. - I disagree with the report of Dr J Bentivoglio, of 16 June 2014, who suggests that the comminuted fracture of the right clavicle has "united uneventfully" with some degree of deformity, noting that the fracture has gone on to non-union. - In my opinion there is no possibility of any improvement in the symptoms arising from the fracture of her right clavicle. - In my opinion Ms Thomas presents in a very straightforward and open fashion although I have some difficulty in accounting for the very diffuse hypoaesthesia to pinprick of the whole of her right upper limb and the marked weakness of grip strength on the right side." (Exhibit 1, Dr Pillemer's report, 5 January 2015, p 3-5)
The plaintiff consulted Dr Pillemer again on 27 September 2016, who provided an updated report on the same day, saying: "My opinion regarding Ms Thomas remains similar to that expressed previously, namely that she sustained a fracture of the distal clavicle on the right side at the time of her fall on 8 April 2011, with widespread separation of the fragments as well as a non-union. She remains with discomfort in this region and pressure on the elevated clavicle does cause her discomfort. However her main problems with her right shoulder region are due to the Grade IV osteoarthritic change in the glenohumeral joint, and it is very difficult to try and determine when this might have occurred. I think it is very unlikely that it is due to the fracture of the distal clavicle but the fall would certainly have aggravated any underlying osteoarthritic change. Certainly seeing original films that were taken at the time of her fall in April 2011 would be very helpful in determining the extent of any osteoarthritic change that may have been present at the time. In addition she has evidence of advanced cervical spondylosis and also has residual restriction of left shoulder movement as noted, as well as restriction of wrist movement and she has also been diagnosed with having polymyalgia. In addition she has evidence of advanced cervical spondylosis and also has residual restriction of left shoulder movement as noted, as well as restriction of wrist movement and she has also been diagnosed with having polymyalgia. In addition Ms Thomas has recently had spinal surgery. With regard to the paraesthesias in her right arm, in my opinion she now has clear evidence of a carpal tunnel syndrome with median nerve involvement. As noted the right biceps jerk was slightly depressed and a C6 cervical nerve root lesion could cause sensory changes in a similar distribution to the median nerve, but I would be very confident that she does in fact have a carpal tunnel problem on the right side. As far as attributability is concerned, in my opinion the ongoing problems with her right clavicle are due to the fall on 8 April 2011, and I think the most likely explanation with regard to her right shoulder, would be that the fall aggravated an underlying osteoarthritic condition. She now has advanced osteoarthritis of her right shoulder which is the main cause of the problems in her right arm. In addition she has clear evidence of a significant carpal tunnel syndrome on the right side."
The plaintiff puts the non-economic loss at 30% (although counsel for the plaintiff, in closing submissions, invited me to award more) and the defendant at 20%.
This was a significant fracture in a woman whose mobility was significantly affected. If I were to award damages, I would assess her as having a whole person impairment, in relation to this injury, of 25%.

Home care

There is no claim for past home care and the claim in the future is for 6 hours a week for a 14-year life expectancy.
There is no occupational therapist report differentiating between the care needs that the plaintiff has for this injury and for her other ongoing disabilities. As the New South Wales Court of Appeal noted in Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 at [93]: "[93] … On what basis the orthopaedic surgeon assessed the number of hours per week required to undertake domestic duties and gardening was not revealed. It is not the kind of "expertise" which is normally attributed to orthopaedic surgeons. The evidence was clearly inadmissible, although not objected to, and should be given no weight at all. Why the court was taken to it is obscure."
Without such evidence, the plaintiff cannot establish with any precision the precise amount of future domestic assistance she requires.
Having regard to the difficulty she would have reaching the threshold, the plaintiff must establish need for commercial care services and that gratuitous care is unavailable.
The plaintiff's daughter gave evidence. She has clearly done a great deal for her mother gratuitously, and continues to do so. The plaintiff also receives three hours per week assistance from Community Care (Northern Beaches) Limited in relation to her ongoing disabilities arising from her unrelated 2015 surgery. Counsel for the plaintiff acknowledged that this assistance related to those problems. There is no breakdown of the evidence to identify any part of that paid assistance to the plaintiff's shoulder; the precipitating factor is her back surgery.
I would not be satisfied, on this evidence, that the plaintiff has established that in the future others would be engaged to provide additional commercial assistance by reason of her right shoulder injury only. The facts in this case are similar to Sampco Pty Ltd v Wurth [2015] NSWCA 117 and, as the Court noted at [105], in the absence of "precise evidence" (at [103]) and in circumstances where others are already performing these tasks or family members are assisting, that is insufficient for an award.
Accordingly I would not have been prepared to award any sum for future home care.

Past and future medical expenses

The plaintiff seeks a cushion of $25,000 while the defendant submits there are no medical costs.
Dr Bentivoglio is of the view that physiotherapy would not be an appropriate for the plaintiff's shoulder: "6. The need for, nature of and the cost of future treatment and medication This lady was taking significant medications for degenerative osteoarthrosis present in her knee and she does not require any further medication as a result of this injury. In the past (once the fracture had united) she probably would have benefited by having some degree of physiotherapy to her shoulder. At this late stage however it is not appropriate for her to undergo any physiotherapy as it will not alter her symptoms." (Exhibit A, Dr Bentivoglio's report, 16 June 2014, p 4)
As noted by Dr Bentivoglio and other medical practitioners, the plaintiff was already taking pain medication at the time of the accident. No other form of treatment is appropriate.
The plaintiff's shoulder injury may require ongoing checking or complicate her other significant disabilities and this may require consideration in relation to other treatments. Accordingly a cushion of $5,000 should be awarded in relation to the need for parts of future medical appointments and the percentage of pain medication necessary for management of this condition in relation to her many other medical problems.

Costs

Costs should follow the event. I have granted liberty to apply.

Orders 1. Judgment for the defendant. 2. Plaintiff pay defendant's costs. 3. Liberty to apply in relation to costs. 4. Exhibits retained for 28 days.

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: 13 December 2016

(2014) 201 LGERA 314

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Judgment (19 paragraphs)

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Legislation Cited (1)

Cases Cited (12)