Walker v Portmans Pty Ltd

District Court of NSW|2008-11-28

CITATION: Walker v Portmans Pty Ltd [2009] NSWDC 46

DECISION: 1. Verdict and judgment for the Plaintiff in the sum of $544,059. 2. Defendant to pay the Plaintiff's costs.

CATCHWORDS: TORTS - occupier's liability - Plaintiff was tripped by an electrical cord within the Defendant's retail premises - cord pulled taut by a store employee using a vacuum cleaner without first warning the Plaintiff who was in the process of stepping over the cord - whether contributory negligence established - DAMAGES - assessment of multiple heads of damage.

Ghunaim v Bart [2004] NSWCA 28 Golden Eagle International Trading Pty Ltd & Anor v Zhang & Anor [2007] HCA 15; (2007) 229 CLR 498 CASES CITED: Insurance Australia Limited v Helou [2008] NSWCA 240 Jones v Dunkel [1959] HCA 65; (1959) 101 CLR 298 Purkess v Crittendon [1965] HCA 34; (1965) 114 CLR 164 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

PARTIES: Margaret Walker (Plaintiff) Portmans Pty Ltd (Defendant)

COUNSEL: Mr R Tonner (Plaintiff) Mr S Maybury (Defendant)

SOLICITORS: Grahame W Howe & Co (Plaintiff) HWL Ebsworth (Defendant)

The Plaintiff, who was aged 63 years when injured and almost 66 years at trial, claims damages for personal injuries which she sustained in a fall on 5 July 2006 when, as a customer, she was walking within the Defendant's retail store. She claims that without warning she was tripped whilst stepping over an electrical vacuum cleaner cord that was laying loose on the floor. The Plaintiff claims that as she proceeded to step over the cord it was pulled taut by an employee of the Defendant when that employee commenced to operate a vacuum cleaner in the premises.

The following issues arise for determination: (a) Did the Defendant breach its duty of care to the Plaintiff;

(b) If the Defendant was in breach of its duty of care, was there contributory negligence on the part of the Plaintiff;

A total of nine claimed heads of damage required assessment. These are listed below together with paragraph references:

Head of Damage Paragraphs (a) Non economic loss [69] - [71] (b) Past loss of earnings [72] - [74] (c) Future loss of earning capacity [75] - [85] (d) Past loss of superannuation [86] (e) Future loss of superannuation [87] (f) Past domestic or attendant care [88] - [96] (g) Future domestic or attendant care [97] - [105] (h) Future treatment [106] (i) Past out-of-pocket expenses [107]

The parties reached agreement on a number of components of the damages claim which served to narrow the issues for determination.

I find that the Defendant was in breach of its duty of care to the Plaintiff. I find that the Plaintiff had taken reasonable care for her own safety and I find that the Defendant has failed to establish that there was any contributory negligence on the part of the Plaintiff. I assess the Plaintiff's damages in the sum of $544,059.

Liability witnesses (a) The Plaintiff; (b) Miss Melodee Hadfield, a co-manager employed at the Defendant's store; (c) Miss Belinda Underwood, a co-manager employed at the Defendant's store;

(d) The Plaintiff; (e) Mr Robert Walker, the husband of the Plaintiff.

The Plaintiff tendered a bundle of medical and allied reports from her treating clinicians. No oral evidence was called from these persons.

At the request of the Defendant, the Plaintiff was medically examined by Dr Roger Pillemer, a consultant orthopaedic surgeon. Dr Pillemer's report was neither served nor tendered. I infer from the absence of the tender of his report that its contents would not have relevantly contradicted the reports of the medical evidence tendered by the Plaintiff in the proceedings : Jones v Dunkell [1959] HCA 65; (1959) 101 CLR 298.

The disputed facts were in relatively short compass and essentially centred around whether or not the Plaintiff had been warned about the impending operation of the vacuum cleaner and the likely movement of the cord attached to it as she walked through the Defendant's store.

At about 9.15am on Wednesday 5 July 2006 the Plaintiff entered the Defendant's retail clothing store situated within the Glasshouse complex in Pitt Street Sydney.

As the Plaintiff entered the store she noticed that there was a trailing electrical cord that lay loosely on the flat surface of the polished concrete floor of the premises. As the Plaintiff walked between clothing racks displaying merchandise she proceeded to step over this cord. At that time an employee of the Defendant pulled the cord taut when she commenced to operate a vacuum cleaner to which the cord was attached. This occurred whilst the Plaintiff was in the process of stepping across the cord.

As a result of these events the Plaintiff was tripped by the cord as it was pulled taut. Her foot then became caught as she stepped forward to walk over it. The Plaintiff then lost her balance and fell forward onto the hard concrete surface of the floor. The Plaintiff fell onto her knees and onto her outstretched arms and hands.

One of the co-managers present in the store at the time, Miss Hadfield, said that when the store had opened on the day in question she was going around checking stock whilst another employee named Carmen was upstairs "probably doing stock" whilst her co-manager, Miss Underwood, was vacuuming the floor. Miss Hadfield stated, and I accept, that at the time the incident occurred it was not usual practice for the Defendant's employees to vacuum the floor whilst the store was open for the entry of customers.

Following the Plaintiff's fall a number of the Defendant's employees came forward to assist her to sit in a chair. They gave her some water and some cream was obtained to apply to the developing bruises on her knees. The Plaintiff then remained in the store for a short period of time. During this time an injury report form was produced and completed by both the Plaintiff and the Defendant's employees. That form, which was described as a Health & Safety Incident, Hazard & Injury Register, was admitted into evidence as Exhibit "A". At the time the incident occurred there was no sign or other devices placed within the premises to draw the attention of customers to the fact that vacuum cleaning activity was being or was about to be carried out within the store.

The Plaintiff's evidence was that she was not given any verbal or other warning of the presence of the cord by any staff member. The absence of a warning along those lines was not relevant as the Plaintiff said that she had seen the cord in question as she walked within the store. More importantly, the Plaintiff's evidence was that as she proceeded to walk further into the store she received no warning of any kind to the effect that the vacuum cleaner was about to be operated, including any warning that a store employee was about to pull on the cord attached to the vacuum cleaner.

The evidence of the Defendant's employees was to the effect that a warning was given to the Plaintiff as she initially entered the premises and then again subsequently. The evidence called by the Defendant was also to the effect that the sound of the vacuum cleaner being used was audible. This evidence, if accepted, was in any event of limited relevance because the Plaintiff was hard of hearing. The Plaintiff disputed the evidence of the alleged fact and content of the alleged warning.

When Miss Hadfield was asked about the conversation she had with the Plaintiff around the time the Plaintiff initially entered the store she said "Yeah we would have told her to watch the cord". The terms of that evidence raised a doubt as to whether words to that effect were actually said or whether Miss Hadfield thought they were said. She went on to explain "… because we were vacuuming and like when you have to make sure that if anyone comes in make sure they're not going to go near it, to be aware". When asked whether that account was based on her understanding of what was usual practice or was based on an actual conversation that had taken place, she said she knew she had said "watch the cord". She gave this evidence based on her memory of the events over two years after the fall, having never made a written statement about the matter after she had filled out the form comprising Exhibit "A" on the day in question.

When Miss Underwood gave evidence she said that she could not remember the date of the incident however she recalled that she had been vacuuming. She said "I do remember notifying the lady that we did have the vacuum cleaner on and for her to mind the cord". She later said she did not remember the actual words she had used.

She also said she had heard that Miss Hadfield had "notified the lady also of the cord and the vacuum cleaner" but she could not remember the exact words used.

Significantly, neither of the witnesses called by the Defendant gave any evidence from which it could be reasonably inferred that the Plaintiff had acknowledged and therefore had understood the terms of any such alleged warning.

Consistent with the evidence of Miss Hadfield, Miss Underwood agreed that vacuuming activity was normally carried out by the Defendant's staff before the store was opened for the entry of customers. Miss Underwood agreed that on this occasion she had only half finished the vacuuming when the doors of the store were opened. In other words, unusual activity for retail premises was being carried out at the time.

Miss Underwood said her first awareness of the Plaintiff's injury was when she felt the pull of tension or pressure on the cord from behind. This occurred whilst she was facing away from the Plaintiff and whilst she was vacuuming. She could not recall the distance between herself and the Plaintiff when she turned and "noticed". Her attempt at an explanation of what it was that she "noticed" was cut off by the cross-examiner's next question and the issue was not followed-up or clarified by further questions. I infer from the context of the questions and answers that Miss Underwood had noticed the Plaintiff only after she had fallen.

Miss Underwood claimed she had given the Plaintiff two warnings about the cord. She claimed that probably 10 minutes or so had passed between these alleged warnings. Miss Underwood said she had only been notified on the previous Friday before the hearing had commenced that she was required to give evidence at the hearing i.e., about a week before the hearing. There was no evidence as to whether or not her evidence was based on her unaided recollection or whether it was based on a refreshed memory.

I gained the impression that the evidence of both Miss Underwood and Miss Hadfield was not accurately grounded in fact but was given on the run as it were. In particular, the evidence Miss Underwood gave as to the two warnings allegedly given to the Plaintiff only emerged in cross-examination when she felt she was under attack and when she became hesitant and tearful in giving her answers. Mr Maybury conceded that Miss Underwood had become confused with regard to aspects of her evidence. He submitted that she nevertheless gave her evidence to the best of her ability. Whilst this was undoubtedly the case, reservations as to the accuracy of the evidence of both Miss Hadfield and Miss Underwood arose and needed to be weighed when comparing their evidence with the evidence given by the Plaintiff.

Significantly, each of the Defendant's employees who gave evidence agreed that whatever the content of the warning that they believed had been given to the Plaintiff, no indication was given to the Plaintiff to warn her that the cord on the floor was about to be tensioned, moved and made taut because the vacuum cleaner to which it was attached was about to be operated.

Of the competing versions within the evidence as to whether or not the Plaintiff had been warned about the cord I prefer the evidence of the Plaintiff to the evidence of Miss Hadfield and Miss Underwood. I have come to this view for a number of reasons.

First, the Plaintiff's account was inherently reasonable and had the ring of truth about it. Secondly, I accept that the Plaintiff's recollection of the events was accurate compared to the evidence given by the employees of the Defendant. In my view the fact of her injury and its aftermath meant that the Plaintiff had a very good reason to maintain good recall of the events whereas the two witnesses called by the Defendant had no such reason for maintaining an accurate memory of the events. Indeed it appears that they, or at least one of them were only advised shortly before the hearing that they would be required to give evidence. It was conceded that these witnesses had not given statements even though they had been asked to do so. Their evidence was not in clear terms but was hesitant, consistent with uncertainty as to the accuracy of the content. Thirdly, there is no evidence that when the employees of the Defendant gave their evidence they had refreshed their memories beforehand. My impression of the evidence of Miss Hadfield and Miss Underwood was that in both cases their evidence was based on an inaccurate reconstruction of the events long after any true memory they may have had of the event had faded.

I find that when the Plaintiff entered the Defendant's premises she saw the cord laying still on the surface of the polished concrete floor. I find that at that time the cord was laying in a loose and untensioned state. I find that at that time the Plaintiff then commenced to step over the cord in order to gain access to the portion of the store she was interested in viewing. I find that in doing so she had acted reasonably and with due care for her own safety at that time, evidenced by the fact that she saw the cord and evidenced by the fact that she intended to step over it.

I find that what next occurred was that an employee of the Defendant pulled on the vacuum cleaner cord and tensioned it when commencing to vacuum and this occurred as the Plaintiff was in the course of stepping over the cord. I find that this occurred in the absence of any notice or warning to the Plaintiff either in relation to the presence of the cord or of the impending operation of the vacuum cleaner and the impending movement of the cord. The result was that the Plaintiff was tripped, thereby losing her footing and balance which thereby caused her to fall and sustain bodily injury.

Was the Defendant in breach of its duty of care to the Plaintiff?

I find that the Defendant owed the Plaintiff a duty of care that included the obligation of exercising reasonable care to ensure that the Plaintiff would be kept safe from tripping as a result of movement of the vacuum cleaner cord which was laying on the floor at a time when vacuuming activity was not usually undertaken in the store. In my view, in the event that the Defendant decided it was appropriate to vacuum the floor of the premises at a time when customers were likely to be entering and walking within the premises including walking over the vacuum cleaner cord, the employees of the Defendant should have taken steps to ensure that the Plaintiff was warned of the impending tautening of the cord when vacuuming was about to commence.

I find that the Plaintiff's fall occurred as a result of a breach of duty of care on the part of the Defendant by its employees who were in the store at the time. I have come to this view for a number of reasons.

First, I consider that it was reasonably foreseeable that the activity of vacuuming of the floor of retail premises during normal retail trading hours posed an inherent danger to customers in that it exposed them to the risk of being tripped by unexpected movement of the vacuum cleaner cord whilst walking within the store to look at racks of merchandise on display and for sale.

Secondly, no warning signs, notices or "witches' hat" type warning cones or sign board stands had been placed at strategic points either at the entrance to the store or at specific vantage points within the store itself to warn of the potential risks posed to customers by the use of a vacuum cleaner in the store. In my view the absence of such measures combined with the commencement of vacuuming created the risk that if the cord was being moved and tensioned then nearby customers walking near the clothing racks would receive no warning of that prospect occurring.

Thirdly, although the Defendant's employees saw the Plaintiff enter and walk within the premises, I find that they issued no specific verbal warning to the Plaintiff to indicate that vacuuming, and therefore vacuum cleaner cord movement was about to occur. Had such a warning been drawn to the attention of the Plaintiff in my view the Plaintiff would have been on the lookout for cord movement as she walked within the store and would have thereby avoided injury. Even though I have not accepted that verbal warning was given, I consider that in these circumstances a verbal warning without more would have been insufficient to discharge the duty of care owed.

In these circumstances I find that the Defendant was in breach of its duty of care to the Plaintiff and was therefore negligent. I find that such negligence was the cause of the Plaintiff's injuries. I am reinforced in that view by the content of the handwritten entry in Exhibit "A" which refers to rectification to be undertaken by the Defendant following the occurrence of the incident, namely, the suggestions to "vacuum before open".

I find that the Defendant has not discharged the onus of proof concerning its assertion that the Plaintiff's fall and her resultant injury was caused by alleged contributory negligence on the part of the Plaintiff.

I have come to this view because I am not persuaded that it was made known to the Plaintiff that the vacuum cleaner cord that was laying loose on the floor was about to be pulled taut whilst the Plaintiff was walking within the vicinity of the cord. In my view, a customer entering a retail store during normal trading hours is reasonably entitled to assume, without notice to the contrary, that vacuum cleaning activity would be undertaken before the commencement of normal trading hours, which in this instance, was 9.00am. In these circumstances I find that it was reasonable for the Plaintiff to have assumed, in the absence of notice of impending cord movement, that the loose and stationary cord would remain still as it lay on the floor so that it was safe for her to step over it whilst it remained in that state.

I find that in the circumstances the Plaintiff acted reasonably by observing that the cord was not taut or moving before she commenced to step over it. It was the unexpected movement of the cord which caused the Plaintiff to fall, not any failure on the Plaintiff's part to keep a proper lookout for her own safety. In my view the Plaintiff took reasonable care for her own safety by first seeing the cord and secondly, carefully stepping over it whilst observing it to remain still. The only matter of causative relevance that then intervened in this course of events was the unexpected movement caused by the employee pulling on the cord without prior warning. I therefore reject the argument that there was contributory negligence on the part of the Plaintiff.

The Plaintiff was born in 1943. She is married. Her two adult children are independent. The evidence discloses that she has a very impressive work record since the age of 15. She currently works as a bookkeeper with two separate employers, one position being for 2 days per week with Pine Trees Lord Howe Travel and the other position being for 3 days per week with Noble Numismatics. Between these two positions she in effect worked full time. The majority of her work was on the computer. She was aged 63 years when she was injured and she was almost 66 years at the commencement of the trial. The Plaintiff's pre-injury work intentions were to continue to work until at least to the age of 70 years. Her father retired from his work at age 84 years. She had good financial motives for continuing to work because she had a mortgage to pay as a result of adjustments of family assets with her siblings.

Not unexpectedly, at the age of 63 years, the Plaintiff had a history of some prior health issues. When aged 30 years the Plaintiff had a stapedectomy which left her with some hearing difficulties. Her other problems comprised elevated blood pressure that was controlled by medication, some gastro-intestinal symptoms, sinus problems, arthritis in her fingers and osteoporosis. These conditions did not prevent her from working or enjoying the amenity of her life or carrying out domestic tasks around the home as and when required.

The transcribed clinical notes of her treating general practitioner Dr Kokkinos were tendered as Exhibit "1". These are confirmatory of the Plaintiff's evidence as to her past health. The records show the Plaintiff had a history of elevated blood pressure for which she was prescribed medication. The records also show the Plaintiff had a history of sinusitis and related allergy issues for which she was under the care of a specialist otolaryngologist and accordingly she saw a chiropractor for this problem as well. She occasionally experienced dull headaches due to her sinus condition. She has arthritis in the fingers for which she takes painkilling medication. There were other conditions of health which emerged episodically and which are of no relevance to this claim. Significantly, the records of the general practitioner do not disclose any previous consultations in respect of any problems concerning the neck, shoulder or lower back.

The records of the chiropractor Mr Watts disclose that in 2001 the Plaintiff had experienced some right-sided sciatica and related foot pain. On the three occasions she saw the chiropractor for these problems they resolved.

Following my review of the evidence I find that before her injury on 5 July 2006 the Plaintiff did not have any conditions of health that prevented her from continuing to fully exercise her earning capacity or that would interfere with her enjoyment of the amenity of her life.

The Plaintiff fell onto her knees and onto her outstretched hands and wrists. This fall was onto a hard concrete surface and it caused her to suffer jolting injuries to various parts of her body. The Plaintiff then experienced pain in the neck, the left shoulder and in her lower back.

The Plaintiff's injury occurred just a few days before she and her husband were about to travel to the UK on a pre-planned holiday to see their son and their grandchildren. They left Australia on 18 July 2006 and returned on 14 August 2006. I accept that for this reason the Plaintiff did not seek out immediate treatment although she did obtain a vaccination from Dr Kokkinos on 8 July 2006.

On her return to Australia the Plaintiff saw Dr Kokkinos. She told Dr Kokkinos that she had a fall and was seeing Mr Bruce Watts the osteopath, acupuncturist and chiropractor for this. She said, and I accept, that she had mentioned the fall and her shoulder problem to Dr Kokkinos, possibly in a social setting. It was apparent from the evidence that the Plaintiff had a social acquaintance with her treating general practitioner in addition to the professional relationship, Dr Kokkinos sometimes visited the Plaintiff at home.

On 23 September 2006 the Plaintiff saw Dr Kokkinos, her treating general practitioner in connection with treatment for elevated blood pressure. On that occasion the Plaintiff stated that she told Dr Kokkinos that she related her left shoulder and neck pain to the fall. Dr Kokkinos referred her for an x-ray and for an ultrasound examination.

On 25 September 2006 Dr Hunter, a radiologist, issued a report on the ultrasound imaging study of the Plaintiff's left shoulder and identified a full thickness incomplete tear of the supraspinatus tendon at the point of its insertion in the left shoulder. He also identified moderate spurring of the acromion process of that shoulder.

On 25 September 2006 Dr Kokkinos noted that the tendon damage to the left shoulder identified on ultrasound was possibly due to the fall. She then referred the Plaintiff to Dr Jerome Goldberg, an orthopaedic surgeon, who specialised in shoulder problems. This doctor was chosen by the Plaintiff because she had faith in him due to his treatment of her son's injuries on an earlier occasion.

The Plaintiff said the main purpose of her consultation with Dr Goldberg was for the neck and left shoulder problem. She also mentioned the fact that she had back pain, she said that the back pain at the outset was left-sided. She said her low back problems had resolved about six months before the trial.

On 28 September 2006 Dr Goldberg referred the Plaintiff for an MRI study of the left shoulder. The Plaintiff was unable to have an MRI scan because of her previous stapedectomy surgery, instead, a CT scan was arranged. Dr Houang reported on this CT study and excluded any full thickness tear of the rotator cuff but noted thickening of the infraspinatus tendon and distal thinning of the supraspinatus tendon. He also noted the presence of a moderate acromial spur with inclination of the acromion process.

On 3 October 2006 Dr Goldberg gave the Plaintiff injections of cortisone in the left shoulder and referred her to an osteopath for physiotherapy type treatment. Dr Goldberg advised Dr Kokkinos the Plaintiff had a traumatic impingement of the left shoulder together with a cervical sprain injury. At that time he noted wasting of the muscles of the left shoulder. Dr Goldberg raised the spectre of surgical treatment for the shoulder if symptoms did not settle. Before the Plaintiff saw the osteopath she had already received a course of three shoulder injections, massage, acupuncture, heat treatment to the neck, shoulder and lower back. In addition she had been carrying out prescribed exercises and took paracetamol.

On 17 October 2006 the Plaintiff saw Mr Watts at which time he undertook an examination. He prescribed static strengthening exercises and a passive range of movement exercises in an endeavour to stabilise the left shoulder. Mr Watts took a history of left-sided cervical pain which he assessed as being of a muscular nature. He also treated the Plaintiff's lumbar pain with conservative management.

On 8 January 2007 Mr Watts noted that the response to treatment was slower than he had expected and he requested the Plaintiff's employers to make adjustments to her seating arrangements at work due to postural aggravation that was reducing her response to treatment.

On 10 January 2007 Mr Watts wrote to Dr Goldberg and identified the Plaintiff's report of pain in the musculature of the left shoulder and neck. At this time he also noted the Plaintiff's report of left-sided lumbar pain which she had experienced since the fall. At this time Mr Watts then commenced to treat the lumbar spine as well.

The Plaintiff was unable to tolerate non-steroidal anti-inflammatory drugs due to gastro-intestinal upset. This has meant that she has been unable to obtain the full pain relieving effects that medication could provide.

Dr Goldberg reviewed the Plaintiff on 12 January 2007 and again on 12 May 2008 at which time he raised surgery as a possible treatment option. Dr Goldberg has recommended to the Plaintiff that she have arthroscopic acromioplasty and biceps tenodesis to relieve her shoulder symptoms. Dr Goldberg's written material which explains that procedure indicates that it involves a rehabilitation programme of about 6 months with a 10% chance that operation may fail to provide improvement in the Plaintiff's condition.

On 2 July 2007 the Plaintiff consulted Dr Goldberg again. He noted ongoing irritable neck problems with associated trapezium muscle spasm on the left. He condoned further chiropractic treatment and suggested further investigations of the neck problems.

In August 2007 the Plaintiff was seen by a neurologist, Dr C Yiannikas who diagnosed a musculo-ligamentous neck injury leading to secondary muscle spasm. He recommended a trial of Botulinum injections for treatment of the muscle spasm. In October 2007 Dr Yiannikas reviewed the Plaintiff in conjunction with an undated CT scan which he had recommended. That scan showed marked osteoarthritic changes in the left C4/5 facet joint which he felt could be responsible for the referred pain to the left shoulder. I find that in the fall the Plaintiff suffered an aggravation of an underlying but asymptomatic degenerative disease of the cervical spine rendering the neck symptomatic and causing some referred pain to the left shoulder.

Dr Yiannikas has been giving the Plaintiff three monthly injections of Botulinum toxin which provides the Plaintiff with a measure of relief. In my view the absence of complete relief of shoulder problems with Botulinum injections is due to the fact that the Plaintiff's left shoulder symptoms are due to the fall and Dr Goldberg has a specific treatment plan for arthroscopy and tenodesis to address this separate problem.

The Plaintiff also continues to carry out the exercises prescribed by Mr Watts to assist her to manage her work. She continues to experience neck and shoulder difficulties sitting in front of a computer to do her bookkeeping work for sustained periods.

The Defendant sought to highlight some discrepancies between the evidence of the Plaintiff and the records of Dr Kokkinis, her treating general practitioner. In the context of the Plaintiff's social acquaintance with Dr Kokkinis I do not consider any such discrepancies to be significant. I accept the Plaintiff's explanation that she told Dr Kokkinis of her shoulder problem and the fall on a social occasion which is why there is no initial reference to it in the notes before 23 September 2006. Nor do I consider that adverse inferences should be drawn from the notes against the Plaintiff's evidence because the doctor's notes are simply notes and do not purport to be a full transcript of the discussions to which the notes relate.

The Defendant also sought to suggest that the Plaintiff's lumbar problems were of a longstanding nature because the report of Mr Watts dated 4 September 2008 refers to a history of lumbar problems on 13 June 2001, 25 March 2002 and 19 February 2004 and Exhibit "4" refers to cervical, thoracic and lumbar pathology on 18 June 2001. In my view the significance of the timing of these events confirms only that the Plaintiff had previous episodic lumbar symptoms which were self-limiting. Were it otherwise, I infer that the treatment records would have revealed a more intensive and detailed pattern of consultations.

Dr Watts confirmed that the Plaintiff, did not have cervical or left shoulder problems prior to 12 July 2006. For the Defendant to prove otherwise or to show the Plaintiff had prior disabling symptoms unrelated to the aftermath of her injuries it was obliged to call evidence to demonstrate this and disentangle the asserted causative factors. It did not do so : Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 and Insurance Australia Limited trading as NRMA Insurance v Helou [2008] NSWCA 240 at [52] - [54] per Campbell JA.

The Plaintiff said her ongoing disabilities comprised pain and discomfort in her neck and left shoulder for which she received quarterly Botox injections. The injections take from up to a few days to a few weeks to take effect and provide some, but not complete relief. She described how some injections are more helpful than others. She finds that the shoulder pain, when constant, aggravates the neck pain. She described how a posture involving sitting at a desk with her arms on the desk or when typing, causes pain in the left shoulder. She found that the stiffness in her lower back has settled down. She now finds herself no longer able to do the house cleaning and some household chores and gardening activities that she was previously able to carry out as and when required.

The Plaintiff described how in her work she was required to constantly sit. She described how she didn't think she could continue to work in constant pain but she needed to work because she needed the income to pay off her mortgage as her superannuation provision was not adequate to enable her to retire. I accept that by continuing to work in the presence of such pain the Plaintiff has acted more than reasonably in seeking to mitigate the effects of her injuries.

I accept the Plaintiff's account of her disabilities and problems as outlined above and as recorded by the practitioners whom she has consulted.

I now turn to an assessment of the claimed heads of damage.

The Defendant submits that the Plaintiff's circumstances warrant an assessment of non-economic loss at 20% of a most extreme case pursuant to s 16 of the Civil Liability Act 2002. This results in an assessed sum of $16,000. In contrast the Plaintiff submits that the appropriate assessment should be 31.5% or $126,000. The relevant inquiry for assessment of non-economic loss is the identification of an appropriate percentage of a most extreme case. The monetary consequence of that percentage is a consequential matter and is not the primary inquiry in this case.

In my view the Plaintiff's ongoing neck and left shoulder problems and the difficulties this causes for her with perseverance with her work and difficulty managing physical household tasks represents a very significant detriment to the Plaintiff's enjoyment of the amenity of her life. She continues to suffer from the inconvenience of having to do stretching exercises as recommended by Mr Watts. She is restricted in her daily household, domestic and gardening activities and faces the prospect of a surgical procedure recommended by Dr Goldberg. I find that the Plaintiff will have that procedure in the very near future as I accept that she has difficulty coping with her work due to pain. She will also face the prospect of a long convalescence from that procedure, of the order of 6 months.

In the light of these matters I accept the Plaintiff's submission that an appropriate allowance for non-economic loss would be 31.5% of a most extreme case. I therefore assess the Plaintiff's entitlement to damages for non economic loss as being equivalent to 31.5% of a most extreme case as provided for by section 16 of the Civil Liability Act 2002, namely $126,000.

When the Plaintiff returned to Australia on 14 August 2006 after her scheduled overseas holiday she went back to and continued with her pre-injury employment with both of her employers. I accept that in doing so she had to cut back and work for two hours less per week. She has therefore lost income of $30 per hour, for two hours per week, namely $60 per week gross. I find that this loss has accrued over 117 weeks between 14 August 2006 and the commencement of the trial on 27 November 2008. I find that this loss occurred as a result of the Plaintiff's inability to persevere with her previous full work hours due to her neck and shoulder discomfort following her injury.

An hourly rate of $30 per hour is the equivalent of $64,200 per annum gross for a full time 40 hours per week position. After the application of published average tax and Medicare Levy rates for the 2007, 2008 and 2009 financial years this reveals a rate equivalent to $23.71 per hour net over that period.

I assess the Plaintiff's claim for past loss of earnings at $23.71 per hour for two hours per week over 117 weeks in the net sum of $5,548.

The Plaintiff makes a claim for future loss of earning capacity. The basis of that claim is that the Plaintiff's residual neck and shoulder problems have an ongoing impact on her ability to carry out her work, particularly whilst sitting at a computer for sustained periods carrying out bookkeeping tasks. The Plaintiff claims, and I accept, that she will not be able to put off having the surgical treatment recommended to her by Dr Goldberg. I am satisfied that were it not for her injury the Plaintiff would not have had these symptoms or the related work difficulties that require such a procedure to be undertaken.

The plan is for the Plaintiff to have the arthroscopic procedure suggested by Dr Goldberg which will result in her having to undergo a period of rehabilitation treatment. I find that this will keep her out of the work force for an initial 6 months.

The Defendant submits, unrealistically in my view, that the Plaintiff will, on account of her work ethic, continue on to work until age 70 without having the operation recommended by Dr Goldberg before she retires. Accordingly, the Defendant submits that the Plaintiff should be compensated for the loss of one hour per week to age 70, assessed at $4,002. I reject that submission. It assumes, unfairly, that the Plaintiff should be required to continue to work in debilitating pain for the ensuing years until retirement. I consider that proposition to be unreasonable in the circumstances.

The Plaintiff has stated, and I accept, that she cannot expect each of her employers to keep her two positions open for 6 months whilst she undergoes this procedure and then takes time to recuperate. As a result she feels that she will therefore have to resign her employment out of consideration to her employers. I consider that to be a reasonable view. It has been submitted and I accept, that once she resigns her employment it is unlikely that she will be able to regain that employment or obtain suitable alternative employment on the open labour market.

The operation contemplated by Dr Goldberg will be directed to the Plaintiff's left shoulder. It is therefore unlikely to ameliorate the Plaintiff's ongoing neck problems. When she is ready to return to work after the post-operative recuperation period she will not only still have her ongoing neck problems but she will have been forced to become a disadvantaged competitor on an adverse open labour market. The relevant disadvantages to the Plaintiff will be her ongoing neck symptoms, the possibility that the shoulder problems may not have been rectified by the operation and her relative age as a labour market competitor compared to able-bodied younger potential employees. I find that the Plaintiff would not be in the position of having to resign her employment to seek treatment and to incur these disadvantages if she had not been injured.

On behalf of the Plaintiff it was submitted that once the Plaintiff has her shoulder surgery it is unlikely that she will be able to continue to work to age 70. On behalf of the Plaintiff it was submitted that a sum of $50,000 should be awarded for future loss of earning capacity including loss of superannuation as the reality is that the Plaintiff's working life will cease due to the surgery and the required rehabilitation.

In my view, at age 65, the Plaintiff will be unlikely to be able to re-enter the workforce after her operation. I find that once she resigns she will be effectively unemployable. I accept the Plaintiff's evidence that uninjured, she would have continued to work until at least age 70 years. Accordingly, I consider that the Plaintiff's claim for future loss of earning capacity should be assessed in full over a further 5 years to age 71. I am reinforced in this view when I consider that the Plaintiff's father continued to work until he was aged 84 years. It is on account of this fact that I assess damages for future loss of earning capacity for a further 5 years to age 71 years.

Whilst I accept the Plaintiff's submission that she will effectively cease work once she has the shoulder surgery I do not accept the submission made on her behalf that the consequential loss should be assessed at $50,000 including superannuation. The mathematical basis of that submission appears to me to be erroneous on several bases. First, it appears to have been advanced as a rounded buffer when, in this case, such an approach is not appropriate. Secondly, the net weekly rate of $737 which is said to base the calculation is not the correct net rate for her level of earnings and even at that rate, a projection of $737 per week at 5% over 5 years (x 231.5) less 15% for vicissitudes amounts to $145,023. Accordingly, I do not accept the Plaintiff's submitted quantification for the loss of future earning capacity.

The Plaintiff's current earnings are $30 per hour or $1,200 per week gross. After applying the relevant published tax and Medicare Levy rates to this figure this is analysed to be the equivalent of $961.61 per week net. I consider that this is the sum to be projected for assessment of the Plaintiff's future loss of earning capacity. This sum should be projected over a further 5 years or so to age 71 without any offset for residual earning capacity as I consider it unlikely in an adverse labour market that someone of the Plaintiff's age, with the Plaintiff's ongoing neck problems and the related difficulties carrying out sustained bookkeeping work on the computer would be taken on by a prospective employer, notwithstanding her previous impressive work record.

At the Plaintiff's age of almost 66, I see no sound reason emerging from the evidence to reduce her projected loss of earnings by more than the conventional discount of 15% on account of potential adverse vicissitudes.

The projection of $961.61 per week net at 5% over 5 years (x 231.5) less 15% for vicissitudes yields $189,220. I assess the Plaintiff's damages for future loss of earning capacity in the sum of $189,220.

The value of past loss of employer funded superannuation contributions can be identified by use of a rule of thumb calculation by applying a factor of 11% to past loss of earnings to reflect the value of past superannuation losses : Ghunaim v Bart [2004] NSWCA 28. Accordingly, applying my finding that the assessed value of the Plaintiff's claim for past net loss of earnings is in the amount of $5,548 and applying a factor of 11% to represent the value of superannuation contributions, I assess the value of the Plaintiff's past employer funded superannuation losses to be in the sum of $610.

Consistent with my assessment of the value of lost past employer funded superannuation benefits I find the Plaintiff has lost the value of future employer funded superannuation benefits which calls for a monetary assessment of that loss. Given that I have assessed the Plaintiff's future loss of earning capacity at $189,220, applying the same method of calculation employed to assess the loss of past superannuation, namely a factor of 11%, I assess the value of the Plaintiff's future employer funded superannuation losses to be in the sum of $20,814.

The Plaintiff makes a claim for the value of 7 hours per week of past domestic assistance which has been provided gratuitously by her husband. The Defendant submits that the evidence does not justify an award of any damages for this head of damage as the statutory threshold of 6 hours per week for 6 months has not been met: s 15 Civil Liability Act 2002.

The Defendant submits that no allowance should be made for past domestic assistance. The Defendant argues that this component of the Plaintiff's claim is undermined by the fact that the Plaintiff already employed a cleaner, that the Plaintiff had an ability to perform cooking and some housework herself and her husband already did some of the yard work before her injury. I do not accept this submission because it over-simplifies the evidence. The Plaintiff has a large house and garden. Before the injury the cleaner did not do all the housework and the Plaintiff's husband did not do the housework or all of the outside garden work.

I accept Mr Walker's evidence that since the injury he took on an extra 5 hours per week of domestic chores within the house and an extra 2 hours per week of gardening work to take up the tasks the Plaintiff could no longer perform. I accept his evidence that the 7 hour figure was a minimum estimate.

Mr Walker said that before the Plaintiff's injury he did not help with garden maintenance. The Plaintiff pruned the rose garden, she dug weeds, swept and did the watering. He also described how since the accident he has had to become involved with the washing, hanging the washing, dusting, cleaning the bathroom, making beds, taking out the bins and the like, all tasks the Plaintiff carried out before her injury. I accept his evidence in this regard and I accept that his estimate of 7 hours per week is a minimum estimate.

I am satisfied that by reason of her post-injury neck and shoulder symptoms the Plaintiff had a reasonable need for domestic assistance with the abovementioned tasks and I accept that this need was met by her husband providing the services that both he and she described in their evidence. I find that the reason the Plaintiff had this need was that she could no longer carry out the tasks herself : s 15(2)(a) Civil Liability Act 2002.

The Plaintiff is a houseproud woman. The photos that comprise Exhibit "C" show something of her home and her garden. I infer from these photos and the description both the Plaintiff and her husband gave in their evidence concerning the tasks that are required to maintain the house and grounds that an allowance of 7 hours per week of assistance with domestic tasks associated with the housework is a reasonable allowance. I am satisfied that those hours of assistance for cleaning and garden maintenance were not otherwise performed by a cleaner or by the Plaintiff's husband before her injury.

I am satisfied that the sole cause of the need for such services has been the discomforting effects of the Plaintiff's injuries and that such services would not otherwise have been provided to the Plaintiff : s 15(2)(b) and (c) Civil Liability Act 2002.

I am also satisfied that the claimed services were provided for more than 6 hours per week and for more than 6 months, namely 7 hours per week over 117 weeks : s 15(3) Civil Liability Act 2002.

Section 15(4) and (5) of the Act requires that any award for past domestic services must not exceed the prescribed hourly rate. The annexed Table 1 sets out the prescribed hourly rates for such services between 14 August 2006 and 28 November 2008 including a calculation of the value of 7 hours per week over that period of 117 weeks. Having regard to the calculations set out in Table 1 I assess the Plaintiff's damages for past domestic services in the sum of $18,805.

The Plaintiff claims a total of 7 hours per week for future domestic assistance. This is claimed at differential rates, namely 5 hours per week of domestic assistance at $35 per hour or $175 per week and 2 hours per week of gardening assistance at $45 per hour or $90 per week, totalling $265 per week.

The parties have agreed that these differential commercial hourly rates are applicable to the different services claimed.

At age almost 66, for the purposes of estimating future losses, the Plaintiff has a remaining life expectancy rounded off at 23 years on the projected or prospective life tables : Golden Eagle International Trading Pty Ltd & Anor v Zhang & Anor [2007] HCA 15; (2007) 229 CLR 498. The 5% multiplier for 23 years is 721.2.

The Defendant submits that the Plaintiff's damages for future domestic assistance should be limited to an assessment of $10,000. I do not accept the basis of that submission. The Defendant submits, speculatively in my view, that the Plaintiff "can surely do more than she admits" with regard to dusting, sweeping and the like. I reject that submission as being without foundation in the evidence. I also reject the Defendant's submission to the effect that the Plaintiff "significantly exaggerated" her inabilities. I accept that the Plaintiff was truthful in her account of her difficulties with domestic tasks. I reject the Defendant's submission in this regard.

The Defendant submits that the Plaintiff's claim for domestic assistance has no support in the medical evidence tendered. In my view that is not the appropriate test for determining whether such damages should be allowed. I accept the Plaintiff has an injury caused need for such domestic assistance which triggers the need for an assessment of the value of the assistance claimed.

The Defendant submits that the already employed commercial cleaner could do the heavier cleaning. In my view that submission is overly simplistic and pays no regard to the size of the Plaintiff's property and makes no allowance for the reality that a commercially employed cleaner would have to be paid extra to carry out any such extra work.

I consider that the claim for 5 hours of in-house assistance and 2 hours of in-garden assistance in addition to the already employed cleaner to be a modest claim having regard to the size of the Plaintiff's home and garden and the household and gardening activities already described in the assessment of past domestic services. I reject the Defendant's submission and I accept the Plaintiff's submission as to the manner in which this aspect of her claim should be quantified.

Having regard to the Plaintiff's age I consider it is appropriate to provide for a 15% discount of her damages for future domestic assistance on account of potential adverse vicissitudes.

I assess the Plaintiff's damages for future domestic assistance of 7 hours per week at $265 per week projected over 23 years at 5% (x 721.2) and discounted by 15% for potential adverse vicissitudes in the amount of $162,450.

The parties have agreed that I should allow the Plaintiff the sum of $15,000 for the anticipated cost of future medical hospital, surgical, paramedical and pharmaceutical treatment. I therefore assess the Plaintiff's entitlement to damages for such future treatment in the sum of $15,000.

The parties have agreed that the Plaintiff has incurred the sum of $5,612 for past treatment expenses and that therefore the Plaintiff is out of pocket in this amount. The Defendant has indicated that this agreement is only as to mathematics and submits that the allowance for past out-of-pocket expenses should be in a sum less than this amount. I consider that approach to be arbitrary and unwarranted. Having reviewed the nature of the Plaintiff's injuries and the matters of treatment set out in the reports comprising Exhibit "B" I consider the amount claimed by the Plaintiff to have been reasonably incurred. I therefore assess the Plaintiff's damages for past out-of-pocket expenses in the sum of $5,612.

My assessment of the Plaintiff's damages is summarised as follows:

(a) Non-economic loss $126,000 (b) Past loss of earnings $5,548 (c) Future loss of earning capacity $189,220 (d) Past loss of superannuation $610 (e) Future loss of superannuation $20,814 (f) Past domestic or attendant care $18,805 (g) Future domestic or attendant care $162,450 (h) Future treatment $15,000 (i) Past out-of-pocket expenses $5,612 Total $544,059

The Plaintiff has established that her injuries were caused by the negligence of the Defendant. The Defendant has failed to establish any contributory negligence on the Plaintiff's part. I have assessed the Plaintiff's entitlement to damages in the sum of $544,059.

I order: (a) The entry of a verdict and judgment in the Plaintiff's favour in the sum of $544,059; (b) The Defendant is to pay the Plaintiff's costs; (c) I grant leave to the parties to apply on 7 days notice should any further orders be required; (d) The exhibits may be returned.

PERIOD WEEKS WEEKLY HOURLY AMOUNT FOR 7 HOURS RATE RATE 1. 14.08.2006 to 18.08.2006 0.71 $872.20 $21.80 $152.60 2. 19.08.2006 to 17.11.2006 12.85 $879.50 $21.98 $1,977.10 3. 18.11.2006 to 17.02.2007 13.00 $903.40 $22.58 $2,054.78 4. 18.02.2007 to 18.05.2007 12.71 $905.50 $22.63 $2,013.39 5. 19.05.2007 to 17.08.2007 12.85 $916.20 $22.90 $2,059.85 6. 18.08.2007 to 16.11.2007 12.85 $912.60 $22.81 $2,051.75 7. 17.11.2007 to 15.02.2008 12.85 $920.60 $23.01 $2,069.74 8. 16.02.2008 to 16.05.2008 12.71 $904.70 $22.61 $2,011.61 9. 17.05.2008 to 28.11.2008 27.85 $904.70 $22.61 $4,407.81 $18,805.63

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Judgment (124 paragraphs)

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Cases Cited (10)