Wurth v Sampco Pty Ltd t/as The Knickerbocker Hotel - [2013] NSWDC 173 - NSWDC 2013 case summary — Zoe

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Wurth v Sampco Pty Ltd t/as The Knickerbocker Hotel

[2013] NSWDC 173

District Court of NSW|2013-09-13|Before: Mr P

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At a glance

Source facts

Court

District Court of NSW

Decision date

2013-09-13

Before

Mr P

Catchwords

(2005) ALR 349 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Ghantous v Hawkesbury City Council [2001] HCA 29
(2001) 206 CLR 512 Graham v Baker [1961] HCA 48
(1961) 106 CLR 340 Husher v Husher [1999] HCA 47
(1999) 197 CLR 138 Medlin v State Government Insurance Commission [1995] HCA 5

Source

Original judgment source is linked above.

Catchwords

(2005) ALR 349 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Ghantous v Hawkesbury City Council [2001] HCA 29(2001) 206 CLR 512 Graham v Baker [1961] HCA 48(1961) 106 CLR 340 Husher v Husher [1999] HCA 47(1999) 197 CLR 138 Medlin v State Government Insurance Commission [1995] HCA 5

Judgment (31 paragraphs)

[1]

Table of Contents Nature of case [1] - [2] Issues [3] Credit [4] - [6] Factual findings [7] - [62] The plaintiff's background circumstances [8] - [10] Circumstances of the accident [11] - [16] Injuries [17] - [18] Medical treatment and assessments [19] - [43] Causation of plaintiff's left knee problems [44] - [53] Disabilities [54] - [61] Mitigation [62] Issue 1 - Whether materialisation of obvious or inherent risk [63] - [74] Issue 2 - Whether breach of the duty of care owed [75] - [91] Issue 3 - Alleged contributory negligence [92] - [99] Issue 4 - Assessment of damages [100] - [122] Probable life span [101] Non-economic loss [102] - [105] Past economic loss [106] Past loss of superannuation [107] Future economic loss [108] - [131] Future loss of superannuation [132] Past domestic assistance [133] - [146] Future domestic assistance [147] - [157] Future treatment expenses [158] - [165] Past out-of-pocket expenses [166] - [176] Summary of damages assessment [177] Disposition [178] Costs [179] Orders [180]

[7]

Circumstances of the accident 11On the afternoon in question, the plaintiff, together with her husband and another couple of friends, had checked into the defendant's hotel. She had not been to those premises before. She was visiting Bathurst to attend horse races. In the lead-up to her injury, the plaintiff was in the car park at the rear of the premises and was walking along a concrete driveway towards her vehicle in order to get her suitcases. Whilst she was walking, she was also engaged in conversation with her friend. 12At the time the weather was fine and sunny. In the area of the car park where the plaintiff was walking she noticed that there was quite a bit of glare from the sun. The driveway in question was located on a slope. At the time the plaintiff had commenced walking down the driveway, from a distance she had seen a drainage grate towards the end of that driveway. This was at a distance of at least 14.5 metres if not more, away from where she had been standing when she had commenced walking. 13When the plaintiff saw the grate at that time, the ambient light conditions were glary and as a result the gap in the grate was not immediately apparent to her. This was probably because the top of the grate appeared to be level with the surrounding concrete surface. As she walked down the slope she was intermittently looking at the ground whilst walking and conversing with her friend. 14At T45.49 to T46.39, the plaintiff gave the following evidence in cross-examination: "Q. Other than looking when you first started to walk on the slope of the driveway were you then mainly looking at your friend who was talking to you? A. No I was just - we were just walking, I was looking at the ground, then I'd look up at her as she spoke or I'd speak, so intermittently I was looking at the ground yes. Q. Is it that you just failed to observe the grate in front of you? A. No. I was walking and I was looking at my girlfriend at the time because she was speaking. I didn't expect to have a grate uncovered underneath my foot to just fall into. HIS HONOUR Q. How far back from the grate were you when you first saw it? A. When I first walked out of the - I would estimate the - it to be longer, I could be wrong, I'm not very good at distances, but I think it would be longer than this so you sort of first walked out and we realised, okay that's where we've got to go, so subconsciously I would have seen a grate in the distance but it was a very sunny day, very glary, just started walking because it looked a very smooth driveway. It didn't look-- Q. Was there anything about the grate when you first saw it that gave you an indication that there were gaps in it? A. No, none whatsoever. Q. Did that perception change at all as you were approaching? A. No. HORVATH Q. But you'd agree that as you approached the grate you weren't looking at the grate were you, you were looking at you friend? A. Correct yes. Q. So you had no way of knowing because you weren't looking at it whether parts of the grate were missing? A. That's right. Q. It wasn't that your foot fell through the grate, it was that you stepped on an area where there was no grate whatsoever? A. Yes." 15The subject accident occurred as the plaintiff walked along the driveway and at a time when her head was turned to the left whilst talking to her friend. At that moment she had not been looking at the ground or where she was walking. In those events, she felt her right foot had stepped down into an uncovered portion of the drain, whereupon her foot twisted. She then lost her balance and fell forward onto her knees whilst her foot was still twisted and stuck in the metal drainage grate. She took a photograph of the grate not long after her fall. That photograph does not show its relative perspective location on the driveway. It was tendered as Exhibit "B" and it is reproduced below: 16About 20 minutes after her injury, the plaintiff had a conversation with someone called Scott, who whilst talking to some other people in her presence, had introduced himself as the manager of The Knickerbocker Hotel. In the ensuing discussion with the plaintiff, whilst they were discussing how the plaintiff would get to the local hospital, the manager of the hotel told the plaintiff that several weeks earlier, he had ordered a replacement grate for the drain, whilst acknowledging that this was of little assistance to the plaintiff.

[9]

Medical treatment and assessments 19As an aide to analysis, in the ensuing paragraphs, I have extracted a chronology of the plaintiff's medical and allied attendances that followed her fall. 20On the day of the accident, the plaintiff was taken by ambulance to Bathurst Base Hospital, where it was noted that she had a painful right after-foot, 2nd, 4th and 5th toes, a deformed 4th toe, an abrasion of the top of the foot, and difficulty weight bearing. A graze was seen on the dorsum of the foot with antero-superior swelling to the lateral malleolus. The injury was assessed as being an inversion injury with some slight displacement at the fractured base of the 5th metatarsal bone. A plaster-of-paris slab was applied to the plaintiff's lower right leg. 21On 23 February 2011, the plaintiff consulted her general practitioner, Dr Shahla Jamshidi, for the first time regarding her injuries. Dr Jamshidi reviewed the hospital discharge summary and arranged for follow-up x-rays of the plaintiff's foot after 6 weeks of immobilisation in a CAM boot and arranged for the plaintiff to commence physiotherapy. Dr Jamshidi also referred the plaintiff to Professor Peter Martin, am orthopaedic surgeon. 22On 3 March 2011, an x-ray of the plaintiff's right foot was interpreted to show fractures at the base of the 4th metatarsal, and a proximal fracture of the 5th toe, without displacement of fragments. 23On 18 March 2011, Mr Roger Cvitanich, the treating physiotherapist, described the treatment he gave to the plaintiff as comprising joint mobilisation, soft tissue releases and gradual conditioning. 24On 15 April 2011, Dr Jamshidi recommended to the plaintiff that she wear ankle/foot supports, and avoid wearing high heels or very flat shoes. 25On 2 June 2011, the plaintiff underwent MRI studies of her right foot, which revealed the presence of micro fracturing of the cuneiform base of the 2nd metatarsal, with swelling of some related soft tissues and bone bruising. 26On 30 June 2011, at the request of her solicitor, the plaintiff was examined by Dr George Kalnins, an orthopaedic surgeon, who observed the plaintiff to have residual swelling and slight deformity of the right 4th toe. He recorded a history that the plaintiff had some night pain after a long day of working. He noted that his examination took place approximately 4 months post-accident, and he expected continued recovery would take place over a further 3 months. 27On 4 July 2011, Dr Sherif Riskallah, an orthopaedic surgeon, reported on his consultation with the plaintiff. This was apparently at the request of the plaintiff's general practitioner. The plaintiff did not tender any reports from Dr Riskallah but parts of a report from that doctor were later cited by Dr Stephenson, the orthopaedic surgeon appointed to examine the plaintiff on behalf of the defendant. 28On 16 September 2011, at the request of her solicitor, the plaintiff was examined by Dr Neil Berry, a consultant surgeon. He predicted the plaintiff would, over the ensuing two years, experience further discomfort on prolonged standing, walking in high heels, and walking up and down stairs. He expressed a guarded prognosis as the plaintiff had remained symptomatic in her right foot. 29On 31 October 2011, the plaintiff saw Dr Peter Johnson, a rheumatologist whom she had previously seen concerning rheumatic disease of her right hand. On this occasion, Dr Johnson took a history of the plaintiff having left knee and right foot problems. Dr Johnson arranged for the plaintiff to have some blood tests and an MRI scan of her left knee. 30On 16 November 2011, the plaintiff consulted Dr Johnson again for her left knee problems, which he considered to be mechanical. He described an MRI study of the plaintiff's left knee as having identified a meniscal tear of that left knee, which he then injected. Dr Johnson reviewed the plaintiff's blood test results and he ruled out the presence of an inflammatory process. 31An issue emerged during the hearing as to whether the plaintiff's left knee problems were accident related. I will give consideration to that causation issue when stating my findings on the plaintiff's accident related disabilities. 32On 2 November 2012, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Brian Stephenson, a consultant orthopaedic surgeon. In his report dated 12 November 2012, Dr Stephenson accepted that the plaintiff had injured her right foot and had sustained an undisplaced fracture of the proximal phalanx of the fourth toe. He also accepted that the plaintiff had consequential reduced agility of the right lower leg. He accepted the plaintiff's claimed disability in that regard. 33Dr Stephenson took a history of the plaintiff having fallen in the subject accident and of having landed on her knees. He examined both of the plaintiff's knees and he ascertained that her left knee was stable to examination although there was some reported pain in the anterolateral aspect and crepitus of that knee. In his initial report, Dr Stephenson provided no discussion about any disability of the plaintiff's left knee. This may have been because the solicitor who had retained him had asked him no questions about the left knee. 34On 6 March 2013, at the request of her solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad considered that the ongoing pain and restriction of movement in the plaintiff's right foot was stable and permanent. He considered the plaintiff had lost 25 per cent loss of the efficient use of her right foot. He foreshadowed the possibility of the plaintiff developing some arthritis in her right foot in the region of her fractures. Dr Conrad's comments in the form of suggested restrictions to the plaintiff's work tasks will be analysed separately in connection with the plaintiff's claim for economic loss. 35On 10 April 2013, the plaintiff was examined by Dr Brian Martin an orthopaedic surgeon, at the request of Dr Jamshidi, for consideration of her right foot problems. Dr Martin saw the plaintiff again on 24 July 2013. He expressed a guarded prognosis but stated that he expected some improvement in the plaintiff's right foot. His rationale for that view was that at the time of his consideration, there was no sign of arthritis on the MRI scan. 36On 12 August 2013, at the request of her solicitor, the plaintiff was examined by Dr Conrad for a second time. On this occasion, in addition to examining the right foot, Dr Conrad examined the plaintiff's left knee, noting in his summary of the history taken from the plaintiff on that occasion, that the plaintiff had omitted to draw his attention to her left knee problems when she had consulted him on the previous occasion. 37Following that further examination, Dr Conrad reiterated his earlier opinion with regard to the stability and permanency of the plaintiff's right foot problems. 38Dr Conrad went on to describe the meniscal tear of the plaintiff's left knee as shown on an MRI scan, which he felt may well need an arthroscopy. In his oral evidence, Dr Conrad explained that his use of that expression was meant to convey that the arthroscopic meniscectomy procedure would more likely than not be required. 39Dr Conrad went on to state that the plaintiff should be able to continue working provided she was able to stand or sit at will, without a lot of standing, walking, and going up and down stairs. 40In addition to reiterating his earlier opinion on the plaintiff's loss of efficient use of her right foot at 25 per cent, Dr Conrad stated that the plaintiff had also lost 25 per cent efficient use of her left leg at or above the left knee. 41On 23 August 2013, at the request of the solicitor for the defendant, Dr Stephenson provided a letter in which he addressed some questions which had been directed at a consideration of the plaintiff's left knee problems. This request was in response to the service by the plaintiff's solicitor of the report of Dr Conrad dated 12 August 2013. This last report from Dr Stephenson comprised a commentary on the cause of the plaintiff's left knee meniscal injury. That commentary was based on an examination of the written materials provided to him, and was not based on any further examination of, or history taking from, the plaintiff. 42The plaintiff has remained under the intermittent care of her general practitioner, Dr Jamshidi, but no particular treatment was provided by that doctor. The report of Dr Jamshidi dated 26 March 2013 referred to consultation dates on 23 February 2011 and a physiotherapy consultation on 18 April 2022 (sic). Dr Jamshidi's progress notes referred to some additional consultations. 43The plaintiff has been referred to Dr RM Sorial, an orthopaedic surgeon. A report was requested by the plaintiff's solicitor on 26 July 2013 but no reply was available at the time of the hearing: Exhibit "F". Dr Sorial had however provided the plaintiff with a quotation for the cost of arthroscopic surgery, which suggests that such surgery might be imminent: Exhibit "G".

[10]

Causation of plaintiff's left knee problems 44The defendant disputed that the plaintiff's torn left knee meniscus and related problems were due to the subject accident, arguing those problems were due to a separate injury that occurred when the plaintiff resumed gymnasium exercises in about October 2012. 45In disputing that suggestion, the plaintiff pointed to the fact that both of her knees had been injured and bruised in the fall, as was shown in Exhibit "E". In that regard, the plaintiff stated her left knee had begun hurting virtually from the time of her injury, which was well before she had resumed gymnasium exercise. She said that by September 2011 she noticed her left knee was hurting more than was expected. She also stated that her left knee problems were getting progressively worse after the accident, and that it was not until she had attempted to resume her full exercise regime at the gymnasium that she had first noticed her left knee to have been problematic for her: T 26; T27.37. At that time, at the gymnasium, she was only walking on the treadmill, not jogging as she was doing before the accident: T33.5 to T33.21. 46In his oral evidence, Dr Conrad explained the mechanism by which knee menisci could be torn or displaced in a twisting injury so as to require arthroscopic trimming of the injured edges: T79.45. Dr Conrad stated that it could be safely assumed that the plaintiff's left knee pain was due to the fall in question absent objective evidence of prior problems involving that knee: T80.43 to T81.3. He considered that the mechanism of the plaintiff stepping down into the drain, twisting her foot and then landing on her knees, as being consistent with causing the tearing injury to her left lateral meniscus: T81.9; T82.49. That explanation was entirely plausible, and was supported by the plaintiff's evidence of the history of her left knee problems and the absence of any such problems beforehand. 47The defendant argued that the delayed complaint by the plaintiff of the left knee problems stood in the path of a causation finding in her favour. I do not accept that submission. I find the plaintiff's explanations and Dr Conrad's explanation of gradual increase in left knee problems, in the face of a focus on right foot problems, to be a satisfactory explanation for the delayed complaint. I also accept the explanation the plaintiff gave to Dr Conrad, as set out in his second report, to the effect that she had simply omitted to raise the left knee problems with him at his first consultation. 48Dr Conrad explained that whilst it would be usual for a torn meniscus to be accompanied by pain, and that it would be uncommon for such an injury not to cause significant pain for 6 - 7 months (T82.39), he thought the plaintiff's pain from her right foot fractures would have overshadowed her left knee pain from her meniscal tear: T82.13. He also explained that the foot pain would have been far more intense than the knee pain: T83.2. 49Dr Conrad agreed that once the plaintiff was up and walking without her CAM boot, about 6 weeks post accident, it would have been more likely than not that the plaintiff would have felt left knee pain at that time: T83.7. That evidence is not inconsistent with the plaintiff's evidence that she had experienced left knee problems since the time of the accident. 50Dr Conrad agreed with the suggestion that squatting in the course of gymnasium exercises could be a cause of meniscal tear (T83.25). There is no evidence that suggests this is how the plaintiff's knee injury occurred. Whilst Dr Conrad agreed the plaintiff had not complained to him about her left knee at his examination on 6 March 2013, that does not mean her explanation for not doing so should be rejected. The plaintiff's evidence did not support the proposition that she had injured her left knee in an unrelated incident at the gymnasium. 51Dr Conrad's evidence on the matters that I have cited above was uncontradicted by other expert evidence. It was reasoned, and not inherently improbable, and I accept that evidence. 52I accept the uncontradicted and not improbable evidence of the plaintiff as outlined in the preceding paragraphs and the evidence of Dr Conrad on those matters. I find that the plaintiff's left knee problems relating to a meniscal tear are in fact accident related. 53Dr Conrad identified the process by which meniscal trimming accelerates normal wear and tear of the knee joint and that this is usually followed by the downside of some degree of osteoarthritis in that knee: T81.25; T85.45. This was in the context where the propensity for osteoarthritis occurring would have been the same irrespective of whether surgery was undertaken: T86.2.

[11]

Disabilities 54I am satisfied that the plaintiff gave truthful evidence about the extent of her injuries and her related complaints. I am therefore satisfied that I should accept the plaintiff's account of her injuries and their effects as summarised in the various medical reports that were tendered. Accordingly, in addition to the plaintiff's oral evidence, I propose to draw upon the medical reports for evidence of the plaintiff's post-injury difficulties, her treatment, and her ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. My findings on those matters follow. 55The plaintiff experiences ongoing pain, discomfort and restriction of movement in her right foot in the region of the fractures. She is never free of that pain. This causes her difficulties with prolonged walking and restricts her ability to use stairs. As a result she has reduced agility of her right leg. She also experiences difficulty when driving long distances and with some social activities including standing and dancing. The plaintiff's right foot pains became aggravated by walking, standing for long periods, driving and when wearing high-heeled shoes. Her footwear choices are now restricted. 56The plaintiff's left knee has been hurting her virtually since the accident and it has been getting progressively worse. The plaintiff has difficulty negotiating stairs because of her knee problems. She restricts her use of the treadmill to walking and no longer jogs. She has difficulty squatting. Her knee movements are restricted. Her ability to perform her pre-accident domestic tasks has become markedly restricted. 57The plaintiff also has pain, discomfort, restriction of movement and reduced agility in her left knee due to injury-related mechanical problems. She has crepitus in that knee and it is difficult for her to squat. She has a clicking sensation in her right knee. The torn meniscus of that knee will most likely cause her to develop osteoarthritis in that knee, and that development will be likely to be accelerated if the plaintiff undergoes surgical trimming of the torn meniscus of that knee. I find that she is likely to have arthroscopic surgery to her left knee, which Dr Stephenson accepts is probably indicated. This will result in some scarring to that knee. 58The plaintiff's experience of pain in her right foot wakes her at night, especially after being on her feet for prolonged periods at work. Her foot pain increases if she remains seated for prolonged periods. The fourth toe of her right foot has remained swollen and prominent, with a residual flexion deformity. Dr Kalnins found the plaintiff had developed a slight right-sided antalgic gait in association with her right foot problems. 59The plaintiff takes painkilling medication. She is restricted in the exercise she can undertake and no longer walks as far as she used to because of aching in her right foot. When she does undertake more sustained walking, the resultant aching continues for days. 60The plaintiff has 25 per cent loss of the efficient function of her right foot as well as 25 per cent loss of the efficient use of her left leg at or above the knee as was stated by Dr Conrad. These are very significant permanent restrictions for someone like the plaintiff who was very fit and active before the subject accident. 61The plaintiff has become emotionally distressed by her experience of the disabilities that I have described in the preceding paragraphs.

[13]

Issue 1 - Whether materialisation of obvious or inherent risk 63The defendant pleaded a defence to the effect that the plaintiff's fall was the materialisation of an obvious risk as defined in sections 5F and 5G of the CL Act. 64Section 5F of the CL Act provides: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 65Section 5G of the CL Act provides: 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 66Having regard to the description of the grate in the evidence and Exhibit "B", it is plain that if a reasonable person had been standing and walking in the immediate vicinity of the grate and looking at the grate, it would have been apparent to such a person that the grate posed an obvious risk of injury to pedestrians. However, the plaintiff had commenced her journey down the driveway at a point some distance away from the grate in circumstances including glare, where she did not see that it was in a defective or broken state. The appearance of the grate at that time, and from that distance as the plaintiff had viewed it, did not require that she should keep the grate under constant observation as she walked towards it. 67In my view, a reasonable person in the position of the plaintiff, whilst keeping a proper lookout for her own safety, would have looked along the length of the concrete driveway to determine the general nature and appearance of the topography of the area where she was intending to walk. 68I consider that the plaintiff discharged that obligation when she looked ahead and saw a smooth concrete driveway without apparent defects, obstacles or traps that might foreseeably pose a danger to pedestrians walking in that area. 69I consider that once the plaintiff had made that observation, which was reasonable in the circumstances, absent notice of the broken grate with missing parts, which she could not reasonably have been expected to have recognised as an obvious risk from a distance and in conditions of ambient glare, it was reasonable for her to have continued walking on the driveway without specifically checking for defects in the grate as she proceeded to walk along her chosen path of travel. 70From the position of the plaintiff's first observation of the drainage grate, which did not appear to be raised or broken so as to suggest that it was a trip hazard, she would not have been expected to recognise the defective grate as being an obvious risk within the meaning of s 5F of the CL Act. 71I consider that because the defective condition of the grate was not prominent, conspicuous or physically observable from the distant point from which the plaintiff had started walking towards it, it required some kind of barricade or sign that drew attention to it as it was foreseeable that patrons of the hotel would use that driveway as pedestrian access to and from the car park. In that regard, the defendant is not entitled to the benefit of the protection afforded by s 5H of the CL Act, which provides that no warning is required in respect of risks that are obvious. 72The defendant also pleaded a defence of materialisation of an inherent risk: s 5I of the CL Act. In my view, a similar analysis as was the case with obvious risk also applies to the claimed defence of inherent risk. It was not necessarily an inherent risk that the driveway would have incorporated within it, a defective and dangerous drainage grate. 73Absent signs or warnings, and given the plaintiff's evidence which I accept, I find that the plaintiff was not aware of the risk of injury posed by the defective drain grate. I find that absence of such an awareness commenced at the time she had started walking down the driveway and it continued until she stepped into the gap of the grate: s 5G(1) of the CL Act. That lack of awareness arose because once the plaintiff had first seen the grate and saw no reason to consider that it posed a danger, she had no particular reason to be wary of it as she continued to walk along the driveway in her approach to the grate. 74Whether or not those circumstances require a finding of contributory negligence on the part of the plaintiff is a matter for separate analysis in connection with Issue 3.

[14]

Issue 2 - Whether breach of the duty of care owed 75The plaintiff relied upon the following allegations of negligence: (a)Failure to take any or any adequate care for the plaintiff's safety; (b)Placing the plaintiff in a position of peril in the circumstances; (c)Allowing or permitting the drainage grate to be broken; (d)Failing to repair the broken grate; (e)Failing to warn or adequately warn the plaintiff of the broken grate by means of barricade or signs etc (sic) 76Those allegations can be summarised into more unified formulations of an allegation to the effect that the defendant had failed to maintain the grate in a good and safe state so as not to pose an unreasonable danger to pedestrians taking reasonable care for their own safety, and failure to provide warnings of the defective condition of the grate. 77The question of whether or not the defendant was negligent in the circumstances under present review must be determined in accordance with the requirements of s 5B of the CL Act, which provides as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 78The three requirements of s 5B(1) of the CL Act concerning foreseeability, significance of risk of harm and the precautions a reasonable person would have taken, require individual consideration. 79There is no reason to doubt the proposition that a defective grate with gaps in it, located over a drain in a driveway used for pedestrian traffic, represents a foreseeable risk of harm that an occupier ought to have known about. In this case, the manager of the defendant's hotel can be taken to have known this, because weeks before the plaintiff's injury, he had taken steps to rectify the defect by replacing the grate: s 5B(1)(a) of the CL Act. 80The risk of a pedestrian on the driveway coming to harm by stepping into a gap in a drain grate, whether in darkness or daylight, must be seen to be "not insignificant": s 5B(1)(b) of the CL Act. 81In this instance, there is little room for doubt that a reasonable hotel occupier acting reasonably would have taken precautions to protect against the potential for the defective grate to cause harm. This is evident from the unchallenged content of the reported conversation between the plaintiff and the hotel manager in which the manager indicated that earlier, albeit unfulfilled steps, had been taken to replace the grate: s 5B(1)(c) of the CL Act. 82In my view, the fact that the hotel manager recognised that the grate in question was defective and needed replacement, together with the fact that it was going to take some time to rectify the problem, indicated that in the interim, additional steps were required to protect pedestrians using the driveway from harm. Such steps could have been in the form of warning signs, barricades or a simple covering comprising a sheet of timber or metal, as is commonly seen as a temporary measure to cover holes due to roadwork or footpath construction work. 83The above analysis shows that the plaintiff has satisfied the requirements of s 5B(1) of the CL Act. In addition to those requirements, the plaintiff must satisfy the considerations required by s 5B(2) of the CL Act. For the reasons that follow, I consider that the plaintiff has satisfied those considerations in this case. 84Where an uncovered gap is left in a drainage grate in an area where pedestrians are likely to walk, there must be a significant probability that harm would be likely to be occasioned to pedestrians if care were not taken to either warn of the defect, or isolate or cover the defect: s 5B(2)(a) of the CL Act. 85Where there is scope for a pedestrian to step into an open gap in a defective drainage grate, the prospect of such a person falling and sustaining serious injury is plainly self-evident: 5B(2)(b) of the CL Act. 86In those circumstances the burden to the occupier of commercial hotel premises in taking adequate precautions to avoid the risk of harm must be seen as being slight, and not representing a true burden in terms of prohibitive cost or effort to avoid the risk of occurrence: s 5B(2)(c) of the CL Act. 87There is a recognisable social utility in the occupiers or proprietors of hotel premises providing guests with parking for their vehicles as well as providing those persons with driveways that are safely trafficable by guests who were likely to walk in that area. There is no discernable social utility in leaving such areas in an uncovered and unsafe condition due to the presence of a defective drainage grate scheduled for replacement until the replacement parts for doing so became available: s 5B(2)(d) of the CL Act. 88In the circumstances under present review, I consider that the plaintiff has demonstrated that the defendant has relevantly breached the duty of care it owed to her. The duty that was owed to her extended to the taking of reasonable care to ensure that pedestrian users of the driveway within the premises were warned of and protected from the danger posed by the defective grate that was not readily discernable when initially viewed from a distance. 89The breach of that duty occurred and continued when the defendant caused or permitted an open and defective drainage grate to remain in situ without placing warning signs, barricades or coverings for the protection of pedestrian traffic from a foreseeable source of significant harm from stepping into a sizeable gap in the open grate. In my view, that breach of duty of care compels the conclusion that the defendant was relevantly negligent. 90Accordingly, I find that not only was the defendant negligent as claimed, but that were it not for such negligence, the plaintiff would not have been injured in the manner that occurred when she stepped into the open gap in the defective grate: s 5B and s 5D of the CL Act. 91The remaining issue requiring consideration is whether the plaintiff's injury was due to alleged contributory negligence on her part.

[15]

Issue 3 - Alleged contributory negligence 92The defendant pleaded the following allegations of contributory negligence: (a)Failing to take proper care for her own safety; (b)Failing to keep any proper lookout; (c)Failing to take reasonable care in all the circumstances; (d)Failing to heed her surroundings; (e)Failing to move with care in the area of the grate on which she was walking; (f)Failing to have regard to the conditions (sic) of the grate in which she was walking; (g)Failing to use an alternative route for walking on the driveway when she knew or ought to have known about the conditions (sic) of the grate; (h)Failure to exercise caution whilst walking on the grate. 93In my assessment, for the reasons that follow, I consider that the defendant has not made good its defence of contributory negligence. 94There is a fundamental principle that local authorities are not to be regarded as the insurers for the absolute safety of users of footpaths: Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512, at [248], p 606. In that case, at [355], it was stated that: "The world was not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. ..." 95In this case, the defendant invoked that statement as part of its defence of alleged contributory negligence. However, the defendant was not a highway authority and should not be considered to have the resources burdens that go with that status. Instead, as the occupier of commercial hotel premises, the defendant was expected to take reasonable care for the safety of the premises and was in turn entitled to expect that the plaintiff would take reasonable steps for her own safety when walking on the driveway. That did not mean that absent reasonable notice of a defect, the plaintiff was required to consistently observe where she was placing her feet when walking as if she was on an obstacle course. 96In my assessment, the plaintiff acted reasonably in looking ahead to see where she was going to walk. It was the unusual circumstances of the ambient glare at that time of day that had, from a distance, obscured from the plaintiff's view the defective condition of the drain. The absence of any reasonable notice of the uncovered defect justified the plaintiff from thereafter, only intermittently looking ahead whilst walking and talking with her friend. 97At best, the fact that the plaintiff did not see the defective grate as she walked towards it and whilst she was conversing with her friend amounted to no more than mere inadvertence, inattention or misjudgement of the kind referred to in the authorities and for which allowance must be made: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) ALR 349 at [13]; Brodie, at [163] p 581. 98This of itself does not amount to contributory negligence in this case. The plaintiff was justified in taking the course she did because she had no reasonable notice of the defect when she first had the opportunity of seeing it, and she was entitled to walk in that area as a means of access to and from the hotel. The concrete driveway was otherwise smooth, there were no observable holes or raised surfaces when the plaintiff first viewed it. As a result, in my assessment, no special vigilance was required on the plaintiff's part: Brodie, at [355], p 639. 99In those circumstances, in the context of the plaintiff's previous overview of the driveway which gave her no notice of a defect therein, a momentary inattention on the part of the plaintiff immediately before she had placed her foot into the open part of the defective grate should not be characterised as a failure to take care for her own safety, so as to result in a finding of contributory negligence. It follows that the defendant has not proven that there was contributory negligence on the plaintiff's part.

[21]

Future economic loss 108On behalf of the plaintiff it was submitted that her damages for future economic loss be assessed at $250,000. This was based upon an average of the future projection of either $500 or $700 per week to age 67, less a discount for vicissitudes. Those differing projections were based on different assumptions for residual earning capacity and timing of the commencement of the claimed loss. 109The evidence of the plaintiff as to the likelihood of her continued ability to work in her present employment was instructive. She stated that the nature of her work duties required that she spend 50 per cent of her time walking and standing. She finds that on some days at work, if she has beforehand pursued normal physical activities outside of work, she then finds work very difficult, and that after prolonged sitting at work she then finds that she walks with a limp. She also finds that if she has had a day of walking around at work for half the day in the course of her duties, then by the end of the day her right foot is painful and she finds she is unable to walk up stairs. The plaintiff also experiences stiffness in her foot after sitting for extended periods. She also experiences pain in her left knee and right foot on sitting for prolonged periods and must therefore move around. She finds that some work days are harder for her to manage than others. 110The plaintiff is concerned that constant aggravation of her foot can make her feel uncomfortable. Based on discussions she has had with her doctors, she is concerned she may get arthritis in her right foot. She stated there is no flexibility in the arrangement of her work tasks in her current position and duty statement, and she would have to look around for another job involving redesigned work tasks in order that these would cause her less discomfort. 111As a result of those matters, the plaintiff has formed the view that she may only be able to continue working in her present position for a couple more years. The appropriateness of the plaintiff's view in that regard must be assessed in light of the medical evidence. As summarised in the paragraphs that follow, the preponderance of the medical evidence provides some support for the plaintiff's claim for future loss of earning capacity. 112In his report of 16 September 2011, Dr Berry predicted that the plaintiff would have some difficulty in carrying out work requiring prolonged standing, wearing high heel shoes and walking up and down stairs. Although he predicted this would continue to be a difficulty over the ensuing 18 months to 2 years from the date of his report, it is important to observe that those problems have not yet abated for the plaintiff. Dr Berry expressed that view in the context of there being no indications at that time for surgical intervention. That assumption has not been validated by the course of time and further medical examinations. 113Dr Conrad issued two reports in 2013. In his oral evidence he indicated he had not changed the opinions he had expressed in those reports. Dr Conrad considered that the plaintiff's continuing suitability for administrative tasks at work was subject to the proviso that the conditions of her work allow her to be able to stand or sit at will, and not do a lot of standing, walking and going up and down stairs. Dr Conrad expressed that opinion having regard to the plaintiff's complaints regarding her ongoing problems with her right foot and her left knee. Those are significant restrictions for someone working in an administrative role where she is not able to self-determine the nature, extent, sequence or flow of her work tasks. 114Dr Conrad's opinion concerning the above work task restrictions was not challenged by cross-examination. 115In his letter dated 27 August 2013, Dr Martin noted that the plaintiff's continuing disabilities comprised mid-foot pain aggravated by walking, driving and wearing heels. He considered that the plaintiff was fit for sedentary duties that did not involve repetitive or prolonged periods of standing, walking, carrying or squatting. That view was consistent with the views of Dr Conrad that I have cited in the preceding paragraphs. 116The opinions of Dr Stephenson concerning the plaintiff's suitability for her work duties has evolved in stages in his successive reports. In his report dated 12 November 2012, he considered the plaintiff had no work restrictions after an initial period of being incommoded by her need to wear an orthopaedic boot in the period that immediately followed her injury. That opinion was necessarily restricted to Dr Stephenson's consideration of the plaintiff's right foot problems. 117Subsequently, when Dr Stephenson had his attention drawn to reports of the plaintiff's left knee problems, in later correspondence, he restricted his remarks to the reasonableness of the plaintiff having some 6 weeks off work after a suggested knee arthroscopy. These remarks were made by Dr Stephenson in the context where he had not been given the opportunity to re-examine the plaintiff. 118In reviewing that evidence, and in view of Dr Conrad's unchallenged evidence on the plaintiff's restricted work capacity that was based on his successive examinations of the plaintiff, I consider that Dr Conrad's evidence provides the most reliable insight with which to assess the evidence of the plaintiff regarding her own concerns over her continued ability to maintain her present work duties into the future. I also take that view because Dr Conrad's evidence is supported by the unchallenged opinion of Dr Martin, and because these opinions reflect the plaintiff's concerns over her future difficulty in carrying out her work tasks. 119The plaintiff's expressed concern over whether she will be unable to continue with her work after a period of about a further 2 years has given rise to a submission on her behalf for there to be substantial damages awarded for loss of earning capacity with only a modest allowance for any residual earning capacity. 120I consider that approach to the assessment of this head of damage to be too pessimistic, but only as to the degree of her residual earning capacity. The plaintiff is clearly a stoic and resourceful person who continues to do her best to remain active, albeit with lesser levels of physical activity than was the case before the subject accident. I consider that her attitude in that regard is likely to remain the same, but her work circumstances will be likely to change in the not too distant future, as her standing, walking and sitting restrictions will operate against her continuing in her present employment. 121That said, I do not consider that in this case, the evidence of the plaintiff and the medical evidence that I have accepted, justifies full acceptance of the future loss of earning capacity submission made on her behalf. I consider the plaintiff has a greater residual earning capacity for sedentary work, with allowance for movement at will, than that which has been conceded on her behalf in submissions. I also consider that the submission made on behalf of the plaintiff does not adequately reflect her evidence that she would have to consider alternative forms of employment consistent with the restrictions suggested by Dr Conrad and Dr Martin. 122In view of the fact that the plaintiff continues to work, albeit with the stated difficulties, and because in the short to medium term it is uncertain as to when she would be reasonably likely to cease working on account of her symptoms, I do not consider the approach of simply projecting a sum representing an assumed weekly loss, is the appropriate method of assessment in this case. I consider this to be so irrespective of whether the submitted calculation involves a deferred assessment by 2 years, or some later period. I also consider that uncertainties over the extent of the plaintiff's remaining residual earning capacity also contraindicate such an approach. 123I am persuaded by the evidence that I have reviewed above, that the plaintiff has suffered a diminution in her earning capacity and that this will more probably than not result in her sustaining financial loss during her remaining years of potential earning capacity: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, at 7 following Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, at 347; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, at 16 and 18. 124In those circumstances, where the amount of loss is difficult to calculate, but nevertheless present, a precise application of s 13 of the CL Act in order to determine in actual monetary terms the difference between the plaintiff's present and future circumstances with those circumstances that would probably have prevailed had the injury in question not occurred, is not practicable. 125It is clear that before the accident the plaintiff's earning capacity was unaffected by disability. It is also clear on her own evidence and the medical evidence I have accepted, that a considerable part of her work duties will be difficult for her to perform and that she is ill-advised to persist in such duties such that a change of employment will be required in the not too distant future. 126In those circumstances, instead of projecting a weekly amount, I consider that a monetary buffer amount is the more appropriate method by which to compensate the plaintiff for her future loss of earning capacity: Penrith City Council v Parks [2004] NSWCA 201; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. 127I consider that any such buffer should be for a substantial amount, so as to reflect the significant practical range of the plaintiff's work restrictions as has been identified in her evidence and in the evidence of Dr Conrad and Dr Martin, as well as also reflecting the difficulties she is likely to encounter in seeking suitable alternative employment as a consequence of her injuries. In those circumstances I consider the appropriate buffer to be in the sum of $130,000. 128In applying a rough crosscheck of the reasonableness of that amount, it can be seen to be the equivalent of a 5 per cent projection of approximately $290 per week over 15 years to age 67 (x 555), less 20 per cent for vicissitudes. A slightly higher than usual discount for vicissitudes would have to be applied in any such projection on account of the plaintiff's history of rheumatoid arthritis having affected her hands in the past, and which might possibly re-emerge to affect her earning capacity. 129I should add, that the above rough crosscheck does not form the basis of my assessment, but merely provides a useful means of comparison. A projection of a precise weekly amount is contraindicated in this case as the plaintiff's future economic loss is likely to accrue at different times, at different rates and for periods that are difficult to predict. The crosscheck does however show the reasonableness of the selected sum across the overall period of impairment of earning capacity, where the loss may well be smaller initially, but may be greater in the later years of the plaintiff's working life. 130In this latter regard, I consider that the oral evidence of Dr Conrad is significant in that he has identified as the usual course, acceleration of wear and tear on the knee joint with an associated degree of osteoarthritis once the protective cushion of a meniscus has been trimmed away in the course of the suggested meniscectomy procedure, which I find the plaintiff is likely to have in the not too distant future. 131I therefore assess the plaintiff's damages for future economic loss in the buffer amount of $130,000.

[23]

Past domestic assistance 133On behalf of the plaintiff it was initially submitted that the plaintiff should be awarded damages for past domestic assistance in the assessed sum of $40,070. That submission was based upon an aggregation of three identified calculation periods between the date of the accident and the date of the hearing. The defendant has submitted that no damages should be awarded for past domestic assistance as the evidence indicated that the statutory threshold for such damages had not been reached. 134The medical evidence provides some useful insight into the plaintiff's claim for domestic assistance. 135Whilst Dr Stephenson considered that some early period of past domestic assistance was warranted, that estimation was for a level of assistance that fell below the assessment threshold under s 15(2) of the CL Act, namely less than 6 hours per week for a period of not less than 6 months. The opinion of Dr Berry on the issue of a need for domestic assistance was in a similar category. 136In his report of 6 March 2013, Dr Conrad stated that the plaintiff might need about 6 hours of domestic assistance for the heavier parts of her housework, cooking, cleaning and garden maintenance. Dr Conrad reiterated that view in his report dated 12 August 2013. Those views were generally indicative and not specifically prescriptive as Dr Conrad did not have the details of the precise domestic tasks available for his consideration. 137In his oral evidence Dr Conrad clarified the statements in his reports on this subject and explained that the plaintiff would have difficulty with heavy vacuuming, moving furniture, stripping beds, polishing floors, getting down to scrub floor tiles, including in bathrooms, gardening, weeding, lawn mowing and with the heavier aspects of cooking. 138The evidence of the plaintiff was that she lives on a property of 25 acres where, before the subject accident, she did the interior housework plus many outdoor tasks and odd jobs. This included lawn mowing using ride-on and push type mowers, assisting with fencing, helping to organise the horse feeds and the like. 139The evidence of the plaintiff was that in the initial weeks after the accident, she was unable to fully participate in her personal care, and for about 8 weeks her daughter, Kylie, needed to come to the house daily to assist her with her domestic tasks. In that time, the plaintiff's husband also assisted with some domestic tasks. 140After the plaintiff ceased using the CAM boot and resumed her work she found she could not hang out washing, wash and scrub the floor tiles, vacuum, iron or do lawn mowing and for a time, she was unable to drive herself about in her vehicle. She still prefers her husband to drive. 141The plaintiff described the level of assistance provided by her daughter and by her husband as being initially 3 hours per day, and on her return to work, 2 hours per day. Her husband does the outdoor work and she no longer helps him with those tasks. She is no longer able to do the heavier kitchen work of cleaning the oven, cleaning blinds, kitchen cupboard doors, the kitchen floor and the like, and she is no longer able to clean and scrub the bathroom or clean the outside windows. 142The evidence of the plaintiff's husband was largely confirmatory of the evidence of the plaintiff as to the pre and post-accident division of domestic tasks on the property on which they lived. Mr Wurth described the plaintiff as having helped him with any tasks required on the property before the accident. He summed up the issue by stating that the plaintiff was very good and helpful with doing the required tasks. In addition to the tasks of lawn mowing and assistance with fencing, she also helped to load and bring in the firewood. 143Since the subject accident, Mr Wurth has been cleaning muddy floors, washing, hanging washing, doing some cooking, carrying out recurring cleaning due to dust accumulation, some ironing, gardening, all the lawn mowing, cleaning verandas, maintaining the horse paddock, and a variety of domestic duties. He described a significant increase in his domestic workload. He estimated he was carrying out an extra 10 hours per week of domestic duties than was the case before the plaintiff's accident. 144I consider that the evidence of the plaintiff and her husband, and the evidence of Dr Conrad should be accepted as being reasonable on the question of the plaintiff's need for domestic assistance. 145As to the amount to be assessed for this head of damage, I found the evidence of the plaintiff and Mr Wurth to be compelling as to a need beyond Dr Conrad's suggested 6 hours per week. Allowing for the possibility of overlap in any estimation process, I propose to apply a discount on Mr Wurth's estimated 10 hours per week. I assess the plaintiff's past need for domestic assistance at an average of 8 hours per week. 146In the Appendix to these reasons, the calculation of the value of 8 hours of care per week, costed at the maximum not to be exceeded rate specified by s 15 of the CL Act between 20 February 2009 and 27 August 2013, is quantified in the sum of $47,219.56. I therefore assess the plaintiff's damages for future domestic assistance in the amount of $47,219.56.

[24]

Future domestic assistance 147On behalf of the plaintiff, a claim was made for future paid domestic assistance in the alternative amounts of $235,000, or $354,000, depending on alternative statutory or commercial cost projection assumptions for 10 hours per week of domestic assistance. In contrast, on behalf of the defendant, it was submitted that no allowance should be made for future domestic assistance. 148The plaintiff relied upon the commercial rate for assessment, which was identified as being $40 per hour: Exhibit "H". The defendant's submissions proceeded upon the premise that Mr Wurth would continue to provide the plaintiff with the assistance required, as he has done in the past but at the statutory rate under s 141B of the Motor Accidents Compensation Act 1999: Miller v Galderisi [2009] NSWCA 353. 149As with the claim for past domestic assistance, the medical evidence provides a useful insight into this component of the claim. 150In his report dated 12 November 2012, Dr Stephenson suggested, at paragraph 12(b), that it was reasonable that the plaintiff should have 2 hours of domestic assistance per day into the future. Inconsistently, at paragraph 13 of the report he stated that assistance should be for 2 hours per week. 151In his subsequent letters of clarification dated 23 April 2013 and 5 August 2013, Dr Stephenson clarified and resolved that internal inconsistency in his earlier report by indicating that his previous reference to 2 hours per day should have been stated as being 2 hours per week for the remainder of the plaintiff's life span, referrable to problems of her right foot. 152As with the claim for past domestic assistance, I consider that the medical evidence, whilst of guidance value, is not prescriptive or determinative of the extent to which this head of damage should be assessed. 153Instead, I consider that on the specific lay evidence given in this case, the practical and credible insight of the plaintiff and her husband offer the most reliable insights into the plaintiff's level of need for present and future domestic assistance: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55]. 154In my view the future domestic assistance costs should be assessed at the commercial rate. This is because I consider it unlikely that Mr Wurth will continue to provide those services: Miller v Galderisi, at [15]. He has a busy working week as a truck driver, it would be unreasonable to expect him to continue to shoulder the considerable additional domestic burden into the future, he does not always carry out all domestic tasks to the plaintiff's satisfaction, and the plaintiff would prefer to have the services provided commercially. On the evidence, that is a reasonable view, especially in view of the strain the extra duties assumed by Mr Wurth have had on their marriage. 155The projection of the value of 8 hours per week at $40 per hour or $320 per week, at 5 per cent over 36 years (x 884.8) yields the undiscounted sum of $283,136. 156I consider that sum should be discounted for several reasons. First, the plaintiff has an underlying condition of rheumatoid arthritis in her hands, which must be seen to be a potential adverse vicissitude especially, if it ceases to remain in remission. If that is so, it might well become an independent cause for the plaintiff to need domestic assistance, which would be unrelated to any accident related need. Secondly, there is the prospect that over time, the plaintiff and her husband will downsize their property and their equine interests, which will lessen the need for domestic assistance. In taking those factors into account, I consider that there should be a higher than usual discount on the assessment of future domestic assistance damages. I consider that a discount of 40 per cent for vicissitudes is appropriate in this instance. This yields the discounted sum of $169,881. 157I therefore assess the plaintiff's damages for future domestic assistance in the amount of $169,881.

[25]

Future treatment expenses 158On behalf of the plaintiff it was submitted that the plaintiff's award for damages for future treatment should be assessed in the buffer sum of $30,000. In contrast, on behalf of the defendant, it was submitted that those damages should be assessed at no more than $6000. 159The evidence in support of the claim for future treatment expenses comes from the report of Dr Conrad dated 12 August 2013, which identifies the cost of a procedure suggested by Dr Sorial for arthroscopic trimming of the meniscus of the left knee as being $6000. That estimate was corroborated by the actual quotation from Dr Sorial for that procedure. That quotation does not include any allowance for possible ancillary expenses such as medication, mobility aids or appliances, or physiotherapy: Exhibit "G" 160Based upon Dr Conrad's evidence and the cited documentary material, I consider that an allowance of $6000 for future right knee arthroscopy should be allowed without discount for deferral, given the relative immediacy of the terms of the quotation from Dr Sorial. 161In my assessment, there should be an additional allowance for occasional consultations with a general practitioner, specialists, medications and for possible physiotherapy. In that regard I do not accept the evidence of Dr Stephenson as set out in his report dated 12 November 2012 to the contrary effect because in that report, he had not considered the plaintiff's left knee problems. 162Instead, I accept the opinion of Dr Conrad that the plaintiff should have physiotherapy on an as needs basis. I also infer from the plaintiff's circumstances of her ongoing symptoms and Dr Stephenson's suggestion for some form of analgesic and anti-inflammatory medication, that such an additional allowance should be made. In my view, it is reasonable that such treatment take place under some form of medical review. 163The state of the evidence does not permit a reasoned estimate of the cost of ancillary treatment or the timing of such treatment. For the reasons that appear below in respect of the claim for past out-of-pocket expenses, I do not accept the suggestion that the past pattern of out-of-pocket treatment costs should guide the assessment of the likely assessment of future treatment costs. 164In those circumstances, I consider that an allowance of an additional buffer amount should be allowed for the identified modalities of likely future treatment as outlined above. In my view, a reasonable buffer allowance for this head of damage to cover the cost of those expenses would be of the order of $3000. 165I therefore assess the plaintiff's damages for future treatment in the combined amount of $9000.

[26]

Past out-of-pocket expenses 166Unusually for this type of litigation, the parties were unable to agree upon the amount of the plaintiff's out-of-pocket expenses. 167I was informed by counsel for the defendant that this was because the material upon which agreement was sought by the plaintiff's legal advisors was only presented to the defendant's solicitor for his consideration a few moments before the evidence concluded and therefore, there was inadequate opportunity to obtain instructions on matters for which agreement was sought. 168Those circumstances appear to have arisen in complete disregard of an early standard procedural direction the court issued to the parties shortly after the proceedings were filed. That direction required the solicitor for the plaintiff to serve on the solicitor for the defendant, amongst other documents, a schedule of claimed out-of-pocket expenses at least 7 days prior to the hearing. The purpose of that direction is to avoid wasting time on such matters at the hearing of the action. 169Unfortunately, experience in a large number of personal injury cases in this court shows that this and other standard directions aimed at facilitating the smooth running of cases such as this, are commonly disregarded by some practitioners without cogent explanation. The result is that such directions are more often that not honoured by breach rather than by observance, with concomitant waste of time. 170In these proceedings, Exhibit "M" shows that on the afternoon of the first day of the hearing, the solicitor for the plaintiff sent facsimile requests marked urgent to Dr Martin and to Dr Sorial, seeking information on out-of-pocket expenses. The faxed responses have revealed payment of the amounts of $130.55 and $106.15 respectively, totalling $236.70. Clearly, having regard to the evidence and medical evidence tendered, this does not represent the full amount of the treatment costs incurred by the plaintiff. 171However, there is no evidence of other amounts paid or owing to the other medical and allied practitioners, such as general practitioners, other specialists and physiotherapists who have treated the plaintiff. 172No application for an adjournment was sought in order to obtain proof or agreement as to the balance of this component of the plaintiff's claim. It is unnecessary to speculate as to whether this was because of the possible cost implications of the terms for such a course if it had been pursued and granted. 173The unpreparedness of plaintiffs' legal advisors to prove an elementary claim for out-of pocket expenses, and generally poor preparation of personal injury cases in the District Court has been the subject of comment in earlier decisions: Ross v Nominal Defendant [NSWDC] 110, at [203], citing Morvatjou v Moradkhani [2003] NSWCA 157, at [110] - [113]. This case is yet another example, on a very basic issue. 174The failure or absence of proof of the amount of the plaintiff's actual out-of-pocket expenses in the circumstances of this case has the potential to cause the plaintiff financial disadvantage by reason of the operation of the Health and Other Services (Compensation) Act 1995 (Cwth) once the proceedings have concluded. 175In these circumstances, it is noted that on behalf of the solicitor for the plaintiff, it was stated by Senior Counsel for the plaintiff, that the plaintiff would not be disadvantaged in that regard by having to repay some of her out-of-pocket expenses to Medicare although such amounts were not the subject of proof in her claim. The court was informed that her solicitor will indemnify her in that regard. 176Based upon Exhibit "M", I therefore assess the plaintiff's damages for out-of-pocket expenses in the amount of $236.70.

Wurth v Sampco Pty Ltd t/as The Knickerbocker Hotel

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