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NSW Crest

District Court
New South Wales

Medium Neutral Citation:
Browne v Owners of Strata Plan No 55497 [2014] NSWDC 239
Hearing dates:
25 - 26 August 2014
Decision date:
01 September 2014
Jurisdiction:
Civil
Before:
Gibson DCJ
Decision:

(1) Judgment for the plaintiff.

(2) Parties have liberty to bring in Short Minutes of Order reflecting the mathematically agreed judgment sum.

(3) Defendant pay plaintiff's costs.

(4) Liberty to apply in relation to costs.

(5) Exhibits retained for 28 days.

Catchwords:
TORT - plaintiff injured stepping into a gap in a moving grate on the defendant's premises - breach of duty of care admitted - compensable extent of plaintiff's injuries and disabilities in light of pre-accident history - limited current medical evidence - assessment of claimed heads of damage
Legislation Cited:
-
Cases Cited:
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302
Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422
Boral Bricks v Cosmidis [2014] NSWCA 443
Gordon v Truong (2014) 66 MVR 241
Graham v Baker (1961) 106 CLR 340
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Miller v Galderisi [2009] NSWCA 353
Mt Isa Mines v Pusey (1970) 125 CLR 383
Purkess v Crittenden (1965) 114 CLR 164
State of NSW v Moss (2000) 54 NSWLR 536
State of New South Wales (NSW Police) v Nominal Defendant (2009) 53 MVR 243
Watts v Rake (1960) 108 CLR 158
Texts Cited:
-
Category:
Principal judgment
Parties:
Plaintiff: Sharon Browne
Defendant: Owners of Strata Plan No 55497
Representation:
Plaintiff: Mr A Lidden SC / Mr P Khandhar
Defendant: Mr S Maybury
Plaintiff: Brydens Law Office
Defendant: HWL Ebsworth Lawyers
File Number(s):
2011/245499
Publication restriction:
None

Judgment

1The plaintiff brings proceedings for damages for an injury she suffered on 5 January 2009 when she stepped backwards into a hole in a drainage gate on property owned by the defendant. She suffered injury to her ankle requiring surgery, as is set out in more detail below.

2On the morning of the hearing, the defendant admitted liability and at the commencement of submissions, the issue of contributory negligence was also abandoned. Accordingly, the sole issue in question is the issue of assessment of damages.

3The plaintiff particularise the injuries she received, in her amended statement of particulars of 2 June 2014, as follows:

(a)Injury to right ankle;

(b)Injury to right anterior subtalar joints;

(c)Tearing to internal ligaments of right ankle;

(d)Fracture to right cuboid bone;

(e)Bruises and abrasions;

(f)Shock.

4The continuing disabilities set out in the amended statement of particulars are as follows:

(a)Pain and restricted movement to right ankle;

(b)Requirement to undergo arthroscopic repair of right ankle (now performed);

(c)Likely future requirement to undergo right ankle surgery including the possibility of a right ankle fusion;

(d)Accelerated degenerative change to right ankle;

(e)Difficulties walking, standing or sitting for long periods;

(f)Difficulties using stairs or ladders;

(g)Difficulties walking over rough or uneven ground;

(h)Instability to right ankle;

(i)Possible deterioration of left leg due to favouring the injured right;

(j)Reduced ability to walk dogs for lengthy periods;

(k)Interference with sleep;

(l)Irritability and depressed mood;

(m)Requirement to consume pain killing medication;

(n)Interference with social activities;

(o)Interference with domestic activities;

(p)Interference with employment activities;

(q)Onset of arthritis in ankle;

(r)Nerve damage;

(s)Possible requirement to have injection therapy in the ankle.

5Past out of pocket expenses are agreed.

6The issues for determination concerning assessment of damages are as follows:

(a)The plaintiff's claim for non-economic loss;

(b)The plaintiff's future out of pocket expenses;

(c)The plaintiff's future economic loss. Past economic loss is (with one exception) agreed;

(d)The plaintiff's claim for future domestic assistance. No claim is made for past domestic assistance.

The circumstances of the plaintiff's accident

7On the day of the accident, the plaintiff left her place of employment to go to the shop across the road to buy her lunch. In order to get there, she had to walk along a cement driveway. As she did so, a vehicle approached her at speed and she had to jump out of its way. There was a drain cover over an adjoining drain and it was the practice of staff to move this drain backwards and forwards leaving a gap. This meant that the gap was a "moving" gap. When the plaintiff stepped backwards her foot landed in this gap and she suffered an immediate and severe twisting injury. The circumstances of that injury, and the subsequent treatment she received, are not matters of factual dispute.

8The plaintiff was taken back to her workplace by her colleagues. She was seen by a first aid officer and taken to the occupational health and safety centre at work where she was seen by a Dr Pathirana. She had an MRI performed on her ankle and foot and was referred to Dr Kuo. The initial management was conservative and her foot was bandaged for six weeks. There was a three-week delay in obtaining the MRI report, but when it was provided, it was clear that surgery would be necessary.

9Dr Pathirana, in her report to Dr Kuo of 18 February 2009, outlined the plaintiff's injury as follows:

"MRI revealed multiple pathology which partial thickness tear of spring ligament complex, bifurcate ligament tear with possibly associated avulsion fracture of cuboid are few of them.
Currently her swelling is improved moderately and has near full range of movements of the R/ankle joint although it is painful."

10Three months post-surgery conservative care had not resolved the plaintiff's problems, and she underwent surgery in May 2009, being discharged from hospital on crutches. She was described as "progressing well" from the surgery in Dr Kuo's reports of 29 May and 26 June 2009 and again in his report of 15 September 2009.

11At this stage, Dr Kuo considered that the plaintiff had the capacity to return to work in her pre-accident employment on light duties and that, in the longer term she was fit to return to her pre-injury activities with a prognosis of "fair to good". His sole note of concern was that if the symptoms became worse, she "may" require treatment of the osteoarthritis she was predisposed to, in the form of medication and/or injections in the first instance. He added, in his 15 September 2009 report:

"In the longer term, she may come to surgery such as a sub-talar joint arthrodesis."

12Regrettably, no updating report from Dr Kuo since 15 September 2009 was ever obtained.

13The plaintiff returned to work on 8 August 2009 and continued to perform the same duties, although still using one crutch for the first few weeks. She remained in her employment, performing the same tasks, at Blue Star Group until 2012, when she was retrenched as one of more than 200 workers who lost their jobs due to a management changeover.

14The plaintiff, whose strong work ethic was obvious from her work history and her evidence, obtained work almost immediately, in a similar position at Geon Print Group. She remained in their employ for a year, losing that job only because the company went into liquidation.

15The plaintiff then returned to Blue Star, through the good offices of a labour hire company Kelly's Recruitment, and remained there until February 2014. Her evidence, which is discussed in more detail below, was that she had difficulty performing that task, and that she had similarly suffered while working for Geon Print Group, and would have had trouble continuing in that role. She was not cross-examined on that evidence and Dr Sullivan, who examined her for the defendant in January 2014, noted and agreed with her description of those difficulties, which principally related to her having to stand for too long.

16Since February 2014, the plaintiff has been working in a largely sedentary position at Webster Print as a dispatch controller. She is able to perform this work without too much difficulty as the job is largely sedentary.

17This brings me to a consideration of the plaintiff's evidence.

The plaintiff's evidence

18The plaintiff has had a very hard life. Careful analysis of that life, from the glimpses of it afforded by Dr Klug's report and her evidence, underline the very stoic and uncomplaining nature she has, as well as her cautious approach to doctors, which may in part explain the unsatisfactory nature of much of the medical evidence.

19The plaintiff was the youngest of thirteen children. She is currently 48; her oldest sibling is now 75, and five of her other siblings have died. Reading between the lines, there would have been very little money to spare for the members such a family. Nevertheless, the plaintiff told Dr Klug she had had a secure childhood and very good parenting "despite her father's behaviour". Her father was an alcoholic who abused her mother, but the plaintiff excused this by saying he suffered a head injury in a motor accident. This explanation is revealing of the plaintiff's stoic nature and caution with authority figures such as doctors.

20The plaintiff became pregnant at the end of Year 10 in 1982, at the age of 16. She therefore did not complete High School. The man with whom she had the child was violent and an alcoholic, like her father, but she lived with him until 1995, and had a second child in 1985. At some stage they married.

21Her husband drove a truck, and she worked for him, completing office tasks, between 1982 and 1989. He got into financial difficulties and went bankrupt, so in 1992 she enrolled in a Salvation Army secretarial course at Mt Druitt and commenced work at Apollo Window Blinds as a receptionist in late 1992. Apart from admission to a psychiatric facility in 2001 for three months, she has worked full time for the whole of her adult life, including the period after the accident.

22The plaintiff lost her husband in dramatic circumstances in 1995. His truck broke down on a highway, and he appears to have left it there, before being struck by another vehicle. He either then "ran away" (to use the plaintiff's words) and left the scene, or fell in a river and drowned. His clothing was found nearby, but no body was ever found. This was very traumatic for the plaintiff, who continued to work and to bring up their two children alone.

23One of the plaintiff's daughters developed depression and, a year or two later, both daughters disclosed to her that they had been sexually abused by their father prior to his disappearance/death. This was simply too much to bear for the plaintiff. She had a breakdown, and on 2 January 2001 she was admitted to Cumberland Hospital for three months. It says a lot for her character that both her employer and her current de facto, whom she had met shortly before these events, stood by her. She had four months off work, three of them in hospital, and returned to work on medication. She ceased taking medication and seeing the psychiatrist about a month afterwards. This again shows her stoic nature and her caution with members of the medical profession.

24The plaintiff as a witness was straightforward in her answers. I share the opinion of all of the medical practitioners who have commented on these issues that she has described her symptoms frankly and without embellishment. Her de facto husband, Mr Miller, gave similarly straightforward evidence.

25The plaintiff's condition over the five year period since she suffered the injury the subject of these proceedings is set out below.

(a) The plaintiff's ongoing medical treatment after the injury

26The plaintiff remained under the care of her general practitioner in relation to her ankle, being on crutches for about six weeks and then on one crutch for a further three to four weeks. She returned to work whilst still on one crutch.

27Following the surgery the plaintiff had physiotherapy for about six weeks. She has had no treatment since. Dr Pathirana's reports do not go beyond noting that after the surgery the plaintiff was gradually put back on suitable light duties and then certified to perform normal duties on 4 August 2009, which was followed by a further three-week trial and a clearance given on 29 August 2009 for performance of full duties.

28Dr Pathirana was a doctor retained by the plaintiff's employer, not the plaintiff's generally practitioner. Unusually, there was no report from the plaintiff's general practitioner. The plaintiff's evidence was that she rarely consulted doctors and she does not appear to have consulted her own general practitioner at all about her injuries and disabilities from this accident.

(b) The plaintiff's condition shortly after the outcome of the surgery

29The plaintiff described her condition as going from being unable to do anything for herself (T 19) to the following approximately two or three weeks after the outcome of the surgery:

"Q. But then after you've improved, after we get to the end of two or three months, what was the outcome of the surgery?
A. Okay. I could drive. I could drive probably, say, for an hour. After that, I couldn't drive any more.
Q. What was it like for standing on?
A. Standing on? I could probably stand for about two hours maximum. That would be it for a day.
Q. And walking? What was it like?
A. Walking? It would be probably be about an hour maximum. That would be it for the day. And I'd have aching, throbbing.
Q. What was it like for stairs?
A. Stairs? It was impossible. I'd probably be - probably two flights of stairs would be maximum.
...
Q. We're talking about three months after the surgery. Could you kneel at that stage?
A. Couldn't do it at all.
Q. Crouching or squatting?
A. No, not at all.
Q. But you did return to work fairly shortly after the surgery, didn't you?
A. Yes, but it was a sitting down job at that time.
Q. You had a doctor's certificate for light duties.
A. Yes.
Q. And they gave them to you.
A. Yes.
Q. I think you told me something about this: when you returned to work on light duties, did you have one crutch or two?
A. I had one crutch when I returned.
Q. Then you had light duties for a time.
A. Yes.
Q. Eventually, did they put you back onto normal duties?
A. Yes, they did." (T 19-20)

(c) One year after the surgery

30The plaintiff described her condition as follows:

"Q. After that three months that I was just asking you about, following the surgery, you continued to have some improvement, didn't you, for a while?
A. Yes.
Q. How long did it take after the surgery till you got to your maximum improvement?
A. 12 months.
Q. So I want to ask you some questions about how you were at that stage, maximum improvement.
A. Right.
Q. Could you kneel?
A. No.
Q. Could you crouch or squat?
A. No.
Q. What was it like for standing?
A. I could stand for probably maximum 3 hours.
Q. What was it like for walking?
A. Same probably, 3 hours.
Q. And at the end of 3 hours, either walking or standing, what was your foot and ankle like?
A. I still have the pain every day after 3 hours. I have throbbing of a night-time trying to sleep.
Q. We're talking about 12 months after the surgery.
A. Yes." (T 20-21)

31The plaintiff continued to work full time over the whole of this period, with no absences from work for pain and taking no painkillers.

(d) The plaintiff's condition today

32The plaintiff's evidence was as follows:

"Q. So nowadays, is your tolerance for walking or standing still about the same?
A. It's about the same.
Q. Can you kneel nowadays?
A. I can kneel but I have to take the pressure off that ankle, so I kneel to the one ankle, to my left.
Q. Then how do you get up again?
A. With great difficulty.
Q. What about crouching or squatting?
A. Same, I kneel to my left or squat to my left, not to the right side.
Q. Over the last 3 or 4 months, how would you say this injury is going? Getting a bit better, a bit worse or staying pretty much the same?
A. I think it's a little bit worse as far as I can feel I'm getting arthritis in it.
Q. What's the sensation you feel rather than the medical diagnosis of it?
A. I get - it cracks and it locks. When I'm walking, you can feel it, crack, crack, crack, crack, crack.
Q. Did it do that a year after the surgery, was it making that cracking noise and that locking problem?
A. No, it did used to lock every now and then but I didn't get the cracking - that now when I walk I can actually hear it cracking as I walk.
Q. Recently, have you see Dr Kuo again?
A. I saw Dr Kuo about 2 weeks ago.
Q. And are there any plans for you to see him again?
A. I have to go back to see him again and have another scan done.
Q. You know that in this case Dr Kuo - one of two I think - has said that if you get arthritis you may need injection procedures into the ankle and eventually have a fusion done?
A. Yes.
Q. Is Dr Kuo a doctor who you trust?
A. Yes.
Q. So if he recommended that sort of treatment, would you have it?
A. Yes.
Q. I want to ask you, since the accident, how you've been going from an emotional point of view?
A. Not too bad. I'm not happy with the point I can't carry my grandkids upstairs and things like that now. I don't trust myself to carry them because of my leg, because of my ankle. But that's the most disappointing part." (T 21-22)

Summary of the plaintiff's evidence

33The plaintiff's evidence is that she reached maximum improvement about a year after the surgery and that she has effectively plateau and remained at that level since, although more recently she feels she had started to deteriorate in that she is having more "clicking" in her ankle when she walks. Her evidence is thus that she suffers from the following restrictions:

(a)She said she cannot crouch or squat;

(b)She initially said she cannot kneel, but later said that she can provided she places her right ankle in a way that is comfortable;

(c)She said she is restricted in driving more than 1 to 2 hours. She said she does not ordinarily have to drive that much on an average day; and

(d)She has a standing tolerance of some 3 hours per day and a walking tolerance of about the same per day, after which she has pain and has to rest the ankle.

34The plaintiff does not describe constant pain; if she is on her feet for more than three hours a day she needs to rest when she comes home. In closing submissions, Mr Lidden SC in submissions painted to me a picture of a woman in constant pain, but her evidence was as follows:

"Q. Did you tell Dr Kuo around that time, in June 2009, that you were having no pain in the ankle?
A. No, I didn't tell him I had no pain.
Q. This is about six weeks after the surgery. You didn't have constant pain in the ankle, did you?
A. Six weeks afterwards?
Q. Yes.
A. Yeah, I still had a lot of pain.
Q. This is when you were still on crutches, is it?
A. Yes.
Q. Was there a period in late 2009, after you were off the crutches, when you didn't have pain in the ankle, except if you'd been up on your feet for a long time?
A. Not really. I still had a lot of pain for about the 12 months.
Q. So around that time did the pain start to settle down?
A. It started to ease down after about 12 months afterwards.
Q. Was it around that time that it was really doing things and activities that brought on the aching or the pain?
A. That's correct, yes.
Q. Is it the case that you've told a number of doctors you've been to see that, in the warmer months, things weren't too bad, going through
A. That's correct. Cold weather brings it on, and if I'm actually standing on it or
Q. So is it the case, then, that the things that bring on the aching and the pain are being up on your feet or walking for too long? And you've given us some time estimates of how long you can do those things.
A. Yes.
Q. And the cold weather makes it ache. Is that right?
A. Yes, yes.
Q. But the cold weather doesn't cause a sharp pain, does it?
A. No, no, no. It's like a throbbing sort of - hard to say. It's not a stabbing pain, no.
Q. More of a dull ache?
A. Yeah, like a - yeah." (T 33-34)

35The plaintiff is able to drive for about an hour but after that time feels uncomfortable (T 35). She told the doctors that she was able to undertake ordinary household duties:

"Q. Don't worry about what you said to a doctor at a particular time, but does it sound right that, about 12 months after your surgery, you were able to attend to your ordinary household duties - cooking, cleaning and those sorts of things - without any great difficulty? Does that sound right?
A. It may have been right, yes.
Q. I take it, in relation to the town house you're living in, that any outdoor duties and things - they've traditionally been the domain of Warren. Is that right?
A. Yes." (T 36)

36The plaintiff did not tell any medical practitioner about being unable to clean the bathroom floor. She told the court this was an oversight on her part. This evidence is dealt with in more detail below.

The plaintiff's evidence in relation to the cracking noise in her ankles

37When asked how her condition had recently worsened, the plaintiff stated that her ankle was making a cracking noise at times and this was a new problem, as was the degree to which it would lock up after she had been walking for a while. She said the locking was accompanied by pain, which would ease when the ankle unlocked.

38However, Dr Cairns noted a history in May 2010 as follows:

"She reports intermittent tendency for the ankle to give way into inversion about two or three times a day which, although painful, does not provoke resultant bruising or swelling. She is aware of some residual ankle stiffness, and intermittent, non-painful cracking. If active on her feet for prolonged periods, she experiences some swelling above the ankle. She reports nocturnal pain extending up the sides of her right leg below knee, cramp like, causing her to stand out of bed to get relief."

39Dr Cairns also noted the plaintiff was unrestricted in her ability to perform household and other chores, including the shopping. He noted she was able to squat as long as she elevated her heel (p 3 of the report) and that she was on full time normal duties at work.

40Similarly, Dr Clarke, in his report dated 29 July 2010, noted that the plaintiff could weight bear and run (although the plaintiff disputed this in her evidence), and that she complained of tenderness and tightness, as well as an ache in the cold weather, but that in the warmer months the ankle had been quite comfortable. He similarly noted these findings about the ankle being comfortable in the summer months in his report of 3 August 2011.

41Although Dr Slater does not comment on ankle cracking, Dr Sullivan, in his updating report, noted pain being brought on by standing, walking or driving and that the ankle occasionally gave way. There was some cracking.

42The plaintiff said she was able to perform most household tasks, but that cleaning the bathroom floor, especially around the vanity and toilet, was not possible because it involved crouching down. Her de facto husband, Mr Muller, performed this task. This evidence is set out in more detail in the section of this judgment on future home care.

The plaintiff's future treatment

43The plaintiff is not currently taking any medication or seeing a general practitioner about her ankle. Her treating surgeon, Dr Kuo, described her future wellbeing (as at 2009, when he was writing his reports) as "fair to good", in that she responded well to surgery but that she did have chondral damage in the sub-talar joint which "could predispose her to osteoarthritic change". He went on to note:

"If symptoms become worse she may require treatment of the osteoarthritis in the form of medication and/or injections in the first instance. In the longer term, she may come to surgery such as a sub-talar joint arthrodesis."

44Dr Clarke in his medicolegal report of 29 July 2010 states:

"She may have difficulty negotiating uneven surfaces and will possibly need to wear an ankle guard on occasions. The sub-talar region of the ankle is likely to deteriorate in years to come and eventually she may require further operative intervention in the form of a localised arthrodesis."

45He repeated this comment in his subsequent report of 3 August 2011:

"She may develop progressive degenerative changes in the ankle in the years to come."

46Dr Cairns, unhelpfully, does not deal with these observations or refer to them at all. He simply states that she has made a "generally satisfactory recovery from a significant injury" and that she has "minor ongoing residual disability" (report of 10 May 2010).

47More helpfully, in his report of 31 January 2014, Dr Sullivan states:

"She should undergo an up to date MRI looking at the sub-talar joint for possible arthritic change. The joint is stiff and she is tender in that area."

48He went on to say that she would continue to have problems with work when carrying heavy objects and walking on uneven ground, that she has some discomfort with prolonged standing and does over do this for eight hours a day, but does not recommend surgery. The reference to an MRI is for possible arthritic change only.

Other medical evidence

49A report of Dr Klug dated 14 October 2011 finds that there is no psychiatric injury. The plaintiff gave Dr Klug an incomplete history and, given the wealth of indications of potential risk to the plaintiff's emotional wellbeing, the inadequacy of his history is unfortunate.

50However, notwithstanding the plaintiff having withheld from Dr Klug the seriousness of her psychiatric difficulties in 2001, her violent marriage, the circumstances in which her daughters disclosed sexual abuse and other relevant details of her background, the fact remains that he is of the view the plaintiff suffers from no psychiatric injuries, and there is no evidence to contradict his finding. He specifically notes the absence of depression, irritability, altered appetite (despite the fact that she put on two stone in weight), disturbance of concentration or memory, social withdrawal or loss of ability to enjoy activities and social events. Accordingly, no claim can be made for any injury of this nature.

51Although referred to only briefly in the defendant's outline of submissions (at paragraph 34), the plaintiff was cross-examined about an ongoing stomach condition which, unlike her ankle problems, has required her to take time off work and consult a medical practitioner. It was put to the plaintiff in cross-examination that this problem, rather than her ankle, was the biggest source of ongoing pain and anxiety. The plaintiff's medical records in relation to this stomach condition were tendered, and I was invited to discount the plaintiff's damages on the basis that this was her real problem.

52The submission made by the defendant overlooks two fundamental principles relevant to the assessment of damages in personal injuries. First, the tortfeasor must take the plaintiff as she is found: Mt Isa Mines v Pusey (1970) 125 CLR 383 at 406 per Windeyer J. Whether the accident compounds or aggravates a pre-existing condition, or the plaintiff develops some other medical condition which causes her injury, the defendant is not entitled to a discount on the damages that would otherwise be awarded because of other health conditions of the plaintiff unless the defendant satisfies the onus of proof to show that the ongoing complaints of the plaintiff are as a result of the underlying, or unrelated condition: Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164. Secondly, in order to discharge such an onus of proof on a medical issue, the defendant must provide evidence of an expert nature.

53It is not for the court to determine medical issues such as the nature and extent of health problems (and I note in this regard that the explanation for the plaintiff's stomach problems appears undiagnosable even to the experts she has consulted) without the benefit of expert evidence. The defendant is not entitled to tender medical records relating to the plaintiff's treatment for conditions not particularised by the plaintiff and not the subject of medical reports by the defendant, and ask the trial judge to carry out his/her own decision-making skills to opine, without the benefit of expert explanation, that the plaintiff has medical conditions which impact upon her general health or future employability.

54Additionally, the plaintiff has been cross-examined about these medical issues. The plaintiff's evidence is that her stomach problems are now under control due to changes in her stomach medication. Those answers must stand, in the absence of evidence to the contrary, and any role her stomach problems have played in her health is thus of no relevance to her claim for future economic loss.

Non-economic loss

55All of the doctors agree that the plaintiff is fit for her pre-injury duties. The plaintiff's evidence is that she has a condition which causes her pain after three hours a day of standing and walking, which aches in cold weather but is more comfortable in warm weather, which cracks and occasionally locks but which has not, it would appear, cause her to fall and requires her to be careful negotiating uneven ground and stairs. She can kneel, although very awkwardly, but remains unable to crouch or squat. I note the medical evidence records that she can perform these tasks, but I am satisfied that they are so difficult for her to perform that she cannot do so.

56The plaintiff has shown a commendable attitude to work in that she returned to work as soon as she was able. She has continued to work in jobs which require her to remain on her feet for several hours a day, in circumstances where she has gone home with sore feet. She is now in a position where her 38 hours a week with about three hours per day of compulsory over time consists of sedentary work, and she is able to perform this work without significant difficulties.

57In the future, the plaintiff may require surgery (Dr Klug), is predisposed to osteoarthritic change (Dr Kuo and Dr Sullivan) but is otherwise capable of continuing in her normal duties. The reference to the plaintiff developing degenerative changes in the ankle, and in particular arthritis, must be given due weight. The plaintiff's injury was "significant" according to Dr Cairns, but the evidence is that she has made a good recovery. The evidence about a future arthrodesis is limited only to it being a possibility, but there is a real chance of arthritis, and the plaintiff appears to have developed this now, according to Dr Sullivan.

58The plaintiff has suffered some loss of amenities. Prior to the accident, she enjoyed going for a run with her dog and she has not been able to do this. After a long day at work, if she is standing, she comes home with very sore feet and has to lie down on the sofa. However, it is clear from her evidence that pain is not constant, and that she has been able to perform her largely sedentary work in her current employment without difficulties. She has similarly been able to perform nearly all her domestic chores and has maintained a good relationship with her de facto partner. She has not suffered loss of enjoyment of activities and life in general, and she is able to work full time as well as to perform over time. Mr Lidden SC put to me that the appropriate sum to award for non-economic loss is 35% of the most extreme case ($176,500).

59The plaintiff suffered a significant injury, and clearly this takes non-economic loss over the threshold. However, her level of pain has not resulted in her taking any form of analgesic, even Aspirin, or consulting a general practitioner, beyond her recent return to see Dr Kuo. She is able to work full time, perform most household tasks and activities and her complaint of ongoing symptoms is slight. I am satisfied that she has made a substantial recovery from her injury and that when carrying out the evaluative exercise of determining the amount of non-economic loss, an appropriate award is 20% of the most extreme case ($16,500).

Past economic loss

60The plaintiff was paid $3,498 by her workers compensation insurer. Additionally, she gave evidence, about which she was not cross-examined, that she suffered a loss of $80 per week for the 24 weeks she received workers compensation insurance. That sum is $1,920.

61Any figure for loss of past superannuation on this additional sum was not the subject of submissions. If this is an oversight it may be corrected under the slip rule.

62Accordingly, both the sum of $1,920, plus $3,498 representing past wage loss, should be awarded. Any additional sum for past loss of superannuation on both sums, and/or Fox v Wood, should be included in the calculations of this precise amount.

Future economic loss

63The medical evidence was that the plaintiff was fit for her pre-injury duties, which required her to remain on her feet much more than her present job. The plaintiff's job appears to be secure, but the uncertainties of the labour market in this area of the job marked are evidenced by the plaintiff's own history of having been retrenched from one of the four jobs she has held since the accident, and of having to leave another job by reason of the company going into liquidation. Additionally, when the plaintiff returned to her former employment through a labour-hire company, she was obliged to leave work because she had difficulties standing for long periods of time.

64The likelihood is that the plaintiff will continue in full time work, which she tells the court she enjoys doing. Her current job is more financially rewarding than her previous employment. She has a strong work ethic and if she loses her job, her evidence is that she would find another one. The real difficulties is how to make an allowance for two potential factors, the first being that she would need to be off work if she is to have an arthrodesis, which would probably result in employment disruption for a period of up to one year, and the second is the impact of gradual degeneration of the injury site due to osteoarthritis.

65The evidence on these issues is limited. The most that the medical practitioners have done is to opine that an arthrodesis "may" be necessary. Mr Maybury, for the defendant, points to the fact that there is no information as to the cost of the operation, the length of time that it would take, the age at which the plaintiff would require to have such surgery, or indeed if such an operation is even a likelihood, as opposed to a mere possibility.

66Mr Lidden SC points to the plaintiff's evidence that having recently been to see Dr Kuo, that Dr Kuo is about to perform an MRI, and that Dr Kuo has expressed a view about her needing this surgery at some stage in the future. He also relies upon the advice of Dr Sullivan that an MRI is required. However, when Dr Sullivan was making those statements in January 2014, he was referring to the degenerative effects of osteoarthritis. He does not express a view as to the necessity or desirability of any further operative intervention. It is unfortunate that there is no report from Dr Kuo to counteract this opinion.

67If some allowance is made for the plaintiff to have a surgical intervention which will take her out of the workforce for a period of six months, this being the most likely period of time given the amount of time she was absent from the workforce for the debridement procedure, it would have to take into account the likelihood that she would have to cease employment and then seek further employment and that the net effect would be the absence from the workforce of one year. The question is whether such an allowance should be made and, if so, the degree of discount that should be made to take into account the scant and unsatisfactory evidence on this issue.

The relevant principles for assessing the plaintiff's future economic loss

68Where a plaintiff calls incomplete evidence of future economic loss and only a low award is made, a plaintiff cannot generally complain: State of NSW v Moss (2000) 54 NSWLR 536 at [69].

69However, the lack of such evidence is not an uncommon problem. Heydon JA went on to set out a series of principles relevant to cases where there are evidentiary difficulties of this kind. These included issues relevant for a jury assessment of damages (which was the case in State of NSW v Moss), but also included the warning that difficulty in assessing the amount does not mean that the plaintiff is only entitled to a nominal sum (at [71] - [72]). An increase in earnings after the injury, a not uncommon event in personal injury damages assessment, is no bar (at [85]).

70State of NSW v Moss is generally cited as the relevant authority on how to assess such loss in circumstances where the evidence is uncertain or problematic. Where precise evidence is not available, the court must do what Devlin J in Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422 at 438 called "the best it can" (at [72]). The court is not constrained by narrow limitations even though it is not entitled, without evidence, to assume a specific figure for what could have been earned without the injury (at [77]).

71However, there is a difference between no evidence being available (in the sense of an identifiable claim, such as loss of a chance to enter a profession) and no evidence of loss at all. The cases discussed in State of New South Wales v Moss are cases where future earning capacity "has unquestionably been reduced" (at [87]). None of the cases considered by Heydon JA concerned injured persons who had returned to the workplace, declared fit to perform pre-injury duties, who had carried out those same duties for some years, and was still working full-time as at the time of the trial. The uncertainties to which Heydon JA are uncertain estimates of what those "unquestionable" losses are.

72The plaintiff does not suffer those losses today, in terms of her ability to work full time. There is no doubt that the plaintiff will remain full-time in the work force for the rest of her working career, and that all of the medical evidence points to her being able to do so, subject only to the potential future development of problems which will require investigation and potentially surgery at some time in the future and the vicissitudes of life in the workplace for a woman at the plaintiff's level of employment.

73Despite the plaintiff's willingness to work, she is in a vulnerable position in the workforce. She lost two jobs due to the financial problems of her employers, and had difficulty performing another job (coincidentally with the company which had employed her at the time of the accident) because of the amount of standing, as Dr Sullivan notes. She has not yet had difficulty finding another job, but as she becomes older, this will become more difficult. As a poorly-educated woman at the bottom of the workplace ladder, the plaintiff will be even more likely to have difficulty changing jobs, or taking any time off work in relation to ankle problems, by reason of this injury. I am satisfied that, for the range of jobs her education and training makes her suitable, her earning capacity has "unquestionably been reduced, but its extent is difficult to assess" (State of New South Wales v Moss, supra, at [87]).

74In circumstances such as these, an award of a buffer for future economic loss would reflect the proposition that, to paraphrase Heydon JA, the want of precise evidence does not necessarily result in non-recovery of damages: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302 at [7] per McColl JA. However, McColl JA went on to warn that this was not a licence to award buffers indiscriminately; where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer (at [9]). It was when I drew these observations to Mr Lidden's attention, his response was to identify the sum sought as future wage loss as 25% of the plaintiff's current salary of approximately $52,000 per annum ($150,000) plus future loss of superannuation (at 13.93%) totalling $20,895.

75Mr Lidden SC's submission that the plaintiff has lost 25% of her income earning capacity for the whole of her working life (the basis upon which the claim for $150,000 is claimed) does not take into account McColl JA's explanation of the process for estimating future economic loss by the comparison of the past and future earnings, and endeavouring to identify the impact of the plaintiff's injury on her future earning capacity. The plaintiff's injury may affect her prospects of finding employment if, as has occurred in the past, she is made redundant due to her employer putting off staff or going out of business; similarly, at some future stage of her working career, she may require absence from the workforce for some months to have surgery, which may impact upon her ability to return to the workforce. That is the extent of her future economic loss, and to put that loss at 25% of her current income is demonstably an overstatement of that loss.

76However, the defendant's estimate of zero for future economic loss similarly fails to apply the principles of State of NSW v Moss, supra, as explained by Basten JA in Allianz Australia Ltd v Kerr, supra, at [24], where his Honour stresses that the question is not loss of income, but loss of capacity to earn income which "is or may be productive of financial loss", citing Graham v Baker (1961) 106 CLR 340 at 347; State of New South Wales v Moss, supra, at [71] per Heydon JA; State of New South Wales (NSW Police) v Nominal Defendant (2009) 53 MVR 243 at [86] per Beazley JA (Allsop P and Macfarlan JA agreeing). The plaintiff is not required with precision to identify that loss; the court must assess the degree of probability that the loss will occur (at [26], citing Malec v JC Hutton Pty Ltd (1990) 169 CLR 638).

77The medical evidence is, as has already been noted, scant and dated. Dr Sullivan's report does, however, identify arthritic changes, which is suggestive of the possibility that the surgery to which Dr Kuo refers may be appropriate in the future. More importantly, Dr Sullivan notes that the plaintiff has some discomfort with prolonged standings and that the plaintiff "does overdo this for eight hours a day".

78There is only a small likelihood is that the plaintiff will require ongoing treatment and potentially, towards the end of her working life; perhaps more realistically, however, her arthritic changes will impact upon her ability to perform work requiring standing for long periods, and she will continue to have problems at work when carrying heavy objects and walking on uneven ground. These problems will impact upon her employability in the event of changing jobs.

79Taking the above into account, the most realistic way to approach the quantum of the plaintiff's future economic loss is to allow for a buffer representing six months and a year of employment and the superannuation benefits for the relevant period, using the plaintiff's current salary as a guide, and taking into account the long period of her future working life up to seventy years of age. Based on the information provided to my by counsel in the course of closing submissions, in the course of which I invited them to address me as to what such a buffer should be, I propose to award a buffer of $50,000.

80This figure is "necessarily impressionistic", for the reasons explained by McColl JA in Allianz Australia Ltd v Kerr, supra, which are worth repeating:

"It must also be taken into account, when considering theappellant's complaint about the adequacy of the claims assessor's reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is "necessarily impressionistic": Brear v James Hardie & Coy Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 at [49] per Mason P (Spigelman CJ and Priestley JA agreeing)."

81The reasons for this figure being impressionistic are the failure of the plaintiff's legal advisers to provide up-to-date medical reports or evidence in relation to the plaintiff's future treatment (including the failure to answer Dr Sullivan's report, which does not refer to surgery as necessary) and the wide difference in the submissions made to me by both parties at the hearing.

Past and future out of pocket expenses

82Past out of pocket expenses are agreed at $17,226.

83The plaintiff takes no medication for ongoing pain and does not consult a general practitioner about her ankle problems. Nevertheless it is clear from Dr Sullivan's report of 31 January 2014 that the plaintiff needs to undergo an up to date MRI looking for possible arthritic change as the joint is stiff and she is tender in that area. He has suggested a radiologist to perform this and offered to look at the report. This indicates some ongoing problems and the defendant puts a cushion of $5,000 on this amount.

84The real question in these proceedings is whether at some future stage the plaintiff may require surgery. Dr Sullivan, the only doctor who has provided a recent report in relation to her condition, has not said so. The plaintiff has recently returned to consult Dr Kuo, but there is no report. Why there has been this delay in seeking a report about such essential evidence is not explained.

85The next problem is that, while I have noted, in the section above concerning future economic loss, that the plaintiff may pssibly require surgery in the form of an arthrodesis, there is no information as to when this will incur, what the cost will be, or how much time she will need to take off from work. I am simply left to speculate.

86Given the uncertainty concerning the plaintiff's future surgery, and the total lack of information, I propose to double the small sum for contingencies proposed by the defendant, and award the plaintiff the sum of $10,000 as a cushion for future out of pocket expenses, to allow for her requiring further treatment for the arthritis Dr Sullivan has observed in his report. The nature of the treatment to which he refers suggests that MRIs and visits to the specialist over the rest of the plaintiff's life are expenses that should be taken into account.

87It is impossible to identify when the plaintiff will require surgery, if at all, or what the cost will be. I propose to allow only a small buffer to allow for this eventuality, namely $5,000. Accordingly the plaintiff's future out of pocket expenses are $15,000.

Future home care

88Although there is no claim for past care, future care was particularised at two hours per week (having originally been claimed at 4 hours per week).

89Counsel for the defendant submits that the medical evidence does not support a claim for domestic assistance. That is correct, but I am conscious that the NSW Court of Appeal has warned that the expression of such opinion must be made by an appropriately qualified person, and not an orthopaedic surgeon or other medical practitioner without the requisite skills in rehabilitation medicine: Boral Bricks v Cosmidis [2014] NSWCA 443 at [93]. Consequently, the opinion of the plaintiff's own medico-legal orthopaedic surgeon that the plaintiff does not require home assistance (see the final paragraph of Dr Clark's report) is inadmissible, if the approach advocated by Basten JA is accepted. This course was embraced by Mr Lidden SC, who urged me to disregard all the medical evidence to the effect that the plaintiff did not need any home care, and to rely instead upon her evidence that not only did she require assistance in the home, in the form of help to clean the two bathroom floors, but that this work could not be performed by the members of the plaintiff's family who reside with her. Accordingly a claim for two hours per week of paid home care ($80 per week for 40 years x 917.5, totalling $73,400) was made.

90Whether or not the medical practitioners were sufficiently expert to express a view, it was within the realm of their expertise to take a history of the plaintiff's ongoing disabilities, which all of them did. All of them report the plaintiff as being able to perform her usual chores, as well as to work full time, and of having the functionality to perform these chores when medically examined. None of them refer to the specific problem of which the plaintiff complains, namely the difficulty of crouching down to clean the bathroom floor and bath and the difficult areas in between, such as behind the toilet and under the vanity.

91The plaintiff's evidence was that she forgot to tell the doctors this, and that her de facto, Mr Muller, now cleans the bathroom. Mr Muller also gave evidence that he did this task. The plaintiff said that he should not have to clean the bathrooms and she would prefer that he did not have to do so. Mr Muller, who presented as an easy-going and kind-hearted person, said that he was prepared to keep on cleaning the bathrooms in their entirety, and that he considered the performing of such a task as part of the ordinary give and take of the domestic relationship. (The plaintiff's adult daughter, who resides with them, has the sole care of three children and does not participate in the housework).

92Mr Muller's evidence was that prior to the plaintiff's accident he was largely responsible for outdoor work, and that now they were living in a townhouse with very little garden, he was performing these extra household tasks in about the same amount of housework time as he was devoting to the outside of their former home. There was no evidence that he would cease to perform these tasks in the same way that he had done in the past.

93The amount claimed falls below the threshold, and the basis upon which an award is sought is for future paid care: Miller v Galderisi [2009] NSWCA 353. The correct approach to such damages is explained in Gordon v Truong (2014) 66 MVR 241 at [132] - [134] as follows:

(a)The trial judge must make a finding, from the evidence, that the plaintiff is in need of domestic assistance, and the amount of time required for this purpose. The plaintiff is not entitled to be compensated for a non-injury need, such as cleaning the whole bathroom, if the need is only for someone to clean those parts she cannot reach without pain (i.e. the bathroom floor). The court must also be satisfied that there is a reasonable likelihood that the plaintiff will obtain commercial services, and should not make an award to compensate for such services unless this is the case: Miller, at [23].

(b)The next stage is what Basten JA calls the "predictive" exercise (Gordon, at [132]) as to whether Mr Muller would continue to look after the plaintiff in the same way that he had in the past, namely to clean the bathrooms.

(c)Additionally, there may be findings necessary of the plaintiff's or Mr Muller's pre-injury financial position (at [133]).

94The evidence of the plaintiff's need for assistance in the bathroom was scant, and to the contrary of the evidence of Mr Muller, whose willingness and physical ability to continue to perform this task was explored in some detail by counsel for the defendant (cf Gordon at [134]). This is consistent with the minimal amount of care required. Additionally, I accept the submission of counsel for the defendant (outline of submissions, paragraph 60) that it is inherently unlikely that the plaintiff would bring in a paid cleaner to perform one minor, isolated task, namely cleaning the bathroom floor. I cannot be satisfied of any reasonable likelihood that the plaintiff would in fact obtain such commercial services (Miller, at [23]) and accordingly am not satisfied that the plaintiff has made out a claim for future care.

95No award will be made for domestic assistance.

Orders

96By reason of the uncertainty concerning the precise figure for past economic loss, I have invited the parties to bring in Short Minutes of Order reflecting the mathematically agreed sum for entry as judgment in the plaintiff's favour. I have granted liberty to apply in relation to costs, which will otherwise follow the event.

(1)Judgment for the plaintiff.

(2)Parties have liberty to bring in Short Minutes of Order reflecting the mathematically agreed judgment sum.

(3)Defendant pay plaintiff's costs.

(4)Liberty to apply in relation to costs.

(5)Exhibits retained for 28 days.

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Decision last updated: 16 December 2014