District Court New South Wales

• Medium Neutral Citation: Hourani v Insurance Australia Limited trading as NRMA [2012] NSWDC 202
• Hearing dates: 24, 25 and 27 September 2012
• Decision date: 06 November 2012
• Jurisdiction: Civil
• Before: Levy SC DCJ

Decision

1.Verdict and judgment for the defendant;

2.The plaintiff is to pay the defendant's costs of the proceedings;

3.The exhibits may be returned;

4.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - alleged negligence of home and contents insurer - whether insurer should be held liable to the plaintiff for damages for personal injury when she slipped on a wet floor in her storm affected home due to ingress of rainwater in circumstances of alleged inadequate assessment and delayed repair of those premises by insurer's sub-contractors - causation - contributory negligence: DAMAGES - assessment of claimed heads of damage
• Legislation Cited: Civil Liability Act 2002, s 5D, s 5E, s 15, s 16; Evidence Act 1995, s 60; Motor Accidents Act 1999, s 128; Trade Practices Act 1974 (Cwth), s 74
• Cases Cited: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Hourani v Siemsen Group Pty Ltd, Censeo Pty Ltd and Nidus Inspection Services Pty Ltd [2012] NSWDC 203; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
• Category: Principal judgment
• Parties: Angela Hourani (Plaintiff); Insurance Australia Limited trading as NRMA (Defendant/Cross-claimant)
• Representation: Mr A Lidden SC with Ms M Fraser (Plaintiff); Mr J Craddock SC (Defendant/Cross-claimant); Brydens (Plaintiff); Wotton & Kearney (Defendant/Cross-claimant)
• File Number(s): 2010/100380
• Publication restriction: None

Judgment

Table of Contents

Nature of case	[1] - [7]
The plaintiff's case against IAG	[8] - [11]
IAG's defence to the plaintiff's claim	[12]
Cross claim against the builder	[13]
Related proceedings	[14]
Issues in the proceedings	[15] - [16]
Credit	[17]
Facts	[18] - [84]
Plaintiff's background circumstances	[20] - [23]
Storm damage arising on 9 December 2007	[24] - [27]
Tarpaulin placed on damaged roof	[28]
Temporary assistance from SES	[29] - [30]
Initial IAG response to storm damage	[31]
Subsequent involvement of Siemsen, Censeo & Nidus	[32] - [47]
Subsequent ingress of rain and injury on 6 February 2008	[48] - [58]
Initial treatment	[59]
Medical assessments of the plaintiff	[60] - [79]
Disabilities	[80] - [81]
Employment effects of injuries	[82]
Domestic effects of injuries	[83]
Mitigation	[84]
Consideration of issue 1 - Duty of care by IAG	[85] - [91]
Consideration of issue 2 - Alleged breach	[92] - [107]
Consideration of issue 3 - Contributory negligence	[108] - [114]
Consideration of issue 4 - Causation	[115] - [121]
Consideration of issue 5 - Assessment of damages	[122] - [149]
Plaintiff's life span	[123]
Non-economic loss	[124] - [125]
Past loss of income	[126] - [128]
Past loss of superannuation	[129]
Future loss of earning capacity	[130] - [135]
Future loss of superannuation	[136]
Past domestic assistance	[137] - [140]
Future domestic assistance	[141] - [144]
Future out-of-pocket expenses	[145] - [147]
Past out-of-pocket expenses	[148]
Summary of damages assessment	[149]
Conclusions	[150]
Disposition	[151]
Costs	[152]
Orders	[153]

Nature of case

1 On the afternoon of Thursday 6 February 2008, the plaintiff, Mrs Angela Hourani, fell on the wet slippery floor of the family room of her home after some rainwater had entered her house in a storm on the day before, through roof tiles that had been damaged in a storm that had occurred two months earlier, on the evening of Sunday 9 December 2007. As a result of that slip and fall, the plaintiff sustained soft tissue injuries to her back and to her left leg.

2 The defendant, Insurance Australia Limited trading as NRMA ["IAG"] insured the plaintiff's premises pursuant to a contract of home and contents insurance. That insurance contract provided that in the event of a claim for storm damage, IAG would inspect the premises, and effect the required repairs. The references to IAG and NRMA are used interchangeably in these reasons, depending upon the context.

3 The plaintiff claims that her injuries from the slip and fall on her premises were occasioned due to a breach of that contract of insurance, and also due to the alleged negligence of IAG as a result of delay in inspecting and repairing the premises. IAG denied that the injuries sustained by the plaintiff were due to any such breach of contract, or due to any alleged breach of a relevant duty of care.

4 The actual terms and the currency of the insurance policy were not in issue in the proceedings. Instead, the essential dispute between the parties to this litigation revolved around the question of the nature and extent of the duty that IAG owed the plaintiff under the policy, and whether there was a causally relevant breach of the terms of that policy.

5 In addition to the present proceedings, the plaintiff has brought separate proceedings against the insurer IAG, and has also joined IAG's appointed building inspector, and approved sub-contract builder, in which she also claims breach of duty of care and negligence resulting in her injuries: Hourani v Siemsen Group Pty Ltd, Censeo Pty Ltd and Nidus Inspection Services Pty Ltd [2012] NSWDC 203.

6 For convenience, both sets of proceedings were heard together, with the evidence in one case being taken to be evidence in the other, since both cases arise from the same body of facts, and those facts have given rise to the same claimed damages. Nevertheless, two separate judgments are required as the proceedings have not been consolidated.

7 This judgment will deal with the facts and the damages issues that are common to each case. The proceedings are governed by the provisions of the Civil Liability Act 2002 ["CL Act"].

The plaintiff's case against IAG

8 By her amended statement of claim filed on 8 October 2010, the plaintiff's allegations against IAG were essentially twofold.

9 First, in respect of the alleged breach of the agreement comprising the contract of insurance, the plaintiff relied upon an assertion that IAG's alleged failure to effect repairs to the premises constituted a breach of a term of the contract of insurance that had been entered into between the parties.

10 Secondly, in respect of the plaintiff's claim in alleged negligence, she asserted that IAG had failed to obtain access to the roof on her house in order to inspect it to ascertain the extent of the damage to the roof. It was consequently alleged that IAG failed to recognise that the plaintiff's roof repair needs required that it be afforded an emergency and priority status, which, it is claimed, led to a failure to arrange timely repairs to the roof, as well as a failure to warn the plaintiff that there was a danger of internal ceilings collapsing. The plaintiff also alleged a concomitant failure to warn her that she should move to other accommodation.

11 The plaintiff claims that during the time she had remained in her damaged premises, whilst her roof had not yet been rendered waterproof, she was oblivious to the risk that the damaged condition of the roof of her house would permit the ingress of water if further storms occurred. She claims she was thereby exposed to the foreseeable risk of injury from slipping on the wet floor of her premises in the event of further rains caused the floor to become wet, which in fact occurred.

IAG's defence to the plaintiff's claim

12 By a further amended defence filed in court by leave, on 27 September 2012, IAG essentially relied upon three defences. First, that it was not negligent as was alleged, secondly, that since it had engaged the services of competent independent contractors to assess the damage and to effect repairs to the plaintiff's property, it was not liable for any acts, neglects or defaults on the part of that independent contractor or their sub-contractors, and thirdly, an allegation that the plaintiff's injuries were due to contributory negligence on her part, in allegedly failing to take care for her own safety, failing to ensure that temporary mitigatory waterproofing measures undertaken by the State Emergency Services ["SES]" were suitable to the circumstances, and an alleged failure to keep a proper lookout for her own safety.

Cross-claim against the builder

13 In these proceedings, IAG has pursued a cross claim against the IAG assigned builder, Siemsen Group Pty Ltd. The result of that cross claim is dependent upon the outcome of the plaintiff's claim against IAG.

Related proceedings

14 The independent contractor, Siemsen Group Pty Ltd ["Siemsen"], its appointed subcontracted inspector Nidus Inspection Services Pty Ltd ["Nidus"] and the IAG approved appointed builder Censeo Pty Limited ["Censeo"] have also been sued by the plaintiff in separate proceedings numbered 2011/145387: Hourani v Siemsen Group Pty Ltd & Ors [2012] NSWDC 203. Judgment in those separate proceedings is also delivered concurrently.

Issues in these proceedings

15 The issues for determination in these proceedings can be conveniently stated as follows:

Issue 1 - Whether IAG owed the plaintiff a duty of care and, if so, the nature and content of that alleged duty of care. My conclusions on this issue appear between paragraphs [85] to [91] of my reasons;

Issue 2 - Whether, and if so, in what manner, the duty of care allegedly owed by IAG had been breached. My conclusions on this issue appear between paragraphs [92] to [107] of my reasons;

Issue 3 - Whether, and if so, to what extent, there was contributory negligence on the part of the plaintiff. My conclusions on this issue appear between paragraphs [108] to [114] of my reasons;

Issue 4 - Whether the plaintiff has established that her injuries and claimed losses were relevantly caused by the claimed breach of duty of care. My conclusions on this issue appear between paragraphs [115] to [121] of my reasons;

Issue 5 - The assessment of the plaintiff's entitlement to damages. My conclusions on this issue appear between paragraphs [122] to [149] of my reasons.

16 The issues that arise concerning the nature and extent of the plaintiff's injuries, the residual effects of any ongoing disabilities, and the effects of these matters on the plaintiff's earning capacity and her need for assistance with domestic activities, will be dealt with in those portions of my reasons that concern the assessment of damages. Before dealing with those issues, it is necessary to say something about the credibility of the testimony given in these proceedings.

Credit

17 I gained the impression that all of the witnesses who gave evidence did so honestly, using their best endeavours to give a truthful account of the relevant events as they knew and understood them to have occurred. In my view, no adverse issues arose concerning the credibility of that testimony. Instead, I consider that the reliability of the evidence given by the plaintiff; Mr Willis who is her neighbour and friend; Mr Marshall, the Managing Director of Censeo and Nidus, IAG's appointed damage assessor; Mr Bee, IAG's appointed building assessor; and Mr Norden, IAG's appointed claims officer, stands to be evaluated according to the content of their evidence when weighed with the circumstances that prevailed at the relevant time, and in light of the contemporaneous documents that are relevant to that evidence.

Facts

18 There is no factual dispute as to the existence of the policy of insurance or as to the defendant's liability to pay for the storm damage occasioned to the plaintiff's roof. There is no dispute that the insurance contract does not constitute an agreement for services within the meaning of s 74 of the Trade Practices Act 1974 (Cwth).

19 In the paragraphs that follow, I set out my findings of fact concerning the plaintiff's background, her pre-accident circumstances and work history, as well as the events giving rise to her injuries, and the relevant matters concerning her medical assessment and treatment.

Plaintiff's background circumstances

20 The plaintiff was born in 1971. She was aged 37 years at the time of her injury, and she was aged 41 years at the time of the hearing. She is a widow with three children aged 23, 19 and 16 years. Her first marriage ended in divorce, her second husband died in 2003. The untimely and unexpected death of her second husband caused her to suffer depression before the events in question in these proceedings.

21 The plaintiff had worked in a variety of occupations. She had worked as a receptionist in her first husband's refrigeration business. Between 1996 and 2003, she also continued in that role in her second husband's refrigeration business until he died. In 2000, she obtained a Certificate III in Financial Services from TAFE. In 2001 she obtained a diploma in beauty therapy. In 2002 she operated a beauty salon from her home for a short period. In May 2007, the plaintiff commenced operating a business repairing seals on refrigerators. She conceded that this business failed to succeed for reasons other than as a result of the injuries that she sustained in the subject accident.

22 On the issue of the plaintiff's pre-accident health, IAG tendered the clinical records of the plaintiff's treating general practitioner: Exhibit "6". A review of those records shows there were pre-accident consultations that dealt with issues such as occasional musculoskeletal problems, a longstanding left foot injury, weight issues, and low mood and stress issues that followed the unexpected death of her second husband. Those matters had limited relevance to the matters arising from the accident in question as the defendant must take the plaintiff as she is found.

23 The plaintiff is the youngest of 8 children. As a result of an arrangement arrived at through negotiation between family members, the plaintiff is presently in the role of carer for her mother, who has dementia. This has been her role since 2010, when one of her sisters was no longer able to fulfil that role.

Storm damage occurring on 9 December 2007

24 On the evening of Sunday 9 December 2007 there was a significant hailstorm in the Blacktown area, which included the location of the plaintiff's home at Doonside. In that hailstorm the plaintiff's property sustained substantial damage to numerous roof tiles.

25 The IAG records show that the plaintiff contacted IAG by telephone at 15:55 hours on 12 December 2007 in order to initiate a claim under the policy. Those records show that IAG promptly allocated Siemsen as the approved builder and repairer of the damage claimed. Siemsen then entered into sub-contract arrangements with Censeo and Nidus.

26 The IAG records show that between 12 December 2007 and 6 February 2008, there were delays experienced by the plaintiff in achieving repairs due to the need for quotes and the suggestion that the plaintiff or someone on her behalf may attend to the repairs. Ultimately, the plaintiff negotiated a result with IAG whereby she would arrange for her own repairs to be carried out, but this only occurred after she had fallen and sustained injury on 6 February 2008.

27 It was subsequently revealed that many houses in the vicinity had sustained similar damage in that hailstorm. The evidence of Mr Norden on behalf of IAG was that there were approximately 14,000 claims made on insurers in respect of storm damage in the area in question arising from that storm. In insurance terms, the defendant's documents show that this particular storm was characterised as a catastrophe. This could well explain why the SES became involved some days after the initial storm, and why the claim and repair works proceeded slowly.

Tarpaulin placed on damaged roof

28 On or about 10 December 2007, the plaintiff's next door neighbour and friend, Mr Willis, climbed onto the roof of her premises and installed a small tarpaulin that served to cover an observed broken tile that had collapsed. At that time, Mr Willis did not climb onto the rest of the plaintiff's roof to survey it, nor did he make a close detailed inspection. However, from his visual inspection he said he was able to determine that there were numerous damaged tiles on the roof, which estimated to involve in excess of 150 tiles. In that regard, he disagreed with the assessor's report to the effect that a much lesser number of tiles were damaged.

Temporary assistance from State Emergency Service

29 The records of the State Emergency Service ["SES"] show that at about 13:50 on 14 December 2007 the plaintiff called the SES to ask for assistance to be provided to her with regard to damage to the roof of her house. The records do not identify the content of that conversation in any further detail. The SES records show that at 17:02 on 16 January 2008, the status of the request was noted to be complete. The SES records do not show what was done to the plaintiff's roof in the way of damage control or temporary repairs.

30 The evidence called in the plaintiff's case was that the SES personnel had attended at the plaintiff's house but did not assess the structural integrity of the roof. The evidence was that the SES officers in attendance had applied fibrous waterproof tape to some cracked tiles, but not all cracked tiles were treated in that way.

Initial IAG response to storm damage

31 On 12 December 2007, shortly following the plaintiff notifying her insurer of the storm damage, IAG opened a file and appointed Siemsen to undertake an assessment as its preferred builder. The work was described as being semi-urgent in nature. There is no criticism of IAG's response in this regard.

Subsequent involvement of Siemsen, Censeo and Nidus

32 Siemsen is an independent building contractor and at the relevant time, pursuant to a contract entered into between Siemsen and NRMA, Siemsen was described as an NRMA preferred builder. It had no direct contractual or advisory relationship to the plaintiff. It was engaged directly by NRMA to assess, inspect and repair the damage to the plaintiff's premises. In the context of the initial storm damage sustained to the plaintiff's home, NRMA's engagement of an independent contractor in this way is unremarkable.

33 In this instance, Siemsen conducted its business by delegating the task required of it by IAG, to another independent building contractor, Censeo, and Censeo's subsidiary, Nidus, which reported to Siemsen. The effect of the arrangements was that Siemsen would obtain the details of the assessment carried out by Censeo and Nidus, then liaise and report to NRMA. Following NRMA approval of the proposed works, after an examination of costings and related matters, Siemsen would then commission the works and ensure completion of them, and report to NRMA in this regard.

34 On 17 December 2007, Siemsen appointed Censeo to undertake an assessment of the plaintiff's damaged roof. On 3 January 2008, Mr Bee, on behalf of Nidus and Censeo, attended the plaintiff's premises for the limited purpose of making an assessment to report to the insurer. That assessment was not in the nature of cataloguing all of the relevant damage, but was merely to identify the elements of the damage, namely roof structure and tiles, without precise quantification.

35 I find that Mr Bee told the plaintiff he was there to carry out an assessment for the purpose of insurance, or more correctly, for the insurance claim. I find that he made no mention to the plaintiff of the existence of the entities Siemsen, Censeo or Nidus at that time.

36 On 4 January 2008 an assessment report was prepared for NRMA by Mr Marshall, on behalf of Censeo. Mr Marshall based his report on Mr Bee's assessment. That report identified the damage to the plaintiff's property as comprising damage to various roofing elements due hail, as well as damage to the cladding of the pergola on the premises. The initial Nidus report identified the scope of the works as requiring replacement of approximately 30 concrete roof tiles and some ridging sections at an estimated cost of $11,792.

37 After reporting to Siemsen on 4 January 2008 neither Censeo nor Nidus had any further involvement in the assessment of the damage to the plaintiff's roof.

38 Between 4 January 2008 and 4 February 2008, when further rain occurred which then led to the plaintiff's slip and fall, there were a number of contacts between NRMA and the plaintiff.

39 The first was on 10 January 2008, when the plaintiff called NRMA and was advised a report was still outstanding from the builder, at which time it was suggested that the plaintiff could obtain her own quotes.

40 The second was on 15 January 2008, when the plaintiff was advised by NRMA the builder had not yet reported. At this time the plaintiff was advised that when the builder's report was received, she could decide whether to use the NRMA builder or get her own quotes.

41 The third was on 16 January 2008, when the plaintiff called NRMA to ascertain if the builder's report had been received. At this time there was a discussion to the effect that the scope and estimated cost of the required works remained undefined. At this time the plaintiff expressed her concern that the assessing builder had not climbed onto the roof to carry out an accurate assessment of the damage, and as a result, had made an inadequate inspection.

42 During the above interval, there was no suggestion of any further water ingress into the premises. In the 19 days between 16 January 2008 and the occurrence of further rains on 4 February 2008, as a result of queries raised on behalf of the plaintiff, NRMA requested the builder, Siemsen, to check how many tiles had been damaged and to also check whether the solar system on the roof had been damaged. NRMA was awaiting advice from the builder during this time.

43 In the period that followed, on 29 January 2007, the plaintiff's friend and neighbour Mr Willis variously expressed his concern to NRMA that the insurance assessor had not climbed onto the plaintiff's roof to make a detailed assessment of the full extent of the damage, and had therefore not fully appreciated the extent of such damage.

44 No repair works were carried out to the plaintiff's storm damaged roof before the occurrence of further storms on 4 and 5 February 2008, which caused the plaintiff's living room to become wet from the ingress of rainwater and contamination from a waterlogged ceiling that had collapsed.

45 Siemsen forwarded its assessment report to the IAG on 29 January 2008. Subsequent discussions then ensued with IAG concerning the adequacy of the inspection and damage assessment.

46 It is clear that during these events neither the plaintiff, the NRMA, the builder nor the appointed assessors expressed any concerns over possible water ingress pending repairs to the roof. No sense of an immediate need for repairs was conveyed and it appears plain it would take time to effect the repairs.

47 As at 4 February 2008, the damage to the plaintiff's roof had not been fully surveyed for damage, assessed or repaired.

Subsequent ingress of rain into the premises and injury on 6 February 2008

48 On 4 and 5 February 2008 substantial rain fell in the area of the plaintiff's home. At 14:24 hours on 5 February 2008, the plaintiff rang the insurer to advise that on the previous day, rainwater had entered her lounge room, her family room and her garage. She also advised IAG that the family room ceiling had started to swell and there was water leaking from the downlights in that room.

49 On 6 February 2008, the plaintiff slipped and fell on the wet floor of her living room whilst proceeding to answer a telephone call.

50 At 18:16 hours on 6 February 2008, the plaintiff rang IAG in distress to advise that the ceiling in her family room had fallen in and had nearly injured her child who had been standing nearby. IAG's response was to advise the plaintiff to call the SES so the tarpaulin could be checked, and to request the plaintiff to send quotes. IAG also advised it would email its appointed builder to make the premises safe because of water leaking through lights. The insurer's file was marked as "awaiting quotes". Subsequently, IAG spoke to a Siemsen assessor who was in the area and asked him to attend to seek to make the property safe. Siemsen arranged urgent temporary repairs, which included the affixing of timber battens to the remaining ceilings to prevent further collapses. That work was carried out responsive to the required urgency, at 10pm on the evening of 6 February 2008.

51 At 20:34 hours on 6 February 2008, a representative of IAG called the plaintiff to ascertain if the assigned builder had made the premises safe. In that telephone call the plaintiff advised the IAG representative that the premises had not been made safe, and that she had fallen on the slippery floor: Exhibit "1", Tab 9, page 239.

52 Although the IAG record of that conversation did not state that the floor where the plaintiff's fall occurred was slippery because it was wet, I accept the evidence of the plaintiff that this was the cause of her fall.

53 The injury occurred when the plaintiff walked towards the telephone, which was ringing in the family room. In doing so, she slipped in the water and some associated ceiling insulation material that was located on the floor in that room. As she fell, she landed on her backside and noticed a pain in her lower back. This event took place in the presence of her children and two emergency workers sent by the insurer to assess the damage to the ceiling and the roof.

54 At the time of the first inspection of the premises by IAG's representative, the floor where the plaintiff had fallen was not wet. However, at the time the plaintiff slipped and fell, she either knew or ought to have known that the floor area in question was wet and slippery, and was contaminated by debris that had fallen from the ceiling above the floor.

55 After the plaintiff's injury, the entities Siemsen, Censeo and Nidus had no further involvement in the relevant events.

56 On 28 July 2008, the plaintiff received a facsimile communication from Siemsen, which set out the proposed scope of the repair works to her home. I find that until that time, in the course of her various dealings with the representatives of all entities, at all such times, the plaintiff believed she was dealing with NRMA.

57 I find that it was only on, or shortly after 28 July 2008, that the plaintiff became aware that NRMA had arranged for the interposition of the entity Siemsen into the chain of command concerning the assessment and repair arrangements for the damaged roof: Exhibit "D".

58 Thereafter, the plaintiff became aware of the existence of the entities Censeo in 2011, and of Nidus in February 2012: Affidavit of Katia Falco, sworn 25 September 2012, paragraphs [26] to [37]. These dates relate to the limitation defences that have been raised.

Initial treatment for injuries

59 The plaintiff went to see her general practitioner who gave her painkilling medication and told her that the bruising to her arm and her back would subside. The records of the plaintiff's general practitioner relating to the post accident period make reference to the plaintiff having had recurring back pain, difficulty sleeping and depression since the accident. In the following paragraphs I set out a summary of the matters traversed in the medical evidence tendered by the parties.

Medical assessments of the plaintiff

60 Between 6 February 2008 and 30 July 2009, the plaintiff had some 14 consultations with her treating general practitioner concerning problems noted as back pain, depression, insomnia, postural problems due to back pain, insomnia and weight gain, and difficulties with activities requiring bending, sitting, standing and walking for prolonged periods.

61 On 19 August 2009, at the request of her treating general practitioner, the plaintiff was assessed by Dr Anthony Kwa, a consultant neurosurgeon and spinal surgeon. He considered that the plaintiff's left ankle pain was due to some form of radiculopathy from her back. He suggested the plaintiff have an MRI scan investigation.

62 On 3 November 2009, the plaintiff underwent an MRI scan of her lumbar spine. That scan was interpreted as revealing an early left posterior, postero-lateral and far left protrusion, and an annular tear at L4/5 with minimal neural encroachment.

63 On 4 November 2009, the plaintiff was reassessed by Dr Kwa. He reviewed the results of the MRI scans of the plaintiff's lumbar spine. He considered the plaintiff had a tear in the left foraminal region of the L4/5 disc, with associated low back pain and left leg pain, potentially due to an annular tear at the level L4/5 in the vicinity of the L4 nerve root. At that time he did not consider that surgery was indicated.

64 On 22 December 2009, at the request of her solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad recorded a history of the plaintiff's complaints as being, ongoing back pain radiating down to her left leg, aggravated by activities such as standing, sitting, bending or lifting, which causes her to reduce her activities. Dr Conrad was in no doubt that the plaintiff suffered a disc prolapse at the level L4/5 when she fell. He was of the opinion that this was the cause of the plaintiff's back pain and her complaint of left-sided radiculopathy.

65 On 22 April 2010, at the request of her solicitor, the plaintiff was assessed by Mr Gerard Glancey, a clinical psychologist. He recorded that the plaintiff had reported concentration difficulties and depression associated with her injuries. He also recorded a history of the plaintiff's increasing social isolation as a result of her injuries and increased weight gain due to her reduced capacity for physical activity. He also noted that her attempts at exercise had increased her level of pain. He also noted the plaintiff experienced increasing levels of anxiety, and disturbed sleep associated with spasms in the left leg. Mr Glancey made a diagnosis of adjustment disorder with mixed anxiety and depressed mood.

66 On 6 August 2010, the plaintiff was re-examined by Dr Conrad. He noted the plaintiff's back pain was deteriorating and she had developed bilateral radiculopathy.

67 On 5 November 2010, the plaintiff was again reassessed by Dr Kwa. He noted the plaintiff's symptoms had improved since the last consultation. He recommended treatment by medication.

68 On 3 August 2011, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Ross Mellick, a consultant neurologist. Dr Mellick recorded the plaintiff's symptoms as back pain, referred pain to the left leg and ankle, headaches, fatigue, forgetfulness and excessive weight gain. Dr Mellick accepted a temporal connection between the accident and the onset of symptoms. He also identified a mood disorder comprising anxiety and depression. Dr Mellick characterised the plaintiff's injury as being soft tissue in nature and therefore of short duration. He considered the ongoing complaints of back pain were as a result of aggravation of an underlying degenerative disease of the lumbar spine, contributed by excessive weight. He also suggested that the plaintiff's mood disorder and depression would decrease the pain threshold and exacerbate symptoms of chronic pain.

69 On 9 August 2011, the plaintiff was reassessed by Mr Glancey. He reported she had experienced problems of mood control, with continued depression and anxiety. The problem with sleep disturbance and pain was also reported to be continuing. Mr Glancey confirmed his earlier diagnosis. He indicated that the plaintiff's prognosis appeared uncertain, and that alternative diagnoses to be considered were those of major depressive disorder and adjustment disorder with anxiety. He noted that she was reluctant to take antidepressant medication because when she had taken it she had gained some 25-30kg in body weight. Mr Glancey thought she should consider a course of antidepressant medication, although that view was not a medical opinion, and Mr Glancey was not in a position to prescribe such medication.

70 On 17 August 2011, the plaintiff was again re-examined by Dr Conrad. He noted the plaintiff's back condition had continued to further deteriorate since the time of his last examination of her. He was of the opinion the plaintiff would need surgery in the form of laminectomy and discectomy to her lumbar spine at the affected level.

71 On 30 August 2011, at the request of the solicitor for the defendant, the plaintiff was examined by Dr John Smith, a consultant psychiatrist. Dr Smith reviewed medical records and other reports and then took his own history from the plaintiff of low back pain, with pain referred down the left leg, headaches and depression. Dr Smith concluded that as a result of the accident and the resultant pains and symptoms, the plaintiff has suffered an adjustment disorder with depression and mild anxiety. Dr Smith argued that since it was documented that the plaintiff had suffered some episodic depression before the accident, the post accident depression should be seen as an aggravation of pre-existing emotional problems. He considered there was scope for improvement with medication and pain management treatment.

72 In my view, the evidence for Dr Smith's view that there had been an aggravation of a pre-existing problem was tenuous. This is because the underlying causes of the respective periods of depression were different in the sense that the first in time was due to the plaintiff's grief over her deceased husband, and the second was due to the ongoing and debilitating effects of her injuries. In that sense, there were different entities for consideration. In my view it is artificial to consider the entity of depression without also considering the underlying cause of such depressive episodes.

73 Accordingly, I did not find Dr Smith's formulation to be of assistance because he did not adequately address a differentiation of these respective conditions, and has instead regarded one as an extension of another, which was not helpful to a causation analysis where the pivotal issue was whether the events in question were a significant or material contributing cause of the plaintiff's depression.

74 Furthermore, I considered Dr Smith's reference to the potential for improvement of the plaintiff's depression with medication and pain management to be supportive of the accident in question being a material cause of the plaintiff's depression.

75 On 19 September 2011, pursuant to a request made of him by the solicitor for the defendant, Dr Mellick provided some supplementary comments after considering the records of the plaintiff's general practitioner, which had been provided to him for that purpose. Dr Mellick confirmed his earlier views concerning the aggravation of underlying degenerative changes in the plaintiff's back, and a connection between the underlying degenerative disease in the back and the plaintiff's radicular symptoms.

76 On 19 October 2011, at the request of the solicitor for the defendant, Dr Ronald Schnier, a consultant radiologist, reviewed a series of x-rays, CT scans and MRI scans taken variously of the plaintiff's lumbar spine and left ankle over the period 25 June 2009 and 3 November 2009. Dr Schnier was of the opinion that the plaintiff had minor annular bulging and tearing of the L4/5 lumbar disc in two described places, as well as the presence of some degenerative change along the margin of the L5 vertebra. With regard to the radiological findings generally, Dr Schnier observed that the progression of lumbar symptoms was variable between patients. He indicated it was possible that there could be some deterioration in the future.

77 On 18 July 2012, the plaintiff was seen again by Mr Glancey. He noted she was taking antidepressant medications, but at half dose out of concerns over side effects. She reported ongoing and persisting back pain and heartburn from the use of medications. The problems of sleep disturbance, anxiety and depression were reported as being continuing problems. Mr Glancey recorded that the plaintiff had told him she experienced aggravation of her pain with physical activity. Mr Glancey confirmed his earlier diagnosis, and recommended treatment with antidepressant medication and counselling with a psychologist.

78 On 30 July 2012, the plaintiff was again re-examined by De Conrad. On that occasion he noted that the plaintiff's condition continued to deteriorate since his last examination, with increasing pain in her back and left leg. He recommended conservative treatment in the short term but noted that a lumbar fusion and discectomy procedure may be required if the plaintiff's condition continued to deteriorate.

79 On 16 August 2012, at the request of her solicitor, the plaintiff was assessed by Dr Thomas Clark, a consultant psychiatrist. He reviewed her history and identified his diagnosis of the plaintiff as being a major depression with prominent associated anxiety features. He noted that the plaintiff's symptoms overlapped with the diagnosis of a post-traumatic stress disorder type syndrome.

Disabilities

80 Given that I have accepted the plaintiff as a credible witness, I am satisfied that the medical and allied practitioners who have provided reports following their examinations of the plaintiff, have accurately summarised her complaints. I take those summaries to be evidence of her injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.

81 I am satisfied that the plaintiff continues to suffer from significant recurring low back pain from her lumbar disc injury. I accept that she has difficulty maintaining certain postures due to back pain, and difficulty with bending, sitting, standing and walking for prolonged periods. I am also satisfied that the plaintiff suffers radiated pain into her left leg and ankle, resulting from her back injury. I also accept that the plaintiff has gained weight due to her resultant inactivity, and also probably due to her related psychological difficulties consisting of anxiety, insomnia, headaches, fatigue and depression.

Employment effects of injuries

82 As a result of her injuries and disabilities the plaintiff has been unable to work since the onset of those injuries. This is despite attempting to do some part time bookkeeping work in 2010. She found she could not cope with that work because of problems with prolonged sitting, and with concentration difficulties due to pain. She said she could possibly cope with 3 to 4 hours of work per day but had been unable to find such work and doubted her ability to perform that work reliably.

Domestic effects of injuries

83 As a result of her injuries and disabilities the plaintiff has been unable to carry out her normal domestic duties since the accident. This extends to ordinary housework, pool cleaning, lawnmowing, gardening, vacuuming, cleaning floors, sweeping and mopping. These activities cause her to suffer back pain.

Mitigation

84 The plaintiff has a duty to mitigate the adverse effects of her injuries and related disabilities. In my view, she has done so by seeking out medical advice and treatment and obtaining the treatment that is described in her evidence and in the medical reports which have been tendered. She also attended counselling sessions which also indicates that she made reasonable attempts at mitigating the effects of her injuries.

Consideration of Issue 1 - Whether IAG owed a relevant duty of care

85 The nature and extent of the duty owed to the plaintiff by IAG must be determined by reference to the contractual terms of the policy of insurance issued by IAG. That policy is in the form of a 72 page booklet: Exhibit "1", Tab 1. Implicit in any such duty of care is the obligation to act in good faith pursuant to the contract of insurance.

86 The insurance policy relevantly provided that except for excluded matters that do not apply here, storm damaged building structures would be rebuilt or repaired: Policy, pages 15 and 23. The policy also provided that for such purposes, the insurer may need to inspect the property before a decision could be made about the claim, and the insurer may require a quotation from a repairer nominated by the insurer: Policy, page 58. Relevantly the policy did not cover the plaintiff for injury: Policy, page 36. The plaintiff's claim in this case is not one for personal injury arising under the policy.

87 It is plain from the terms of the policy that the insurer had a duty to honour the terms of the policy if the preconditions were relevantly met. Any other duty on the part of the insurer, as claimed by the plaintiff, could only exist as a legal obligation implied from the circumstances.

88 The insurer's duty to honour the policy obviously included the obligation to arrange an inspection of the damage, either by a suitably qualified employee of the insurer, or by some suitably qualified person acting pursuant to delegated authority. The purpose of the inspection was to obtain some definition of the nature and extent of the damage as part of the claims evaluation process, and as a prelude to either repairing or rebuilding the damaged structures.

89 These obligations on the insurer are not to be viewed in isolation, and must be determined according to what was reasonable in the circumstances, a matter that must be viewed in the light of the severity of the storms that caused the damage and the relative number of claims that required assessment on behalf of the insurer in the area, within a relatively short space of time, and according to considerations of reasonableness. The contract of insurance did not specify a time frame for inspection and repair of any damage which was the subject of a claim.

90 Although a facet of the duty owed by IAG included the duty to make the premises safe following an inspection, this did not necessarily mean that the premises had to be made safe from all sources of possible danger to persons present within the premises.

91 The duty of the insurer to make the premises safe must also be read in light of the concurrent obligation of the plaintiff not to unreasonably expose herself to foreseeable sources of injury from any identifiable or foreseeable condition of danger on the premises.

Consideration of Issue 2 - Alleged breach of duty of care

92 The plaintiff has claimed that the duty of the insurer was to, with reasonable promptness, ascertain the fact that the plaintiff's roof was severely damaged so as to allocate a due priority status to the required repairs. The plaintiff has claimed that this duty also extended to making the required repairs to the roof as soon as possible, and absent the facility for effecting urgent repairs, it is claimed that this duty also extended to informing or advising her that for reasons of her safety, she should move to alternative premises to avoid injury, including because if it rained again, the ceilings in her house were in danger of collapse: amended statement of claim, paragraph 13.

93 In my view, for the reasons that follow, the plaintiff's submissions in this regard seek to impose obligations on the defendant insurer that are framed with the benefit of hindsight, and which are too onerous when compared with the factual circumstances. Accordingly, I consider that the arguments raised as to alleged breach of duty on the part of the insurer should not be accepted in the circumstances of this case.

94 Firstly, the claimed duty to render the damaged roof waterproof by effecting temporary repairs must in this case be seen to be too onerous an obligation. To imply such an obligation, would require the insurer to have appreciated from the initial inspection carried out on its behalf, the complete extent of the damage, or to have had at least a full appreciation of all points of potential water entry due to storm damage to the roof. In the context of an evolving and complex process of claims assessment where the full extent of the damage had not been and could not have been ascertained, the plaintiff's submission seeks to impose too high a standard on the insurer.

95 An understanding concerning the extent of the damage as contended for on behalf of the plaintiff could only have come from a detailed survey of the roof for the purposes of identifying with precision, the nature and the extent of the required repairs. That obviously required an inspection of the roof itself, from the roof, rather than from an inspection on the ground.

96 In the context of this case, it is clear that the initial inspection carried out on behalf of the insurer was of a preliminary nature only. In my view, it would have been unreasonable, in the context of multiple other claims of a similar kind arising from the storm in question, to require that the contended detailed survey be carried out in full at the time of that initial broad-based inspection. I consider this to be so, particularly since that initial inspection was carried out without the availability of safety equipment required for safe working at heights: Exhibit "2".

97 In my view, a limited preliminary inspection from the ground was sufficient at that stage of the plaintiff's claim on her policy. It follows that I consider it is unreasonable to require that the insurer was obliged to make the premises completely waterproof from anticipated further rainstorms immediately following that initial inspection, without a full appreciation of the extent of the damage. There is a difference between making the premises safe and making them waterproof.

98 Secondly, in the context of multiple claims in the district and the need to have a suitably qualified repairer survey the damage, tender for the work involved in carrying out repairs, and then carry out the required repairs, I consider it to be unreasonable that before such a survey, the repairs should have been assigned a priority status. This is particularly so where there is no evidence as to what the other works on other damaged houses might have entailed. Without that evidence it is difficult to gauge what the insurer's claimed priorities should have been.

99 Thirdly, the claimed failure to warn the plaintiff to move out to alternative premises due to possible ceiling collapse in the event of further rains, involved what I consider to be a hindsight judgment that was not reasonably available to the insurer at the time.

100 I consider this to be so because the claimed failure is based on the flawed premise that at the outset, the insurer's delegated inspector ought to have climbed on the roof at the initial inspection, at which time the full nature and extent of the damage would have become known.

101 In my view, the flaw in that argument is the unreasonableness of the claimed need for such a detailed roof inspection to fully survey the damage at the time of the initial inspection, which was to determine the parameters of the claim on a triage basis. There was no evidence to support the argument that such a detailed survey was mandated in the circumstances. There was no evidence on what a required inspection protocol, if there was one, ought to have entailed. There was no evidence that a first attending assessor should have had with him the available safety equipment to climb up onto the roof to carry out the contended detailed inspection.

102 In my view to seek to impute the contended duty argued on behalf of the plaintiff is unreasonable because an inspection of that kind would have necessarily involved the deployment of safety equipment to protect the person undertaking the inspection whereas at that time, all that was required of the insurer at that first inspection was a preliminary review in the nature of a triage to determine what was required as the next step for the assessment of the extent of the damage in order to make the necessary arrangements to effect the required repairs.

103 On behalf of the plaintiff, much was made of the vastly different estimates by Mr Willis and by the inspector concerning the actual number of tiles damaged on the plaintiff's roof. In my view, that comparison involved an unwarranted standard of perfection where, on a triage inspection on behalf of the insurer, a less detailed initial survey from the ground was sufficient in order to identify the need for a more detailed follow-up with the required resources being allocated in order to identify the extent of the damage and what was required in order to effect the required repairs.

104 In these circumstances, I consider that the plaintiff's arguments suggesting that a more detailed inspection, along with the suggestion that the repairs should have been carried out earlier, are based on opportunistic hindsight considerations rather than considerations according to what was reasonably required at the time of the initial inspection when a prospective analysis is required to be applied: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124].

105 I therefore do not accept that the defendant insurer was in breach of the duty of care it owed to the plaintiff.

106 Instead, I consider that the insurer had acted reasonably by sending an appropriately skilled person to make an initial assessment of the nature of the damage and to then set in train the steps necessary to effect repairs in due course. Those repairs obviously involved significant expense, and justified the need for some time to be taken up with a more precise survey of the damage, the calling for quotes for repair and the arranging of the required trades to effect those repairs.

107 All of these steps would ordinarily be expected to take days if not weeks in the context of widespread damage to other insured homes in the area and consequential demands on the availability of suitable repairers. In that context I consider the plaintiff's arguments seeking to impute a breach of duty to the insurer as claimed, to involve an artificial and therefore an unreasonable analysis.

Consideration of Issue 3 - Alleged contributory negligence of plaintiff

108 The defendant relies on a defence of alleged contributory negligence on the part of the plaintiff. The claim is that the plaintiff failed to take care for her own safety including by failing to keep a proper lookout, and an alleged failure to ensure that the temporary damage mitigation measures taken by the SES were suitable, and that such failures either caused or contributed to her damage.

109 I consider that the defendant's argument to the effect that the plaintiff should have ensured the temporary measures undertaken by the SES were adequate, to involve an unreasonable standard of care on the plaintiff's part. I do not accept that argument because it has not been shown that the plaintiff had the requisite skills to make such a judgment.

110 Consistent with my finding that the defendant was not in breach of the duty of care it owed to the plaintiff, the question of alleged contributory negligence does not arise.

111 Nevertheless, to allow for the possibility that it may be found that I have erred concerning my finding that there was no relevant breach of the duty of care owed, I shall briefly identify the conclusions I have reached on the contributory negligence argument raised by the defendant.

112 I consider that before her fall the plaintiff knew water had penetrated her house and was likely to do so again in the event of further rain. It is not necessary that she should have known the precise points of entry of possible future ingress of water or the extent of the potential entry of such water. In my view, these matters constituted a sufficient basis for the plaintiff to have recognised the need to take special care for her own safety when walking within the premises, especially when she knew the floors had become wet due to ingress of rainwater.

113 She failed to do so as she walked across the wet living room floor. In my view this indicates a significant departure from the duty she had to take care for her own safety. The plaintiff knew there was water on the floor and she knew that there were fallen insulation materials on the floor. She slipped on these hazards as she went to answer the telephone. The clear inference is that she failed to keep a proper lookout for her own safety when traversing that area whilst distracted by the need to answer the telephone. In these circumstances I am satisfied that the plaintiff failed to keep a proper lookout and failed to take proper care for her own safety.

114 Had there been a finding of negligence against the defendant. I would have assessed the causative impact of the plaintiff's own failure to take care for her own safety at 75 per cent. I consider a finding to that extent is mandated by her knowledge of the presence of water on the floor making it slippery.

Consideration of Issue 4 - Causation of plaintiff's damages

115 The plaintiff claims that the ceiling collapse, and the associated wet slippery condition of the floor where she had fallen, and therefore her fall, was caused by the defendant's failure to properly inspect the premises and identify the extent of the damage to the tiles on the roof and to repair the roof or otherwise protect the home from water penetration.

116 In my view the evidence does not establish that, but for the events contended for on behalf of the plaintiff, she would not have sustained injury: s 5D and s 5E of the CL Act.

117 The plaintiff must show that the negligence of which she complains (which I have found did not exist) was a necessary condition for the occurrence of her injury: s 5D(1)(a) of the CL Act. The plaintiff must also show that it is appropriate that the insurer's scope of liability extend to the occurrence of the harm constituted by her injuries: s 5D(1)(b) of the CL Act.

118 In my view the claimed causal chain commencing with the claimed duty arising from the initial inspection, the subsequent non-repair of the damage prior to the plaintiff's injury and the occurrence of that injury is not continuous or integral.

119 The significant interruption to the continuity of the claimed chain of events is the absence of any obligation on the insurer to identify the precise points of damage and effect prompt repairs before the plaintiff became injured. The plaintiff chose to remain in the premises after the damage occurred. It has not been shown on the evidence that the interval, between the lodgement of the claim on 12 December 2007, and the fall on 5 or 6 February 2008, a period of some 55 days, including over an extended holiday season during which the availability of trades people would have been doubtful, represented an unreasonable period of delay.

120 In my view, on a commonsense logical analysis, the contrary view should prevail in the context of the need to carry out a survey of the damage to identify the extent of it, to then call for quotes or tenders, examine them, consult with the insurer, approve the works, obtain the materials and have the work carried out, does not support the claim that there was an unreasonable delay, which if it had not occurred, would have avoided the plaintiff's injury.

121 A further obstacle to the plaintiff proving causation in this case is the absence of evidence that the storm of 9 December 2007 was the cause of the ingress of water on 4 and 5 February 2008 rather than further damage from storms occurring on those dates. This is a matter upon which the plaintiff bears the onus and no satisfactory evidence was called on behalf of the plaintiff on this point: s 5D of the CL Act.

Consideration of Issue 5 - Assessment of damages

122 The parties made differing submissions on the plaintiff's entitlement to damages. On behalf of the plaintiff, it was submitted that the plaintiff's entitlement to damages should be assessed in the amount of $929,107.85. In contrast, on behalf of the defendant, it was submitted that there should be an award of damages of the order of $191,186.85. In the paragraphs that follow, I set out my assessment of the respective heads of damage claimed by the plaintiff. This assessment applies both for the present proceedings and the related proceedings.

Plaintiff's probable life span

123 In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances for the purpose of projection of future losses. At age 41 years, the plaintiff has a probable life span of 47 remaining years. There is no evidence that directly indicates the plaintiff's ordinary working life would be foreshortened by early mortality, but that theoretical working life has to be viewed in the light of the plaintiff's underlying condition of health.

Non-economic loss

124 The plaintiff claims that her non-economic loss should be assessed as being 30 per cent of a most extreme case pursuant to s 16 of the CL Act, namely $119,500. In contrast, the defendant submitted that such damages should be assessed at 27 per cent of a most extreme case, namely $52,000.

125 Having regard to the medical evidence which I have summarised at paragraphs [83] to [86], and in view of my findings concerning the plaintiff's injuries and ongoing disabilities, I consider that the submission on behalf of the plaintiff should be accepted as reflective of the plaintiff's physical and emotional injuries and disabilities and loss of the amenity and enjoyment of her life. I therefore assess the plaintiff's damages for non-economic loss in the amount of $119,500.

Past loss of income

126 The plaintiff claims past loss of income at the rate of $600 per week net over 241 weeks to the date of hearing in the total amount of $144,600. In contrast the defendant submitted that as the plaintiff's pre-injury business venture had failed, and because she has been looking after her mother, only a buffer amount should be awarded, for both past and future loss of earning capacity. The defendant submitted that combined buffer should be assessed in the sum of $30,000.

127 I consider the defendant's submission on past loss of income to have merit and should be accepted. There is no evidence that would reasonably permit a finding that the plaintiff was likely to find employment in the period from the time of her injury until the date of the hearing.

128 I therefore make no assessment of damages for past loss of income.

Past loss of superannuation

129 The defendant submitted that there should be no award for past superannuation losses as there was no evidence of the plaintiff receiving the benefit of such past contributions. Consistent with my findings concerning the plaintiff's claim for past loss of income, I make no assessment of any damages for past loss of employer funded superannuation contributions.

Future loss of earning capacity

130 The plaintiff claims future loss of earning capacity in the amount of $312,322. This amount was calculated according to a projection of 50 per cent of average weekly earnings of $1211 per week, namely $478 per week net, at 5 per cent over 26 years, and then discounted by 15 per cent for potentially adverse vicissitudes.

131 In view of this claim, it is relevant to consider the medical opinions on the subject of the plaintiff's earning capacity.

132 Dr Nguyen thought it would be unlikely that the plaintiff would be able to carry on with activities such as bending, sitting and standing for prolonged periods. Those restrictions would obviously and ordinarily have an adverse impact upon an earning capacity. Dr Conrad thought the plaintiff's capability for work would be limited to some 10 to 12 hours per week involving light restricted duties. The opinions of Mr Glancey concerning the plaintiff's psychological problems and her treatment needs leads to the compelling inference that she is presently impaired in her earning capacity. Dr Clark observed that the plaintiff was not working, and the inference available to be drawn from the context of that opinion is that this is due to her accident related psychological problems. Dr Mellick agreed that the plaintiff's reduced physical capacities, and her ongoing pain and psychological frustrations would interfere with her earning capacity. It also seems from Dr Smith's psychiatric opinion that the plaintiff's adjustment disorder provided a basis for a claim for impairment of earning capacity.

133 It is apparent from the preponderance of this medical evidence that the plaintiff has, as a result of the injuries sustained in the accident, suffered a significant loss of earning capacity. However, the question which flows from that conclusion is whether that loss of earning capacity is likely to be productive of a financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

134 Against that background is the indisputable fact that the arrangement that was negotiated in the plaintiff's family between herself and her siblings is that she will be the carer of her mother, who has dementia. In view of that fact, it seems unlikely that in the foreseeable future, the plaintiff would, in practical terms, be in a position to exercise an earning capacity, so that her injuries and disabilities should be seen as having given rise to a financial loss.

135 Against this latter consideration is the possibility that the plaintiff's mother may pass away or enter a nursing home during a period when, uninjured, the plaintiff could have otherwise exercised an earning capacity, thus freeing her availability to enable her to utilise such a capacity. This is a factor that involves so many imponderables, that the only fair way of awarding damages for that prospect, would be to assess a lump sum buffer. In this case, I consider that an appropriate future economic loss buffer would be an amount of $50,000. I therefore assess the plaintiff's damages for future loss of earning capacity in the amount of $50,000.

Future loss of superannuation

136 Consistent with my findings concerning the plaintiff's claim for future loss of earning capacity, the conventional formula of 11 per cent of the net amount assessed for future loss of earning capacity should serve as the basis for the assessment of damages for future loss of employer funded superannuation benefits, which amounts to $5500. I consider this sum need not be further discounted in this case because the underpinning amount has already been considerably discounted for the imponderable vicissitudes involved in the undertaking. I therefore assess the plaintiff's damages for future loss of employer funded superannuation contributions in the amount of $5500.

Past domestic assistance

137 The plaintiff claims past domestic assistance of 10 hours per week from 8 February 2008 at $23 per hour to the date of the hearing, in the amount of $55,016. In contrast, the defendant submitted that damages for past domestic assistance should be limited to 6 hours per week at $23 per hour, namely $33,000.

138 In order to assess this claim it is relevant to consider the contents of the expert medical evidence.

139 The only cogent medical opinions touching upon the need of the plaintiff for domestic assistance is that of Dr Conrad, who initially suggested that the plaintiff would variously require between 8 and 10 hours per week of domestic assistance. By inference, that opinion is also generally supported by the opinion of Dr Nguyen. For those reasons I consider that there should be an assessment of 7 hours per week of domestic assistance.

140 The mandatory requirement of s 15 of the CL Act is that such damages should not exceed the rate that is prescribed by statute. The Appendix to these reasons identifies the calculation of the value of 7 hours per week of domestic assistance services at the prescribed statutory rate over the period from the time of the accident until the time of the hearing, in the amount of $41,053. I therefore assess the plaintiff's damages for past domestic assistance in the amount of $41,053.

Future domestic assistance

141 The plaintiff claims future domestic assistance for 6 hours per week at $38 per hour or $228 per week over her remaining life span (x 961.5) in the sum of $219,222. In contrast, the defendant submitted that damages for future domestic assistance should be awarded for 2 hours per week at $35 per hour projected at 5 per cent over 47 years (x 961.5) less 15 per cent, namely $58,000.

142 In my view, neither of these submissions should be accepted. I consider that the projection of the claim for the remainder of the plaintiff's probable lifespan is unwarranted on the evidence. This is because it should be inferred that the plaintiff's inabilities and impairments will lessen after she has the recommended surgery, for which she would receive damages if her case was successful, noting that it is also likely that such surgery would reduce her pain and lessen the extent of her depression, which is in turn related to her pain. In addition, a discounting allowance must be made for the fact that uninjured, the underlying degenerative changes in the plaintiff's lumbar spine would have been likely to have resulted in a reduction in her capacity to carry out a full range of domestic tasks at some stage in the future. Furthermore, I consider that the defendant's allowance of 2 hours per week is contrary to the opinion of Dr Conrad, and therefore inadequate.

143 Having regard to these factors, I consider that a reasonable approach to the assessment of the plaintiff's accident related need for future domestic assistance is fairly met by an allowance of 6 hours per week as claimed, projected over the ensuing 5 years at 5 per cent (x 231.5) at the submitted rate of $38 per hour.

144 Although it may appear somewhat arbitrary, I consider that an allowance of this head of damage over 5 years is fair to the plaintiff and not unfair to the defendant, and makes adequate allowance for the natural progression of the underlying degenerative changes in the plaintiff's lumbar spine in this case. The resultant calculation yields the amount of $52,782. In view of the relatively short period for projection, on the evidence in this case, I do not consider it appropriate to apply a further discount on account of potentially adverse vicissitudes. I therefore assess the plaintiff's damages for future domestic assistance in the amount of $52,782.

Future out-of-pocket expenses

145 The plaintiff claims a lump sum of $20,000 for future out-of-pocket expenses. In contrast, the defendant submitted that future out-of-pocket expenses should be assessed in the buffer amount of $10,000.

146 The evidence discloses that the plaintiff will have to be under the supervision of her general practitioner, with referrals as required to specialists, along with the need for medication and counselling expenses. Dr Conrad foreshadowed in the event of deterioration in the condition of her lumbar spine, the plaintiff would need lumbar spinal surgery at a cost of approximately $20,000, and this is likely to have some other medical and allied components to the treatment as well. I accept his opinion in that regard.

147 On the evidence, it is difficult to predict precisely how soon the surgical treatment will be required. I infer from the context of the deterioration in the plaintiff's condition over the period Dr Conrad saw her on successive occasions, that such surgery would be necessary in the next few years. Therefore it is not possible to identify the deferral factor inherent in the allowance of damages for future out-of-pocket expenses. In these circumstances, I consider that it is appropriate that a buffer sum be allowed to cover the treatment modalities identified in the medical reports. My assessment is that in those circumstances, the sum submitted on behalf of the plaintiff is the preferred approach. This is because the treatment will have a surgical and a psychiatric component, which will involve significant expense over time. I therefore assess the plaintiff's damages for future out-of-pocket expenses in the amount of $20,000.

Past out-of-pocket expenses

148 The total amount expended by the plaintiff on past out-of-pocket expenses is in the sum of $8186.85. The defendant has not argued that this amount was unreasonably incurred by the plaintiff for her treatment expenses to date. I therefore assess the plaintiff's damages for past out-of-pocket expenses in the amount of $8186.85.

Summary of damages assessment

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

(a)  Non-economic loss	$119,500.00
(b)  Past loss of income	$Nil
(c)  Past loss of superannuation	$Nil
(d)  Future loss of earning capacity	$50,000.00
(e)  Future loss of superannuation	$5,500.00
(f)   Past domestic assistance	$41,053.00
(g)  Future domestic assistance	$52,782.00
(h)  Future out-of-pocket expenses	$20,000.00
(i)  Past out-of-pocket expenses	$8186.50
Total	$297,021.50

Conclusions

150 I have concluded that the plaintiff's case against IAG cannot succeed as she has not demonstrated a relevant breach of contract or negligence on the part of IAG. Had the case succeeded, her damages would have been assessed at $297,021.50 subject to discount for contributory negligence, which I have assessed at 75 per cent. This would have resulted in an apportioned judgment amount of $74,255.37.

Disposition

151 There must be a verdict and judgment for the defendant, IAG on the plaintiff's claim and there should be a verdict for the cross defendant on the cross claim.

Costs

152 As the plaintiff has not made out her case against the defendant IAG, it follows that she must bear IAG's costs of the proceedings. I will hear the parties on the appropriate order to be made in respect of costs of the cross claim

Orders

153 I make the following orders:

(1)  Verdict for the defendant in the plaintiff's claim against IAG Limited;

(2)  The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;

(3)  The exhibits may be returned;

(4)  Liberty to either party to apply on 7 days notice if further orders are required.

APPENDIX

CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO MOTOR ACCIDENTS ACT 1999, s 128

(7 hours per week between 8 February 2008 and 24 September 2012)

	PERIOD	WEEKS	WEEKLY s.128 RATE	HOURLY s.128 RATE	AMOUNT FOR 7 HOURS PER WEEK
1.	08.02.2008 to 16.05.2008	13.85	$937.80	$23.44	$2272.50
2.	17.05.2008 to 15.08.2008	12.85	$921.60	$23.04	$2072.45
3.	16.08.2008 to 21.11.2008	13.85	$933.50	$23.34	$2262.81
4.	22.11.2008 to 20.02.2009	12.85	$938.50	$23.46	$2110.23
5.	21.02.2009 to 15.05.2009	11.71	$946.40	$23.66	$1939.41
6.	16.05.2009 to 21.08.2009	13.85	$939.00	$23.48	$2276.39
7.	22.08.2009 to 20.11.2009	12.85	$959.90	$23.99	$2157.90
8.	21.11.2009 to 19.02.2010	12.85	$969.40	$24.23	$2179.49
9.	20.02.2010 to 21.05.2010	12.85	$989.90	$24.74	$2225.36
10.	22.05.2010 to 20.08.2010	12.85	$986.90	$24.67	$2219.07
11.	21.08.2010 to 19.11.2010	12.85	$985.50	$24.63	$2215.47
12.	20.11.2010 to 18.02.2011	12.85	$996.40	$24.91	$2240.65
13.	19.02.2011 to 20.05.2011	12.85	$1025.90	$25.64	$2306.32
14.	21.05.2011 to 24.09.2012	70.00	$1026.00	$25.65	$12568.50
	TOTAL				$41,053.55

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Amendments

18 January 2013 - Slip rule amendment - Insurance Australia Limited t/as NRMA
Amended paragraphs: Title

18 January 2013 - Slip rule amendment - "... the insurance contract does not consitute an agreement..."
Amended paragraphs: Paragraph 18

Decision last updated: 18 January 2013