Una Ruth Gibson v Woolworths Limited [1986] ACTSC 40 (29 May 1986)

SUPREME COURT OF THE ACT

UNA RUTH GIBSON v. WOOLWORTHS LIMITED
S.C. No. 1595 of 1981
Tort - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Spender J.(1)

CATCHWORDS

Tort - negligence - occupier's liability - duty of reasonable care - worn anti-slip carborundum inserts in terrazzo paving at store entrance - failure to clean entrance of slippery substance.

Damages - personal injury - general damages and loss of earning capacity - no question of principle involved.

HEARING

CANBERRA
29:5:1986

ORDER

There be judgment for the plaintiff in the sum of $86,613.57.

Liberty to apply in respect of arithmetical errors and the like within 7 days.

DECISION

The plaintiff was injured at about 10.45 a.m. on 13 October, 1980, then aged 51 years. Her son, Gary Gibson, had driven her to the Manuka Shopping Centre in Canberra. Her brother-in-law, George Gibson, was also in the vehicle. Gary Gibson had parked the vehicle in a parking area in the centre of Bougainville Street.

2. Bougainville Street runs into Flinders Way. Also running into Flinders Way and north of Bougainville Street is Franklin Street. Between these two streets is a Woolworths Store.

3. The store is fronted by a bitumen footpath some 2.9 metres in width. At the time of the plaintiff's injury, the entrance to the store consisted of four pairs of double, outward-swinging doors. These doors were located 1.2 metres back from the shop front which bordered the public pavement. The area between the doors and the pavement was paved in terrazzo with carborundum strips spaced at 125mm. intervals.

4. At some point between the plaintiff's being on the bitumen paving bordering the store front and before she actually entered the store, she slipped, her left leg coming from beneath her. She fell upon her left side. She tried to get up, but could not. An elderly lady was the first person on the scene, her son and brother-in-law were the next persons to come to her aid. They picked her up. It was a short time later that the supervisor from Woolworths was on the scene.

5. Her son brought his vehicle on to the footpath but concluded that an ambulance would be more suitable.

6. An employee of Woolworths had, in fact, called an ambulance shortly after the incident had occurred. The plaintiff was then taken by ambulance to the Royal Canberra Hospital where she spent a little over two weeks. Dr. William John Coyle operated on her hip two days after the plaintiff's accident.

7. In a letter dated 24 December, 1980, Dr. Coyle states that:-

"Clinical and radiological examination revealed

this injury to be a grossly displaced (Garden
Grade 1 V) sub-capital fracture of the left femur.

On 15 October, 1980, I excised the femoral head
and performed a Monk's type prosthetic
replacement."

8. Following her discharge from the hospital, Dr. Coyle sent the plaintiff to Woden Valley Hospital for hydrotherapy, which she received for some months, together with a total of some ten months physiotherapy.

9. During that period she needed to rest for an hour or two each day and was taking pain killers. She could walk with a limp but was not capable of doing cleaning jobs, as she could not stand on her leg very long.

10. In April, 1982, the plaintiff started to get severe pains in her groin and Dr. Coyle concluded that the first operation had failed. The plastic top of the prosthesis which had been put in to rectify the broken neck of the plaintiff's femur had been fragmenting, and in December, 1983, the plaintiff had a total hip replacement.

11. As a result of that operation the plaintiff's condition is greatly improved, although she is still in pain, takes pain killers and, as her left leg is longer as a result of the operation, has to wear a built-up shoe on the right leg. She has an extensive scar from this second operation, which she finds an embarrassment if she goes swimming. She no longer is able to play tennis or go ballroom dancing, two activities which she had enjoyed before the accident.

12. Prior to the accident she had worked for an extensive period as a cleaner and was then averaging approximately $42.00 per week. She can now no longer engage in that work and herself has to hire a maid to do the heavier house cleaning work in her own home. However, she does drive, cook and a little gardening.

13. The plaintiff's case is that her injuries were caused when she slipped on the terrazzo pavement as she was entering the store. The defendant contends that the plaintiff slipped while still wholly on the bitumen pavement fronting the shop entrance.

14. In evidence, the plaintiff stated that she had been walking across the terrazzo paving towards the middle doors of the entrance to the store. She stated that she had not been in a hurry and was walking in a normal manner. She had been wearing wedge-heeled shoes, the wedges being 1.5 to 2 inches. She had focussed her attention on the door that she was preparing to enter and was not looking down when she slipped. She stated that she fell close to the middle doors of the entrance, coming to lie at an angle to those doors; the whole of her body coming to rest upon the terrazzo paving. Her head was pointing towards Bouganville Street and was the closest part of her body to the middle doors. Her left leg was doubled underneath her right which was straight and pointing towards Franklin Street. She stated that there had been some white cotton substance, together with wet leaves, on the terrazzo paving at the time that she had slipped. It was this which she believed to have caused her fall.

15. The plaintiff stated that her son and brother-in-law had come to her aid, picked her up and moved her to the edge of the bitumen footpath. She states that by the time Woolworths' employees from the store had come to her aid, she was standing on the end of the footpath. She stated that it was not until she had fallen that she noticed that the entrance was wet. I accept that it had been raining earlier in the morning, although it had stopped raining at about 7 a.m.

16. Gary Gibson stated that "a couple of minutes" elapsed between his first arriving on the scene and any Woolworths' employees arriving to assist. He states that, by the time the store manager arrived, he and the plaintiff's brother-in-law had picked her up, moved her from the terrazzo paving where she had fallen, and moved her away from the entrance to the bitumen pavement. Mr. Gibson gave evidence consistent with that of the plaintiff as to where she had fallen and the position in which she had come to rest.

17. He also stated that he had noted that the entrance was very slippery at the time and that there were wet leaves and little "bud-like things" upon the surface of the terrazzo paving.

18. George Gibson's evidence was also consistent with that of the plaintiff. He stated that he found the plaintiff lying upon the terrazzo pavement. He described its surface as having been slippery, with both "wet brown leaves and (a) white cotton substance" on the surface.

19. It was put to the plaintiff that her evidence as to her having fallen upon the terrazzo paving and the existence of cotton and leaves upon its surface had been a reconstruction on her part subsequent to her accident. In support of this contention, counsel for the defendant drew attention to the fact that in her statement of claim the plaintiff had made reference only to the slippery nature of the entrance "due to rain and wet leaves". It was submitted that, there being no reference to cotton, it was the result of the plaintiff's reconstruction after the event of the circumstances of her fall. However, the statement of claim makes reference to the surface being "covered with a film of tree droppings", a reference capable of referring to the cotton-like substance upon the surface of the entrance.

20. Dianne Stafford, a frequent customer of the Woolworths store in the period frm 1977 to 1980, gave evidence that she had, in that period, gone to the store at least once a week. She stated that during Spring each year, there is a substantial amount of leaf and vegetable matter, including "small fluffy cotton balls". She stated that this vegetable matter is a common phenomenon at the Manuka Shopping Centre for at least a couple of months at that time of the year.

21. Mr. Douglas Parsinson, a consulting forester, gave evidence that the tree that produces this cotton, the Populus Albra, more commonly known as "Cottonwood", is to be found approximately 150 metres from the entrance to the Woolworths store. He stated that the cotton is known to travel distances even greater than that at that time of the year. Mr. Parsinson also stated that the phenomenon was well known in Canberra at that time of the year. He stated that it is highly mobile when shed from the tree and wind blown. It would only cease to be mobile once it became wet.

22. In a report of 27 August, 1985, Mr. Parsinson stated that "(t)he female plants of Populus Albra produce seeds which are attached to a cotton-like pappus material. This substance is produced in large quantities which are subsequently released from the cotton and borne by the wind." Later he states that "(t)he pappus and seed can be transported considerable distances (hundreds of metres) from the female tree, with wind strength the major determining factor."

23. It was the defendant's case that the plaintiff had slipped while still on the bitumen pavement. Mrs. Valerie Klausberger, an employee of Woolworths Ltd., said she gained her view of what occurred through the small side window of the store which fronted the terrazzo paving. She said that her attention was drawn to people gathering around a lady on the ground in front of the store. She stated that the lady was lying entirely on the bitumen pavement, indicating that she was to the left of the central entrance doors and at least a couple of feet back from the edge of the terrazzo paving.

24. Mrs. Klausberger was unclear as to the position in which the woman was lying upon the bitumen, but remembered where she was lying by reference to a permanent garbage bin near a planter box in front of the store and the existence of a substantial crack running from the planter box from right to left across the bitumen and extending about two-thirds of the way back towards the store front. Mrs. Klausberger stated that she assumed the crack to have been responsible for the woman's having fallen.

25. At the time that she first saw the woman, a few people had already gathered. She herself arrived on the scene just as Gary Gibson was helping the plaintiff into a sitting position. Her son and brother-in-law then managed to sit her on the planter box.

26. Mrs. Klausberger also stated that, although the cotton was commonly experienced around Manuka in spring each year, there was neither cotton nor leaves on the footpath at the time of the accident. Moreover, she stated that the footpath was dry at the time.

27. Mrs. Florence O'Hehir, an employee at the Manuka Woolworths store and service supervisor at the time of the accident, was clearing trolleys just inside the store entrance at the time, when her attention was drawn to the accident by people gathering outside. She stated that, when she saw the lady, she was lying on the ground with about half a dozen people gathered around her. As she walked to where the lady was lying, she was then being moved into a sitting position. She states, however, that she cannot really remember how the plaintiff was lying or even to within a foot or two where she was lying. However, she states that she clearly recalls that the plaintiff was lying in the middle of the footpath. Mrs. O'Hehir said she had not noticed anything about the state of the footpath at the time.

28. Mrs. Klausberger gave evidence that the terrazzo pavement was cleaned twice per week, at 6 a.m. on Tuesday and Thursday mornings. The accident having occurred on a Monday, it must therefore have been at least four days since the terrazzo surface had been cleaned. There was, however, no evidence as to how long the leaves and cotton had been on the path, although the evidence would suggest that cotton matter, if present, would have settled while it had been raining earlier in the morning.

29. Finally, Mrs. Klausberger, in a statement made by her on 29 January, 1981, stated that the shoes worn by Mrs. Gibson at the time had "wedge type heels of approximately three inches in height". Mrs. Gibson's evidence in this regard was that her heels of 1.5 to 2 inches in height.

30. On a consideration of the evidence, I am of the view that the plaintiff's injuries were suffered as a result of her having slipped upon the terrazzo pavement at the entrance to the Woolworths store. I accept the recollections of the plaintiff, her son, and her brother-in-law in preference to the more sketchy recollections of Mrs. Klausberger and Mrs. O'Hehir. I accept that there was a general dampness of the surface following the earlier rains and that there was cotton and leaf material on the terrazzo paving at the time. I accept that the plaintiff slipped in these conditions and accept that it is inherently more likely that such an accident would occur on the dampened slippery terrazzo surface than on a similar bitumen surface. Moreover, I am influenced by the evidence of the plaintiff that she was walking lengthwise across the terrazzo pavement towards the centre doors and that it was therefore possible that the plaintiff's foot was placed with sideways pressure in such a fashion that it did not touch the carborundum strips and thereby led to her slipping. This is supported by the evidence of Mr. Brian Foskett, an architect, who gave evidence before me. Mr. Leonard Johnson, in his report of 6 December, 1982, also stated that "(i)t is possible for a foot to be so placed as not to be in contact with the 'non-slip' strips".

31. Accepting, then, as I do, that the plaintiff's injuries occurred as a result of a fall upon the terrazzo pavement at the entrance to the Woolworths store, there are two broad areas of complaint that I must consider.

32. The first is the plaintiff's submission that the entrance was poorly designed and unsuitable as an entrance to a supermarket. The second is the plaintiff's submission that the entrance was inadequately maintained in that the carborundum strips should have been replaced earlier and that the terrazzo surface had not been cleaned of the offending cotton.

33. In considering the design and condition of the entrance, Mr. Fosket gave evidence that he had inspected the entrance on 6 February, 1984. He stated that he had found wear on the carborundum strips which in some areas were level with the terrazzo and in places had chipped slightly. However, he had not noticed any of the strips being below the paving level. In his report of 6 February, 1984, he states that "the carborundum strips are worn towards the northern end of the entry but not sufficiently to cause slipping." Mr. Fosket had further examined the entrance in September, 1985 and noted it to be in a "similar condition" to that in February, 1984. He also stated that he would have expected the surface to have been in a similar condition in September, 1980.

34. Mr. Phillip McMaster, an architect, gave evidence that he had examined the entrance on 12 June, 1984. He stated that the carborundum strips had been worn down. His evidence was that the carborundum strips should protrude, as a minimum, for 1.5 mm. In his report of 13 August, 1984, Mr. McMaster stated that:-

"The Carborundum Strips in front of the northern
door of the entrance are worn down to the stage
where they no longer function in respect of the
reason for which they were installed, namely, to
create a non-slip surface on a high gloss polished
texture.

The resultant surface therefore, is totally
inappropriate for the location."

35. Mr. Fosket gave evidence that the life expectancy of such strips would be between 10 and 20 years, although on the basis of the use of trolleys in the present case, he would "go for the lower life expectancy of 10 years." However, he was unable to make an assessment as to whether or not the strips would have been worn out in 1980 and stayed worn out until his inspection of them four years later or whether they would have worn in that period.

36. However, Mr. Leonard Johnson, an architect, gave evidence that he had inspected the entrance in 1982 and had found wear in the strips. In his report of 6 December, 1982, he states that "(s)ections of the strips immediately in front of doorways had been worn to the extent of being below the surrounding material and are thereby rendered totally useless." He stated that he had again inspected the entrance on 10 September 1985 and found that "(t)here was really no appreciable difference" from the condition of the carborundum strips as they had been in 1982. On that basis, he stated that the amount of wear was consistent with the strips having "been worn over a far longer period than that." It is significant that the earliest observations of Mr. Johnson occurred in 1982.

37. In my view the evidence establishes that the carborundum strips had been worn in 1980 to a degree not substantially different from their condition when they had been inspected as early as 1982, and that the degree of wear at the time of the plaintiff's fall was such that the strips no longer fulfilled their non-slip function.

38. I am fortified in this conclusion by the consideration that the defendant called no evidence as to when the strips were first laid, or whether or when any repairs or replacements had been made to them.

39. Mr. McMaster gave evidence before me that it was possible in 1980 to have repaired these strips cheaply, though in such a manner that their repair would have lasted only eighteen months, or a more expensive repair could have been undertaken which would have lasted for 10 years. He stated that, in his opinion, it would have been appropriate in 1980 to have done one of those things having regard to the condition of the entrance". In his report of 13 August, 1984, he stated that "polished terrazzo is not an appropriate choice of material for the ramp in question." He then lists a number of other finishes "which would be considered satisfactory for this particular application."

40. Mr. Johnson, in his report of 6 December, 1982, also stated "We believe that the material selected is not suitable for such a situation."

41. Mr. Fosket also gave evidence that by 1980 there were better materials available for use on such an entrance and that, in any event, it would have been "an inexpensive and easy matter" to have replaced the strips. Alternatively, the terrazzo could have very inexpensively have been roughed up to provide some greater security of surface. However, in his report of 6 February, 1984, he states that:-

"Generally the entrance complies with the
requirements of current regulations and codes and
is typical of similar installations in the A.C.T.
in terms of floor finish and gradients."

42. Mr. McMaster, in his evidence, stated that, even if he had been starting a new project in 1980, "a terrazzo detail with Carborundum strips may have been the way to go", although he, personally, would not have used it in an entrance such as this. Moreover, he states that, "at that time, and, indeed, for some years previous to that, other materials have been used, with better effect".

43. He stated that the use of terrazzo had been a fairly common practice in the past, notwithstanding its slippery nature. Mr. McMaster, in his evidence, stated that he had supervised the use of terrazzo paving entrances to shops and that in 1980 it was certainly an acceptable material for use in entrances to shops, with the reservation that he would not have recommended its use on sloped areas. It was his view that the polished terrazzo was not appropriate in the entrance and that the surface should have been repaired, an alternative finish considered, or the existing terrazzo roughened. Concerning the extensive evidence directed to showing that the entrance, with its use of a sloping terrazzo surface, should have been redesigned, I am not satisfied that the then-existing design and surface, if properly maintained and cleaned, would expose the defendant to liability.

44. There was a conflict as to the spacing of the carborundum strips. Mr. Fosket gave evidence that the strips were spaced at approximately 125 mm. from centre to centre. Mr. Johnson, in his report of 6 December, 1982, stated that the strips were at 110 mm. centres. Mr. McMaster was unable, in his evidence, to provide a measurement. At the widest spacing suggested, they were at the maximum distance apart under an Australian standard. The view of Mr. McMaster was whether a shoe could be placed in such a position that it would be possible to slip upon the surface. He stated that, in his opinion, the centre lines of the strips in the particular case "should be more like 50 mm. as . . . an absolute maximum". Whether or not the spacing was too wide, the wear on the strips was such that they did not fulfil their non-slip function.

45. In my view the evidence establishes that the carborundum strips were worn to such an extent in 1980 that woolworths limited should reasonably have effected repair or replacement of the strips to remove the danger of a customer slipping on the terrazzo paving. Moreover, I accept that the defendant inadequately maintained the entrance surface in providing for its cleaning on only two days of the week, such that more than four days could elapse before the entrance was cleaned, particularly as it was commonly known, and I am satisfied that the defendant knew, that at this particular time of year there was a substantial amount of leaf and cotton material at ground level in the vicinity of the Flinders Way doorways to the store.

46. The plaintiff in this case claims under both negligence and occupier's liability.

47. The High Court has considered the relationship between these two principles in two recent decisions, Hackshaw v. Shaw [1984] HCA 84; (1984) 56 ALR 417; 59 ALJR 156 and Papatonakis v. Australian Telecommunications Commission [1985] HCA 3; (1985) 57 ALR 1; 59 ALJR 201.

48. In my opinion, while acknowledging that there are differing emphases evident in the various judgments in those cases, nothing in this case turns on any such differences. Here, the relevant relationship is simply one of occupier and invitee, and it is clear that the occupier in those circumstances owes to an invitee the ordinary duty of reasonable care.

49. In the course of submissions, reference was made to Hampton Court Limited v. Crook [1957] HCA 28; (1957) 97 CLR 367, Williamson v. G.J. Coles and Co. Ltd. (1985) VR 59, Dulhunty v. J.B. Young Ltd. (1975) 7 ALR 409, and Brown v. Target Aust. Pty. Ltd. (1984) 37 SASR 145. While reference to the judgments therein is profitable, the principles are clear and each decision turns on the application of those principles to the particular factual circumstances occurring in that case.

50. In the present case, there has been evidence from Mrs. Klauseberg only as to the general practice of the defendant regarding the cleaning of the entrance to the store. No specific evidence has been given as to there having been anything done in the way of cleaning or supervision on the day that the plaintiff was injured. Moreover, the evidence of the general cleaning practices of the defendant at this store suggest that it had been more than four days since the entrance had been cleaned. The cotton was a well known phenomenon at that time of the year. It was, therefore, an unusual danger of which the defendant was aware or ought to have been aware.

51. Moreover, the carborundum strips upon the terrazzo surface had worn, a fact of which the defendant must necessarily have been aware. reasonable care on the part of the defendant would require that, as its entrance was paved with an inherently slippery terrazzo surface, it should provide some means by which its customers could ensure their footing in entering the store. the evidence before me establishes that it was reasonably practicable to obviate this obvious danger by the repair or replacement of the carborundum strips.

52. The fact that the entrance was cleaned only twice weekly when "cotton" was present and there was consequently a danger of slipping on such substance particularly after rain, should have been known to the defendant, as should the existence of the worn carborundum strips upon an inherently slippery terrazzo surface. The defendant provided no warnings alerting customers of the dangers of slipping in the entrance.

53. In the circumstances, I find that the defendant failed to exercise reasonable care in maintaining the entrance by ensuring that its surface was regularly cleaned and maintaining the carborundum strips used to provide grip upon the terrazzo pavement.

54. The plaintiff left school at 14 and received no further training. Before she married she had worked with her parents in their restaurant in Sydney and, since marrying, had worked as a cleaner and, at the time of her accident was earning an average of $42.00 per week in that work. Following her first operation, two days after her accident, she spent "a bit over two weeks" in the Royal Canberra Hospital and was subsequently on crutches for a time before progressing to a walking stick which she used for some six months. Following her second operation in December, 1983, she has found she has had to use the walking stick again. Although, as a result of that operation, her condition is improved, she is still experiencing a lot of pain.

55. I accept that her condition is such that she could not resume her cleaning work. This was the conclusion of her orthopaedic surgeon, Dr. Coyle. Moreover, she now has to hire a maid to "do the heavy work" involved in her own house cleaning. The plaintiff stated that the cost of this hired help had originally been $10.00 per week to her from mid-December, 1981 until mid-December, 1982, when she began paying $15.00 per week until "about February, 1984". Since that time, the sum has been $20.00 per week. Presently, her daughter-in-law is attending to this task. The plaintiff takes holidays for 3 or 4 weeks per year and during that period does not require a cleaner.

56. The plaintiff gave evidence that she spends an average of approximately $5.00 per week on pharmaceuticals.

57. The plaintiff's case was that there was the possibility of work which would have become available to her at approximately the same time as her accident. Her husband, Mr. Arnold Gibson, had taken over as licensee of the Canberra Greyhound Racing Club in about September, 1980. He said that it had been his intention to offer his wife full-time employment in cleaning, general kitchen and barmaid duties with the Club. Mr. Gibson held that position with the Club for approximately three years and, during that time, had the complete responsibility and right of hiring and firing staff. He stated that there would have been no objection to his employing members of his family. He stated that the rate of pay would have been approximately $240.00 per week, although it could be $280.00 per week on occasions. Mr. Gibson gave evidence that it was "a more or less foregone conclusion" that his wife would have taken up that employment with the Club for at least those three years. In her evidence, the plaintiff stated that she would have continued her part-time cleaning work while taking this position.

58. The plaintiff gave evidence that, following her first operation, she had become irritable and difficult to live with; her husband also giving evidence that during this time "she was very hard to get on with". Following the second operation, her attitude to life was "very much improved" according to her husband. She stated that she now realized that she had to "get along with (her) life."

59. The plaintiff said that tennis and ballroom dancing, activities which she had enjoyed prior to the accident, are no longer available to her. She had also been interested in greyhounds prior to the accident, owning her own and assisting her husband in training them. Since the accident, she has not been able to attend greyhound meetings, although her husband suggested that she may have gone "once or twice" in that time. She has also been unable to return to her work on the Ladies Auxiliary with the Greyhound Club and no longer owns her own greyhounds. The plaintiff does, however, still drive, cook and does a bit of work around the garden.

60. Dr. Coyle stated that a further operation upon Mrs. Gibson was likely. The operation would be intended to remove a click which the plaintiff has identified in her hip. It would entail two to three days' hospitalization.

61. In his medical report of 7 July, 1985, Dr. Coyle stated that he believed "that part at least of (the plaintiff's) disability is due to her personal lack of motivation; she admits that she is not interested in being very active . . . " In a further report of 14 August, 1985, he states that, "having been taken 'to task on (that) opinion', I still believe that some of Mrs. Gibson's present disability is due to her attitude to her disability". In evidence before me, he stated that he had had the impression that the plaintiff was making heavy weather of her condition, but conceded that he was no longer sure of the correctness of that impression. My assessment of the plaintiff was that basically she was chirpy and effervescent, and resilient. I expect her attitude towards her disability to further improve.

62. X-rays have shown that the plaintiff suffered gross generalized osteoporosis, which is decalcification or softening of the bones of the spine generally. The plaintiff suffers this to a greater degree than would be expected in a person of her age and, therefore, would have a greater tendency to have fractures, particularly of this type, than another person. Dr. Coyle's evidence was that this condition was common in women and that, in any event, independently of that condition, any person suffering a fall such as the plaintiff's, would be likely to suffer some kind of injury to his or her body.

63. The plaintiff gave evidence that she had suffered back problems prior to the accident, and had suffered a crushed fracture of her tailbone a year or two earlier. However, she stated that she had had no problems with her back "for years" and it was not something that troubled her now. The plaintiff also gave evidence that in 1981, her left leg had given way on her and she had fallen, injuring her back on the towbar of a caravan. However, although her back did then "play up for a while", following X-rays she was sent home and told "there was nothing wrong with (her back)". The plaintiff also gave evidence that about two years before the accident she had had Carpel Tunnel syndrome in her hands, entailing an operation on her wrists. However, she states that she has suffered "no problems whatsoever" since.

64. Counsel for the defendant submitted that, in my assessment of damages, I should consider these matters, taking into account "the important fact that the plaintiff was suffering from this osteoporosis" in discounting for contingencies and would "make more than the usual discount" because of the possibility that the plaintiff might well have been disabled by some other fairly minor fall at home or in some other way by reason of this condition.

65. The plaintiff is now aged 57 years. Her general damages for pain and suffering must take account of the two major operations which she has already undergone, and the probability of a third but minor one, as well as her past and continuing pain. She has a quite noticeable limp. While she has significant scarring, my view is that this is not a source of major embarrassment to her. She has undergone serious loss of amenities, in her inability to participate in tennis and ballroom dancing, and there has been a noticeable impact on her enjoyment of life. She no longer is able to work, and has lost her previous involvement in greyhounds and her disabilities have had a deleterious effect on her interpersonal and marital relationships.

66. I assess the plaintiff's general damages at $30,000.

67. Out-of-pocket expenses were agreed in the sum of $7,183.57, which sum does not include pharmaceuticals or cleaning costs.

68. I allow $680 for future hospital and medical expenses. For her past pharmaceutical expenses I allow $1,250, and for her future pharmaceutical expenses, based on the 3% tables for a period of 22.8 years, with some rounding down, $4,000.

69. For her past housekeeping expenses, I would allow, as a round figure $2,500, which is consistent with the plaintiff's evidence, with some discounting for the inherent approximations in that evidence.

70. For her future housekeeping expenses, she seeks $8,260, based on the 3% tables for the period to age 65. I think this claim is too low, in that her needs will not cease then. I will allow $10,000.

71. As indicated, I accept that since the accident the plaintiff has been unable to work, either in her pre-accident capacity as a cleaner, or in the role as cleaner/bar assistant, and she will be unable to work again.

72. Prior to the accident, the plaintiff earned $42.00 a week for part-time cleaning. Her past nett earnings on this basis, with the rate of payment adjusted in accordance with National Wage Case decisions, are calculated at $11,854. No allowance was made in these calculations for holidays or illness.

73. I regard the possibility of her being employed by her husband at the Greyhound Racing Club during the period of approximately three years he operated the Club, as involving a large measure of speculation. Whether she would have been employed and, if so, what her remuneration would have been, and for how long, are not questions that, on the evidence, can be assessed with any confidence, in a manner favourable to the plaintiff.

74. I accept that she might have been so employed; whether she would have been is a different question. If one made the most favourable assumptions in the plaintiff's favour in this respect, but with the qualification that she would not work as a cleaner/bar attendant after her husband's three year involvement with the Greyhound Club, her earnings would be of the order of $30,000. Doing the best I can in this area, I would allow $15,000 as a fair figure for past loss of earning capacity.

75. For future loss of earning capacity, I do not believe the plaintiff would be engaged in Bar Assistant work. Calculations based on weekly earnings of $50.26, with nil tax, to age 65, result in a figure of $20,054. This calculation again makes no allowance for illness or holidays. I accept that but for the accident, the plaintiff would, her health otherwise allowing, have continued as a part-time cleaner till age 65. Because of the vicissitudes and contingencies, and the particular pre-accident condition of the plaintiff, I would apply a discounting of 20%. I would assess this component at $16,000.

76. In summary, the various components are:-

General damages $ 30,000.00
Agreed out-of-pocket expenses
(excluding pharmaceuticals and
cleaning) $ 7,183.57
Future hospital and medical
expenses $ 680.00
Past pharmaceutical expenses $ 1,250.00
Future pharmaceutical expenses $ 4,000.00
Past housekeeping expenses $ 2,500.00
Future housekeeping expenses $ 10,000.00
Past loss of earning capacity $ 15,000.00
Future loss of earning
capacity $ 16,000.00
-----------

$ 86,613.57
-----------

77. Viewing the matter globally, I would regard an award of $86,613.57 as a fair and proper amount for the plaintiff's injuries and their consequences. I give judgment for the plaintiff for $86,613.57. I give liberty to apply in respect of arithmetical errors and the like, within 7 days. I will hear the parties on costs.