Cullen v Tathem[2000] QDC 215

DISTRICT COURT OF QUEENSLAND

    JUDGMENT

The Fitness Centre

1. [1]
   In about 1980-82, the Willows Squash and Fitness Centre was built in Kitchener Street Toowoomba. It contained a gymnasium. The gym occupied 2 rooms.

2. [2]
   Mr Ziebell was one of those responsible for building the Centre. He became the manager. He recalled buying one of the exercise machines about 18 years ago. It consists of a steel framework which holds several types of equipment, each designed to exercise a different part of the body by using varying weights. One exercise allows the legs to be strengthened by squatting with resistance applied to the shoulders. It is that part of the machine which is in issue in this case. That machine is still at the Centre.

3. [3]
   By early 1997 the gym contained other equipment, though the exact details are uncertain. There were a number of other machines in the same room as the squat machine. The photographs in Exhibit 4, which illustrate the squat machine, show some other machines in the background. There were benches used for leg exercises. There was a stepping machine. There were stationary bikes and a treadmill for aerobic exercise. There is no evidence that the gym had any free weights, such as those which are placed on a barbell or dumbbell. Rather, it contained machines which used pin weights. That is, there were stacks of weights, each held in place by two stainless steel bars which guided them up and down as the person exercising did a certain movement. The resistance can be increased by lifting more and more of the weights in a particular stack. The stack of weight has a hole in the middle, and a round bar, also with holes, which rests within the stack. The desired amount of weight can be lifted by inserting a pin below the corresponding weight. The pin then goes through the hole in the pin bar. That weight, and those above it, can then be lifted. The pin bar used in this squat machine can be seen, partly withdrawn from the stack, in the photographs in Mr O'Sullivan’s report.

4. [4]
   Some machines, like the squat machine, use a lever to lift up the required weight. Others use a rope over a pulley to lift up the weights. This exercise station contained a combination of both those ways of lifting – see Exhibits 4 and 5.

5. [5]
   In late 1996, and early 1997, the plaintiff, Andrea Cullen, used the gym. She visited it consistently for up to about four months. She went there on two to four occasions each week. She was not asked to sign any sort of membership contract. She paid $4.00 on each occasion she visited. She did not ask for any instruction. She did not receive any verbal instruction. As far as she knew, there were no instructors at the gym. She did not see any instructions, or warnings, up on the walls or on the machines. She did not notice anyone supervising. She did note that there were two surveillance cameras in the room containing the squat machine. There was an extra fee to use the swimming pool.

6. [6]
   By early 1997 the defendant, Ms L F Tathem, had become the proprietor, occupier and controller of the Centre. Mr Ziebell continued to have a part-time role, looking after the reception area and doing some cleaning. He remained a part-owner. He said that he had never had any problems with the squat machine during the 18 years it had been at the Centre. In particular, he had never known the pinbar of the machine to become caught as it passed through the stack of weights. No-one had complained about that happening. He had never used the machine himself. He said that he inspected it periodically, as the gym manager. That evidence was not contradicted.

The Plaintiff

7. [7]
   Andrea Cullen was born on 17 February 1980. When she went to the gym at the Centre on 21 January 1997, she was almost 17 years old. She was a student in Year 11 at the Christian Outreach College, Toowoomba. She was having difficulty with the academic side of her schooling. However, she was keen about her sporting activities. She especially liked basketball and volleyball. She played in school teams and in outside competitions. She played A grade for her age. She also played softball, netball, soccer and went swimming. Sport was an important part of her life at the time. She must have been a fit young woman.

8. [8]
   By 21 January 1997, she had visited the gym on about 40 separate occasions. She would pay at reception, and then go downstairs to the gym. As recounted above, she received no instruction, had no personal supervision, and read no instructions or warning signs about the use of the machines. There was no evidence as to whether or not she was already familiar with gym equipment – the inference is that this was the first gym she had attended. Doubtless, she observed what other users of the gym were doing with the equipment. She started off in this gym by using the treadmill and the stationary bikes. She then got some experience with other pieces of equipment. They included the stepping machine, and benches for doing leg exercises. Those exercises used a pulley system to lift the weights. She observed the weights going up and down. She did not see any pin weights falling.

The Injury

9. [9]
   On 21 January 1997 she decided to use the squat machine for the first time. As the photographs show, the weights were not lifted by a rope passing over a pulley, but rather by a lever which moved the weights up and down. She understood what must have been obvious to her, that the weight was lifted by pressing the shoulders up against the shoulder pads, and that the amount of the weight to be lifted depended on the adjustment of the pin in the pin bar.

10. [10]
    It is accepted that, on that day, Miss Cullen hurt her right thumb while using the squat machine. Some part of the machine fell onto the top of her thumb, breaking the bone at the end of her thumb and splitting the skin alongside the nail. There was a bruise under the nail.

11. [11]
    She was able to pull her thumb away from of the machine – she does not recall exactly how she did that. She wrapped it up, and went to the reception desk for assistance. She was offered a bandage. She called her mother for assistance.

12. [12]
    Nobody saw her accident. The surveillance cameras have provided no evidence. It is clear enough that Miss Cullen herself did not understand the precise way in which her thumb was hurt.

13. [13]
    In the plaint, and the particulars of it, there were assertions that the weights had become jammed in the machine. Further particulars say that “the plaintiff’s right thumb was crushed whilst she was attempting to loosen a pin in one of the weights which was jammed when the weights suddenly became unstuck and fell on her thumb”.

14. [14]
    In January this year Miss Cullen’s solicitors retained Mr J O'Sullivan to write a report about how her accident occurred. He is a physiotherapist with an interest in the safe use of equipment and the minimisation of risks. He met Miss Cullen at her solicitor’s office. She had trouble describing to him exactly what had happened. When they went to the gym for an inspection of the equipment, she pointed out that the pin had been at about the 42 kilogram mark. She recalled “a gap in the weights” though she could not explain it. Mr O'Sullivan then went about trying to work out how there could have been a gap in the weights, and how she could have been injured. She observed his attempts to do that. Before observing Mr O'Sullivan’s efforts, she was not able to describe the mechanism which caused her injury.

15. [15]
    Mr O'Sullivan’s inspection of the equipment, and his efforts to re-create a situation where there was a falling of the weights, was itself recorded on video by the defendant’s loss assessor, who was present at the time. See Exhibit 11.

The Possibilities

16. [16]
    On the evidence, there are four different possibilities which could have caused Miss Cullen’s injury:

1. (a)
   The pin was at the 42 kilogram mark when she arrived at the machine.  She lifted that weight, and found it uncomfortably heavy.   While the weight was still taken entirely on her shoulders, she lent down with her left hand and tried to pull the pin out, to reduce the weight.  While doing that, she put her right hand on the top of the remaining stack of weights.  She succeeded in pulling the pin out, causing the suspended weights to fall and jam her thumb. 

2. (b)
   She arrived with all the weights together in their stack, but with the pin bar partly drawn out of the stack, and held up by the pin which had been inserted at about the 42 kilogram mark.  That is, the machine had been left in that position by a previous user who wanted the pin at the 42 kilogram mark, but with the shoulder pads higher than they would be if the lever were resting against the top of the weight stack.

(For an illustration of the usual resting position, see photograph 1 of Mr O'Sullivan’s report.)  She lifted the weight.  Wanting to reduce the weight, she bent over, placing her right hand on the stack of weights, and her left hand on the pin.  On pulling the pin out, the weight of the lever and the white-painted plate attached to it fell, crushing her thumb.

3. (c)
   Miss Cullen approached the machine with the pin at the 42 kilogram mark, and with the shoulder pads in the rest position.  She lifted the weight.  The pin bar emerged from the stack below the 42 kilogram level, and then became caught on the edge of the hole so that it could not be lowered.  See photograph 7 of Mr O'Sullivan’s report.  Realising that something was jammed, she lowered her shoulders from beneath the shoulder pads, placed her right hand on top of the stack of remaining weights, and pulled at the pin.  She succeeded in removing it, allowing the suspended weights, and the weight of the lever, to fall onto her right thumb.

4. (d)
   When Miss Cullen approached the weights, with the pin at the 42 kilogram mark,  the weights above that mark were already suspended in the air, with the pin bar jammed on the next weight in the stack.  That is, the previous user had left the equipment in that state.  She placed her right hand on top of the lower stack, pulled out the pin, and the weights fell onto her thumb.

17. [17]
    Having seen Mr O'Sullivan’s reconstruction of events, Miss Cullen told him that she recalled that there was a gap in the middle of the weights, that the pin was about the 42 kilogram level, and that the shoulder pads were at or near her shoulder height as she was able to stand beneath them. He therefore concluded that the machine had been left with the weights raised with the bottom end of the pin bar resting on the outer surface of the lower stack of weights. That is scenario (d) above.

18. [18]
    However, when Miss Cullen gave evidence, she insisted that the weights were in the resting position when she arrived. That is the position illustrated in the photograph headed “Photographs of gym equipment taken by client” (part of Exhibit 4). She struggled to lift the weight and stood upright. In that case the pin would have come out of its position and caught on the edge of the weight below. She said that she bent over to adjust the pin, and the shoulder pads did not follow. She pulled at the pin and, more or less simultaneously, the shoulder pads struck her on the upper back while the falling weights smashed her thumb. She had no actual recollection of pulling the pin out, only of attempting to do so.

19. [19]
    It is apparent that Miss Cullen in her particulars did not describe the scenario put forward by Mr O'Sullivan. There was no complaint about that. There was no complaint when scenario (c) was put forward as her case at the trial. In resisting that case, it was submitted for the defendant either that it was impossible to know what really happened (in which case no liability would be demonstrated) or that she caused her own injury by pulling the pin out while supporting the weights at the 42 kilogram mark. That would have been scenario (a). It was submitted that there would be no liability, because the injury was entirely her own fault, and that the defendant could not be blamed.

20. [20]
    It is not appropriate for the court to say that it is impossible to work out what happened, There are uncertainties. However, one of the four scenarios did take place, and it is possible to choose between them, on the balance of probabilities.

21. [21]
    Scenario (a) is not the most probable. The plaintiff has never said that she was hurt that way. Her arms were not long enough for her to have supported the weight on her shoulders, and then reached down to remove the pin at the 42 kilogram mark, and placed her right thumb on the lower stack of weights. At the least, it would have been a very awkward manoeuvre.

22. [22]
    Scenarios (c) and (d) are most unlikely. Mr O'Sullivan only created a jamming of the pin bar on the weight below it by physically pulling the pin bar out of its alignment with his hand. There were no reports of such difficulty, according to Mr Ziebell. Mr O'Sullivan could not spontaneously recreate such a jamming. The loss assessor, Mr Sydes, who is over six feet tall, had managed to raise the pin bar out of its hole if he stood upright and held the shoulder pads above his head. He demonstrated that it would not happen at the 42 kilogram mark, in any case. The possibility that Miss Cullen raised the shoulder pads and jammed the pin bar, or that she approached the machine which was already left jammed by somebody else, should be dismissed

23. [23]
    That leaves scenario (b). Mr O'Sullivan had knowledge of a similar accident. It fits Miss Cullen’s recollection, to the effect that there was a gap in the weights. There would have been an observable gap between the top of the weight stack and the white bracket attached to the lever, with a length of visible pin bar separating them. It also accommodates her recollection, that the raised shoulder pads fell on her back after she bent to pull the pin out. The weight of the lever the shoulder pads and the white plate, is about 19 kilograms. That would easily be enough to fracture her thumb, if it fell even a short distance.

24. [24]
    On balance, it should be found that injury was caused by scenario (b). The shoulder pads were raised by a previous user, and left in that position. The pin was at about the 42 kilogram mark.

The Pleadings.

25. [25]
    That scenario was not one advanced by Miss Cullen. As explained, she variously described scenarios (c) or (d). The pleadings were overtaken at the beginning of the trial by a reliance on Mr O'Sullivan’s description of scenario (d). Counsel for Miss Cullen did not submit that the plaint might be amended, to allege scenario (b), after it became clear, towards the end of the trial, that it was a likely possibility.

26. [26]
    Mr O'Sullivan described the possibility of scenario (b) in his report – see para 25. All four scenarios were explored during the trial, especially during Mr O'Sullivan’s evidence, without objection. Counsel for the defendant later objected to the possibility of a finding that scenario (b) caused her injury, because it had not been pleaded. However, he declined an invitation to recall any witness and was not able to suggest any detriment to his client if scenario (b) were found to be the most likely of the 4 alternatives.

27. [27]
    Bearing in mind these ways in which the trial was conducted there is no unfairness to the defendant in finding that scenario (b) was the cause of Miss Cullen’s injury.

Liability

28. [28]
    In January 1997 Miss Cullen was a minor, not having reached her 18^th Birthday.  The plaint alleges that she entered into a contract with Miss Tathem, and paid a fee for the use of the gym equipment.  It was not suggested that her age made any difference to the contractual position – no mention was made of it during argument.  The plaint alleges that Miss Cullen had the benefit of terms implied into contract, and also that Miss Tathem owed her a duty of care not to be negligent towards her.  The defence admits the existence of those duties.  These are the duties which were admitted:

“1.(E) There were terms implied into the contract:

1. (i)
   that the equipment provided for Miss Cullen’s use would be safe

2. (ii)
   that there would be a safe system of gym fitness activities provided for her use and/or a safe system of accessibility to the equipment and/or system of activities and

3. (iii)
   that the defendant would take reasonable care for the safety of Miss Cullen

1 (F) The defendant owed to Miss Cullen a duty to take reasonable care for her safety.”  

29. [29]
    The particulars of the breaches of those duties were not admitted. Submissions were made on the basis that they were the duties to be considered in this case. No reference was made to any authorities might have illustrated the practical scope of the duties owed to Miss Cullen, in the circumstances, and whether or not the duties were breached.

30. [30]
    The defence contained a plea of contributory negligence, but it was not relied on during addresses. In any case, provided Miss Cullen can make out a breach of a contractual duty owed to her, there is no prospect of a reduction in the damages because of contributory negligence, since the decision of the High Court of Australia in Astley v Austrust Ltd (1999) 197 CLR 1.  It is enough if the defendant’s breach of contract is a cause of the loss.  If it is shown that the breach of contract causally contributed to the loss that is enough even though she might also have been at fault.  See, for example, the decision by Mr Justice Chesterman in Queensland Ice Supplies Pty Ltd v.Anco Australasia Pty Ltd (Supreme Court of Queensland, 5060/1998, judgment 31 March 2000 unreported) to that effect.

31. [31]
    It was suggested that the entry fee of $4.00 was especially low, and should be seen as reflecting the spartan nature of this Centre. However, there is no evidence of comparable fees elsewhere, if such a comparison were ever relevant. No conclusion can be drawn from the amount of the entry fee, in deciding if there was a breach of Ms Tathem’s duties to Miss Cullen.

32. [32]
    Attention should be paid to the particulars of the breaches of duty which are alleged. Several allegations might be relevant in this case.

33. [33]
    First, there is an allegation that there was failure to provide safe equipment for her use. That allegation is not made out. There is nothing in the evidence to show that the machine was unsafe, in that users had the capacity to adjust the height at which the weight would be taken on their shoulders, thereby creating a gap between the white plate holding the pin bar, and the stack of weights below. There is no suggestion that the equipment was supplied by other than a reputable manufacturer. In appearance, it seems to be similar to the machines which must be familiar to any visitor to such a gym.

34. [34]
    Secondly, there were various allegations which amounted to the suggestion that the defendant should have supervised Miss Cullen, seen what she was doing, and prevented her from doing it.

35. [35]
    It is true, that a careful supervision of the plaintiff and of the state of this machine, would have prevented her injury. The possibility of providing that level of supervision was not explored. It would appear to impose quite unrealistic demands on the proprietor of such a gym. As users moved around the equipment, it would involve one or more supervisors moving to and fro to see that the equipment was left in a safe condition for the next user. Such a level of attention would be unreasonable.

36. [36]
    Thirdly, and much more realistically, it is said that the defendant failed to provide preliminary training or safety warnings before Miss Cullen used this equipment, and that there was a failure to display any warning signs about the safe use of this equipment.

37. [37]
    In assessing the impact of those steps in this case, attention has to be paid to three factors. First, in view of the admitted duties owed by the defendant, what is the scope of these duties? What measure of care was Miss Cullen entitled to expect? Secondly, has there been a breach of duty in this case? Thirdly, has it been shown that there is a causal connection between the breach of duty and the injury?

38. [38]
    Counsel referred to no authorities with respect to those questions. It is necessary to keep in mind the explanation of such principles in three authoritative decisions – Jaenke v Hinton [1995] Aust Torts Reports 62 805 [¶81-386] - Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 and Chappel v Hart (1998) 195 CLR 232   Those decisions discuss, in particular, the considerations to be kept in mind in deciding if a defendant’s response to a foreseeable risk has been adequate, and whether or not the failure to make a proper response has been an effective cause of the injuries, in any case.

39. [39]
    Any conclusions about those matters are hampered by the brief evidence about this gymnasium, its equipment, and the risks facing users of the equipment - especially as scenario (b) was not the primary focus of the available evidence. However, these are the appropriate conclusions to be drawn from the available evidence:

1. (a)
   there is a practical difference between those machines which rely on ropes and pulleys to move the weights, and those which use a lever and its associated equipment, including the plate carrying the pin bar.  Injury of the kind that happened here was foreseeable.  Once it is realised that the lever can be held up by the pin bar, then it is obvious enough that its sudden fall might cause injury.  Apparently, the reasons for the introduction of machines which do not use free weights are efficiency and safety.  While most pin weight machines would have a low risk of causing injury, this squat machine was in a different category.

2. (b)
   That danger might have been addressed by some instruction to a beginner, or by a warning notice on the equipment.  That was not done.  The defendant had to take into account that not all users were familiar with all the equipment.

3. (c)
   Whether or not such instruction or warning notice would have made a difference, is a hypothetical question.  The answer is that it would probably have done so.  This injury was probably caused by Miss Cullen’s inadvertence or thoughtlessness in pulling out the pin when she should have realised that it was holding up a considerable weight at the time.  The chances are that instruction, or a written warning, would have substantially reduced the risk that she would have done such a thing.

4. (d)
   Some instruction, or a warning appears to be a reasonable and manageable response to that risk.

5. (e)
   It follows that the defendant is liable to compensate Miss Cullen for her injuries.

Damages

40. [40]
    Miss Cullen was taken to the Emergency Department of the Toowoomba Hospital. Her thumb was x-rayed, and a crush fracture was shown. The laceration was sutured and she was discharged home with a sling, analgesics and antibiotic cover. She was reviewed on 25 and 28 January, and 1 February 1997. There was an appointment for a further review on 4 February, but she did not keep the appointment.

41. [41]
    Dr Bendeich, an orthopaedic and hand surgeon, examined her on 30 September 1999. He made it clear that he was reporting on her objective disability. He did not take into account her subjective complaints where he could see no clinical support for them.

42. [42]
    He found that her wounds had healed uneventfully. There was no suggestion that further treatment would improve her thumb’s condition. He found that her right thumb has a normal appearance with two barely visible scars across the outside edge of the thumb, near the nail. The scars were not tender and gave her no trouble. There was a sizeable area of mildly altered skin sensation along the outside of her nail. There was some tenderness in the distal pulp ie., the fleshy pad of the thumb. There was no damage to the digital nerve. She could distinguish light touch and pin prick without difficulty. There was normal sweating in the skin. There was a strong pinch grasp. There was a full range of painless movement in all joints of the thumb with normal power. She was able to pick up all objects, even small ones, such as pins, without difficulty.

43. [43]
    He thought that she had made a good recovery. The altered skin sensation was annoying. He noted that sustained grasping was painful. He thought that the mobility and strength of the thumb was not impaired. He thought that her symptoms should gradually settle in the fullness of time leaving no permanent disability of any significance. Most importantly, he thought that she should be able to manage any work, including work as a chef, if she wanted to pursue that career.

44. [44]
    Dr Pentis, orthopaedic surgeon, saw her on 16 June 1999. He explained that he took into account her subjective complaints. For that reason, he found rather more disabilities in the use of her right hand than Dr Bendeich. He thought she would have some long term residual problems. The thumb was tender to bump and knock and was tender to stress. There was some weakness. He thought that she would be left with permanent problems causing her some difficulties, both with strenuous and fine use. Repetitive jobs requiring use of the pulp of the thumb would give her problems. He said he assessed her incapacity at about a 3% loss of the efficient function of her right arm.

45. [45]
    Two things emerged at the trial which tend to support Dr Bendeich’s objective observations of her disability, rather than Dr Pentis’ acceptance of her subjective complaints. The first concerns the accuracy of her evidence. It became clear that she had taken up women’s rugby from the start of the 1999 season. She had said nothing to the orthopaedic surgeons about that, even though she told them about her difficulties with other sport, such as basketball. She also caused Dr Pentis to think that she had given up basketball after the injury, but that was not the case – she kept on playing at school. Her history to Dr Bendeich exaggerated her use of Panadol. Her evidence about her complaints must be considered with more than usual caution.

46. [46]
    Secondly, the evidence of Ms Angela Goodwin, an occupational therapist, established that she had severe depression at the time of her interview in March this year. However, depression is not a particular of the disabilities caused by her injury. Any causal link to the injury was not explored. Ordinarily, one would hardly link such an injury to severe depression. It does seem likely that she has suffered from depression for some time, and that its existence provides an explanation for otherwise curious conduct on her part. She attended a TAFE Course in catering in 1999, after leaving school. She had almost completed it, but did not attend the very last part of it. The result was that she was deemed to be competent in 16 of 17 modules – all except Health Procedures. Before then, she had gone to an interview with the Australian Army with a view to realising her ambition to be a chef in the Army. However, she thought that she could not manage, and so did not follow up that opportunity.

47. [47]
    Ms Goodwin explained that a number of her stated difficulties could well have been influenced by depression, and a belief that she could not do certain things which were really within her abilities. Ms Goodwin said that she has some reduced fine motor dexterity in the right hand, though her grip strength remains normal. There was a stated reduction in her capacity to maintain a right hand grip over a sustained period of time. In her report, Ms Goodwin thought that she was suitable for light work (according to USA standards). It is likely that her emotional state influenced that result. Even the perceived capacity to maintain a right hand grip depended on her own motivation and determination.

48. [48]
    In short, Miss Goodwin’s findings need to be considered with care, in so far as they depend on Miss Cullen’s subjective complaints. Overall, Dr Bendeich’s opinion should be accepted, that she will have no permanent disability of any significance.

49. [49]
    Another surprising feature of the plaintiff’s evidence was her need for on-going personal care, up to the present time. Even now, she relies on her mother or a friend to do her hair, and help in the preparation of meals and the cutting up of food.

50. [50]
    Overall, a submission for the defence should be accepted – that to a real extent Miss Cullen has been relying on her injury to seek attention and help from her mother and a friend, which is not really needed. In discounting the level of her subjective complaints, it is impossible to forget the video recording of her recent participation in a game of rugby. She is now in her second season, having played about 9-12 games overall. She played at full-back, and was involved in the game, making several telling tackles, without apparent discomfort.

51. [51]
    Miss Cullen complained of difficulties at school, particularly about the lack of confidence which she felt because of the injury. She was keener on sport than academic work. She was very sensitive about any lessening of her ability to be successful at sport, especially basketball. It should be accepted that she did have some physical difficulty and pain in playing sports such as basketball. The school records show that she continued to play at about the same level as before. The records also show that she was having difficulty with the academic side of her work before this injury. She repeated year 10. Whether or not she was affected even then by depression, is a matter on which there is no evidence. It should be accepted that this injury caused her some physical distress up to the present time. She did not manage the usual difficulties of life as a teenager as well as before. She put on weight.

52. [52]
    Her ambition was to be a chef in the Army. She says that she could not manage it because of her injury. She reported difficulty holding a knife during the catering course at TAFE. There seems to have been no effort to hold a knife in a different way. To her credit, she now has employment as an apprentice painter. It is not clear why that might be less demanding on her hand than work as a chef. She is certainly not sitting at home and doing nothing. She has had other part-time jobs. She does claim economic loss, saying that a career as a chef has been lost to her – though she has not yet given up hope of that.

53. [53]
    On the whole of the evidence, it has not been demonstrated that she will suffer any economic loss into the future. She may have some slight difficulties but, her emotional health aside, she should be well able to manage them. Dr Bendeich’s opinion should be accepted. It is to be hoped that she, and her family, realise the need for her to seek help from a psychiatrist or clinical psychologist.

54. [54]
    Therefore, her damages can be assessed in the following way; – She has had a deal of pain and suffering. There will be some remaining discomfort, though slight on a permanent basis. General damages should be assessed at $8,000. Of that sum, $4,000 can be attributed up to the present time. Interest of 2% on $4,000 for 41 months is $275.00.

55. [55]
    It is agreed that any personal care should be compensated at the rate of $9.50 per hour. It should be accepted that she had a need for her mother’s care, during the immediate period after her injury, for 2 hours per day. For 2 weeks, that is $266.00. She then had a reduced need for her mother’s care at 1 hour per day, for the following 3 months. That is, $798.00. The total is $1,064.00. That should be fixed as her total need for personal care. Interest of 2% on $1,064.00 for 41 months should be allowed. That is $90.00.

56. [56]
    She has had the expense of buying Panadol which would have cost about $50.00 and travelling, some $48.00. $100.00 should be allowed on account of those two expenses. Interest of $20 should be allowed.

57. [57]
    It should not be accepted that she has a need for any special aids, such as specially adapted cutlery.

58. [58]
    It might be accepted that she suffered a loss of income, following her injury and up to the time of trial. If she had been an apprentice chef, she would have earned $8,437.00. She actually earned up to June this year $4,784.00. That is a net loss of $3,653.00, claimed by her. That claim has to be discounted. $2,000 should be allowed. Interest is $240.

59. [59]
    Therefore, her total damages are –

Pain and suffering    $8,000

Interest           275 

Post care       1,064

Interest             90

Pharmaceutical and travelling        100

Interest             20

Past economic loss       2,000 

Interest            240  

       $11,789

The Judgment 

60. [60]
    Order that the defendant pay to the plaintiff damages of $11,789.00. The parties should make submissions about costs.