Windley v Gazaland Pty Ltd[2014] QDC 124

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an action by the plaintiff for damages for personal injuries alleged to have been caused by the negligence and/or breach of contract by the defendant arising from an incident, which occurred on 23 August 2008 at the Gladstone Ten Pin Bowling Alley. On my findings the plaintiff slipped on a slippery bowling lane surface when the lights were dimmed for “glow in the dark” bowling. She fractured her femur during the fall and thereafter suffered loss and damage to the extent of $260,990.05 (before any reduction for contributory negligence).

2. [2]
   I have found that the defendant is liable in negligence and in breach of contract for the incident. I have also found the plaintiff contributed to the incident to the extent of 40%.

3. [3]
   In reaching my decision I have had regard to the evidence and the submissions made by counsel. I have also had regard to the legal principles I have discussed below.

4. [4]
   I note that the plaintiff is required to prove her case on the balance of probabilities and that contributory negligence must be proved by the defendant.

The pleadings

5. [5]
   In the statement of claim the plaintiff alleges that on 23 August 2008 she attended the Gladstone Ten Pin Bowl Alley at 37 Benaraby Road, Gladstone. She went there with work colleagues for an evening session of ten pin bowls. This was known as glow-in-the-dark bowling. The main lights were turned off.

6. [6]
   At about 7 p.m. the plaintiff when delivering a ball stepped forward over the “foul line” onto the very slippery surface of the lane, she slipped and fractured her hip.

7. [7]
   Because of the state of the lighting, the foul line was not visible.

8. [8]
   It is alleged that the defendant as occupier of the premises owed a duty to take reasonable care of the plaintiff and further there was such an obligation under the contract.

9. [9]
   It is then alleged that the particulars of negligence/breach of contract are:

1. failing to provide a safe premises (paragraph 6(a) of the statement of claim);

2. failing to take reasonable steps to ensure that the foul line was clearly visible (paragraph 6 (b) of the statement of claim); and

3. failed to give any adequate warning to the plaintiff of the dangers of going over the foul line (paragraph 6 (c) of the statement of claim).

10. [10]
    Damages in an amount of $641,712.14 plus interest are sought. This was later amended to in excess of $900,000 however the excess was abandoned by the plaintiff at the trial.

11. [11]
    In the defence it is alleged:

1. some of the lights were out but that UV lights operated above the bowling lanes;

2. the pins were illuminated;

3. a rope light at the end of the lane was illuminated;

4. there was a reflective ball and spot light;

5. there were lights positioned on the lane divider;

6. the fact of the injury is not admitted;

7. the surface was not excessively slippery. It was polished;

8. it denies the foul line was not visible;

9. the duty to take reasonable care to avoid risk of injury is admitted but not a contractual duty;

10. the premises were safe;

11. the plaintiff had been ten pin bowling for more than 40 years, had attended a glow-in-the-dark event previously and knew or ought to have known the level of lighting was reduced. She also knew the bowling lane was slippery;

12. the defendant took reasonable steps to ensure the foul line was clearly marked;

13. there was no requirement for any warning to be given;

14. the danger of slipping was an obvious risk under s 16 of the Civil Liability Act 2003 (Q) (“CLA”);

15. the plaintiff voluntarily assumed risk in this case;

16. the plaintiff failed to take care of herself by failing to inspect the foul line.

12. [12]
    In the reply the plaintiff alleged:

1. none of the sources of lighting alleged in the defence assisted the plaintiff to see the foul line;

2. the foul line was not visible;

3. the plaintiff never previously had an accident;

4. on previous “glow-in-the-dark” bowling the line was well visible;

5. she had not bowled at the defendant’s premises previously;

6. this was not an obvious risk.

Amended defence

13. [13]
    At the commencement of the trial leave was given to the defendant to file an amended defence. This alleged inter alia:

1. the plaintiff knew or ought to have known of the lane dimensions;

2. the defendant took reasonable steps to discharge duties of care owed, by complying with the World Ten Pin Bowling Association Playing Rules; the lane was clearly demarcated; there was a sign stating “Danger do not cross black line”;

3. an announcement occurred before the session in which participants were told not to cross the line;

4. the supervisor regularly surveyed the lanes;

5. as to the plaintiff’s claim for economic loss the plaintiff resigned from her position prior to 23 August 2008;

6. there was no position available to her after that date or in any event after September 2009;

7. regardless the plaintiff had a residual earning capacity.

Amended reply

14. [14]
    In light of the filing of the amended defence the plaintiff was granted leave to file an amended reply. This alleged:

1. the plaintiff was unaware of the World Vision Ten Pin Bowling Playing Rules;

2. the foul line was not distinctly marked;

3. the lane was not clearly demarcated;

4. the announcement alleged happened after the accident;

5. the supervisor did not counsel her or her group;

6. the plaintiff denies assumption of risk or contributory negligence;

7. as to the employment issue the plaintiff says that in any event but for the accident she would have obtained employment in a similar field;

8. she denies she has a residual working capacity.

Further amended statement of claim

15. [15]
    After legal argument the plaintiff amended her statement of claim to clarify the claim for economic loss.

Evidence

Plaintiff’s case

The plaintiff

16. [16]
    The plaintiff was born on 25 April 1959. She is now 55 years old. She gave evidence that on 23 August 2008 she worked in the morning. She said that she was in Gladstone from Albury in the course of her employment (T1-11).

17. [17]
    She said that she and her work colleague Michael Bain returned to their unit (T1‑12.14). At about 6.45 p.m. they went to the Bowling Alley. She paid about $10 to play, which included shoe hire. She had to change these. As she was doing this the glow-in-the-dark bowling started (T1-12-13). She said it was very dark (T1‑13.6). There was limited light from the pins and the drink cabinets behind (T1‑13.7).

18. [18]
    She felt disconcerted and was unsure where to position herself but she worked out her position from a teenager a few lanes down (T1-13.25). She could not see the foul line (T1-13.31).

19. [19]
    She took a couple of steps and then slipped falling onto her left hip, suffering the injury I will later discuss (T1-13.35). She described the fall as involving herself becoming airborne (T1-13.32).

20. [20]
    Photographs tendered as part of Exhibit 1 showed the bowling alley (T1-19). The plaintiff gave evidence that the darkened ones demonstrated similar conditions to the conditions she faced (T1-18.10 and especially photograph number 5 of Exhibit 1). Photograph 6 in Exhibit 1 was similar (T1-18.15). The lighting was not like it was depicted in photograph 1 in Exhibit 1 (see T1-17.35).

21. [21]
    The plaintiff grew up in Victoria. She went to the equivalent of year 9 at school. She worked as a Pharmacy assistant for eight years. After she had children she worked part time for a while. She worked in a hotel having two to three jobs at a time. She managed a bottle shop for three years. She worked as a cleaner when travelling Australia and also in bar service, waitressing and cooking. She has worked in a fish and chip shop and a clothing store. Much of the work she has done required her to stand. She worked in a tavern for six years. In 2008 she started with Melton contracting selling satellite dishes for internet connections around Australia. This involved her travelling for six weeks at a time to rural Australia. Indeed this is why she was in Gladstone at the time of the incident (T1-8-11). Contrary to the defendant’s submission I consider the plaintiff had a good work history up until the accident.

22. [22]
    She said in evidence that on 23 August 2008 they had been to a market at Calliope where they were going to set up a store. She spoke to Glen Melton at the bowling alley by telephone who informed her that insurance at the stall would not be a problem.

23. [23]
    Returning to the accident after she fell she felt extreme pain. She was helped to her feet by Michael Bain (T1-13.45). She could not move when on her feet. A co‑worker held her up until the ambulance arrived. She was transported to the Gladstone Hospital and then airlifted to the Rockhampton Hospital where she underwent surgery and screws were inserted (T1-14). She was discharged five days later (T1-15.11). After returning home she was slow and it was painful. She started therapies six weeks later but they did not help (T1-15). She did perform some work for Glen Melton on a computer but this did not work (T1-15.31).

24. [24]
    Presently the plaintiff alleges she is in pain every day (T1-16.5). She spends a day in bed if she bends or does too much cleaning. She continues to take Tramil and Valium. She has to think how she should move. She does very little gardening now. She no longer ballroom dances. She still can fish but only in level areas. She no longer bushwalks. She is not able to roll with and chase her grandchildren (T1‑16‑17).

25. [25]
    Whilst she worked from home for three to four weeks she could not persist because of the medication (T1-20). Also working from a bed was difficult. She said that but for the injury she would have continued with the kind of work she did for Greg Melton (T1-21.21).

26. [26]
    She gave evidence that she could not see that she could perform sales/call centre work. Apparently a CRS trial was unsuccessful. She claimed that rest breaks would not assist her. If she was not injured, she would have stayed in the workforce for as long as she could (T2-15-16).

27. [27]
    She presently shares her house with John Montgomery. He does most of the outside work (T2-16). She purchased the property in 2002 (it is two acres). She met Montgomery through her employment with the McEvoy Tavern. John was looking after the property while she was away working with Melton. John was not paying rent before the accident. Exhibit 4 is the schedule of special damages and Exhibit 5 is the schedule of future amounts claimed. Exhibits 6, 7 and 8 are emails relative to her work with Melton.

28. [28]
    In cross-examination as to the accident itself, she said that she had not made any claim against the bowling alley until 2011 (T2-23.42). She explained that this is because she was advised to proceed against WorkCover first (T2-24.7).

29. [29]
    She accepted that she was aware of the polished lane at the alley (T2-25). She said she was familiar with bowling and enjoyed it (T2-26.15). She conceded that she played it as a teenager on most weekends (T2-26.22). She started in 1971. She had previously bowled in the dark a couple of times (T2-27.5). A statutory declaration (Exhibit 19 pp 75-76), indicated that she has played numerous times over the past 40 years (T2-27-28). It was a passion of hers (T2-28.20). She said later she had not bowled since 2005. She agreed she was very familiar with ten pin bowling. She said she did not need a warning but she needed visibility (T2-29.5). She did not need to be told the lane was dangerous (T2-29.11). She agreed that a warning that the lanes were highly polished would have been superfluous (T2-29.15).

30. [30]
    She said she had two alcoholic drinks before arriving at the alley (T2-51.24). She arrived at about 6.45 p.m. (T2-51.39). She knew it was a glow-in-the-dark bowling night (T2-51.41). It was well lit when they got there (T2-52.7). She could not recall who bowled first (T2-52.45). She did not specifically check for the foul line. She said it was not very prominent or she would have seen it (T2-53.7-21). She had never gone down to inspect the foul line when bowling before, she’s never had to (T2-53.8)^[1] She has never previously had an issue with seeing the foul line (T2‑53.27).

31. [31]
    There was no hurry at the alley (T2-54.25). She had never had to previously walk up and physically inspect a foul line previously- it’s always been visible (T2-54.35). She agreed one looks at the pins when one bowls (T2-54.37). She takes two steps and usually releases the ball before the foul line (T2-55.5). Normally the line is visible. She knew not to cross it because it is slippery (T2-55.32). She accepted that Exhibit 14 showed a photograph of a warning sign but said that this was not visible when it was darkened. She may have seen the glow of the sign. She said that you would have to stand straight over the top of it to see it (T2-57.45-2-60). She accepted the lane was bounded by gutters. She probably saw them that night. She thought she “had a sense of the lane” (T2-61.17).

32. [32]
    She said she assumed she was in the right place (T2-61.35).

33. [33]
    She looked across to a teenager to ensure she was in the correct position before she bowled (T2-61.35). She took comfort in this and thought she was safe (T2-81.10). After this she bowled. She accepted there is a certain amount of intuition in bowling (T2-83.1). Indeed she had never previously counted her steps (T2-83.20). She did look for the foul line (T2-83.40). She did not recall looking down (T2‑84.17). She thought she had safely lined up with the teenager (T2-84.15).

34. [34]
    She said that she did not know how she fell (T2-85.3). She had previously seen people slip but not on the laneway (T2-85.11). She denied losing her footing but if she said this to others she meant she slipped. Importantly though she felt sturdy on her feet (T2-86.3). She conceded that she did not know whether she fell before or after the line (T2-87.25).

35. [35]
    She confirmed that she had lived on the property at El Dorado from 2002 until the present. Mr Montgomery lived there as a caretaker before the accident. She had been on a disability pension since 2009. She does most of the cooking and “potters” around the house. She drives a car into town once a week. She has not worked an eight hour day since 2008.

36. [36]
    On the issue of the injury, she said that she tries not to take drugs too much. She claimed she has not had acupuncture or massage because she cannot afford it (T2‑88-89).

37. [37]
    On the issue of the hip replacement she agreed she had claimed for the cost of this (T2-30). Despite this she is not on the list for a hip replacement as she has spoken to a doctor who advised her to go off the list as her pain subsided (T2-31.30 and T2‑32.20). She has been advised that it should not be done unless absolutely necessary (T2-32.27).

38. [38]
    On the issue of the hip replacement she agreed Exhibit 12 is a letter she had received from the hospital in this regard (T2-33.3). The letter was not disclosed by her as she did not realise the importance of this (T2-34). I might say the plaintiff’s views about the hip replacement appear to be supported by the contents of Exhibit 3 (report of Professor Hart 8 March 2011 at pp 7.4).

39. [39]
    Turning to the claim for care she accepted that the Statement of Claim (see Exhibit 19 p 46) was prepared four years after the accident (T2-36.37). The claim was $50 per week. This equated with 2-2½ hours per week (T2-37.10). This was an average. This is to be contrasted with the more recent claim of 10.724 hours per week (Exhibit 19 pp 59-60) (T2-38 and 39). It was put to her some of the items were inflated (e.g. cobweb and gutter cleaning). She denied this (T2-39).

40. [40]
    She conceded she had osteopaenia and has had fractures in the past (T2-40).

41. [41]
    As to her employment with Melton Contracting although she denied threatening to resign she admitted she threatened to leave over conditions (T2-41.45). She alleged she loved the work. As to her wages (see Exhibit 1 pp 15) she accepted she only earned $12,900 in the 2006/2007 financial year and a little under $10,000 for 2007/2008 (T2-44). She alleged that her employment with the McEvoy Tavern involved receiving food and Mr Montgomery the owner worked on her property free of charge (T2-44.15). The hotel closed in December 2007/January 2008 (T2‑45).

42. [42]
    She was cross-examined as to her claim for economic loss. She claimed she wanted to continue to work for Melton or IT (T2-46). She denied knowing that the job at Melton did not exist as at the date of the Form 2 (Exhibit 19 p 26) (T2-48). She accepted they did not part on the best of terms. She denied resigning from Melton (T2-50.27).

Michael Bain

43. [43]
    Mr Bain gave evidence that he was with the plaintiff and two others on the evening of the accident. They arrived at the Alley at about 7 p.m. (T3-3). They put their shoes on and started to play. It was very dark with poor lighting (T3-3.37). There were purple fluoro lights where they were sitting (T3-4.3). One of the others bowled first. The plaintiff was second. He saw her all of a sudden fall on her backside. She was then on the ground in pain. Her feet were on the bowling laneway (T3-4-5). It was very hard to see where the delivery apron and the lane were separated (T3-5.6). The surface of the lane was very slippery (T3-5.10). The delivery area was not. He marked on photo 1 in Exhibit 1 (pp 26) the plaintiff’s position on the ground.

44. [44]
    When she was lifted her legs were on the slippery surface (T3-5.42). Someone assisted him lift her. They supported her whole weight. They supported her until the ambulance arrived. Exhibit 19 (pp 81) discloses the ambulance was called at 7.28 p.m. with the ambulance arriving at 8.03 p.m.

45. [45]
    Mr Bain did not recall seeing any warning signs (T3-6.17). He did not see the foul line (T3-6.20). After the accident occurred the lights were turned on and for the first time an announcement was made warning people not to step over the line. There was no announcement before this (T3-6.25-30).

46. [46]
    In cross-examination Mr Bain said that he knew the plaintiff through work and he admitted they had spoken about the incident. He accepted they were not sure how she slipped because it happened so quickly (T3-7.40-45).

47. [47]
    He accepted that when he rushed forward to help the plaintiff he was not looking at things from the perspective of what it was like to bowl (T3-8.12). He may not have paid attention to warning signs but he did not see any (T3-8.16). He was shown Exhibit 15 and said he did not recall seeing the white warning sign. It did not stand out (T3-8-9). The plaintiff’s bottom was on the non-slippery surface (T3-10.5).

48. [48]
    They had one or two drinks before they arrived at the bowling. He denied there was any safety announcement before the accident (T3-11.45). He accepted there were gutters on either side of the lane, which provide a guide of where the lane starts. He said though it was very dark at the start and one would not see the line (T3-12.25).

49. [49]
    In further evidence-in-chief he said that the lighting on the night was consistent with Photograph 5 in Exhibit 1 (T3-14.15). Whilst it was clearer that night it was no brighter (T3-15.40).

Hospital notes

50. [50]
    The hospital notes were tendered as part of Exhibit 1.

51. [51]
    The report of Dr Tritt (Exhibit 1 p 1) dated 23 August 2008 notes that the plaintiff “slipped and fell directly onto her left hip” sustained a subcapital fracture of the left neck of the femur. Dr Tritt also noted her as presently being employed as a satellite broadband salesperson.

Dr Doig

52. [52]
    Dr Doig, orthopaedic surgeon, in a report dated 2 April 2012 (Exhibit 1 pp 12-13) referred to the plaintiff “lost her footing” (pp 12.3). He noted that the plaintiff did not wish to go ahead with a hip replacement at her age as she was told one can only ever have two such operations (pp 12.5).

53. [53]
    He noted that the left hip was sore and irritable (pp13.1). She is Trendelenburg positive. Her gait was reasonable and then she started to limp somewhat (pp13.2). There was evidence of avascular necrosis at the head of the femur (pp 13.3). There is ongoing pain and disability in the left hip. She cannot walk far (pp 13.4). She cannot stand or sit for long periods. The loss of bodily function of the left hip is 50%. The injuries cause permanent incapacity for employment (pp 13.5). There is a likelihood of further complications in the future. It is likely she will need a hip replacement (pp13.5).

54. [54]
    In a second report dated 12 May 2014 (Exhibit 1 p 14), Dr Doig estimates the costs of the hip replacement at $27,000. He assessed her on the AMA guidelines at 20% whole person impairment.

55. [55]
    In a third report (Exhibit 2) Dr Doig said that his second report was not correct as the patient did not have a hip replacement and thus his assessment under Table 65 of the AMA guidelines was incorrect. The correct chapter is Chapter 3 Table 39 - muscle weakness. Crucially he found she had a positive Trendelenburg gait. This lead to a conclusion of a 10% whole person impairment. He also thought there was mild evidence of avascular necrosis in the x-ray dated 9 March 2011. He thought that if a hip replacement occurred there would be a minimum impairment of 15% depending on clinical progress.

56. [56]
    In evidence Dr Doig said that the positive Trendelenburg gait indicated that either there were weakened abductors as a result of the injury or arthritis (T1-50). There was no evidence of arthritis. This test supported his assessment of impairment in this case.

57. [57]
    In cross-examination Dr Doig accepted that he erred in his assessment in his second report. He accepted his last two reports were written without further examination of the plaintiff (T1-51.42). I do not consider this to be much of an issue as he did examine the plaintiff at the start and slightly more recently than Professor Hart. He had seen Professor Hart’s reports and thought that a range of motion test only might support an impairment rating of 2% (T1-53.35). However he considered that the weakness in the hip lead to his 10% assessment, because of the Trendelenburg gait (T1‑53.37). He thought the only realistic explanation for the impaired gait was muscle weakness (T1-55.30). There were no other causes for this on the x-rays (T1‑56.20). He thought it appropriate to give the maximum appropriate under the AMA guidelines (T1-57.15). He considered there was a likelihood of a hip replacement (T1-57.27). As to her going off the hip replacement waiting list on 15 January 2014 he thought that she could still go backwards particularly considering the avascular necrosis (T1-59.11). If a hip replacement occurred this would improve her pain levels (T1-59). In his view the plaintiff could carry out sedentary employment (T1-60.3). She could, for example, do phone sales (T1-60.20).

58. [58]
    In re-examination he said he disagreed with the view that one should wait to have a hip replacement (T1-61-62).

Charles Tym

59. [59]
    Charles Tym was called by the plaintiff. He is a director of Harbour IT Pty Ltd.

60. [60]
    He gave evidence that from 2005 until 2010/2011 his company was involved with the Government scheme to deliver satellite internet to regional Australia (T2-63).

61. [61]
    This scheme was replaced by the NBN (T2-63.37).

62. [62]
    He gave evidence that various sales positions have continued with hundreds of people employed. There have been two periods of “hiatus” i.e. 6-12 months and 3-4 months. There are presently no opportunities concerning the sale of satellites but more rather in cable and wireless. There are positions for door to door selling (T2-63-64).

63. [63]
    He gave evidence that for phone sellers the range of gross income is $3000 to $4000 per month (T2-66).

64. [64]
    In cross-examination the witness said that the contract Harbour IT had with Melton was in 2007/2008 (T2-67). Melton was paid for marketing. However the busiest period was in 2007/2008. It was like a “bell curve”. It diminished after this. The Melton contract ceased in August 2009 (T2-68). After this, no-one else sold satellite door to door. The NBN started in July 2011. Nearly all of the work is by telephone (T2-68).

65. [65]
    $1000 per week is a reasonable wage. Further phone sellers are allowed to have breaks and stand 3-5 minutes each hour. Workers are ergonomically looked after (T2-69-70).

66. [66]
    In re-examination it was established that the present work will go for 4-5 years even longer (T2-71).

John Montgomery (T3-17-T3-30)

67. [67]
    Mr Montgomery gave evidence that he had known the plaintiff for 10 years. He moved into her house in March 2008. Prior to this she had worked at his Tavern and he tended a vegetable patch at her property. He also looked after her property when she was away.

68. [68]
    The plaintiff worked for him for 3-4 years at the Tavern. After she was injured she returned home. She was bedridden for a couple of months and he assisted her with all of the housework and cooking (I note there is no claim for this in the statement of loss and damage). He also described the other work he did for around the house.

69. [69]
    He also conceded in evidence that he performed the outdoor work for her before the accident in exchange for free rent.

70. [70]
    He estimated the work he did for her at about 2-4 hours per week.

71. [71]
    He also described how he still did a lot of inside work for her.

Defendant’s evidence

Raymond Carswell

72. [72]
    Mr Carswell gave evidence that he was a company director of the defendant. He ran the bowling alley from 1992/1993. It was already an established business when he took over the lease. There are set bowling regulations promulgated by the American Association which apply across Australia. The length of the laneway is 60’; and the foul line is 15’ from the end of the approach area. When Mr Carswell bowls (he is a competition bowler), he takes four and a-half steps. He is careful not to go over the foul line (T3-47.12). If one steps over the line, the score does not count. The surface of both the laneway and the approach area is constructed of maple. There is a slide residue applied but the lane surface is shiny and the approach is matte. He has held glow-in-the-dark nights since 2000 (T3-47.45). This involves turning off the normal lights and putting on UV lights. The lanes are highly polished. Oil is then applied to the lane. During the glow-in-the-dark nights the oil contained a UV element (T3-48.10). The floors are cleaned on various days during the week (T3-48.35).

73. [73]
    He was not present at the alley on 23 August 2008, but he thought there was adequate light in place for people to see what they were doing (T3-49.11). As at that date there were glow lights on the pins and at points near the lane. There was a light every fourth lane and a glow light above the scoring table (T3-49.30-37). He said there was an A4 warning sign and one could see the black foul line (T3-50.12). On the evening of the incident his son, Melissa, Mark Heading and a Riley were working there. Mr Heading looked after the glow-in-the-dark sessions. He gave a brief on the PA system which included a brief on the rules and a warning as to not going over the foul line (T3-51.20). This is because there were a lot of social bowlers.

74. [74]
    As to the foul line, it is ½” wide and 42” long. The rules provide as to the type of material but not as to its colour but every one he had seen were black. As to the oil it is applied 6” from the foul line and creeps down the lane (T3-52.10). Oil can be picked up by the balls (T3-52.20). By Saturday night oil would be dried up. The approach is cleaned before the glow-in-the-dark bowling (T3-52.42).

75. [75]
    In cross-examination the witness accepted that after the claim was made he was spoken to by a loss assessor. He told the loss assessor that the lights at the pins were not like that on 23 August 2008 (T3-53.35). Further since that date he had added a green warning sign to the pillar (T3-53.42). This was reflective. Also he told the investigator that the UV lights over the delivery apron were not the same (T3-54.3). He told the investigator that the current lights had higher light levels than the previous lighting which was “standard black lighting” with lesser illumination but greater UV effect (T3-54.5-10). I should say this appears to be contrary to later evidence in re-examination when he said that the glow as at August 2008 was better than it was in Exhibit 20 (a photo taken by the assessor) (T3-61).

76. [76]
    He accepted that the rules required the foul line to be distinctly marked (T3-3-54.25). He agreed concerning the A4 sign that the white would show up clearly in UV light. Black would not be as clear (T3-54.35). He said that oiling of the lane commences 6” from the line although conceded there could be some variation (T3-55.35). I note that it may be that balls which also attracted oil might be bounced in the area immediately after the foul line. But in any event he said that by the Saturday night the lane is not as slippery as the Friday (T3-56.5). He accepted it was not usual for social bowlers to slip over (T3-56.10).

77. [77]
    He accepted that under UV lights a white foul line would show more brightly (T3-56.27). It would not be difficult to put down a second foul line although tape would be a problem because it might leave residue. There was no reason there could not be a white foul line. A painted line would not stick. He said that glow-in-the-dark bowling had been going on for 20 years. He admitted that after the incident he put up the green sign which was more distinct than the white one and put in different UV lights (T3-59.20). Exhibit 20 was taken after this time. The new lights enhanced the glow effect (T3-60.32).

78. [78]
    He accepted that the approach is designed for a shuffle before releasing the bowling ball. This is why it can be dangerous to go over the foul line (T3-63.17).

79. [79]
    He had seen people fall before the foul line because of bad timing (T3-63.20).

Mark Heading

80. [80]
    Mr Heading gave evidence that he was the attendant at the front counter on the night of the incident. The bowling started at 7 p.m. A safety briefing was given before the lights were turned out (T3-64).

81. [81]
    He alleged he gave a briefing before the bowling in which he told participants not to step over the line (T3-64.25). This was at about 7.10 p.m. This of course is contrary to the evidence of both the plaintiff and Mr Bain. He said he only gave one such brief.

82. [82]
    He kept on eye of people during the course of the night (T3-65.47).

83. [83]
    He later saw the plaintiff lying on one of the lanes (T3-66.10). He helped her and called the ambulance. He alleged that Exhibit 20 depicted the same conditions as at 23 August 2008 (T3-66.37). The difficulty with this is that new lights had been installed and the green sign erected after 23 August 2008. He alleged the green sign was present on 23 August 2008. It was not.

84. [84]
    He alleged the white sign (Exhibit 15) showed up and was very visible (T3-68.5). I do not agree having looked at the photos (see e.g. Exhibit 20).

85. [85]
    In cross-examination he said the plaintiff was lying about 1m down into the laneway (T3-68.17). He companions picked her up. He called the ambulance. It was about 40 minutes before the ambulance arrived. He agreed that people slip over about once a month (T3-68.47). This can occur because the surface in the lane is more slippery than the approach (T3-69.5). He accepted that under UV, white shows up clearly, but black not as much (T3-69.10).

86. [86]
    He accepted a white foul line could be produced. He accepted that he could be mistaken as to the green sign being present on 23 August 2008 (T3-70.11).

87. [87]
    On the announcement issue he conceded it was possible he gave another warning after the incident contrary to his earlier evidence (T3-71.20) despite denying this earlier (T3-71.3).

88. [88]
    In re-examination he said that people fall about once per month but only when the lights are on (T3-71.40).

Professor Hart

89. [89]
    Professor Hart provided three reports (Exhibit 3).

90. [90]
    In his first report dated 9 March 2011 he noted that following the removal of the screws at the Wangaratta Hospital in April 2010 her symptoms were much improved although at that time she still had constant groin pain (pp 4.3). An MRI taken on 12 August 2010 showed an early avascular necrosis of the femoral head (pp 4.4).

91. [91]
    The plaintiff complained of left hip pain which was constant and moderate (pp 4.7). She had difficulty getting in an out of cars and had a slight limp and used a walking stick (pp4.8). He was unable to conduct a Trendelenburg test at that time (pp6.2).

92. [92]
    There were no areas of collapse seen on x-ray (pp7.1). The doctor opined that she suffered from avascular necrosis at the femoral head as a result of the fracture (pp 7.5). The impairment had not stabilised at that stage. There was still evidence of subchondral oedema at that stage (pp 8.4). At that stage there was a 10% impairment (see attachment).

93. [93]
    In his second report dated 13 December 2011 Professor Hart noted the plaintiff informed him that the hip pain had not improved since last seen (pp 2.3). The pain was constant. Her hip can lock up. She had decided against a hip replacement as she was concerned about the outcome and hoped her pain would improve (pp 2.5).

94. [94]
    She had not returned to work.

95. [95]
    Professor Hart found a negative Trendelenburg sign for the left hip (pp 3.3). He accepted she continued to suffer from the condition relevant to the injury. The prognosis was uncertain as the MRI showed the early avascular necrosis (pp 4.2). Her continuing pain is a matter of concern and it may be she will develop a progressive collapse of the femoral head necessitating a total hip replacement. Her presentation is consistent with the injury. He rated a 2% whole person impairment (pp 5).

96. [96]
    In his final report dated 15 May 2014 Professor Hart said that where the fracture is high on the femoral neck the flow of blood may be affected [2]. This can lead to the development of avascular necrosis (or AVN). If this is moderate or severe it may lead to a total hip replacement. This would be evident within three years on x-ray. The x‑ray from 9 March 2011 would not indicate this. There was also no significant arthritis indicating a hip replacement. There was a good range of movement. A hip replacement is not indicated [7]. Also even if there was severe necrosis there could be less invasive procedures such as a graft or osteotomy costing $20,000 [8]. Professor Hart thought gait in assessing impairment was a subjective and crude tool [10]. If the plaintiff had a hip replacement her maintaining employment would be easier. In any event she can now carry out sedentary employment [12] and [13].

97. [97]
    In evidence Professor Hart the witness said that the negative Trendelenburg test would imply that her muscle strength was good (T1-64.25). He also said a range of motion examination was a better way to determine impairment. Muscle weakness is too subjective (T1-64.30-37).

98. [98]
    In cross-examination he agreed that there was some degree of avascular necrosis evident on the MRI (T1-65.20). He accepted he had not seen the plaintiff since 2011 (T65). He did not consider she needed a hip replacement (T1-67.5).

99. [99]
    He accepted when he first saw the plaintiff he did not carry out the Trendelenburg test (T1-67.25). He accepted patients can have good days and bad days for the purpose of such a test (T1-67.45). There was no suggestion of malingering in this case (T1-68.5). A hip replacement was not an inevitable outcome (T1-69.7). She was not trying to maximize loss of movement. As to employability she is not suited to a job where she has to stand up or walk around all day. She could sit up to an hour and with a break continue sitting. She should start a return to work program (T1-70-71).

100. [100]
     In re-examination Professor Hart did not think there was an indication for a hip replacement. If there was a hip replacement there can be excellent results. She could do much more work (T1-72-73).

Tony Trevaskis

101. [101]
     Mr Trevaskis was the regional manager of ATEL. In 2004 they had a contract with Melton Contracting (see Exhibit 17).

102. [102]
     They provided labour. The plaintiff was employed by ATEL (Exhibit 18) and her labour was provided to Melton (T2-77-78).

103. [103]
     He gave evidence that the work was not easy work. There was a lot of travelling involved and it involved door to door sales. There was minimal chance of her coming back to the same role (T2-79).

Greg Melton

104. [104]
     Mr Melton gave evidence that he is the manager of a solar panel company. His company Melton Contracting was involved with the Australian Broadband Guarantee program. They sold for a number of companies including Harbour IT (T3-31).

105. [105]
     The plaintiff was employed through ATEL for five to six months in door-to-door sales of satellite broadband (T3-31.45). Her role was to sell door to door and to chase up the paperwork for trailing commissions. The program lasted for three years and finished in 2009 (T3-32.20). His company started selling solar after this. As to the attrition rate of employees, some lasted two to three months, some two to three years. Not many people could handle the door knocking and they were away from home for long periods. The workers were of various ages (T3-32-33).

106. [106]
     The job performed by the plaintiff was not available after August 2009 (T3-33.25).

107. [107]
     As to the plaintiff she was good at door to door sales. She did not enjoy being with a group though. She threatened to quit a number of times because she did not like sharing accommodation. She told him she did not wish to continue working on the road. They tried to set up work for her from home (T3-34).

108. [108]
     On 22 August 2008 the plaintiff told him she wanted to head for home. Despite the fact she did not want to keep working Mr Melton was going to try and persuade her to keep working however this did not work. On 24 August 2008 he emailed her telling her to head home (T3-34-T3-35).

109. [109]
     He later saw her once at El Dorado. There was no more ATEL employment from September 2008 (T3-35.32).

110. [110]
     In cross-examination he accepted that Melton Contracting now sold solar panels so that customers could get the feed-in tariff. There are however no more feed-in tariffs. The sale of solar panels involves the use of salespersons – similar to broadband sales except there is no doorknocking. It is more technical work although the plaintiff could have done this (T3-36).

111. [111]
     He agreed that at times the plaintiff was unhappy with the accommodation arrangements. He at first did not distinctly deny she complained that the young males were bringing women back to the shared accommodation. Mr Melton could not afford separate accommodation. He tried to make changes (I am not clear on what they were). He said that on 22 August 2008 she called and said she had had enough and wanted to go back (T3-37).

112. [112]
     Mr Melton was then cross-examined about the emails (Exhibits 6, 7 and 8). It was put the emails provided no indication the plaintiff did not wish to continue working.

113. [113]
     Mr Melton alleged a lot of information was not in the emails (T3-38-T3-39).

114. [114]
     Mr Melton denied he was saying that she resigned the week before 23 August 2008. It was put though to him that he had told Sean Powell, a lawyer, exactly this. He initially denied saying this but then was equivocal about it (T3-41).

115. [115]
     He accepted that she was working for them as at 23 August 2008. He accepted that after the accident he visited her and offered for her to do work from home. He accepted he provided a computer and phone but alleged this was only for trailing commissions.

Submissions by counsel

Plaintiff’s submissions

116. [116]
     In written submissions (Exhibit 22) the plaintiff submitted:

1. (a)
   the plaintiff was not able to see the foul line because of the lighting;

2. (b)
   the foul line should have been visible such as to avoid the fall;

3. (c)
   there should have been a white foul line or second foul line;

4. (d)
   the plaintiff’s evidence is supported by Mr Bain;

5. (e)
   it was the combination of the poor lighting, black foul line and highly polished surface and the fact people fall over once per month (according to Mr Heading’s evidence) which gives rise to a foreseeable risk of injury here;

6. (f)
   the installation of the green sign after the event shows that pre-accident precautions were not sufficient;

7. (g)
   the plaintiff should succeed for breach of contract;

8. (h)
   the defence of voluntary assumption of risk should fail;

1. (i)
   the claim for contribution should fail;

10. (j)
    the plaintiff should succeed entirely on both actions;

11. (k)
    on the issue of quantum Dr Doig’s evidence should be preferred as he examined the plaintiff more recently. An ISV of 15 should be assessed leading to an award for general damages of $18,000;

12. (l)
    as to past economic loss, at the time of the incident she was earning $1050 per week with Melton Contracting which but for the accident would have continued until September 2009. Thereafter there were other similar job opportunities. Taking into account a residual working capacity, the total for past loss is $134,600 which comprises $1000 per week for 12 months and $400 per week from September 2009;

13. (m)
    interest on this would be $12,922 at the rate of 3.83%. Lost past superannuation would be $12,144 at the rate of 9% per annum;

14. (n)
    as to future economic loss $400 per week is sought for 5 years and $311 per week for 7 years. The total claim is $160,224. Loss of future super at the rate of 10% is claimed in an amount of $16,022;

15. (o)
    it was agreed during submissions that out of pocket expenses amount to $6,888.52;

16. (p)
    whilst the claim for care was not abandoned quite rightly it was not pressed;

17. (q)
    future expenses including a hip replacement operation in 5 years were $37,451.00;

18. (r)
    the total claim exceeded $400,000;

117. [117]
     In oral submissions it was submitted no finding of contributory negligence should be made but if it was the finding should be no greater than 10-20%.

118. [118]
     In further written submissions (Exhibit 24) the plaintiff submitted:

1. (a)
   it was the defendant which created the trap for the plaintiff;

2. (b)
   this is a case where the plaintiff tried to bowl in deliberately created poor light and was injured;

3. (c)
   Thompson v Woolworths (2005) 221 CLR 234 was a worse example of contributory behaviour;

4. (d)
   Carey v Lake Macquarie City Council [2007] NSWCA 4 was also a worse example;

5. (e)
   the plaintiff seeks to distinguish the cases relied on by the defendant;

6. (f)
   the plaintiff relies on Reck v Queensland Rail [2005] QCA 228; Kelly v State of Queensland [2014] QCA 27; Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239; Littlejohn v Julia Creek Town and Country Club Inc [2011] QDC 116 and Alvarenga v Mirvac Real Estate Pty Ltd and Anor [2013] NSWDC 26 to justify a submission of no contribution or minimal contribution;

7. (g)
   on the issue of quantum the plaintiff challenges the defence submissions.

Defendant’s submissions

119. [119]
     In written submissions (Exhibit 21) the defendant submitted:

1. (a)
   the evidence of the defence witnesses should be preferred over the plaintiff and her witnesses;

2. (b)
   the plaintiff would not be accepted as:

1. (i)
   she conceded in evidence that a warning of the lane being unsafe was superfluous to her which is inconsistent with the statement of claim;

2. (ii)
   her evidence-in-chief as to her bowling experience differed markedly from a statutory declaration made by her (Exhibit 19 pp75-76);

3. (iii)
   she failed to disclose a letter confirming she had taken herself off the hip replacement waiting list;

4. (iv)
   there were inconsistencies in the Griffiths v Kerkemeyer claim;

5. (v)
   the plaintiff had no basis to allege she would have continued to work for Melton contractors;

3. (c)
   in any event the plaintiff could not say how the accident occurred and she could not satisfy the onus in this case. In this regard the defendant alleges people fall for many reasons at bowling alleys;

4. (d)
   the plaintiff cannot show that any precautions would have prevented the incident. No expert evidence was called;

5. (e)
   as to the allegation that the lane was unsafe (see para 4 of the statement of claim) the lane had to be polished and slippery for the game to be played. The comments of Chesterman J in Pollard v Trude [2008] QSC 119 are relied on which reflect s 9(2) (a) of the CLA. I agree of itself such an allegation would be insufficient to establish breach of duty;

6. (f)
   as to the allegation of lack of warning the plaintiff had been bowling for 37 years and was well aware the lane was slippery. In reliance on Pollard at [62] a warning would not have served any purpose. Woods v Multi-sports Holdings Pty Ltd (2002) 208 CLR 460 at [44]-[45] is relied on;

7. (g)
   as to the border demarcation the claim fails as:

1. (i)
   there is no reliable evidence the plaintiff fell on the lane itself. This argument intertwines with the no evidence point;

2. (ii)
   the plaintiff did not look for the foul line. This is simply explained because the lane was clearly demarked by the different timbers and the gutters. Also she was experienced;

3. (iii)
   no lighting expert was called to prove that this would have made any difference. In this regard the defendant heavily relies on the evidence of Mr Carswell and Mr Heading that Exhibit 20 showed the conditions at the time;

4. (iv)
   the defendant discharges its duty of care by a clear demarcation; a briefing and the regular cleaning of the centre;

5. (v)
   the defendant relies on Sims v Farquhar Corporation [2006] QDC 301;

8. (h)
   in short the plaintiff’s claim should be dismissed because:

1. (i)
   the evidence points to the accident occurring on the approach;

2. (ii)
   the prominence of the foul line is irrelevant at the plaintiff did not look for it;

3. (iii)
   the duty of care was discharged as the lane was clearly demarked;

1. (i)
   on the issue of which doctor is to be preferred the defendant submitted that Professor Hart should be preferred as:

1. (i)
   he saw the plaintiff on 2 occasions;

2. (ii)
   he had the benefit of an MRI and x-ray;

3. (iii)
   he was unequivocal in his view there was no need for a hip replacement;

4. (iv)
   Dr Doig did not descend to any point of “discipline” required by the AMA guidelines;

5. (v)
   the cost the hip replacement is irrelevant as there is no tangible evidence it is needed and indeed the plaintiff has taken herself off the waiting list;

6. (vi)
   Dr Doig used a muscle weakness test which was subjective and used the highest possible scale;

10. (j)
    impairment should be assessed at 2%;

11. (k)
    as to past economic loss, the plaintiff does not have a strong past work history. She only worked for Melton contracting from March until August 2008. In the preceding tax years she earned $300 net a week. She would not have continued with Melton and indeed if Mr Melton’s evidence is accepted she resigned. It is submitted that the statements of loss and damage are “fraudulent”;

12. (l)
    she should be allowed nothing for future economic loss;

13. (m)
    out of pocket expenses are accepted;

14. (n)
    the claim for care should be rejected.

120. [120]
     In oral submissions it was submitted that if contribution was to be assessed it should be greater than that in Carey v Lake Macquarie City Council [2007] NSWCA 4 (greater than 50%). It was submitted that in any event Carey was to be distinguished as the bollard in that case did not serve much purpose.

121. [121]
     In further written submissions (Exhibit 23) the defendant submitted:

1. (a)
   findings of 50% contribution were made in Del Romano v Turner [2002] VSCA 166; Felhaber v Rockhampton City Council [2011] QSC 23; Lynch v Kinney Shoes [2005] QCA 326 and by Jerrard JA in Leyden v Caboolture City Council [2007] QCA 134 at [29];

2. (b)
   the plaintiff’s culpability is more severe than in those cases as she was an experienced bowler (see Exhibit 19 pp75-76); she did not look for the foul line; and she knew that travelling into the lane would be dangerous;

3. (c)
   10-20% contribution would be inadequate in this case (see e.g. Anderson v AWWW Pty Ltd [2013] QDC 155 and Samways v Workcover [2010] QSC 127);

4. (d)
   further, the defence of volenti is made out;

5. (e)
   on the issue of general damages the ISV would be 5-8. The award would not be greater than $8,600;

6. (f)
   as to past economic loss, the claim for $1050 is spurious. At best $30,000 to $40,000 should be allowed;

7. (g)
   no award should be made for future loss. She is 55 with a poor work history;

8. (h)
   special damages are about $6,000;

1. (i)
   future pharmaceuticals are not cavilled with but the claim for the hip replacement is disputed;

10. (j)
    the total assessment would therefore be about $55,000.

Factual findings - liability

122. [122]
     I found the presentation of the witnesses (the way in which they answered questions) greatly assisted me in making my determination of the facts.

123. [123]
     I generally accept the plaintiff’s evidence. I find that her evidence was supported by the medical evidence i.e. the nature of the injury and the photographs.

124. [124]
     I also consider Mr Bain (whom I accept) supported her account.

125. [125]
     I note the plaintiff conceded in cross-examination that she did not know where she fell. I draw the inference on the evidence that it was after the foul line. There was no reason for her to trip before this line. She felt sturdy on her feet before the fall. The only reasonable inference to draw is that she slipped on the slippery surface after the foul line. I also note Mr Heading’s evidence that he observed the plaintiff lying on the laneway (about 1 metre in from the foul line) which evidence supports this conclusion, as does the evidence of Mr Bain who marked the plaintiff’s position where she was lying (Exhibit 1 p 26). He described her as falling onto her backside with her two legs into lane.

126. [126]
     I am not troubled by the fact the plaintiff used the words “lost her footing” to the ambulance officers and the doctor. I do not see this as inconsistent with slipping on the slippery surface. I note that Dr Tritt records the complaint as “she slipped and fell directly onto her left hip” (see Exhibit 1 p 1).

127. [127]
     The defendant relied on inconsistency between Exhibit 19 (pp 75-76) and her evidence-in-chief as to her bowling experience. I do not consider there is any significant inconsistency on this. The plaintiff may have bowled when younger but not since about 2005. She had only bowled before at a glow-in-the-dark night a couple of times (the three to four times referred to in the statutory declaration included some occasions at which she was merely present.)

128. [128]
     The defendant also relied on inconsistency between the claims for care and economic loss. As Mr Montgomery demonstrated (I found him very honest) it is difficult to accurately work out how many hours a person performs work around a house. Also, economic loss can be difficult to calculate at the best of times. At the end of the day the plaintiff relied on her lawyers in preparing the necessary court documents and the statement of loss and damage was broad enough to include alternative calculations.

129. [129]
     I accept the plaintiff’s explanation concerning the non-disclosure of the letter, but even if that is not right, this does not affect my findings on the fact that an accident occurred and how it occurred.

130. [130]
     The defendant also relied on the fact there was no claim against the defendant until 2011. But I accept the plaintiff’s explanation for this – she was advised to complete the WorkCover claim first.

131. [131]
     The defendant relied on the case of Miller v Council of the Shire of Livingstone and Anor [2003] QCA 29. I consider Miller to be an entirely different case to the present one. In Miller there were no eyewitnesses to the event nor did the plaintiff have any recollection as to it. Many reasons consistent with no liability could not be excluded (see [3] and [30]-[34]). I am not choosing between guesses in this case.

132. [132]
     Circumstantial evidence may be employed in civil cases (see Luxton v Vines (1952) 85 CLR 352). Examples of the employment of such a principle are to be found in Holloway v McFeeters (1956) 94 CLR 470 and Nominal Defendant v Puglisi (1984) 54 ALR 636.

133. [133]
     In this case I am able to exclude alternative possibilities. There was no obstruction which would have caused the plaintiff to fall. She was not affected by alcohol. She was sturdy on her feet before the fall. This removes the possibility posed by Mr Carswell in re-examination.

134. [134]
     The most rational inference open is that she slipped on the slippery surface in light of her description of being airborne her landing on her backside and her feet being on the lane. Nothing else would have caused this on the evidence.

135. [135]
     Mr Carswell and Mr Heading alleged they could readily see the warning sign and the foul line at the time of the incident and that Exhibit 20 reflected the conditions at the time.

136. [136]
     I prefer the evidence of the plaintiff and her witness though they could not readily see the foul line and the warning sign. I take into account the experience of both Mr Carswell and Mr Heading with this alley and generally. They would be far more likely to know where the foul line is. I also take into account that Mr Heading initially claimed the green sign was on the post at the time of the incident. He clearly was mistaken on this.

137. [137]
     I also note that Mr Carswell’s statement to the loss investigator as to the state of the lights when the investigator was present was contrary to his evidence to the court.

138. [138]
     Also I do not accept Mr Heading’s evidence that he gave a warning on the PA system of the dangers of stepping over the line prior to the incident. He initially claimed he did not give a second warning and yet conceded in cross-examination he may have. Both witnesses for the plaintiff said he did not give the first warning. I accept them.

139. [139]
     Where there is a conflict between the evidence of the plaintiff and her witness and that of Mr Carswell and Heading I accept the evidence of the plaintiff and her witness.

140. [140]
     I do accept the evidence of Mr Carswell that it is dangerous to step over the foul line and Mr Heading’s evidence that this does occur reasonably often.

141. [141]
     In this case I find the foul line was not able to be readily seen; the plaintiff took two steps and then she slipped on the slippery delivery lane and fell and suffered the fractured femur. I find there was no oral warning prior to the accident of the dangers involved. I find that the warning sign in the dark was not readily able to be seen.

142. [142]
     I also find that the accident was likely to be avoided if the lighting was better (as per Exhibit 20); and/or the foul line was a light colour. The green warning sign (which was later erected) and/or an oral warning as to the dangers given prior to the incident would have assisted as well.

143. [143]
     Accepting there may be some limitations concerning photographs I find that the conditions on the night of the accident were more like those depicted in photograph 5 (p 27 of Exhibit 1) than with the better lighting like in Exhibit 20.

144. [144]
     I do accept the plaintiff had some experience in ten pin bowling and accept that like many sports the delivery of the ball whilst intuitive requires the mind to process many things including staying away from the polished laneway. There are many activities in life where one’s experience leads one to take in a variety of matters an process them immediately. Driving is one example.

145. [145]
     I accept she did attempt (unsuccessfully) to look after her own safety by lining herself up with a teenager prior to ball delivery because she could not see the line. The plaintiff did not consider there was a risk of falling because the teenager did not and no-one else fell. But there was a risk of injury and this situation was created by the defendant. As I will discuss later though I do consider the plaintiff contributed to this by failing to keep a proper lookout (e.g. having regard to the gutters) bearing in mind her previous bowling experience.

Factual findings relevant to quantum

146. [146]
     As to her evidence of the effect of the accident upon her I accept it has had a significant effect. I suspect that the longer time has gone along it has made it much more difficult to go back into the workforce. I accept the evidence of both doctors that the plaintiff is capable of performing sedentary work. This clearly will affect her claim for economic loss.

147. [147]
     I will deal with specific damage issues when I come to discuss the issue of quantum.

148. [148]
     As to the conflict between Dr Doig and Professor Hart, I prefer Dr Doig’s evidence.

149. [149]
     I appreciate that Dr Doig made an error in his reliance on Table 65 in his second report but this was corrected. I accept Dr Doig’s methodology concerning his assessment.

150. [150]
     It seems to me that Professor Hart relied primarily on the fact there was no positive Trendelenburg test in December 2011. However he conceded in cross-examination that people can have good and bad days. This means that the positive test observed by Dr Doig supports his methodology.

151. [151]
     I also accept there is a real chance that the plaintiff will require a hip replacement in the future as Dr Doig thought.

152. [152]
     As to any conflict between the plaintiff and Mr Melton, I prefer the evidence of the plaintiff. I thought her version was supported by the emails and further Mr Melton’s evidence was different to what he told Mr Powell. I accept Mr Melton’s evidence that she was considered to be a good worker. I also note that the statement to Dr Tritt (Exhibit 1 p 1) that she was presently a broadband salesperson also would rebut any contention she had resigned.

153. [153]
     I accept Mr Montgomery’s evidence.

Legal principles

Negligence

154. [154]
     The elements of the cause of action in negligence are duty of care, breach of the duty and that damage was caused.

Duty of care

155. [155]
     As noted above the existence of the duty of care is admitted by the defendant (para 6 of the defence).

156. [156]
     I note that in Meandarra Aerial Spraying Pty Ltd and Anor v GEJ Geldard [2012] QCA 315 at [24] it was said that Section 9(1) (b) of the Civil Liability Act 2003 (Q) (“CLA”) did alter the common law as expressed in Wyong Shire Council v Shirt (1980) 146 CLR 40. At [26] it was noted that the words “not insignificant” are used rather than “not far-fetched or fanciful” and was thought to be a more demanding test. Certainly this was the approach taken in Council of the City of Greater Taree v Wells [2010] NSWCA 147, a decision accepted by the Queensland Court of Appeal in State of Queensland v Kelly [2014] QCA 27.

157. [157]
     Indeed in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 430, the High Court made clear that the proper starting point for considering arising questions of breach and causation, was the Civil Liability Act 2002 (NSW) as well as the other statutes governing liability in that case. Their Honours stated that, “If attention is not directed first to the Civil Liability Act, and then to the Liquor Act, there is serious risk that the inquiries about duty, breach and causation will miscarry” (at [11]).

158. [158]
     Regardless the admission by the defendant that it owed a duty of care is well founded.

Breach of duty of care

159. [159]
     The next issue is whether there has been a breach of the duty of care.

160. [160]
     Relevant to this are the provisions of the CLA (see Meandarra Aerial Spraying Pty Ltd v GEJ Geldard [2012] QCA 315 at [21]- [22]).

161. [161]
     Sections 9 to 11 of the CLA provide:

“9 General principles

1. (1)
   A person does not breach a duty to take precautions against a risk of harm unless—

1. (a)
   the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

2. (b)
   the risk was not insignificant; and

3. (c)
   in the circumstances, a reasonable person in the position of the person would have taken the precautions.

2. (2)
   In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—

1. (a)
   the probability that the harm would occur if care were not taken;

2. (b)
   the likely seriousness of the harm;

3. (c)
   the burden of taking precautions to avoid the risk of harm;

4. (d)
   the social utility of the activity that creates the risk of harm.

10 Other principles

In a proceeding relating to liability for breach of duty happening on or after 2 December 2002—

1. (a)
   the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and

2. (b)
   the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and

3. (c)
   the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.

11 General principles

1. (1)
   A decision that a breach of duty caused particular harm comprises the following elements—

1. (a)
   the breach of duty was a necessary condition of the occurrence of the harm (factual causation);

2. (b)
   it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).

2. (2)
   In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

3. (3)
   If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—

1. (a)
   the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

2. (b)
   any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

4. (4)
   For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.

12 Onus of proof

In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

162. [162]
     I also note the High Court has cautioned not to assess matters with the wisdom of hindsight but to assess matters as they were before the injury (see Vairy v Wyong Shire Council (2005) 223 CLR 422).

163. [163]
     In my opinion the risk here was not only foreseeable but it was significant.

164. [164]
     The defence revealed that oil is placed on the floor to make the lane slippery. Moving at some speed with a heavy bowling ball in one’s hand would be particularly dangerous on a slippery surface. I consider therefore there was a real chance someone could fall over if the lights were darkened and the foul line crossed. There is also Mr Heading’s evidence of falls occurring over the line (T3-71.40).

165. [165]
     In those circumstances I consider a reasonable person in the defendant’s position should have taken measures to ensure that the foul line was clearly visible in this glow-in-the-dark bowling (e.g. use of a reflective or light coloured strip) and/or better lighting. It was not on my findings.

166. [166]
     Serious injury could result from a fall on the slippery surface. I have specifically considered each of the matters mentioned in s 9(2) CLA.

167. [167]
     I consider that Pollard v Trude [2008] QCA 421 to be a different one from this case. For a start a warning was given there (by one golfer to another of a wayward shot) and second the case concerned a game of golf where the golfers involved were experienced and fully understood the risks and rules of the game.

168. [168]
     I find that:

1. (a)
   the risk of injury was foreseeable (s 9(1)(a) CLA);

2. (b)
   the risk was not insignificant (s 9(1)(b) CLA);

3. (c)
   in the circumstances a reasonable position in the defendant’s position would have taken precautions to avoid the risk i.e. to make the line visible and/or start of the polished lane clearly visible by e.g. a lighter line or better lighting. (s 9(1)(c) CLA);

4. (d)
   there was a likelihood harm would occur if care were not taken (s 9(2)(a) CLA);

5. (e)
   such harm could be serious (s 9(2)(b) CLA);

6. (f)
   the burden of avoiding the risk of injury was not great (s 9(2)(c) CLA) i.e. the measures put in place by Mr Carswell and/or the placement of a white line;

7. (g)
   I have had regard to the social utility of the activity (s 9(2)(d) CLA).

Causation

169. [169]
     I have also specifically had regard to ss 10, 11 and 12 of the CLA and find that the injury was caused by the breach of duty of the defendant.

170. [170]
     I find that:

1. (a)
   the breach of the duties owed by the defendant to the plaintiff was in this case a necessary condition leading to the femur fracture (s 11(1)(a) CLA);

2. (b)
   it is appropriate for the scope of liability of the defendant to extend to the harm caused in this case (s 11(1)(b) CLA);

3. (c)
   in case it is necessary pursuant to s 11(2) CLA I find responsibility for the harm should be imposed on the defendant because of the risk of a serious injury occurring because of the darkened condition of the bowling alley;

4. (d)
   in deciding factual causation, in light of all the relevant circumstances, it seems to me the defendant’s conduct in failing to make the foul line visible caused the injury (s 11(3) CLA);

5. (e)
   by reason of the foregoing responsibility for the harm should be imposed on the defendant (s 11(4) CLA).

171. [171]
     In my opinion this is not an example of risky sporting activity (see e.g. Woods v Multi-Sport Holding Pty Ltd (2002) 208 CLR 460).

172. [172]
     I also note that merely because another incident had not occurred during glow in the dark bowling does not mean the risk is insignificant (see Jandson Pty Ltd v Welsh [2008] NSWCA 317 at [20]-[25]).

173. [173]
     I consider that the plaintiff has made out the particulars of negligence in 6(a) and (b) of the statement of claim.

Voluntary assumption of risk

174. [174]
     However, of course the defence of volenti is to be considered as it has been raised by the defendant.

175. [175]
     Sections 13, 14 and 16 of the CLA provide:

“13 Meaning of obvious risk

1. (1)
   For this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

2. (2)
   Obvious risks include risks that are patent or a matter of common knowledge.

3. (3)
   A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

4. (4)
   A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5. (5)
   To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.

Examples for subsection (5)—

1 A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.

2 A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer's recommendation.”

“14 Persons suffering harm presumed to be aware of obvious risks

1. (1)
   If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.

Editor's note—

'Voluntary assumption of risk' is sometimes stated as 'volenti non fit injuria'.

2. (2)
   For this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.”

“16 No liability for materialisation of inherent risk

1. (1)
   A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

2. (2)
   An inherent risk is a risk of something occurring that can not be avoided by the exercise of reasonable care and skill.

3. (3)
   This section does not operate to exclude liability in connection with a duty to warn of a risk.”

176. [176]
     Whilst the plaintiff may have been aware of the general risk of slipping over on the lane, in my view the plaintiff has proved that in the circumstances in which she found herself (i.e. the poor lighting, absence of clear demarcation and/or absence of warning) there was no obvious risk of slipping over and receiving serious injury at the time of the injury. While she had bowled before, she had never encountered this problem previously. Also as I found previously, the plaintiff did not consider there to be a risk on this occasion, as she thought she had safely lined herself up with the teenager on the night in question. Under normal conditions i.e. with normal lighting the risk would have been obvious, but bearing in mind the conditions under which she bowled, the risk would be concealed.

177. [177]
     I note that the CLA has altered the common law as to proof of volenti (see Carey v Lake Macquarie City Council [2007] NSWCA 4 at [92]). I note also though that “the position of the plaintiff” comprehends the particular circumstances in which the risk materialised and the harm was suffered see (Carey at [94]).

178. [178]
     In Carey at [98] it was accepted that a person in the position of the appellant was an experienced cyclist in his 50s with knowledge of the presence of a bollard on the lower path. It would have been obvious to a reasonable person in that position that riding along the lower path in the dark would involve the risk of hitting unexpected obstacles. The defendant was to prove that the plaintiff voluntarily accepted the risk (see [99]). In Carey the plaintiff simply did not think about it.

179. [179]
     In this case I do not find in favour of the defendant on the grounds of voluntary assumption of risk.

180. [180]
     I find that:

1. (a)
   there was not an obvious risk because the foul line did not clearly delineate the non-slippery area from the slippery area at the time (s 13 CLA);

2. (b)
   the plaintiff has proved she was not aware of any obvious risk at the time (s 14(1) CLA);

3. (c)
   there was no inherent risk here as there was no risk of something occurring which could not be avoided by the exercise of reasonable care and skill (s 16(1) and (2) CLA).

181. [181]
     I do not consider this to be an obvious risk like one involving uneven paving, tree roots or a hole (see Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512).

182. [182]
     I note at pp 580-581 of Brodie the court noted that some allowance must be made for inadvertence and certain dangers may not be perceived because of inadequate lighting.

183. [183]
     In Council of the City of Greater Taree v Wells (supra) I note the court at [79] considered a chain that was not visible to a cyclist taking reasonable care until shortly before it, is not an obvious risk. In State of Queensland v Kelly (supra) the risk of suffering serious injury diving into the lake was not obvious despite the plaintiff passing two warning signs.

184. [184]
     In Carey v Lake Macquarie City Council (supra) it was held that where the reflective strip had peeled off on a bollard and the accident occurred at night, the risk could not be said to be obvious. In Carey the plaintiff collided with a bollard when riding on his bicycle on a concrete path in the dark. The trial Judge found for the defendant. The appeal was allowed and contribution was assessed at 50%. The plaintiff was a very experienced bike rider in the dark and knew the area well. It was held at [66] that although the bollard was obvious in the daytime, by putting it in the middle of the path posed a significant hazard particularly at night. It was foreseeable that reflector tape would be missing at times. At [69] it was held the trial Judge ought to have found the defendant breached the duty of care owed to the plaintiff.

The warning - paragraph 6(c) - particular issues

185. [185]
     On the issue of a warning (para 6 (c) of the statement of claim), I am also satisfied this particular is made out. Relevant to this is a consideration of s 15 of the CLA.

186. [186]
     This provides:

“15 No proactive duty to warn of obvious risk

1. (1)
   A person (defendant) does not owe a duty to another person (plaintiff) to warn of an obvious risk to the plaintiff.

2. (2)
   Subsection (1) does not apply if—

1. (a)
   the plaintiff has requested advice or information about the risk from the defendant; or

2. (b)
   the defendant is required by a written law to warn the plaintiff of the risk; or

3. (c)
   the defendant is a professional, other than a doctor, and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

Note—

In relation to paragraphs (a) and (b), see section 21 for the duty of a doctor to warn of risk.

3. (3)
   Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

4. (4)
   In this section—

a professional has the same meaning as it has in division 5.”

187. [187]
     It is true the plaintiff conceded that a warning might be more relevant to a new bowler than to her and that a warning would be superfluous (T2-29.15) but in my respectful opinion this evidence was really given with the benefit of hindsight.

188. [188]
     It is really a combination of things. Of itself the warning might not have made a difference, but in combination with better lights and/or a light coloured line; with a reflective warning and/or an oral warning there was a far greater chance the accident would have been avoided.

189. [189]
     However, even if I am wrong as to my conclusions as to particular 6(c), I consider the accident would have been avoided by either a lighter coloured foul line or better lighting like that which was subsequently installed (paragraph 6 (a) and (b) of the Statement of Claim).

190. [190]
     On my findings the better lights and readily visible green sign (later installed) show the measures which could have been taken.

191. [191]
     I am satisfied:

1. (a)
   there was no obvious risk at the time (s 15(1) CLA); and

2. (b)
   in this case an oral warning (like one given later) should have been given or the written warning made far more obvious and readable in the darkened condition (such as the green sign) .

Conclusion on negligence

192. [192]
     I find that the plaintiff has proved on the balance of probabilities that a duty of care was owed, that this duty was breached and that damage was caused to her by that breach. I therefore find the defendant is liable in negligence. I make it clear I have not found the installation of the better lights or the green sign or the later oral warning as evidence of negligence of itself (s 10(c) CLA). But their installation surmounts the defence argument that no expert evidence was called and provides evidence of alternate measures which should have been taken and which would have avoided the risk of injury.

Contributory negligence

193. [193]
     Section 10(1) of the Law Reform Act 1995 (Q) provides:

“10 Apportionment of liability in case of contributory negligence

1. (1)
   If a person (the claimant) suffers damage partly because of the claimant's failure to take reasonable care (contributory negligence) and partly because of the wrong of someone else—

1. (a)
   a claim in relation to the damage is not defeated because of the claimant's contributory negligence; and

2. (b)
   the damages recoverable for the wrong are to be reduced to the extent the court considers just and equitable having regard to the claimant's share in the responsibility for the damage.

2. (2)
   Subsection (1) does not operate to defeat any defence arising under a contract.

(2A) If a contract or enactment providing for the limitation of liability applies to the claim, the amount of damages recoverable by the claimant because of subsection (1) is not to exceed the maximum limit applying to the claim.

3. (3)
   Where damages are recoverable by any person by virtue of subsection (1) subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been guilty of contributory negligence.”

194. [194]
     Sections 23 and 24 of the CLA provide:

“23 Standard of care in relation to contributory negligence

1. (1)
   The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.

2. (2)
   For that purpose—

1. (a)
   the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and

2. (b)
   the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.

24 Contributory negligence can defeat claim

In deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.”

195. [195]
     The onus to prove contributory negligence is on the defendant (see Green v Hanson Construction Materials Pty Ltd [2007] QCA 260 at [32]).

196. [196]
     In light of the plaintiff’s experience of ten pin bowling in my opinion the plaintiff has failed to take care of her own safety. She ought to have taken more care where she stepped. I take into account the previous bowling experience she had (see Exhibit 19 at pp 75 and 76).

197. [197]
     I refer to her evidence at [29]-[34] above. Having a “sense of the lane” was not enough for the plaintiff to look after her own safety. She also failed to pay sufficient regard to the gutters (see T2-61).

198. [198]
     Needless to say there is some tension between finding a defendant liable and then finding contributory negligence (see e.g. Reck v Queensland Rail [2005] QCA 228 at [18]) however this is clearly contemplated by the legislation. As was said in State of Queensland v Kelly (supra) at [50] “the finding of contributory negligence is not in conflict with the finding that the risk which materialised was not an ‘obvious risk’ within the meaning of s 13 [CLA]”.

199. [199]
     In this regard I note that which the High Court stated in Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 at [40]-[41] where it was noted that different principles apply as to contributory negligence by employees and that relevant was the plaintiff’s being accustomed to waiting for assistance to move the bins.

200. [200]
     I also consider Carey v Lake Macquarie City Council [2007] NSWCA 4 to be an instructive case. I note that 50% contribution was assessed in this case.

201. [201]
     I otherwise have had regard to the decisions relied on by the parties.

202. [202]
     In Leyden v Caboolture Shire Council [2007] QCA 134 Jerrard JA dissented but assessed a 50% contribution. In that case the plaintiff was riding a BMX bike on a track constructed by the defendant with bumps as is usual for such a track. However outsiders not under the control of the defendant had modified a jump. The plaintiff had used this jump on 5 previous occasions knowing of the risk. The majority dismissed the claim on the grounds of volenti.

203. [203]
     In Lynch v Kinney Shoes (Australia) Ltd and Ors [2005] QCA 326 again the majority dismissed the appeal, Atkinson J in dissent would have found 50% contribution. In that case the Appellant tripped over a platform in a shop. The Appellant failed to keep any proper lookout.

204. [204]
     In Felhaber v Rockhampton City Council [2011] QSC 23 the trial Judge found for the defendant. This was a case where the plaintiff swung on a rope in a tree on the banks of the Fitzroy River. He then dived into the water head first and broke his neck on the river bed. On the notional apportionment 50% was assessed.

205. [205]
     In Del Romano v Turner [2002] VSCA 166 50% was assessed where a motor was dropped on a plaintiff at a building site. It was arguable the plaintiff himself instigated the unsafe system and acquiesced in a system which lead to the injury.

206. [206]
     In State of Queensland v Kelly (supra) 15% was assessed. However the warning signs did not fully point out the risks involved and the plaintiff had gone down the dune in question a number of times previously without mishap. Further the lion’s share of responsibility fell on the defendant as it was aware of the dangers involved in running down the slope into the water (there had been 18 incidents, including serious spinal injuries, in the previous 17 years and various recommendations to improve the situation including the warnings had not been implemented).

207. [207]
     I consider that Anderson v AWWW Pty Ltd [2013] QDC 155; Samways v Workcover [2010] QSC 127 and Reck v Queensland Rail (supra) do not greatly assist as the principles in employer/employee actions differ.

208. [208]
     In Rogers v Interpacific (Aust) Pty Ltd [2007] QSC 139, no deduction for contribution was made. However that case involved a plaintiff and his son who were inexperienced with jet skiing.

209. [209]
     Littlejohn v Julia Creek Town and Country Club [2011] QDC 116, is a different case to the present one. In that case there was no evidence the plaintiff was aware of the change in floor level.

210. [210]
     In Alvarenga v Mirvac Real Estate Pty Ltd and Anor [2013] NSWDC 26, 10% contribution was assessed. In that case the plaintiff slipped on a freshly mopped floor. Originally the trial judge thought he would assess contribution at 25%, but reduced it to 10% because the plaintiff did attempt to grab a handrail.

211. [211]
     In Boral Bricks v Cosmidis (No 2) [2014] NSWCA 139 at [48]-[52] the New South Wales Court of Appeal noted that in assessing contribution one has to compare the culpability of the parties and the importance of their acts in causing the damage.

212. [212]
     I consider this matter falls some where between Carey and Thompson but closer to Thompson.

213. [213]
     In my opinion the plaintiff contributed to her own injuries to the extent of 40%.

Breach of contract

214. [214]
     The plaintiff alternatively alleges that the duties breached were owed pursuant to contract.

215. [215]
     In this case the plaintiff paid an entrance fee to play bowls. I find there was a contract between the parties.

216. [216]
     In those circumstances I find that the defendant owed the duties pleaded to the plaintiff (see Australian Racing Drivers Club v Metcalf (1961) 106 CLR 177 and Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at [9]).

217. [217]
     I find that these duties were breached for the reasons I gave concerning the claim in negligence. I note that s 4 CLA provides that the Act covers all breaches of duty (aside from some mentioned in s 5 CLA).

218. [218]
     The dictionary in schedule 2 defines duty as:

“duty means—

1. (a)
   a duty of care in tort; or

2. (b)
   a duty of care under contract that is concurrent and coextensive with a duty of care in tort; or

3. (c)
   another duty under statute or otherwise that is concurrent with a duty of care mentioned in paragraph (a) or (b).”

219. [219]
     However I still find that contributory negligence reduces plaintiff’s award for breach of contract (see Astley v Austrust Ltd (1999) 197 CLR 1).

Quantum

Findings

220. [220]
     I have set out the plaintiff’s evidence of the effects of the injury on her previously. I have also previously set out my findings in this regard.

221. [221]
     I have already noted I prefer the evidence of Dr Doig where it is in conflict with that of Professor Hart.

General damages for pain suffering and loss of amenities

222. [222]
     This injury had a significant effect on the plaintiff. I find there is a 10% whole person impairment. There is a real possibility in the future she may have a hip replacement. Impairment may increase to 15%.

223. [223]
     In my view item 127 is applicable. I assess an ISV of 15. Thus I consider $18,000 is an appropriate award (see s 62 of the CLA).

Interest on general damages

224. [224]
     No interest is claimable (see s 60 of the CLA).

Out of pocket expenses

225. [225]
     Exhibit 4 sets out the out of pocket expenses. These include the following:

1. (a)
   Medicare refund, $4,460.60;

2. (b)
   Department of Education refund, $1,698.82;

3. (c)
   Medical expenses, $145.45;

4. (d)
   pharmaceutical expenses, $745.20;

5. (e)
   rehabilitation expenses, $57.00;

6. (f)
   medical equipment, $215.00.

226. [226]
     These are not challenged and seem justifiable. I allow $7,322.07.

Interest on out of pocket expenses

227. [227]
     Much of the expense relates to Medicare ($4,187.25) and the department ($1,698.82). I allow $144.67 at the rate of 2.15% for 5 years on $1,436.00^[2].

Past economic loss

228. [228]
     In considering the question of economic loss I have had regard to ss 55 and 56 of the CLA.

229. [229]
     I note that in assessing economic loss it has been said that sometimes this depends on matters incapable of precise proof (see McDonald v FAI Insurance Ltd [1995] QCA 436 per Thomas J). Some degree of speculation is inevitable (see Malec v Hutton (1990) 92 ALR 545). The assessment of economic loss is not necessarily an assessment of the actual loss of earnings but for loss of earning capacity (see the definition of “loss of earnings” in schedule 2 of the CLA).

230. [230]
     Exhibit 1 sets out at pp 15-16 the plaintiff’s schedule of earnings. This shows the following:

231. [231]
     In my opinion the work with Melton Contracting would have finished in August/September 2009. She was earning $606 net per week in the period 30 March 2008 to 30 June 2008 and $1,679 net per week in the period 1 July 2008 to 23 August 2008.

232. [232]
     Prior to her work with Melton Contracting she earned $248.07 net per week with the McEvoy Tavern (2006/2007) and $377 net per week at the Tavern (2005/2006).

233. [233]
     Her income at Melton seemed overall to be an aberration in her working history.

234. [234]
     I also find on the medical evidence that the plaintiff could carry out more sedentary employment and intend to discount the amount claimed for this reason.

235. [235]
     I allow $1,000 net per week for six months (from 23 August 2008), a total of $26,000. This is based on a conclusion she may well have continued in the Melton job during that time. She may well have resigned because of working conditions - hence I have not awarded 12 months.

236. [236]
     I take into account the evidence which indicates that telephone sellers may earn $3,000 to $4,000 per month gross i.e. $36,000 to $48,000 per year.

237. [237]
     The income tax rates have changed several times over the period 2008-2014 so that the net figures are as follows:

1. (a)
   2008/2009 - $31200-39600

2. (b)
   2009/2010 - $31350-39750

3. (c)
   2010/2011 - $31350-40050

4. (d)
   2011/2012 - $31350-40050

5. (e)
   2012/2013 - $32618-40853

6. (f)
   2013/2014 - $32618-40853

238. [238]
     The range of net weekly wage for the period is from $600 per week to $785. The mid range position is about $700 net per week^[3].

239. [239]
     Thereafter I calculate the amount of past economic loss to $300 per week for the remaining 272 weeks (The $300 is a reference to the difference between the Melton Wage and the telephone sales wage). The total for this period is $81,600. I discount this by 20% for contingencies. The total is $65,280.

240. [240]
     The total amount of past economic loss is $91,280.

Interest on past economic loss

241. [241]
     At the rate of 2.015% per annum for 5 years the total is $9,196.46.

Future economic loss

242. [242]
     I assess a continuing loss of $240 per week. This is calculated by reference to the fact she is shut out of jobs involving standing, but takes into account a residual working capacity. It also involves discounting for contingencies ($300 per week discounted by 20%). There may be, for example, an improvement if there is a hip replacement.

243. [243]
     I allow $240 per week for 10 years i.e. to age 65. Discounted on the 5% tables this is $99,120^[4].

244. [244]
     In my view this is similar to that which I would have awarded as a global sum for vulnerability on the open labour market and lost job opportunity.

Loss of past superannuation

245. [245]
     At the rate of 9% this equals $8,215.20^[5].

Loss of future superannuation

246. [246]
     At the rate of 10% per annum I allow $9,912.

Future out of pocket expenses

247. [247]
     I find it is likely the plaintiff will require a hip replacement in the future.

248. [248]
     Doing the best I can, it may be that the operation occurs in 10 years. Discounting this at 5% I assess the amount at $16,799.65. Even if I am wrong as to my conclusions concerning the hip replacement this figure is a reasonable one to award for the procedures described by Professor Hart.

249. [249]
     An amount for $1000 for future pharmaceuticals is not challenged.

Gratuitous care

250. [250]
     In light of the fact that Mr Montgomery was performing similar work before the accident, in light of the initial claim of about 2 - 2 ½ hours per week for care, in my view the plaintiff has not established on the balance of probabilities the claim for care under s 59 of the CLA.

Conclusion

251. [251]
     In conclusion I assess the following amounts:

252. [252]
     I give judgment for the plaintiff against the defendant in the sum of $156,594.03.

253. [253]
     I will hear the parties on the question of costs.