Ellery v Sunsail (Australia) Pty Ltd [2014] QDC 285

1 DISTRICT COURT OF QUEENSLAND CITATION: Ellery v Sunsail (Australia) Pty Ltd [2014] QDC 285 PARTIES: RUTH ELLERY (Plaintiff) V SUNSAIL (AUSTRALIA) PTY LTD (ACN 061758218) (Defendant) FILE NO/S: DC No 12 of 2014 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Mackay DELIVERED ON: 19 December 2014 DELIVERED AT: Brisbane HEARING DATE: 9 – 10 October 2014 JUDGE: Devereaux SC DCJ ORDERS: 1. Judgment for the plaintiff in the amount of $117,975.69; 2. I will receive submissions on costs in writing from the parties at a time to be agreed. CATCHWORDS: TORTS – NEGLIGENCE – DANGEROUS PREMISES – INJURIES TO PERSONS ENTERING PREMISES – where plaintiff stepped backwards and fell down steps on chartered catamaran – whether injuries caused by negligence of defendant Civil Liability Act 2002, ss 9, 9(2), 11(1), 11(4), 13, 15, 23, 24 Civil Liability Regulation 2014 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Brodie v Singleton SC (2001) CLR 512 Cruise Group Pty Ltd v Fullard [2005] NSWCA 161 -- 1 of 19 -- 2 Jandson Pty Ltd v Welsh [2008] NSWCA 317 Wilson v McLeay (1961) 106 CLR 523 COUNSEL: L Willson for the plaintiff PT Cullinane for the defendant SOLICITORS: Shine Lawyers for the plaintiff Thynne & MacCartney for the defendant [1] The plaintiff was born on 2 October 1932. On 3 May 2012, she was on board a catamaran at the Hamilton Island Marina. The plaintiff’s daughter, Christine Betts, had arranged for a one day cruise at the end of a family holiday in the Whitsunday Islands. Soon after the party boarded the catamaran, while cupboards and fridges were being stacked with provisions, the plaintiff stepped backwards and fell down a short but steep flight of steps. She sustained serious injuries. The primary question to be decided is whether her injuries were caused by the negligence of the defendant. [2] There are no substantial factual disputes. Christine Betts booked the catamaran with the defendant, which operated the business of a commercial hirer of sailing charters. The agreement included the services of a skipper, Mr Ash. [3] There is a dispute, on the pleadings at least, about the precise relationship between Mr Ash and the defendant and as to what occurred just before the plaintiff’s fall. By the end of the trial counsel for both parties submitted it was unnecessary to resolve the disputes. I will necessarily refer to the different versions but am content to proceed on the basis submitted by counsel. [4] It is not in contest that, as owner of the catamaran, the defendant owed a duty to take reasonable care to avoid reasonably foreseeable risk of injury to the plaintiff. Given the elimination of factual disputes as I have just mentioned, the dispute became whether the defendant had taken reasonable steps to avoid the stated risk, taking into account the design of the vessel and the defendant’s system of introducing customers to it. -- 2 of 19 -- 3 Plaintiff’s evidence [5] The plaintiff gave evidence by affidavit and orally by telephone. She called her husband, Donald Ellery, who also gave evidence by telephone. The plaintiff also called her daughter, Christine Betts, Mark Betts – Christine’s husband, and their daughter, Alix Betts. The plaintiff also called Roger Kahler, engineering consultant. [6] The catamaran was a Lagoon 440, apparently made in France. The particular vessel, called the Sea Lynx, on which the plaintiff fell was not available for inspection by Mr Kahler. There are no photographs of the Sea Lynx. Mr Kahler included in his report photographs of a Lagoon 440 and a plan of its central interior room, referred to as the saloon, taken from a web-site.1 The plaintiff and other witnesses confirmed that, aside from the colour of some furnishings, the vessel they hired on 2 May 2012 was like that shown in the photographs and plan. From the saloon there are two stairways, one on each side, giving access to the lower galley levels. None of the photographs shows clearly the stairway the plaintiff fell down, which is, according to the plans, on the left almost as soon as one enters the saloon from the rear deck of the catamaran. The photographs show the stairway on the right hand side of the saloon area. According to the plan, the stairway on the left hand side has 4 steps, while the one on the right has three. The steps are, apparently, very steep. Speaking generally, Mr Kahler said access systems on vessels are much steeper than the recommended maximum angle for stairway access.2 Christine Betts said the steps on the left side of the saloon were steeper than those on the right.3 [7] The access stairway is between two items of cabinetry, on the left as one enters the saloon. The photograph in Figure 6 of Mr Kahler’s report seems to have been taken from the saloon entry. It is the only photograph that gives some idea of the view of the access stairway upon entry. From the photographs and the witnesses’ 1 1-78.38 2 1-70.15 3 1.43.45 -- 3 of 19 -- 4 descriptions, I infer that as one enters the saloon one stands between a kitchen bench running along to the right and a cabinet of similar height to a kitchen bench on the left. Forward of that cabinet is the access/stairway gap. Forward of that is more cabinetry of the same height. The photograph in Figure 6 shows a handrail attached to the cabinet on the forward side of the access stairway. It also shows the white striping which runs horizontally just below floor level from the wall to the top step. [8] The plaintiff said the skipper, Mr Ash, told the family to board the catamaran and directed them into the saloon area. Her son-in-law and husband assisted her from the jetty to the catamaran and the steps up to the saloon area.4 She did not see the stairway to the left. She had been given no oral or written safety briefing. The family were taking food and drinks from bags and putting them into cupboards and fridges. The plaintiff stayed ‘at the back of the saloon and towards the left where I had walked in”5 while this was going on. Mr Ash introduced himself to people. After shaking hands with her husband, Mr Ash came up to her and extended his hand. Because he was very close, she stepped back a little to shake hands and fell backwards down the stairway. She had not seen the steps, the cupboards, floor and steps all being wood of the same colour.6 [9] Mr Ellery, the plaintiff’s husband, who also gave evidence by telephone, recalled the skipper shaking hands with people, but not with himself. He also recalled the skipper coming up close to his wife and her stepping back to shake hands.7 [10] Alix Betts, the plaintiff’s grand daughter, said the skipper was talking to her grand parents when she was helping to put food and drinks away. She was coming in and out of the saloon area with provisions. She saw the plaintiff fall. She said, ‘I thought that someone was trying to get past or something and they took some steps back and she – that’s when she fell…’ The witness recalled someone was looking 4 Plaintiff’s affidavit paragraphs 15, 16 5 Paragraph 18 6 Paragraph 24 7 1-23.5 -- 4 of 19 -- 5 for sea sickness pills. 8 She recalled at least five people being in the room at the time – the skipper, her grandparents, her father and herself.9 She agreed the room did not seem overcrowded.10 [11] Christine Betts was outside the saloon area, stacking an ice box on the floor when her mother fell. As she described it, “My mother, my father and the captain were standing near the gap leading down to the lower deck, and the kids were coming in and out because I said, ‘drop your stuff in and go out.’”11 The plaintiff and Mr Ellery were talking about him wanting to take seasickness tablets. They and the captain were standing close to each other,12 right near the steps.13 When asked, in cross examination, to recall the white striping at the base of the steps, she said all she could remember was that it “was like all wood, all wood.”14 [12] When the plaintiff fell, Mark Betts was in the saloon area stacking the fridge under the kitchen bench. Someone handed him things to put in it. Counting himself, there were four or five people in the saloon area. The area was not overcrowded. Plaintiff’s expert evidence [13] The plaintiff asserts two types of failure by the defendant – failure to warn of the danger and failure to apply a physical barrier to the stairway to prevent the fall or at least to highlight the stairway to a person unfamiliar with the small interior of the vessel. This case rests in Mr Kahler’s opinion that “prediction and prevention controls” should have been installed.15 According to Mr Kahler’s report, “The large amount of non-fatal but permanent damage to people resulting from Gravitational Energy (falls of people) makes it essential that the potential for 8 1-32.1-20 9 1-32.40 10 1-35.1 11 1-41.5-10 12 1-42.40 – 1-43.5 13 1-47.30; 1-48.8 14 1-46.45 15 1-52.15 -- 5 of 19 -- 6 falling is assessed on surfaces over which people will move, in order to minimise the problem.”16 [14] He included tables concerning Hospital Separations Due to Injury and Poisoning which demonstrated the largest single cause of being admitted to hospital is from falls, about 5% of which were falls from one level to another. [15] In Mr Kahler’s opinion, the defendant did not effectively address the risk of falls down the stairway through the application of a Safety Management System. Mr Kahler informs the reader that Maritime Safety Queensland offers Risk Assessment Guidelines for commercial vessels in Queensland. He attached a guide, published by Queensland Transport and Main Roads, for completing a risk analysis. A primary task in completing the analysis is to identify hazards. Mr Kahler referred to an Australian Standard in support of his view that it would not be sufficient to rely on the skills and experience of individuals in identifying hazards. That is, it would be insufficient to conclude that there was no risk of falling down the stairway because no-one had done so in the experience of the vessel or crew. It was necessary to consult available injury data such as the tables he included in his report. This would have led to the conclusion that there was the reasonable potential for serious injury from a fall down the stairway. The “people of interest” in the risk assessment – the general public – could not be expected to be familiar with the “configuration of its walkways and access systems”. [16] Mr Kahler concluded, “.. the risk of falling into the stairway opening could have been recognised in a systematically-driven Safety Management System and an effective engineering control implemented well prior to the date of the incident.” No such solution was in place and the plaintiff was not instructed on the risks of falling down the stairwell. [17] Mr Kahler suggested three possible engineering measures. He expanded on these in oral evidence. 16 Exhibit 8 p6 -- 6 of 19 -- 7 [18] The first was a chain or guard rail at the top of the stairway.17 Positioned “vertically above the leading edge of the landing” and having “a reasonable degree of tightness”, this would physically alert a person approaching the access way. The second was described as an “auto close and lock gate” at the top of the stairway.18 The third was a hatch on the floor, effectively covering the access hole. This could be folded up after passengers are alerted to the danger of the access.19 Whichever system were adopted would be the result of a deliberate risk assessment and problem solving exercise.20 [19] Mr Kahler elaborated on the need to consult more widely than the company’s own experience. In his view, such a small business as the defendant conducted would not generate sufficient experience on which to base predictions of risk. Referring to figures put by counsel for the defendant, Mr Kahler said that if the defendant operated the same vessel over 219 charters from August 2006 to January 2009 carrying 1651 passengers without a similar fall recorded, that was not enough exposure time to demonstrate any pattern or trend.21 [20] In Mr Kahler’s opinion, the white striping on the side of the landing and not on the landing edge highlighted the steps for one ascending the stairway but did not create a sufficient visual cue to alert one entering the saloon for the first time of the danger of falling down the access.22 The steps and handrail were not installed in such a way as to visually contrast with the surrounding.23 Visual contrast is needed to give people an increased chance of noting the stairway. [21] Mr Kahler considered that access systems in vessels pose particular risks; they are placed in a small environment and generally have much steeper inclines. As most people would be unfamiliar with the environment, the system should include ‘making people cognisant of’ the hazard and then telling them how to use it 17 1-61.15-25 18 1-61.30 19 1-61.35-45 20 1-62.20 21 1-64.15-25; 1-66.5-25 22 1-67.40 – 1-68.30 23 1-69.15 -- 7 of 19 -- 8 safely.24 He later focussed on the design solution rather than instruction: “When you have multiple people from multiple backgrounds, particularly in a public environment, you have to rely more strongly on the design solution than the behavioural solution.”25 Once the vessel were underway, the access could be open, the key being that the design solution, which prevents access at first, changes the expectation of the new passenger, thereby lowering the risk of fall.26 Defendant’s evidence [22] The defendant called Mr Ash. He had sailed the Sea Lynx, from time to time, while engaged by the defendant. He was ‘with the company’ for about 2 years. Mr Ash said he had had no interaction with the plaintiff before she fell. In fact, he denied shaking anyone’s hand. He said the plaintiff was standing forward of the steps just before she fell. He adopted the mark on the plan which the plaintiff had placed there to indicate her position. He was, he said, behind her – “She was facing forward. … Her back was to the steps and to me.”27 His account of the fall was that the plaintiff “bumped into her husband who was – was manoeuvring, or also took a step back to get his gear out of his hands to place on top of the table.”28 After bumping into him she took a step back and fell.29 [23] Through Mr Ash, the defendant tendered a spreadsheet detailing the charters undertaken by the defendant in relation to the Sea Lynx (Exhibit 9) and an incident report Mr Ash prepared for the defendant on 4 May 2012 which was attached to a report prepared by the defendant on 12 October 2012 (Exhibit 10). [24] Mr Ash gave evidence that he was required by the defendant routinely to give a safety briefing at the commencement of a voyage.30 He had not given the briefing before the plaintiff fell because the passengers were still coming on board and 24 1-71.5 25 1-76 26 1-77.1-5; 1-81.10 27 2-7.45 28 2-8.25 29 2-8.30 30 2-4.5 – 15; 2-15.1-20; 2-18.30 -- 8 of 19 -- 9 getting themselves organised.31 In re-examination, he explained, “I didn’t explain the presence of the steps because as they entered the saloon they proceeded at their own pace and with themselves organised going forward to put their parcels on the table and the steps were obvious where they are to the – to the left and they – she passed them knowing exactly where they were before the incident.”32 [25] He would normally give the briefing on the back deck33 after the passengers had organised themselves and settled.34 Factual conclusions [26] I have already said there is no substantial factual dispute. There is support for both versions of the complainant’s fall: that she stepped back in order to shake hands in a close environment and fell; and that in the jostling and preparations and, perhaps in her husband’s movements and search for sea-sickness tablets, the plaintiff was prompted to step back and fell. Mark Betts, the plaintiff’s son-in-law, said that while someone was handing him things to put in the fridge, the plaintiff’s husband came in to the saloon asking for sea sick tablets.35 Christine Betts, when asked what her parents and the captain were doing all together, said, “Talking. Dad was wanting to take seasickness tablets, but the three of them were all together.36 And I have referred to the evidence of Alix Betts that “someone was trying to get past or something and they took some steps back and she – that’s when she fell…” [27] I am satisfied the captain, Mr Ash, at least allowed if not directed the party on board. The party were just on board and storing their provisions when the plaintiff fell. The plaintiff was unfamiliar with the surroundings. In the unsettled early stages of the day, before the skipper introduced the passengers to the vessel, she stepped back – probably only a small step or two – and fell, suffering injuries I will 31 2-4.35; 2-15.30 32 2-18.10-20 33 2-19.10 34 2-19.25 35 1-51.1-10 36 1-42.45 -- 9 of 19 -- 10 set out below. After the fall there was a safety briefing, although Mr Betts remembered only that it concerned where the life jackets were.37 The defendant’s duty [28] Counsel have both referred to provisions of the Civil Liability Act 2002 (“CLA”). That Act does not define who owes whom a duty of care, it defines the standard of care in s. 9. [29] It is necessary to define the risk against which it is said the defendant should have taken action. I say more about this below but it seems to me the risk in the present case was that a person, even one who might or should be aware of the access stairway, would inadvertently stand so near to it that a small movement backwards would result in a fall causing significant injury. [30] Section 9 provides: A person does not breach a duty to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. [31] That is, the defendant owed a duty to take precautions that, in the circumstances, a reasonable person in the position of the defendant would take, against a foreseeable not insignificant risk of harm. [32] Subsection 9(2) requires a court, in deciding whether a reasonable person would have taken precautions against a risk of harm, to consider, among other relevant things (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; 37 1-51.15 -- 10 of 19 -- 11 (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm Breach of duty [33] It might have been open to Mr Ash to warn the passengers, even before they boarded to arrange their provisions for the voyage, of the steps. On the other hand, one can understand the need to allow passengers to board in order to load their provisions and then address safety issues once it is clear all passengers are present and attentive. One may doubt whether any warning given in the excitement and fuss of the arrival of individuals would have prevented the plaintiff’s fall. If failing to warn passengers, either by written or oral instructions, amounted to a breach of the defendant’s duty, I am not satisfied in this case it caused the plaintiff’s injury because any such breach of duty was not a necessary condition of the occurrence of the harm.38 [34] The harm occurred when, in confined circumstances, unaware of the stairway, the plaintiff stepped back and fell. [35] The question reduces to whether the defendant was negligent by failing to employ an ‘engineering’ solution to prevent an unwitting passenger stepping back and falling, pending a more formal introduction to the vessel and its dangers. The vessel is designed, obviously, without any of the safety attachments of the type Mr Kahler described. So the question becomes whether the defendant, employing the vessel for commercial use, was negligent by not altering it for that purpose in order to avoid the relevant risk. I am, ultimately, satisfied it was. The uniform wood panelling and the white line ‘underneath’ the top step no doubt produce an elegant and stylish vessel for private use. Once a vessel owner employs it for commercial charter, even where the owner supplies a skipper and the party is small, it seems to me the reasonable response to the risk requires a different standard of fitting.39 Mr Kahler described three possible approaches and I need not prescribe any particular 38 CLA s. 11(1) 39 CLA s. 11(4) -- 11 of 19 -- 12 one of them. What was required was a physical safety barrier which reduced the risk of falling down the access stairway at least until all passengers were on board and given a thorough safety briefing. The passengers’ expectations so adjusted, the defendant’s duty would have been discharged even if after the introduction to the vessel, the barrier were locked open. Failure to implement a safety system which comprised a reasonable combination of warnings and physical solutions amounted to a breach of duty and was a significant cause of the plaintiff’s injury. [36] What has concerned me in reaching this decision, and has, frankly, delayed publication of the judgment, is whether the plaintiff has presented evidence sufficient to prove the dangerousness of the stairway – that is – to prove what the stairway looked like and why it was dangerous. The plaintiff produced no photograph of the Sea Lynx nor, except for the photograph I have referred to, a photograph from any source showing the stairway on the left side of the vessel. The expert, Mr Kahler, therefore, was required to draw inferences from such materials he could locate on the internet and the evidence of the passengers about the similarity between the stairway shown in the photograph and the subject stairway. I have been required to do the same. The result is there is insufficient proof that the access stairway was the sort of hidden danger a reasonably aware passenger would not see. But this is not an impediment to judgment for the plaintiff because I am satisfied the defendant breached its duty even though the plaintiff probably should have seen the stairway. I infer, as I have described, that the access stairway was located in a break in the cabinetry and the white line under the lip of the top stair which extended along the base of the cabinetry would have brought the gap in the floor created by the access stairway to the attention of the reasonably aware passenger upon entering the saloon. Perhaps more to the point, the plaintiff has not proved otherwise. The finding of negligence requires that the defendant breached its duty by failing to take reasonable precautions against the risk of injury to a person (even one who may have noticed the access stairway but) who, in the confined and unfamiliar surroundings might inadvertently step back into it. I am persuaded, on the balance of probabilities, to make that finding. -- 12 of 19 -- 13 [37] This leads me to consider two points made by Mr Cullinane for the defendant. First, although no specific mention is made of CLA s. 13 in the pleadings, he argued falling down the access stairway was an obvious risk which called for no warning (CLA s. 15). Second, given the evidence in Exhibit 9, that 1454 passengers had cruised on the Sea Lynx while it was in the defendant’s possession without reported incident, a reasonable response to the risk of harm from the access stairway did not require installation of any physical barrier. [38] Mr Cullinane referred to Cruise Group Pty Ltd v Fullard [2005] NSWCA 161. In that case, the plaintiff was injured when she tripped over coaming on a ferry–like vessel. It was accepted there was a risk to an inattentive passenger of tripping on the coaming but the evidence of the general manager of the defendant was that over 12 years of operations carrying approximately 10,000 passengers no such incident had occurred. So, the risk of injury was minimal. This informed the assessment of a reasonable response to the risk. [39] Accepting that Exhibit 9 demonstrates what counsel asserts it does – Mr Ash was not really qualified to speak to the document – it goes some way to demonstrating the risk of harm from a fall on the access stairway was small. It does not compare to the evidence in Cruise Group Pty Ltd v Fullard. As Ms Willson, for the plaintiff submitted, Exhibit 9 is a spreadsheet of voyages and passenger numbers. It does not contain a record of incidents. Mr Ash was the skipper on about 10 charters.40 In this regard, I accept Mr Kahler’s opinion that the charterer’s experience of the vessel was insufficient to inform a safety protocol. It seems to me the risk of a fall was real and not insignificant. Such a fall could, as occurred in the present case, reasonably foreseeably cause serious injury. Mr Ash agreed, under cross examination without objection, that measures such as Mr Kahler prescribed, could be made reasonably cheaply.41 [40] While I have described, as well as I can, the access stairway as something a reasonably aware passenger would see on entry to the vessel, that is not the same 40 2-9.5 41 2-16 - 2-17 -- 13 of 19 -- 14 as calling the risk of falling down the stairway an obvious risk. The world may not be a level playing field and, as Callinan J went on to say in Brodie v Singleton SC (2001) CLR 512 at 639, “It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along.” But the confines of the saloon on the Sea Lynx and the peculiar structure and situation of the access stairway in such a vessel do not represent an obvious risk such as to absolve the defendant of a duty to warn. In any case, the crucial failure in the present case is, as I have set out, the failure to employ a safety management system which included “an engineering control”. [41] This conclusion does not set a precedent for every business which operates sailing charters. It may be in some cases that operational procedures alone – literature, greetings, induction, warnings – would discharge the operator’s duty to take reasonable care to avoid reasonably foreseeable risk of injury to passengers. This decision does not mandate the retro-fitting of any particular device or the alteration of particular features of the vessel as it comes from the factory. Contributory negligence [42] The defendant pleaded that the plaintiff caused or contributed to her injuries by her own negligence. The defendant’s counsel did not press the pleaded defence. He accepted my statement that his submission was that any failing by the defendant did not cause the plaintiff’s injury; that it was a question of causation more than one of contributory negligence.42 The issue was not formally abandoned. I have, therefore, given it some consideration. I was invited, as I have said, to deal with the questions of liability without detailed findings of the precise mechanism of the plaintiff’s fall. Mr Cullinane made some submissions on the evidence but it was not the subject of rigorous cross examination or detailed argument. [43] Ms Willson referred me to Jandson Pty Ltd v Welsh [2008] NSWCA 317, a case Mr Cullinane handed up. Macfarlan JA, at [46], referred to Bankstown Foundry Pty 42 2-48.45 -- 14 of 19 -- 15 Ltd v Braistina (1986) 160 CLR 301, a case involving injury to an employee, at 310-311 where, Mason, Wilson and Dawson JJ said, “The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage.” [44] The distinction drawn between inadvertence and negligence, although suitable to an industrial employment case, does not translate easily to the present case. The argument for a finding of contributory negligence is that the plaintiff contributed to her fall by failing to take reasonable notice of her new surroundings upon entering the saloon and adjust her conduct accordingly. She placed herself in the position from where she stepped back and fell, as a result of whatever prompted her movement. Had she noted her surroundings she may have observed the access stairway and not come to a stop so close to it. Her conduct did not create the risk of danger but it contributed to her fall, and so to the resultant injuries. [45] This reasoning is comprehended in Chapter 2, Division 6 of CLA, which provides: 23 Standard of care in relation to contributory negligence (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) For that purpose— (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 (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 -- 15 of 19 -- 16 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. [46] Applying these provisions to the present case, I am satisfied the plaintiff should bear some responsibility for the fall which led to her injuries. A reasonable person in her position ought to have appreciated something of her surroundings and taken some care to avoid the access stairway, which, as I have found, presented a risk of significant harm. I think an apportionment of 30% would be reasonable. Quantum [47] The plaintiff suffered serious neck and back pain when she fell. She was stoic. Her husband and son-in-law helped her up the stairs and off the catamaran. She was driven to a local medical centre and then airlifted to hospital at Mackay. She was in hospital at Mackay until 26 May 2012. Her husband visited her frequently. [48] From Mackay Base Hospital, the plaintiff was transferred to Caloundra Hospital. She was discharged from there on 3 August 2012. In the meantime an occupational therapist had completed a home assessment with the result that handrails and fittings were made to the home to facilitate her living as well as she could with her injuries. [49] The plaintiff’s husband visited her daily at Caloundra to give her support. [50] The injuries suffered in the fall caused a serious change in the plaintiff’s lifestyle from an active one – she enjoyed lawn bowls and the socialising that went with it, and gardening around the house – to a life where she required assistance in basic aspects of living. After her discharge from the Caloundra Hospital, her children stayed with her to help out. Her husband assisted her with showering and dressing. Her husband and children took over the household duties. Her husband also took over laundry and gardening duties. On about 12 July 2013, the plaintiff suffered -- 16 of 19 -- 17 the first of a series of strokes. The incapacity she suffered as a result of the strokes overtook any lingering effects of her injuries from the fall. [51] The plaintiff was examined by Dr Searle, consultant orthopaedic surgeon, on 19 December 2013. Dr Searle was not called for cross-examination at the trial. His report includes his opinion that the fall caused fractures of the upper two cervical vertebrae as well as C5 and C6 bodies. By the time of the examination, the fractures had united, although with some displacement or compression. The doctor said, “The reports do not mention the degree of compression of C5 and C6 and it will be assumed that it is less than 25% in C5 and C6 and the two thoracic vertebral bodies.” Dr Searle’s view was the main injuries suffered were fractures of C1 and C2 and T3 and T6. There were fractures also in the ribs and scapula and a suspected fracture of the sternum. These seemed to have recovered uneventfully. [52] Relevant items from the Civil Liability Regulation 2014 are: item 87 – moderate cervical spine injury; item 92 – moderate thoracic or lumbar spine injury; item 39.2 – minor chest injury, and; item 98 – minor shoulder injury. Both counsel submit that I may adopt item 87 as the dominant injury, giving it an ISV of 15. Both injuries would individually draw an ISV of 10. Pursuant to regulations 3 and 4, Ms Willson submits the plaintiff’s ISV should be uplifted to an overall rating of 23, which is about a 50% uplift. Mr Cullinane concedes that given the multiple injuries an uplift is appropriate but argues there is no basis for an uplift of more than 25% higher than the maximum dominant ISV (regulation 4(3)(b)). Ms Willson submits the greater uplift is called for because of the number of multiple injuries, the length of time the plaintiff was in hospital, and that several of the injuries alone would call for an ISV of 10, the other injuries including fracture of the ribs and scapula and possible sternum fracture would each have called for an ISV rating. On top of this, the plaintiff suffers ongoing pain with movement according to Dr Searle’s report. [53] I accept the appropriateness of an uplift of 25%. I decline to accede to the plaintiff’s submission because, although the plaintiff may suffer lingering consequences of the injuries, the primary cause of her current disabilities seems to -- 17 of 19 -- 18 be the strokes that she suffered from June 2013. I also take into account that the plaintiff was not a young woman when she suffered her injuries, and taking that with the unfortunate consequences of the strokes, it seems there is little room for considering future pain and suffering as a result of the injuries caused in the fall. In the result, I adopt Mr Cullinane’s figure for general damages of $29,610. [54] The plaintiff claims $18,039.80 for care and assistance provided by her husband. Mr Cullinane took the point that the evidence of Stephen Hoey, occupational therapist and employment consultant, did not support the schedule (Exhibit 3) of care and assistance provided by Mr Ellery. The argument focuses on a particular paragraph in which Mr Hoey said, “Ms Ellery’s self-report is that her ongoing functional restrictions have caused difficulties or reduced efficiencies with her usual chores around the home. This has been particularised in the body of this report. Currently the direct assistance provided to Ms Ellery hails for the most part from her husband. He is currently providing assistance with vacuuming and self-care activities including showering and dressing. Assistance with these chores is 3.69 hours per week.” [55] In reply, Ms Willson pointed out other parts of the report where Mr Hoey refers to other services provided by Mr Ellery. Indeed, Exhibit 3 includes cooking, bedmaking, gardening and dusting. Apart from taking the point on the basis of Mr Hoey’s report, Mr Cullinane did not otherwise challenge the schedule or, for that matter, the plaintiff or Mr Ellery’s evidence on that point. I am prepared to award the plaintiff the claimed sum for gratuitous care. [56] The plaintiff also claims the amount of $2,019.60 as “Wilson v McLeay damages”.43 The claim is based on Mr Ellery’s travelling costs to Caloundra Hospital every day bar one from 26 May 2012 to 3 August 2012. No serious challenge was made to this claim, and I consider it valid and I will award the amount. 43 Wilson v McLeay (1961) 106 CLR 523. -- 18 of 19 -- 19 [57] Counsel are agreed on special damages, which includes sums for expenses at Caloundra Hospital, Mackay Hospital, Medicare, paid care, travel and painkillers. The amount sought is $118,697.50. I adopt the plaintiff’s calculation of interest at 1.71% on certain items of special damage, which I list in the table below. From the total I deduct 30%, following on from the finding of contributory negligence against the plaintiff. [58] In the result, there will be judgment for the plaintiff in the sum of: Head of Damage Range Pain and suffering and loss of amenities of life $29,610.00 Past Special Damages including refunds $118,029.30 Wilson v Macleay $2,019.60 Care Gratuitous $18,039.80 Interest at 1.71% to date of judgment (137 weeks)  interest on $18,039 for care;  interest on past paid care of Blue Care: $56.00  travel, painkillers: $500.00 $838.00 Subtotal $168,536.70 Less 30% for contributory negligence TOTAL $117,975.69 [59] I invite submissions on costs in writing from the parties at a time to be agreed. -- 19 of 19 --