Kime v Vicinity Centres PM Pty Ltd & Anor [2021] NSWDC 113

Material Facts

The plaintiff, Mrs Kime, was at the Salamander Bay Shopping Centre when she tripped and fell on a “kinked wet weather mat”.  Each of the various defendants owed duties as occupiers holding responsibility for the mat. In the fall, Mrs Kime sustained multiple soft tissue injuries, being right shoulder, lower back, and right knee injuries. 

The injuries caused the plaintiff difficulties in walking more than 30 minutes, and with everyday activities including getting down on the floor to play with her grandson.  While Mrs Kime did have some pre-existing conditions, they were asymptomatic before the fall and so the court considered the defendants responsible for the entirety of her presentation and disability.

Damages Findings

Non-economic loss

The plaintiff’s injuries were considered, by the court, to be 30% of the most extreme case allowing an award of $135,500.00, under the Civil Liability Act 2002 (NSW).  In reaching this finding, the court considered the severe effect that the injuries have had on her mobility and the fact that she may require a knee replacement surgery.  The court also considered that her “upper limb problems” are on her dominant (right hand) side causing difficulty with “many commonplace tasks”.  The court said, “in combination, her described disabilities have substantially interfered with her amenity and enjoyment of life, including physical interaction with her grandchild”.

Future treatment expenses

There was unchallenged evidence that a knee replacement would cost $34,700.00 and that this may be required in the future.  The court also considered that she would require ongoing analgesic medication and at least some orthopaedic review prior to her surgery.  She would also need to attend on her doctors for review and consideration of treatment.  The court considered that these likely additional expenses outweighed the need for a discount to the cost of the surgery, and instead rounded the cost of surgery to $35,000.00 more accurately represented the appropriate award for future treatment expenses.

Past out-of-pocket expenses

These damages were assessed at $2054.00.

Total Damages

In totality, the court awarded Ms Kime $172,554.00 for damages for the trip and fall.