Angel v Hawkesbury City Council

CATCHWORDS: NEGLIGENCE - Civil Liability Act 2002 - Duty of care - Pedestrian - Footpath under management of Council defective - Actual knowledge of risk of harm - Whether defect constituted an 'obvious risk' to reasonable person in position of appellant - Defect obscured by shadows - Relation between obviousness of risk and breach of duty - Whether appellant took reasonable care for own safety - EVIDENCE - Interpretation of photographs - Lay opinion - DAMAGES - Future gratuitous attendant care services - Whether need for care arose solely because of injury - Construction of 'solely' in s 15(2).

LEGISLATION CITED: Civil Liability Act 2002 (NSW) sections 5F, 5G, 5H, 15 and 45 Evidence Act 1995 (NSW) section 78

Blacktown City Council v Hocking [2008] NSWCA 144 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874 Dederer v Roads & Traffic Authority [2005] NSWSC 185; (2005) Aust Torts Reports 81-792 Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 Geaghan v D'Aubert [2002] NSWCA 260; (2002) 36 MVR 542 Hastings Council v Giese [2003] NSWCA 178; (2003) 127 LGERA 109 C G Maloney Pty Ltd v Hutton Potts [2006] NSWCA 136 CASES CITED: North Sydney Council v Roman [2007] NSWCA 27; (2007) 150 LGERA 419 Randwick City Council v Muzic [2006] NSWCA 66 Short v Barrett [1990] NSWCA 164; unreported, 5 October 1990; BC9003193 Smith v R [2001] HCA 50; (2001) 206 CLR 650 Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 C Van der Lely NV v Bamfords Ltd (1963) RPC 61 Wagstaff v Haslam & Anor [2006] NSWSC 294 Woolworths Ltd v Lawlor [2004] NSWCA 209 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

PARTIES: Joan Ann Angel Hawkesbury City Council

COUNSEL: A: G B Hall QC / D Elliott R: G Laughton

SOLICITORS: A: Gerard Malouf & Partners, North Parramatta R: McCulloch & Buggy, Sydney

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40337/07 DC 3898/05

SPIGELMAN CJ BEAZLEY JA GILES JA TOBIAS JA CAMPBELL JA

Wednesday 25 June 2008 JOAN ANN ANGEL v HAWKESBURY CITY COUNCIL Judgment 1 SPIGELMAN CJ: I agree with the judgment of Beazley and Tobias JJA and with the orders their Honours propose. 2 BEAZLEY AND TOBIAS JJA: On a pleasant and intermittently sunny morning in July 2004, the appellant was walking along a concrete slab footpath on the eastern side of George Street, South Windsor, when she tripped on the raised lip of one such slab which stood proud of its neighbour by up to four or five centimetres. She fell heavily, sustaining injuries particularly to her right hip and left arm. She sued the respondent, Hawkesbury City Council (the Council), claiming damages for negligence. The primary judge, Sorby DCJ, found in favour of the Council on the issue of liability and entered judgment in its favour. However, in case he was wrong on that issue, his Honour assessed the appellant's damages in the sum of $165,178.20. 3 The appellant appeals to this Court on the issue of liability, being content with his Honour's assessment of damages. The Council has filed a Notice of Contention seeking to support the primary judge's finding on liability on grounds based on ss 5F and 5G of the Civil Liability Act 2002 (NSW) (the CL Act). It has also cross-appealed against first, his Honour's finding of actual knowledge for the purposes of s 45 of the CL Act; second, his award of future gratuitous attendant care services both in terms of the appellant's entitlement to such damages as well as to the quantum which his Honour assessed under that head; and, third, his failure to find the appellant guilty of contributory negligence.

The appellant's appeal was filed out of time 4 The primary judge's order dismissing the proceedings was made on 28 November 2006. On 30 May 2007 the appellant filed an Ordinary Summons for Leave to Appeal from his Honour's orders in which she sought an order that the time for filing that application be extended to 30 May 2007. The summons was accompanied by a White Book containing, amongst other things, the appellant's summary of argument and the transcript of the proceedings at first instance. The summons was made returnable on 23 July 2007. On that day the Registrar stood the summons over to 27 August 2007 when it was further stood over to 24 September 2007. On that day the appellant was directed by the Registrar to file on or before 25 September 2007, the day following, a Notice of Appeal with Appointment and a Notice of Motion presumably for an extension of time for the filing of the Notice of Appeal. We can only conclude that by this time it was realised that the appellant did not need this Court's leave to appeal against the orders of the primary judge. 5 On 24 September 2007 the appellant filed a Notice of Appeal with Appointment together with a Notice of Motion seeking an extension of the time for the filing of her appeal to 30 September 2007. 6 As well as making the directions referred to in [4] above, on 24 September 2007 the Registrar gave further directions for the filing of the Council's cross-appeal, the filing of submissions on the appeal and cross-appeal and for the preparation of the Red, Blue and Orange appeal books. 7 In its summary of argument in response to that of the appellant prepared on 20 September 2007 (but not filed until 3 October 2007), the Council opposed the grant of leave to appeal but did not contend that it was prejudiced by the late filing of the summons for leave. 8 No such leave was, in fact, required. Therefore, the appellant's Summons for Leave to Appeal filed on 30 May 2007 should be dismissed. However, as the summaries of argument filed by both parties on the leave application formed their submissions on the appeal, the costs of the summons should follow the event. As we are of the view that the appeal ultimately succeeds, the Council should pay the costs of that summons except those costs relating to the preparation and filing of the summons itself (including any affidavits filed and relating to the application to extend the time for its filing) which should be paid by the appellant. 9 As to the Notice of Motion filed on 24 September 2007 seeking an extension of time for the filing of a Notice of Appeal with Appointment, that application was not opposed by the Council and the Court should therefore order that the time for filing that Notice of Appeal be extended up to and including 25 September 2007, the date on which the Notice was in fact filed. However, the appellant should pay the Council's costs of that Notice of Motion.

A bench of five judges hears the appeal 10 The appeal in this matter was heard consecutively with that of Blacktown City Council v Hocking & Anor [2008] NSWCA 144 as in both matters the defendant Councils raised a defence based upon s 45 of the CL Act. In so doing, each relied upon the majority judgments of Basten and Bryson JJA in North Sydney Council v Roman [2007] NSWCA 27; (2007) 150 LGERA 419. 11 In both appeals each Council submitted that on the basis of the majority judgments in Roman the plaintiff in each appeal would fail. This prompted an application by the plaintiff in each matter for leave to argue that Roman was wrongly decided and that the Court should adopt the dissenting judgment of McColl JA. 12 Roman was decided on 27 February 2007 and on 3 August 2007 the High Court (Gleeson CJ and Kirby J) granted special leave to appeal. However, before the appeal could be heard, the proceedings in Roman were settled. Accordingly, the appeal did not proceed. In these circumstances the Chief Justice of this court directed that the appeals in both Angel and Hocking were to be heard by a bench of five and that the appeals should be heard consecutively and considered concurrently to ensure consistency of decision making. 13 However, as will appear, it is unnecessary for leave to be granted to the appellant in the present appeal to argue the correctness of the majority judgment in Roman as the appellant is entitled to succeed whether one applies the majority or minority opinion in that case. At least from my perspective, the position is somewhat different in the Hocking appeal.

The relevant facts 14 The primary judge found that at approximately 10.30 am on 29 July 2005 the appellant parked her motor vehicle on the eastern side of George Street, Windsor, near the pedestrian crossing opposite South Windsor Post Office. She alighted from her vehicle and crossed George Street to its western side and proceeded into the Post Office. Upon leaving the Post Office she returned to the eastern side of George Street via the pedestrian crossing. She then turned left and proceeded along the concrete slab footpath with a view to returning to her vehicle. 15 After she had walked approximately two car lengths from the pedestrian crossing, and then being approximately one car length from where her vehicle was parked, her left foot caught on the leading edge of one of the concrete slabs which had become displaced due, it was accepted, to tree roots and which, therefore, stood proud of the immediately adjoining slab over which the appellant had just walked. The maximum point of displacement of the slab was that nearest the roadway which then tapered over its width from approximately four to five centimetres to one centimetre or less. The appellant said in evidence that she was walking just to the left of the middle of the footpath. She therefore tripped on that part of the slab which was closer to its maximum rather than its minimum point of displacement. 16 The appellant gave evidence, which was accepted by the primary judge, that she was looking where she was going as she walked along the footpath but that the location where she fell was overshadowed by the adjoining trees. Her evidence in chief was that the pavement was scattered with the shadows of tree branches to the extent that the area of the footpath in front of her at the location where she tripped was "quite dark". In cross-examination she insisted that she was looking where she was going as it was her practice to scan the area in front of her when she was walking. Although challenged, she was resolute that the location where she fell was "very shady with trees", "it was covered with shade from the branches" of the adjoining trees. She denied that the effect of the sunlight was that the displacement of the slab on which she tripped cast its own shadow which appeared as a black line across the footpath. She was observant of the fact that the trees were casting shadows across the footpath but said that it was because of the shadowing that she did not see the leading edge of the displaced slab before she tripped over it. 17 Two independent witnesses, a Ms Coull and a Ms Wilmington, who attended to the appellant immediately after she fell, gave evidence as to the shadows across the relevant section of the footpath which was summarised by the primary judge in the following terms (at [18]): "The [appellant] described shadows of trees across the footpath where she fell. Ms Wilmington, who went to the assistance of the [appellant] after her fall, said she saw the raised lip of concrete pavement and the shade of a tree went over the raised join in the footpath, she said. She said the shade from the trunk of the tree was 'directly over the joint in the footpath'. In cross-examination Ms Wilmington said because of the shade, she 'really had to look to see the difference in the slabs' on the footpath. Ms Tania Coull, another person who assisted the [appellant] at the scene, said when told by the [appellant] that she had tripped, she saw the footpath 'lifted 4-5 centimetres'. She said this area of the footpath was covered by shade. She said the lift in the footpath 'was not obvious until you were very close to it'. In cross-examination she said the shadows from the trees stretched along the footpath, but 'it was deceiving until you were a couple of feet away'." 18 His Honour concluded (at [22]) that the shade from the trees and the contrasting shadows along the pathway "could" obscure the view of the raised concrete slab creating a hazard that "could" expose pedestrians such as the appellant to a risk of injury by tripping on the raised lip of the slab. He further acknowledged (at [23]) that: "Tree-lined streets and footpaths are common throughout Sydney … Trees were not the only source of shadows on footpaths. Buildings, parked cars and trucks, light poles and telegraph poles also cast shadows on footpaths at particular times of the day." 19 His Honour found (at [24]) that the appellant was aware as she walked along the footpath that the trees were casting shadows across the pavement over which she was walking.

The nature of the appellant's case and the Council's defence 20 The appellant alleged that the Council was in breach of its duty of care in failing to maintain and/or repair the footpath to ensure that it did not pose a hazard to pedestrians such as the appellant and in failing to repair this particular section of footpath in circumstances where it knew it was defective. 21 In its filed Defence the Council, apart from denying that it was in breach of its duty of care, asserted that it was not liable to the appellant by virtue of s 45 of the CL Act. It further alleged that the appellant was guilty of contributory negligence. Although not pleaded, the Council also relied upon ss 5F and 5G of the CL Act, asserting that the defect in the footpath slab was an obvious risk of which the appellant was presumed to have been aware.

The relevant statutory provisions 22 Division 4 of the CL Act is headed "Assumption of risk". Section 5F relevantly defines the expression "obvious risk" in the following terms: "(1) For the purpose of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to the reasonable person in the position of that person. (2) … (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that give rise to the risk) is not prominent, conspicuous or physically observable." 23 Section 5G provides as follows: "(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of 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 or occurrence of the risk." 24 It is important to note that even if s 5G applied in the present case, of itself that would not automatically relieve the Council from liability. The only exception to this is s 5H which provides that a person being a defendant does not owe a duty of care to another person, being a plaintiff, to warn of an obvious risk to that person. However, the present case does not engage that provision. 25 Section 45 of the CL Act does provide a complete defence to what otherwise, after the decision of the High Court in Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, would be a council's liability for a failure to carry out repairs to a road (including a footpath). It is in these terms: "(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. (2) This section does not operate: (a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b) to affect any standard of care that would otherwise be applicable in respect of a risk. (3) In this section: carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993 . roads authority has the same meaning as in the Roads Act 1993 ."

The findings of the Court in Roman with respect to s 45(1) 26 Although it is unnecessary to consider in this appeal the correctness of the majority opinion in Roman, it is convenient and appropriate to state shortly the findings of the majority and minority with respect to their respective construction of the phrase "the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm" in s 45(1). 27 In that case the plaintiff was injured at night when she fell as a result of a pothole in the road. She brought proceedings against the council alleging that it had been negligent in failing to maintain the road by repairing the pothole. The evidence established that the council street sweepers regularly swept the gutters of the street in the vicinity of the subject pothole and that they had been instructed as part of their induction to identify hazards which needed attention and to report them to their supervisor. The defendant council did not call any of its street sweepers but did call evidence from their supervisor and officers responsible for repairing potholes. All said they had no knowledge of the subject pothole, although if they had they would have regarded it as a hazard. 28 The trial judge inferred that the street sweepers had actual knowledge of the pothole and that, for the purposes of s 45(1) of the CL Act, their knowledge could be attributed to the council. 29 On appeal Basten JA, with whom Bryson JA agreed, held that for the purposes of s 45(1) of the CL Act, actual knowledge must be found in the mind of an officer within the Council who had delegated (or statutory) authority to carry out the necessary repairs. As the evidence demonstrated that no such officer at a decision-making level had "actual knowledge" of the particular pothole, it followed that the council did not have such knowledge so that the exception to s 45(1) of the CL Act was not engaged and the statutory immunity prevailed. 30 Bryson JA agreed with Basten JA essentially on the basis that liability of a roads authority "for harm arising from a failure of an authority to carry out roadwork, or to consider carrying out roadwork" could only be addressed by examining the authority's organisation and identifying the persons who had in fact the function of carrying out roadwork or considering whether to carry it out. 31 Accordingly, s 45(1) was directed, so his Honour held, to those persons within the authority's organisation whose function it was to carry out roadwork or consider carrying out roadwork but whose failure to do either resulted in the relevant risk of harm materialising. According to the workings of s 45(1) it was, therefore, only those persons whose actual knowledge of the particular risk was relevant: see at 447 [130]. 32 McColl JA acknowledged (at 435 [51]) that the use of the expression "actual knowledge" in s 45(1) was plainly intended to prevent a roads authority being civilly liable merely because of constructive knowledge of the relevant risk. Her Honour's construction of the critical phrase in s 45(1) was expressed by her in the following terms (at 436 [60]): "60 In my view, for the purposes of s 45, the knowledge of those persons who, acting within the scope of their duties, learn of the particular risk under an obligation to report it as part of the roads authority's system of maintaining the roads under its jurisdiction, should be attributed to the roads authority. On the facts of this case, such people were sufficiently 'relevantly connected' with discharging the appellant's responsibility for carrying out road work to hold it prima facie liable in tort where it can be found, whether by direct proof, or inference, that they had actual knowledge of the particular risk which materialised in harm to the plaintiff. Attributing those persons' knowledge to the roads authority is consistent with the language of s 45, the context in which it appears and the policy discernible in its enactment."

The decision of the primary judge 33 In the present proceedings, the primary judge first dealt with the Council's defence based on s 5G of the CL Act. He set out at [6] the appellant's evidence as to how the accident occurred and cited a passage from the judgment of Dunford J in Dederer v Roads & Traffic Authority [2005] NSWSC 185; (2005) Aust Torts Reports 81-792 at [86] in which his Honour had observed that "risk" and "obvious risk" in ss 5F and 5G were references to the risk of harm, i.e., injury resulting from the danger and not a reference to the danger itself. After noting that the fact that the obviousness of the risk must be judged by reference to a "reasonable person in the position of" the plaintiff, the primary judge made the following finding (at [8]): "Here the obvious risk of harm as judged by a reasonable person in the position of the [appellant] was the raised lip of the concrete pavement, stretching across the footpath to a height of two inches." 34 This finding was unaccompanied by any reasons to support it. In particular, it failed to take account of the requirement of s 5F(1) that the relevant risk must have been obvious to a reasonable person in the position of the appellant "in the circumstances". Those circumstances were that the raised lip of the slab was, according to the evidence, in deep shadow. 35 The primary judge then returned to the issue of shadows setting out the relevant evidence at [18] of his judgment, which we have recorded at [17] above. After referring to the decision of this Court in Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407 at [50]-[51] in which Giles JA noted that a pedestrian's perception and avoidance of a hazard depended vitally on illumination and visibility, his Honour found (at [22]) that the shade from the trees and the contrasting shadow along the footpath: " could obscure the view of the raised concrete lip, creating a hazard that could expose pedestrians such as the [appellant] to the risk of injury by tripping on the raised lip of concrete." (Emphasis added) 36 His Honour nevertheless concluded in these terms: "24. The [appellant] said in evidence that while she had not walked over that area of pavement before, she was generally aware from her own experience that footpaths were sometimes uneven and had bumps of various types on them. She was also aware on 29.7.04, as she walked along the pavement, that the trees were casting shadows across the pavement over which she was walking. 25. In my opinion the [appellant] was therefore aware of the 'type or kind of risk' pursuant to s5G(2) found on footpaths, although not aware of the actual risk of injury that could result from tripping on a two inch lip of concrete across her path that was in shade. The [appellant's] claim therefore fails." 37 We understand his Honour's reasoning to be essentially as follows. The appellant was generally aware that footpaths were sometimes uneven and might have various types of bumps in them. She was also aware that as she walked along the subject footpath, the trees were casting shadows across it. It therefore followed that the appellant was aware of the "type or kind of risk" with respect to footpaths although she was unaware of the precise nature of the risk in the present case as the raised lip of the concrete slab across her path was in shadow. Accordingly, not only was the risk obvious within the meaning of s 5F(1) but also the appellant was presumed to have been aware of that risk within the meaning of s 5G(1). Therefore her claim failed. 38 The primary judge also addressed the Council's defence based on s 45 of the CL Act. In so doing he referred to evidence of the appellant's son who photographed the location where his mother fell at approximately 12 noon on the day of the accident. Those photographs revealed that the raised lip of the slab upon which the appellant tripped was, at the time the photographs were taken, partly in shadow. However, the appellant had said in evidence that at the time she fell there was more shade upon that section of the footpath than was depicted in the photographs. Noting the movement of the sun between 10.30am and 12 noon, there was no reason why that evidence should not have been accepted given the corroborating evidence of the two independent witnesses to which his Honour referred without criticism in [18] of his judgment when dealing with the question of shadows. 39 Of more immediate significance is that on the day following her accident, the appellant and her son visited the Council and had a conversation with a Ms Flanagan who at the relevant time, as well as at the time she gave evidence, was an assistant insurance officer in the Risk Management Department of the Council. The appellant gave evidence as to a conversation with Ms Flanagan which was recorded by his Honour (at [10]) in the following terms: "[Appellant]: I tripped on the footpath in George Street South Windsor opposite the post office. Ms Flanagan: I am aware that someone had been injured at that spot because someone had told her. The area had been earmarked for repair, but you have got their (sic) first. [Appellant]: If the council was aware of the problem why was not a barrier erected because I tripped very badly. Ms Flanagan: I do not know why there was no barricade."

At [15] his Honour recorded that the appellant's son had given evidence that Ms Flanagan had said " we know about this " and " you got there before we did to repair it ". 40 Ms Flanagan accepted that she had a conversation with the appellant on the day in question but denied that the conversation was in the terms asserted by the appellant. Nevertheless his Honour (at [16]) accepted the appellant's version of the conversation. The Council accepted that once the evidence relating to the appellant's conversation with Ms Flanagan was admitted and accepted, it constituted evidence of the truth of its contents notwithstanding its hearsay elements. 41 Accordingly, the primary judge found (at [17]) that the Council had actual knowledge of the raised lip of the concrete slab at the location where the appellant fell on 29 July 2004. In other words, he found that Ms Flanagan's knowledge of the defective slab and her assertion that it had been earmarked for repair constituted actual knowledge of the Council for the purpose of s 45(1), thus engaging the exception to the Council's statutory non-liability for its failure to repair the defective slab.

The relevance of Roman to the primary judge's decision on s 45(1) - was the exception in s 45(1) engaged? 42 The primary judge gave his judgment on 28 November 2006, shortly after argument in this Court in Roman had taken place (10 October 2006). However, as that judgment was not delivered until 27 February 2007, his Honour did not have the benefit of that decision. 43 In these circumstances the primary judge was not concerned to make any finding as to whether any officer within the Council, who had delegated authority to carry out or authorise the carrying out of repairs to the subject footpath or to consider carrying out such repairs, had actual knowledge of the defective pavement slab. However, although Ms Flanagan stated, and his Honour recorded, that it was not her role or that of her Department to monitor or be aware of those assets of the Council which were listed for repair, her evidence was that if a member of the public complained of being injured due to a poorly maintained Council asset, the complaint would be referred to the Manager of the Risk Assessment Department who would then seek a report from the Council's Engineering Department. 44 It is apparent, and we would infer, that Ms Flanagan's role and that of the Department in which she worked, was to receive complaints from members of the public in relation to defective Council assets which may or may not have caused injury but had the potential to do so and to then process that complaint through other relevant Council departments. Furthermore, as was suggested during argument, risk management would include risk reduction. 45 In the present case the primary judge accepted that Ms Flanagan had informed the appellant that prior to the conversation with her on the day after her accident, she had become aware that someone other than the appellant had been injured at the relevant location as she had been informed of that fact. This seems to be the plain and natural meaning of the words attributed to Ms Flanagan, notwithstanding an attempt by the Council to suggest that she was referring to the injury which had befallen the appellant, an interpretation we would reject as being inconsistent with the statement of Ms Flanagan that the appellant "had got their (sic) first". 46 Furthermore, as Ms Flanagan was aware that the footpath in the location of the appellant's accident had been earmarked for repair, her knowledge could only have come from being so informed, either directly or indirectly, by that officer of the Council who was responsible for earmarking the subject defect for repair in the first place. If this is so, then it must follow that as the defective slab had been earmarked for repair, those officers of the Council responsible for the carrying out of the relevant work must have had actual knowledge of the particular risk posed by the slab to pedestrians using this section of the footpath. 47 Having such knowledge, the relevant officer of the Council was charged with determining whether the defect was such as to require repair, to authorise such repairs to be made and to ensure that they were carried out. The failure of the Council to carry out those repairs so as to avoid the materialisation of the risk which resulted in the appellant's injury including, if the repairs were unable to be carried out immediately, the placing of a barrier around the defective area, constituted a breach of duty on the Council's part. 48 In the foregoing circumstances, even on the basis of the majority judgment in Roman, a relevant officer of the Council had actual knowledge of the particular risk the materialisation of which resulted in the appellant's injury, thus engaging the exception to the Council's statutory non-liability for the failure to carry out the repairs so earmarked for action. It is for these reasons that in our opinion it is unnecessary in this appeal for the Court to consider whether to confirm the majority decision in Roman or to reject that decision and adopt the view of the dissenting judge. On either view, the exception referred to in s 45(1) was engaged. 49 By way of completeness we should refer to a submission by the Council that the photographs in evidence revealed that quite extensive new work had been undertaken by it in the vicinity of the defective slab which, it was accepted, had been repaired or replaced. It was contended that this fact indicated that when Ms Flanagan spoke of the "area" being earmarked for repair, she was referring to the extensive new work and not to the repair of the defective slab. 50 In our opinion this contention should be rejected. If such a contention was to be made good the evidentiary onus shifted to the Council to call evidence as to the nature of the new work and as to how it came about. Although the whole of the defective slab appears from the photographs to have been relatively new, there was no evidence elicited by the Council as to when it was laid down, whether the new work was carried out independently of the replacement of the defective slab or as to whether the new work or any of it was in response to knowledge of the defective slab. To suggest that Ms Flanagan was referring to such work in her conversation with the appellant in the absence of such evidence would be pure speculation. The evidentiary burden of explaining the photographic evidence in the manner contended for lay upon the Council but no attempt was made to discharge it.

Was there an obvious risk? 51 The primary judge answered this question in the affirmative. This was notwithstanding the evidence of Ms Coull who attended to the appellant when she fell and, after stating that she looked at the spot in the footpath which caused the appellant to trip, gave the following evidence: "Q. What did you notice if anything about that spot in the footpath? A. That it was covered by shade [STRIKEOUT BEGINS] so it was very deceiving to see how high that concrete was lifted. [STRIKEOUT ENDS]. GROGAN: I object to that. HIS HONOUR: Covered by shade can stay, yes. ELLIOTT: Q: Madam, what can you say if anything - and if you'd wait until my learned friend objects, if he does - about how obvious that gap in the pavement was? A. Not very obvious to look at until you're very close to it." 52 The appellant submitted that his Honour should have admitted that part of Ms Coull's answer to the first question in the above exchange which his Honour had struck out upon the basis that it was admissible lay opinion under s 78 of the Evidence Act 1995 (NSW). That section provides that the opinion rule does not apply to evidence of an opinion expressed by a person if: "(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event." 53 The Council submitted that the evidence was inadmissible, relying upon a passage from the judgment of Kirby J in Smith v R [2001] HCA 50; (2001) 206 CLR 650 at 669-670 [60]. There his Honour rejected as falling within s 78 the opinion of two police officers, neither of whom witnessed the relevant robbery, identifying the accused from security photographs that recorded the robbery taking place. His Honour held that the officers' opinion was "based on" photographs and not upon the robbery itself which they neither saw, heard nor otherwise perceived. 54 In the present case, Ms Coull's evidence was based on what she saw at the scene of the accident within moments of it occurring. The relevant "matter" was the effect on the visibility of the defective slab of the shadow over it at the time. In order to obtain an adequate account or understanding of Ms Coull's perception of the effect of that shadow, the opinion which she expressed in that portion of her evidence, which was struck out, was necessary and was based upon what she saw or perceived about the shadowing at the time. In these circumstances, in our opinion, the evidence was admissible. 55 Whether or not we are correct as to the admissibility of the struck out words, Ms Coull gave identical evidence in cross-examination as the following exchange reveals: "GROGAN: Q: When you went to look at the footpath you could see the difference in height, couldn't you? A. At that time yes because there was more sun across the path. Q. Even at the time when Mrs Angel fell, you could see the difference in height couldn't you? A. Yes up close, yes. Q. Well when you mean up close, when you were standing you could see it couldn't you? A. Yes. Q. It wasn't like there was just a big dark black hole on the footpath was there? A. No, not u[p] close, no. Q. And as you walk towards it you could see the difference couldn't you? A. It's deceiving until you get closer to the point. Q. Well how close are you saying, feet? A. Maybe that. Q. What's that? HIS HONOUR: A couple of feet? WITNESS: Couple of feet. GROGAN: Q: Couple of feet? A. Yeah sorry I'm not real good on measurement. Q. So a couple of feet away you could -- … Q. -- see that there was a difference in height? A. Yes." (Emphasis added) 56 The first answer in the above exchange is a reference to Ms Coull's earlier evidence that she returned to the site of the accident at 12.15pm on the same day in order to take photographs. By that time the sun had moved so that the shadow of the treess fell at a different angle than had been the case at the time of the accident when she first made her observations with respect to the extent and effect of the shadow upon her ability to perceive the defect in the displaced slab. As she said, it was deceiving until she was within a couple of feet of its leading edge. 57 The appellant further submitted that his Honour erred in finding (at [8]) that the raised lip of the slab stretching across the footpath to a height of four to five centimetres constituted an obvious risk of harm as judged by a reasonable person in the position of the appellant. This finding was combined with his Honour's finding (at [25]) that the appellant was aware of the "type or kind of risk" found on footpaths, albeit that she was not aware of the actual risk of injury that could result from her tripping on the displaced slab which lay across her path and which was in shadow. 58 It was submitted that the appellant's evidence did not establish that she was aware of the type and kind of risk of injury which befell her. It was further submitted that a risk of injury of the nature of that which arose in the present case would only be "obvious" if it was capable of being readily appreciated at the time a pedestrian encountered it. Reliance was placed upon the decision of this Court in Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874 at [65] per McClellan CJ at CL. 59 In Carey this Court considered the effect of ss 5F and 5G of the CL Act. McClellan CJ at CL observed (at [90]): "The effect of these provisions is that a plaintiff is rebuttably presumed to be aware of a risk where the risk would have been obvious to a reasonable person in the position of the plaintiff. A plaintiff cannot rebut the presumption by claiming that even though he or she was aware of the general risk of harm, he or she was not aware of all possible manifestations, including the one that eventuated." 60 However, his Honour recognised (at [91]) that this statement begged the question as to what risks the provisions were directed to. As he indicated, it served no purpose to answer that they were directed to "obvious risks" because no conclusion could be reached as to whether or not a risk was obvious until the risk itself was identified. 61 At [94] McClellan CJ at CL referred to the decision of this Court in Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 where a bench constituted by Ipp JA, Tobias JA and Basten JA determined that "the position of" the plaintiff in s 5F(1) comprehended the particular circumstances in which the risk materialised and the harm was suffered. Tobias JA (at 434 [100]) defined "obvious" to mean: "that both the condition and the risk are apparent to and would be recognised by a reasonable [person] in the position of the [plaintiff] exercising ordinary perception, intelligence and judgment."

As his Honour noted (at 434 [101]), the word " condition " in that definition referred to the factual scenario with which the plaintiff was faced. 62 Although the primary judge found that the appellant was aware of the "type or kind of risk" normally found in footpaths, being what she referred to as sometimes uneven surfaces and bumps of various types, that fact was irrelevant unless and until it was determined that the relevant risk would, in the circumstances, have been "obvious" to a reasonable person in the appellant's position within the meaning of s 5F(1) and subject only to s 5F(3) and (4). Section 5G(2) provides that for the purposes of that section, a person is aware of a risk if he or she is aware of the type or kind of risk. Section 5G(1) presumes knowledge of that risk only where it is an "obvious risk" unless the person proves on the balance of probabilities that he or she was not aware of the risk. Therefore it is only if there is the anterior finding that the risk of harm is "an obvious risk" within the meaning of s 5F(1) that the presumption of awareness is engaged under s 5G(1) as extended by s 5G(2). 63 Accordingly, the critical question in the present case was whether there was, relevantly, an "obvious risk" within the meaning of s 5F(1). His Honour held that there was but, as we indicated at [34] above, provided no reasons for that finding. 64 In our opinion his Honour erred in coming to that conclusion. The evidence of Ms Coull and Ms Wilmington was that due to the shadows cast at the time over the relevant area of the footpath, the differential in height between the slabs could not be seen until a pedestrian was within a couple of feet of the leading edge of the defective slab. Until that point was reached the shadow cast by the trees over the join between the two slabs created a deception. We take that to mean, to a person such as the appellant who had not walked in this location before and who, therefore, had no opportunity to observe the height differential between the two slabs, that that differential was not observable even to a person exercising reasonable care for his or her own safety. 65 The Council submitted that it was sufficient that the height differential was obvious "from at least a couple of feet away, notwithstanding the shadows, if the shadows played any part at all". This submission does not accord with the evidence of Ms Coull and Ms Wilmington that as a consequence of the shadows the height differential could not be seen until one was within "a couple of feet" of that location. The shadows cast by the trees were deceptive and prevented a pedestrian from observing the differential until they were literally within a stride of the defect assuming that at that moment the pedestrian was looking at the pavement literally at his or her feet. Both Ms Coull and Ms Wilmington denied that the height differential was obvious. 66 It is true that a pedestrian is required to take reasonable care for his or her own safety. But that does not require that a person must walk along a footpath with their eyes continuously glued to the area immediately in front of them. In our view, and as the appellant submitted, there was nothing unreasonable in the appellant's failing to notice a defect in the footpath of the nature of that in the present case when such a defect only became apparent when the appellant was within "a couple of feet" of it. 67 The Council sought to rely upon the photographs in evidence to demonstrate that, despite the shadowing, the differential in height at the join between the two slabs was obvious. However, in our view the photographs themselves are deceptive. Those taken at 12 noon on the day of the accident do not actually depict the location of the shadows as they were an hour and a half earlier, in respect of which there was the evidence of the two independent witnesses. 68 The thrust of the Council's submissions based on the photographic evidence was that they made plain that the raised slab was visible at least from where the photographs were taken if not from further back. It was contended that at best the light was dappled so that at any given time the shadow cast by the trees did not cover the whole of the raised lip of the defective slab, notwithstanding that it tapered over its width. 69 Apart from the fact that this submission was at odds with the clear and unchallenged evidence of Ms Wilmington that the shadow was cast by the main trunk of the adjoining tree directly over the whole length of the joint between the two slabs, no proper basis was advanced as to why the photographs should trump the eyewitness evidence of not only Ms Wilmington but also Ms Coull. The fact is that a person walking along a footpath scanning ahead as the appellant said she did, would not suddenly stop at the point at which a photograph was taken and peer to see what was ahead of her. As was pointed by Beazley JA during the course of argument, the perspective depicted in photographs such as those in the present case, can be quite skewed and distances very difficult to assess. 70 The deceptive nature of such photographs is that they focus on a particular scene that is static. This is the antithesis of a pedestrian walking along a footpath, a situation that is anything but static and where the person is not required to focus on only one small element in the scene before and around him or her. When it comes to the best and most reliable evidence, that of the independent witnesses Ms Coull and Ms Wilmington must clearly prevail over photographs which were not taken until one and a half hours later. 71 In Short v Barrett [1990] NSWCA 164; unreported (BC9003193), Meagher JA, with the concurrence of Clarke and Handley JJA, considered that judges should not, when looking at photographs, overlook what his Honour referred to as the sage advice of Lord Reid in C Van der Lely NV v Bamfords Ltd (1963) RPC 61 at 71, namely: "the judge ought not, in my opinion, attempt to read or construe the photograph himself; he looks at the photographs in determining which of the explanations given by the witnesses appears to be the most worthy of acceptance." 72 The point made by Lord Reid is that photographs such as those relied on by the Council in the present case cannot on their own be used, as the Council seeks to use them, as a substitute for the evidence of witnesses or as a reason for rejecting the virtually unchallenged and consistent evidence of the appellant, Ms Coull and Ms Wilmington. As we have said above, they cannot be used to trump that evidence which compelled acceptance: see generally as to the use of photographic evidence, Blacktown City Council v Hocking per Spigelman CJ at [7] to [13]; and Tobias JA at [167] to [171]. 73 The Council further submitted that the primary judge had not made a finding that the shadow from the trees and the contrasting shadow along the footpath did in fact obscure the appellant's view of the raised lip of the defective slab. At [22] his Honour only found that such shadow "could" have had that effect and therefore "could" have exposed pedestrians such as the appellant to the risk of injury by tripping. Whilst this is true, it was incumbent upon his Honour to make a specific finding one way or the other. It was insufficient for him to have left the issue up in the air when such a finding was critical to the question of whether there was an "obvious risk". 74 His Honour having taken the issue as far as he did, we have no difficulty in taking it to its inevitable conclusion. Given the evidence of Ms Coull and Ms Wilmington which his Honour certainly did not reject or otherwise seek to diminish and which, as we have said, compels acceptance, it must follow that the shadows cast over the join between the defective slab and its immediate neighbour did obscure the appellant's view of the raised lip until it was too late for it to be avoided. In these circumstances, the risk of harm by tripping over the defective slab would not have been obvious to a reasonable person in the position of the appellant. It would have been neither apparent to nor recognised by such a person exercising ordinary perception, intelligence and judgment. 75 We should add for completeness that the Council submitted that to avoid a finding of a risk being obvious, it was necessary that the defect giving rise to the risk should be obscured to the point of invisibility. The vision of the relevant pedestrians must be "totally and absolutely" obscured. This cannot be correct. The extent of obscurity need only be such that a person keeping a reasonable lookout would be unlikely to see the defect in time to avoid it. 76 The Council relied upon a number of general statements of principle to be found in the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie at 581 [163] and the reasons of Callinan J in the same case at 639 [355]. It is noteworthy that in the passage of the joint judgment relied on, their Honours observed that persons ordinarily: "will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as the uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting … In such circumstances there may be a foreseeable risk of harm even to those persons taking reasonable care for their own safety. Those hazards will include dangers in the nature of a 'trap' or, as Jordon CJ put it, 'of the kind calling for some protection or warning' …" (Emphasis added). 77 Callinan J also observed that there was a difference between what people would see in broad daylight and what they would see at other times. He thus said: "The world is not a level playing field. 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. No special vigilance is required for this." (Emphasis added) 78 Similarly, in Hastings Council v Giese [2003] NSWCA 178; (2003) 127 LGERA 109 at [21] Tobias JA noted that a pedestrian was able to protect himself or herself from the uneven surfaces of footpaths and crossings by keeping a proper lookout for the purpose of taking care of his or her own safety. He then added: "That responsibility will, however, shift to the road authority where a relevant defect subject to that authority's knowledge of it, constitutes not only a hazard but also one which is concealed or obscured and thus not obvious to the user so that it constitutes a form of trap." 79 The above passages emphasise the difference between a defect in a footpath which is obvious and one which is not because it is obscured even to a pedestrian taking care for his or her own safety. In the present case the relevant hazard was obscured as a consequence of the shadows cast over it. It was, therefore, not obvious. 80 For the foregoing reasons in our opinion his Honour was in error in finding at [8] that the relevant risk was obvious within the meaning of s 5F(1) of the CL Act. Furthermore, s 5F(4) has no application to the present case albeit that it provides that a risk can be an "obvious risk" even if it is not prominent, conspicuous or physically observable. The differential in height between the two slabs was prominent, conspicuous and physically observable but not in circumstances that made it an "obvious risk" within the meaning of s 5F(1). 81 Although a risk can be an "obvious risk" even if it is neither prominent, conspicuous nor physically observable, it does not follow that the risk in the present case must be held to have been obvious even it was not conspicuous as a consequence of the shadows cast over the join between the two slabs. A hole in the footpath that was neither prominent nor conspicuous might constitute an obvious risk notwithstanding that fact where, for instance, its existence and location was well known and a matter of common knowledge to pedestrians using that particular section of footpath. However, that is not the present case. There was no evidence to suggest that the risk posed by the differential height of the slab was a matter of common knowledge and it was certainly unknown to the appellant. Accordingly, in our view s 5F(4) is of no assistance to the Council. 82 Although the primary judge found that the risk was an obvious one and that as the appellant was presumed to be aware of it, her case on liability failed, that reasoning was, of itself, erroneous. In this context the Council sought leave to amend its Notice of Contention to allege that once it was determined that the risk of harm was "obvious" within the meaning of s 5F(1) so that the appellant was presumed to be aware of it within the meaning of s 5G(1), there could never be a breach of duty by the Council by reason of failure to rectify the defect which gave rise to that risk. We would grant such leave if only for the purpose of rejecting the Council's contention. 83 A finding that a risk of harm is an "obvious risk" within the meaning of s 5F(1) so that pursuant to s 5G(1) the person who suffers harm is presumed to be aware of that risk, does not, as the Council would have it, automatically lead to a finding of no breach of duty. Sections 5F and 5G are contained in Division 4 of Part 1A of the CL Act entitled "Assumption of risk". The purpose of that Division is, at least in part, to make it easier for a defendant to establish the common law defence of voluntary assumption of risk or volenti: C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [101] per Santow JA; Carey at [34]. Except with respect to an "obvious risk" which obviates any common law duty to warn (see s 5H), the provisions of ss 5F and 5G and, in particular, the statutory definition of an "obvious risk", have no relevance to the question of breach of duty. 84 This is not to say that the obviousness of the risk is irrelevant to an analysis of the breach question. But as Santow JA pointed out in Maloney at [103], a finding that the risk is "obvious" does not produce a preordained outcome to that question. Thus in terms of the balancing exercise referred to by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48, it is but one of the considerations to be taken into account in determining the reasonable response of a defendant to a foreseeable risk of harm. 85 However, care needs to be taken to ensure that the focus of attention in the application of the Shirt principle remains steadfastly upon the defendant. By way of contrast, the focus of attention of any defence based on an assumption of risk is upon the state of mind of the plaintiff. So much is clear from the provisions of s 5G(1). The point was emphasised by Hayne J in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 469-470 in the following terms (omitting footnotes): "[162] The conclusion that a reasonable council would not have warned of this danger does not depend upon what the Court of Appeal referred to as the obviousness of the risk. Reference to a risk being 'obvious' is apt to mislead and cannot be used as a concept determinative of questions of breach of duty. Not least is that because obviousness of risk may divert attention from what would have been the reasonable response to foreseeable risk to consideration of how someone other than the plaintiff could have avoided injury. Inquiries of this latter kind will be relevant when considering questions of contributory negligence. They are not useful, however, when considering breach of duty. [163] That is not to deny the importance of considering the probability of occurrence of the risk in question. The probability of occurrence of a risk that is not apparent on casual observation of a locality or of a set of circumstances may be higher than the probability of occurrence of a risk that is readily apparent to even the casual observer. But the focus of inquiry must remain upon the putative tortfeasor, not upon the person who has been injured, and not upon others who may avoid injury. …" 86 It thus follows that findings in favour of the Council in terms of ss 5F(1) and 5G(1) of the CL Act would not relieve it from a finding that it was otherwise in breach of its duty of care. The Council's contention to the contrary should, therefore, be rejected. 87 For the foregoing reasons, there should be judgment for the appellant on the issue of liability.

The Council's cross-appeal on liability 88 In its Notice of Cross-Appeal filed on 3 October 2007, the Council raised three issues. The first was founded on s 45 of the CL Act. It alleged that the primary judge ought to have found that the Council had no actual knowledge of the risk of injury to the appellant within the meaning of s 45 and/or that Ms Flanagan was not a person who was sufficiently and relevantly connected with discharging the responsibility of the Council for carrying out repairs to hold that it had actual knowledge within the meaning of that provision. This ground of cross-appeal was, of course, based on the majority judgment in Roman. We have already dealt with this issue in a manner which requires this ground of the Council's cross-appeal to be rejected. 89 The second ground is that the primary judge ought to have found that the appellant was guilty of contributory negligence in failing to keep a proper lookout or continuing to walk on the footpath in circumstances where she knew the footpath was probably not level and obscured by shadowing. His Honour made no finding with respect to the issue of contributory negligence as he found that the Council was not liable for the appellant's injuries. 90 The appellant's evidence, apparently accepted by the primary judge, was that she was keeping a lookout and taking reasonable care for her own safety. In chief she said that she always scanned the area along which she was walking and that what prevented her from seeing the raised lip of the concrete slab over which she tripped was the shadow cast by the trunk and branches of the adjacent trees. Her evidence was that "the pavement was scattered with reflections of branches of trees". The effect that had on the footpath in front of her was to make it "quite dark". In cross-examination she was asked whether she was looking where she was going to which she responded in the affirmative. When asked whether she was looking at the footpath, she said: "both following down, walking past - I scan an area before me when I'm walking and it was very shady with trees and I continued walking and then I tripped".

She denied that at that time of the morning she could see the black line constituted by the join between the two slabs and reiterated that all she could see were the shadows of the branches of the trees. She agreed that she was very observant of the fact that there were such shadows. She further said that she was not walking fast but did not see that with which her foot came into contact. 91 The following exchange then occurred: "Q. Did you try to walk in a different part of the footpath where you could see what lay ahead? A. I was walking virtually down just off the middle of the path. Q. If you couldn't see what lay on the left hand side -- A. But the whole path was covered sir. Q. Did you stop to see what may lay ahead? A. I had visualised six feet as one does when one's walking -- Q. Did you stop to see what lay ahead? A. No. Q. And would you agree that as you walk along footpaths they're not always straight, level and flat? Q. No, I don't know because I don't walk on many footpaths. Q. You were born in 1939? A. Yes. Q. You've walked along footpaths in your life, haven't you? A. Always. Q. And you've walked along roadways and pathways? A. Yes. Q. You've walked along areas where there isn't concrete and where there is concrete? A. Yes. Q. You've walked along areas where there isn't concrete and where there is concrete? A. Yes. Q. And life isn't full of footpaths or roadways which are straight, level and flat, are they? A. Quite. Q. you expect, don't you -- A. But then I didn't try -- Q. If you could just stop for a moment, you expect don't you to find bumps, different levels in the footpath or roadway where you walk, don't you? A. Not if they're maintained. Q. Madam, you expect don't you in your normal, everyday life to come across footpaths that aren't level and flat -- A. Sometimes." 92 The Council contended that because of the shadowing of the footpath the appellant should have exercised extreme care when walking along it so as to ensure that the shadows did not obstruct her view of any imperfections or bumps in the footpath which she might encounter. In our opinion such a submission seeks to impose a counsel of perfection rather than what a person in the position of the appellant might do in exercising reasonable care for her own safety. The appellant said that she was not walking fast; she was scanning the area in front of her and that she was aware that sometimes footpaths were not always level. There is no suggestion that his Honour did not accept her as a truthful witness. 93 In the present case the footpath, according to the photographic evidence, appears to be of fairly recent origin. Shadows or no shadows, in our opinion it was not incumbent upon the appellant to slow her walking pace down or to fix her eyes on the immediate area in front of where she was walking. That would not be reasonable. 94 Accordingly, the Council has not made out any case which would support a finding of contributory negligence on the part of the appellant. We would therefore reject this ground of the Council's cross-appeal.

The Council's Cross-Appeal on damages 95 The final ground of the cross-appeal was a challenge by the Council to his Honour's award of future gratuitous attendant care services. 96 The appellant had made a claim for domestic assistance pursuant to s 15 of the CL Act. The primary judge assessed that claim in the sum of $142,022, comprising past domestic assistance in the sum of $34,528 and future domestic assistance in the sum of $107, 022. Both the entitlement to and quantum of these awards are challenged.

Statutory entitlement to gratuitous care 97 The appellant's entitlement to gratuitous care is governed by s 15 of the CL Act, which provides: " 15 Damages for gratuitous attendant care services: general

attendant care services means any of the following:

(a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay.

(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury.

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided:

(a) for less than 6 hours per week, and (b) for less than 6 months.

(4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for: (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award - that quarter, or (ii) in respect of the whole or any part of any other quarter - the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.

(6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services."

The factual basis of the appellant's claim for domestic assistance 98 When the appellant tripped on the defective slab, she fell "very heavily" and her head "bounced on the pavement". She heard her left arm, which she had put out to save herself, "crack" as she hit the pavement. Her right hip also came into contact with the pavement. She immediately felt a lot of pain in her left arm, face, hands and right hip. X-rays of the left arm revealed a comminuted fracture of the left capitellum with a "large displaced fragment", which required the insertion of a plate and screws in a surgical procedure, which was undertaken by Dr Sorial on 1 September 2004. Due to complications, she required a second operation a few weeks later. She later had surgery for carpel tunnel syndrome in April 2006. The evidence was that she made a good recovery from that surgery. There was an issue, however, as to whether the carpal tunnel condition was related to the accident, or a pre-existing condition. 99 At the time of the accident, the appellant was 65 years old (67 as at the date of hearing) and lived with her son. She is right-handed and in June 2001 had suffered a serious right injury to her shoulder. She said that notwithstanding continuing difficulties following the injury to her right shoulder, especially with pegging out the washing, she had been able, up to the time of the subject accident, to continue with her usual household tasks without assistance from her son. However, following that accident, she had required significant assistance that had been provided both by Home Care Service New South Wales and by her son. 100 The appellant's need for household assistance arising from the subject accident was greatest in the months following her operations but had reduced to an ongoing need of eight hours per week, which included assistance with vacuuming, cooking and keeping the house tidy, tasks undertaken by her son. Her son also hung out the washing, although there was a question as to whether the appellant's inability to do so was due to her pre-existing right shoulder problems, or her left arm disability caused by the accident.

The primary judge's findings 101 The primary judge dealt with the appellant's claim for gratuitous care at [35] ff. He assessed her entitlement to damages for domestic assistance with respect to three periods. He based his assessment for each period on a cost of care of $20.80 per hour. 102 The first period was from the date of accident until Christmas 2004. During that period, the appellant had two operations on her left arm and that arm had been in a cast. His Honour found that during this period the appellant had required domestic assistance, including dressing and showering. At [40] he assessed damages for this period at $13,728 (being 22 weeks at $20.80 per hour x 30 hours). 103 Thereafter, that is, from Christmas 2004 until the date of trial, his Honour assessed damages on the basis that the appellant required assistance for 10 hours per week. He found that as a result of the accident, the appellant had aggravated a pre-existing carpal tunnel syndrome. She had decompressive surgery for this in April 2006 and his Honour found that for a two month period following the operation, she required an additional 10 hours per week. He assessed damages for this period at $20,800 (being 92 weeks at $20.80 per hour x 10 hours, including two months at $20.80 per hour x 20). 104 The third period related to future care following the trial. His Honour assessed the need for ongoing domestic care at the rate of eight hours per week. He calculated the entitlement to such care in the sum of $107,494 (being 646 weeks at $20.80 per hour x 8 hours). In so doing he adopted (at [46]) a multiplier of $646 (8 x $20.80 = $166.4 per week x $646 = $107,494). (Although there was an error in his use of the multiplier, the sum assessed by his Honour was correct.)

The Council's grounds of challenge 105 In its Notice of Cross-Appeal, the Council contended that his Honour erred in his assessment of the appellant's entitlement to gratuitous care on five bases: "6.1 The need for gratuitous attendant care services arose solely because of the injury to which the damages suffered by [the appellant] related: Civil Liability Act , s 15(2)(b);

6.2 Alternatively in the event that his Honour found that [the appellant] needed gratuitous attendant care services, his Honour ought to have found that she required no more than two hours future gratuitous attendant care services and made no award of damages for future attendant care services: Civil Liability Act , s 15(3);

6.3 Alternatively, his Honour ought to have found that [the appellant] required gratuitous attendant care services for less than six hours per week and/or for less than six months: Civil Liability Act , s 15(3);

6.4 Alternatively, the award of damages for attendant care services was excessive.

6.5 His Honour ought to have found that [the appellant] required less than eight hours future gratuitous attendant care services per week." 106 Before dealing with these grounds, it is convenient to review the medical evidence of the appellant's injuries and disabilities, including her pre-injury medical conditions, and her evidence and that of her son, relating to her injury and need for gratuitous care.

The appellant's pre-accident medical history 107 The appellant had a history of a number of serious pre-accident injuries and disabilities. We have already referred to the injury to her right shoulder, sustained in 2001. The Council placed considerable emphasis on this injury, contending that her need for ongoing attendant care arose, in significant part, from that injury. Furthermore, in approximately 1992, the appellant had fractured her ankle which required the insertion of plates, pins and a rod through her leg. At some stage, she also fell off a horse and broke her wrist. 108 The appellant had also suffered four heart attacks in 2001, for which she underwent heart surgery performed by Dr Kovoor at Westmead Hospital. She continues to suffer from cardiomyopathy for which she is prescribed medication (Micardis). 109 The appellant had also been treated for depression. This appeared to follow the revocation of her licence to operate a home day care centre for the Council. Her local GP, Dr Curlewis, prescribed her the anti-depressant Sinequan, which she took at a low dosage of 10 to 20mg per day. He referred the appellant to Dr Glass, Consultant Psychiatrist, for her depression. In Dr Glass' report of 24 November 1997, the appellant's symptoms at that time were noted as including insomnia (sleeping only four hours per night) and social phobia. The report states: "She remains socially embarrassed and humiliated by what has happened and fears venturing out - Social Phobia; Paul her son with whom she shares the family home, does 'all'. " (Emphasis added)

A follow-up report of Dr Glass dated 10 December 1997, states that "… she was feeling ever so much better, with depression under control and was more socially active." 110 In 2000, the appellant had fractured or dislocated her right elbow, but that appears to have resolved and she was not cross-examined in respect of this injury. As we have noted, in June 2001 she fractured her right shoulder, which limited her use of her right arm. She underwent surgery on her right shoulder (a shoulder hemiarthroplasty and release of the humero-scapular motion interface) in September 2002 performed by Dr Duckworth. His report of 10 September 2002 notes that following the operation the appellant "had good passive range of motion of the shoulder". 111 By 2003, the appellant had developed numbness in her hands and wrists, particularly on her left side (judgment [26]). She was referred to Dr Presgrave. Nerve conduction studies were performed and Dr Presgrave concluded that they revealed mild median neuropathies (carpal tunnel syndrome) at both wrists. He considered that that was the cause of the symptoms in her hands and recommended nocturnal wrist splinting. Dr Presgrave also observed that the appellant's right shoulder movements were restricted and that there was mild wasting of the right deltoid.

The appellant's injuries and disabilities caused by the subject accident 112 Following the accident, the appellant was taken by ambulance to Hawkesbury Hospital, where her left arm was placed in a sling and she was prescribed medication for her pain. X-rays later revealed a comminuted fracture of the left capitellum with a "large displaced fragment", which required the insertion of a plate and screws in a surgical procedure undertaken by Dr Sorial on 1 September 2004. Due to complications from an infection, the appellant had a second operation a few weeks later (judgment [27]-[28]). 113 In a report dated 25 November 2004, Dr Sorial reported that post-operatively, x-rays of the appellant's elbow showed that the "fixation" was "sound". He also said that she had a "very good range of motion at the elbow" and that the appellant had no complaint of "pain through the movement" of the elbow. She was, however complaining of "some symptoms consistent with a left carpal tunnel syndrome". Nerve conduction studies conducted in late November or early December 2004 revealed bilateral carpal tunnel syndrome, with the left wrist more symptomatic than the right. Dr Sorial recommended decompressive surgery, which he performed in April 2006. He reported that the appellant was also complaining of discomfort in her right hip joint since the accident. He considered that her symptoms were consistent with a "mild trochanteric bursitis". 114 The appellant retained Dr Conrad, surgeon, as a medico-legal expert. In his report dated 22 June 2005, Dr Conrad observed that the appellant had developed "considerable stiffness in the left elbow". He also considered that she had sustained a bilateral carpel tunnel syndrome as a result of falling on her hands and needed a bilateral carpal tunnel release operation. He also noted that she had developed a lesser right hip strain. He expressed the opinion that if the appellant's son was unable to provide assistance with the heavier part of her housework, she might need "some 6 hours per week of Homecare assistance". He stated her prognosis to be "uncertain".

115 In a supplementary report dated 22 June 2005, Dr Conrad expressed the opinion that the appellant had sustained 30 per cent permanent loss of efficient use of her left arm due to the continuing disability in her wrist and hand through her fractured elbow and carpal tunnel syndrome; 10 per cent permanent loss of efficient use of the right arm, due to wrist strain and carpal tunnel syndrome; and 10 per cent permanent loss of efficient use of the right leg at or above the right knee due to her right hip strain. 116 The Council qualified Dr James Bodel, orthopaedic surgeon, as its medico-legal expert. In his report dated 5 December 2005, Dr Bodel accepted that the appellant "suffered a fracture of the capitellum and traumatic bursitis in the region of the greater trochanteric bursa of the right hip", as a result of the accident. However, he considered that she had regained a useful range of movement in the left elbow. (He commented that the left elbow appeared to be better than her injured right elbow which, he reported, was still quite stiff, particularly in supination). He thought that she was coping reasonably well with the symptoms from the trochanteric bursitis. He also commented on the carpel tunnel syndrome which she had reported to him as not being present prior to the accident. Dr Bodel concluded that: "There is a direct causal link between the ongoing complaints in the left elbow, both wrists and the right hip and the fall that occurred on 29 July 2004".

As to her right shoulder, Dr Bodel stated: "She has extensive scarring in the region of the right shoulder and the right elbow and a very restricted range of right shoulder and elbow movement. She has a good range of shoulder movement on the left hand side but there is a 10 degree restriction of elbow extension and a 20 degree restriction of elbow flexion on the left hand side. She has almost full supination and pronation and there is a slight weakness of resisted elbow movement." 117 Dr Bodel was of the view that the appellant did not require domestic assistance for household maintenance and cleaning activities.

The evidence as to the extent of gratuitous care required 118 The appellant gave evidence that notwithstanding her serious right shoulder injury some years before the subject accident, she managed the household chores without assistance from her son. However, immediately following the accident she maintained that she could not cook or look after herself and found sleeping painful. Since that time, she has had continuous pain in her right hip, which causes her difficulty in sitting and standing, but not walking (judgment [27]-[28]). The appellant's case was that she had not suffered any disability in her right hip prior to the fall. However, in cross-examination, it emerged that she had suffered a "cramp" in her right hip for a week, for which she saw Dr Tan on 23 January 2004. The appellant also gave evidence that she had been left with some restriction of movement of her left arm, in that she could not straighten and extend it all the way. 119 The appellant said that since her accident she has experienced difficulties in vacuuming, cooking and washing, with these tasks now being undertaken by her son. This evidence was challenged by the Council whose case was that she had a restricted capacity to perform her household duties before the accident and was already being assisted by her son with household chores. In support of its case the Council relied, in particular, upon the appellant's answer in cross-examination that she still had difficulty raising her right arm and that this was a restriction. However, the appellant had also stated in cross-examination that although that she had a "slight restriction", she "cope[d] well on a daily basis". 120 The Council also challenged the appellant's claim that her son assisted her around the house after the accident, but did not "particularly" do so before the accident, other than mowing the lawns from time to time. The appellant agreed in cross-examination that after the operation on her right shoulder in September 2002, her son assisted with washing the floors, cleaning the bathroom and cooking meals, and that a family friend did the mowing. She said, however, that this assistance only continued until she could do these tasks herself, which was from about four months after the surgery. (There was no vacuuming to be done at this time, as they lived in a house with tiled floors.) 121 The appellant was seriously incapacitated after her accident and required attendant care services for most of her needs, both personal and domestic. Those were provided by Home Care Service New South Wales and by her son. The appellant said that her son did the vacuuming, cooked meals, tidied their home, made the beds, kept the bathroom neat and clean and performed general duties, did the gardening, hung out the washing and did the heavy cleaning such as scrubbing the bath. She said that he performed these tasks for two or three hours in the middle of the day, cooked meals at night, did all the shopping and drove the appellant everywhere she needed to go. The appellant claimed that she required such assistance for 30 hours per week up until Christmas 2004, as she was unable look after herself during this period. 122 The appellant had resumed some household tasks of a light nature by Christmas 2004 and had also resumed driving, and her need for assistance decreased thereafter. Nonetheless, she said that her son continued to do the heavy work, such as vacuuming and hanging out the clothes, although she said she was able to resume the vacuuming after her operation for carpel tunnel in April 2006. She continued to complain of problems with her right arm, as well as continuous pain in her right hip, which caused her difficulty in sitting and standing, but not walking. She also gave evidence that she had been left with some restriction of movement of her left arm, in that she could not completely straighten or extend it. 123 The appellant's son also gave evidence as to his mother's capacity prior to the accident. He said that she "coped really well. She did - did her usual daily chores and so forth and carried on as nothing had happened". He agreed that he maintained the lawn and the yard, but that he left most of the domestic tasks such as cooking, cleaning, and shopping to the appellant. He said, however, that he had noticed that prior to the accident she was having difficulty pegging out the washing because of her restriction of movement of her right shoulder, which had continued. He also said that before the accident he was giving her a hand with some cooking. 124 The appellant's son gave evidence that it was a "good couple of months before she was really up to speed" in terms of recovering from the carpal tunnel decompression surgery. He estimated that in the first month after her operation, he assisted her five hours per day and then three hours per day for the next three weeks. 125 Although the evidence of the appellant and her son was consistent as to the household tasks that the son performed post-accident, they gave widely differing assessments as to the number of hours that he provided such assistance. The appellant said that from Christmas 2004 onwards her son provided 20 hours of care per week that he had not previously provided. However, her son said that after December 2004, he was providing assistance for five hours per week.

Did the need for gratuitous care arise solely because of the injury? 126 The Council made two submissions in respect of this issue. First, it submitted that there was no entitlement to future care, as the appellant had a pre-existing disability for which she required assistance. Accordingly, she did not have a need for attendant care services arising "solely because of the injury to which the damages relate". Second, and alternatively, it submitted that his Honour failed to differentiate between services required for her pre-existing disability and additional gratuitous care services that arose from the subject accident, as only the latter was compensable: Woolworths Ltd v Lawlor [2004] NSWCA 209 at [28]-[29]. 127 In Woolworths Beazley JA, with the agreement of Hodgson and Tobias JJA, expressed the view, obiter, that s 15(2) of the CL Act applied notwithstanding a person having some other disability which itself required attendant care services. Subsection (2) operated so as to permit an award of damages for attendant care, but only to the extent that that care arose due to disability from the injury sustained in the compensable accident. The following paragraphs express her Honour's reasoning: "[28] … it was submitted that sub-s.2(b) only operated where there was no other cause or reason why the gratuitous services needed to be provided. An example on the appellant's argument in which an award under s.15 would be precluded was where a plaintiff with pre-existing symptomatic degenerative changes already required assistance of say five hours per week at the time of an accident. If, as a result of an accident causing an aggravation of those pre-existing changes, it was found that such a person needed more attendant care services, say 15 hours per week, there was no entitlement under s.15 because of the operation of s.15(2)(b). In other words the need for attendant care services had more than one cause. The opposing argument and one which was adopted by senior counsel for the respondent, was that in such a case, the plaintiff would be entitled to an award of ten hours for gratuitous attendant care services because the need for those ten hours had arisen " solely because of the injury to which the damages relate ". This construction derives directly from the definition of " injury " which includes " impairment of a person's physical or mental condition ".

[29] Although the matter is not without difficulty, I am inclined to the view that the second of these constructions is correct. It derives from a construction of the Act as a whole. In my opinion, such construction does not do any violence to the express words of the section. Senior counsel for the appellant argued that if such a construction was intended some word other than " solely " would have been used. He postulated that " substantially " would have been a likely candidate. In my opinion, that argument reinforces the likelihood that the second construction is correct. If the word " substantially " were used, instead of the word " solely ", then the section would have directed the Court to make an assessment whether the need for the services arose substantially or mainly because of the injury. If the need arose substantially because of the injury a plaintiff would be entitled to an award notwithstanding that portion of the need was attributable to some other cause. So in the example given in the previous paragraph, a plaintiff would be entitled to an award for 15 hours of attendant services, not 10." 128 There is a surprising lack of authority on this question. In T Wagstaff v Haslam & Anor [2006] NSWSC 294, Studdert J held that s 15(2) precluded an award for gratuitous attendant care services where a need was attributable to more than one cause. This is contrary to the view taken in Woolworths. 129 Reference was made to the issue in Randwick City Council v Muzic [2006] NSWCA 66. In that case, the plaintiff's injuries were held to be an exacerbation of a pre-existing injury. Hunt AJA (Handley and Ipp JJA agreeing) stated (at [88]) that had the defendant sought to argue that the need for attendant care services had not arisen "solely because of the injury to which the damages relate", he would have been satisfied on the evidence in that case that the need had arisen solely by reason of the exacerbation. 130 We remain of the view that the opinion expressed in Woolworths is the correct construction of the section. The Council did not advance any further argument as to why that construction was not correct. Rather, its submission acknowledged the reasoning in Woolworths and then, without elaboration, made the second submission in the alternative in these terms: "Having found that [the appellant] suffered a residual incapacity not caused by her fall, there should be no award because the need for attendant care services was not caused solely by any negligence of the Council. Alternatively, his Honour made no finding as to the amount of additional care [the appellant] required as a consequence of any negligence of the Council." 131 Accordingly, it is appropriate to turn to the alternative submission, which related to the residual incapacity the appellant had in relation to her right arm and shoulder, and the amount of additional care she required as a result of the accident. The determination of this issue will effectively determine the remainder of the issues raised by the Council in respect of attendant care services, subject only to a consideration of the operation of the other threshold issue raised by s 15, namely, the requirement under s 15(3) that the services are to be provided for at least six hours per week for at least six months for otherwise there can be no award under this head: Geaghan v D'Aubert [2002] NSWCA 260; (2002) 36 MVR 542. This was the third issue raised by the Council in respect of gratuitous care. In this regard, it was submitted that his Honour made no finding to support the threshold requirements. We will return to that issue below.

Did the primary judge err in his assessment of the extent of gratuitous care required? 132 The Council challenged his Honour's assessment of the extent of attendant care that the appellant required as a result of the accident. It placed particular reliance upon the fact that she had a pre-existing right arm and shoulder injury from which she had continuing restrictions. The main disability of which she complained in that regard was difficulty when pegging out the washing. There was also some evidence that her son had performed certain services, such as some cooking, prior to the accident. The Council also relied on: the appellant having suffered from depression, and, in particular, her reference to her son in that context being her carer; the fracturing of her right shoulder in June 2001; her son cooking for her before the subject accident; as well as her many other injuries over the years prior to that accident, the effects of which were said to be still continuing. 133 However, overall, the evidence of the appellant and her son was that, prior to the accident, she was coping with her domestic tasks notwithstanding the restriction she suffered as a result of her right shoulder injury, but that after the accident she was not able to do the heavy household tasks. Except to the extent that Dr Bodel did not consider that she needed any domestic assistance, there was no serious challenge to the appellant's ongoing medical disabilities due to her accident, nor to the fact that she required domestic assistance thereafter. The primary judge was entitled to accept the evidence of the appellant and her son in this regard. As we have indicated, there was some discrepancy between the evidence of each of the appellant and her son, but that evidence taken at its lowest established a case for the need for gratuitous services. That need was supported by the medical opinion of Dr Conrad who said that the appellant might need six hours per week of home care assistance. 134 The primary judge was in the best position to assess the evidence of the appellant and her son. Neither Dr Bodel nor Dr Conrad gave oral evidence and his Honour was dependent solely upon their reports. It is not unusual in such circumstances for a trial judge to accept the medical evidence which is consistent with the judge's own assessment of the witnesses. If a trial judge accepts a plaintiff's evidence as being essentially credible and reliable, it almost invariably follows that the judge will also accept the medical evidence supporting the plaintiff's case. The reverse also applies. There is no error in a trial judge adopting that approach. Indeed, it is usually the only approach that can be taken in those circumstances. 135 That does not mean that the trial judge must accept precisely what is asserted by a plaintiff or by the medical evidence that supports his or her case. The trial judge is required to assess the whole of the evidence. It is apparent that the primary judge did so in this case. We say that it is apparent that he did so because, as we have already indicated, there were differences between the evidence of the appellant and her son, particularly relating to an assessment of the hours of domestic assistance that were provided. There was also a difference in the hours of assistance that Dr Conrad assessed might be required, as compared to the evidence of the appellant and her son, and the finding made by the primary judge. His Honour did not fully explore or analyse those differences. 136 Nonetheless, there was no significant difference between the description of the tasks that the appellant said that she could no longer do because of the injuries resulting from the accident, and that her son had said that he had undertaken since the accident. In our opinion, having regard to those tasks, the assessment made by his Honour of eight hours per week was open on the evidence. It amounts to slightly more than one hour per day. Clearly, the tasks of which evidence was given would involve at least that amount of time to carry out on a weekly basis. 137 His Honour also had the advantage of hearing the significant attack that was made by the Council in cross-examination upon the appellant's claim having regard to her pre-accident history and in assessing her responses. Whilst this Court can assess that matter by reference to the transcript, full weight should be given to the advantage the primary judge had in hearing the evidence and observing the witnesses. 138 Before leaving this issue, some attention should be given to the question of the disability from which the appellant claimed she suffered as a result of her carpal tunnel syndrome. The medical evidence established that she was suffering carpal tunnel symptoms prior to the accident. She denied to Dr Bodel that she was suffering from those symptoms. His Honour did not deal with that denial. Nonetheless, we are not satisfied that it should have any significant impact upon the assessment of the need the appellant says she has had since the accident for attendant care services. It is apparent from the medical evidence that her symptoms were originally mild and did not require surgical intervention. That did not occur until after the accident. The appellant also said that after the decompressive surgery she could undertake more domestic tasks than before the surgery. 139 For these reasons, we are of the opinion that no basis has been established to interfere with the primary judge's assessment of the extent to which the appellant required and continues to require attendant care services relating to the injuries sustained by her in the accident. This conclusion determines the remaining issues raised by the Council in respect of gratuitous care services. However, specific reference should be made to two matters. The first relates to the threshold requirements under s 15(3). The second relates to a complaint made in the Council's submissions that the primary judge failed to reconcile the differences between the evidence of Dr Bodel and that of Dr Conrad.

The requirements of s 15(3) 140 Whilst it is correct to say that his Honour made no express finding in respect of the requirements imposed by s 15(3), it is apparent from the findings he did make that he found the section had been satisfied. We do not consider that there is any appealable error in failing to set out the statutory requirements and the specific findings in relation thereto if otherwise the findings made are sufficient to satisfy the section.

Failure to resolve differences between the medical experts 141 The Council also complained that his Honour failed to resolve the differences of opinion between Dr Conrad and Dr Bodel. We have already referred to their evidence above. Again, the primary judge's reasoning on this material is brief. However, for the reasons we have given, we do not consider that there is any error in his ultimate assessment.

An error in calculation 142 The Council also pointed out an apparent mathematical error in the primary judge's use of the multiplier, 208. Notwithstanding the use of the wrong multiplier, his Honour's calculation was correct in the sense that it reflected the use of a multiplier based on eight hours of care per week. No ground of appeal was raised in respect of this and the matter is mentioned only for completeness.

Conclusion 143 It follows from the reasons that we have given that the primary judge erred in determining the issue of liability in favour of the Council with the result that the appellant's appeal should be allowed and judgment entered in her favour. However, no error has been demonstrated with respect to his Honour's assessment of damages for gratuitous care with the consequence that the Council's cross-appeal should be dismissed. As the papers reveal some confusion as to the ultimate amount of damages determined by the primary judge, liberty to apply will be granted if the amount of such damages set out in the following orders are incorrect. 144 We would therefore propose the following orders: (a) Dismiss the Ordinary Summons for Leave to Appeal filed on behalf of the appellant on 30 May 2007.

(b) The respondent to pay the costs of that Summons except those costs relating to the preparation of the Summons itself including any affidavits filed and relating to the application for an extension of time, which costs are to be paid by the appellant.

(c) Extend the time within which the appellant may file a Notice of Appeal with Appointment up to and including 25 September 2007.

(d) The appellant to pay the costs of the Notice of Motion for an extension of time filed on 24 September 2007.

(f) Set aside the orders made by his Honour Judge Sorby on 28 November 2006 and in lieu thereof there be a verdict and judgment for the appellant in the sum of $165,178.20 to date from 28 November 2006.

(g) The respondent to pay the appellant's costs of the trial before Judge Sorby, the appeal and the Cross-Appeal.

(h) Liberty to the appellant to apply within 7 days of the date of these orders to vary the amount of the verdict referred to in order (f) above in the event that it does not accurately reflect the amount of damages determined by the primary judge. 145 GILES JA: I agree with the orders proposed by Beazley and Tobias JJA and with their Honours' reasons. 146 CAMPBELL JA: I agree with the judgment of Beazley and Tobias JJA.

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