Baker v Bunnings Group Limited

District Court of NSW|2020-05-08

Introduction

I have found no breach of the duty of care pleaded. In case I am in error, I will consider the question of damages. Damages issues are not straightforward in this case.
The parties' submissions as to damages were recorded in written submissions (as varied by oral submissions) and are set out in the following table. Head of damage Plaintiff Defendant $263,000-$329,000 (40% $43,000 (25% of a Non-economic loss to 50% of a most extreme most extreme case) case) Past out of pockets $2,782.35 (agreed) $2,782.35 (agreed) As charged by Mr Bradley Nil as previously Past lawn mowing from - allow $60 per week in provided by daughter September 2019 warmer weather and $60 before accident per month in cooler weather Future out of pockets $23,644.50 $5,000 (buffer) Past gratuitous domestic assistance $59,797.67 Nil Future gratuitous domestic assistance Nil Nil Future commercial assistance $287,190.41 $10,004.57 Contributory negligence Nil 50% $636,414.93/$702,414.93 $60,786.92 ÷ 2 = Total plus lawn mowing by $30,393.46 Mr Bradley in past

Non-economic loss

The claim is governed by the CLA.
Under s 16(1) of the CLA, no damages may be awarded for non-economic loss unless its severity is at least 15% of a most extreme case. In s 3 of the CLA, "non-economic loss" is defined as meaning any one or more of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.
The plaintiff had scarring as a result of her operations: see paragraph 4.2 of Ms Skibby's report and the photographs at Exhibit A page 67. The plaintiff submitted that the injury should be assessed at 40%-50% percent of a most extreme case. The defendant submitted that it should be 25% percent of a most extreme case. An assessment must be made of the severity of the non-economic loss percentage of a most extreme case having regard to the findings in relation to the plaintiff: Lloyd v Thornbury [2019] NSWCA 154 at [162]. An assessment under s 16 of the CLA involves matters of impression and estimation having regard to the plaintiff's injury and its consequences in the light of the evidence. It is effectively an evaluative assessment: Lloyd v Thornbury at [168]-[169].
The plaintiff was seriously injured in the accident. She spent six days in hospital. She had an open procedure. For a period of about three months she was unable to weight bear, totally or partially. She has suffered ongoing pain, restriction of movement and a loss of amenities of life by being unable to walk on uneven ground without danger of falling over and being unable to walk on the sand at the beach. She had the further procedure on 20 November 2018. She has residual operation scars. She sometimes uses a walking stick and has an altered gait. There is no evidence that the accident has caused any loss of expectation of life. Any loss in this regard was limited to the effects of the plaintiff's diabetes. The injury was limited to the plaintiff's left foot and ankle. Overall, the medical evidence establishes that the plaintiff has suffered a painful and restrictive injury which continues to cause her pain and likely progression of osteoarthritic changes in the future.
The plaintiff submits it is a very serious injury with ongoing restrictions and pain.
The defendant points to the plaintiff's ability to undertake many domestic tasks, to look after her grandchildren and to undertake holidays and other enjoyable activities.
Taking into account all the evidence and the factors I have referred to above, I assess the plaintiff's severity of non-economic loss as a proportion of a most extreme case as being 28%. This gives rise to a figure of 14% of the maximum amount that may be awarded for non-economic loss. The maximum amount is $658,000 from 1 October 2019: Civil Liability (Non-economic Loss) Amendment Order 2019. The figure of 14% of $658,000 is $92,120. This is reduced to $92,000 in accordance with s 16(4) of the CLA. I therefore allow $92,000 under this head.

Past out-of-pocket expenses

Past out-of-pocket expenses have been agreed by the parties in the sum of $2,782.35. I allow this sum.
A claim is made by the plaintiff for past lawn mowing/gardening expenses. There is an issue in relation to this head of damages.
The plaintiff gave evidence that she did the lawn mowing and gardening at her house prior to the accident: T59.27, T109.44 and T157.30. The plaintiff said that she had not returned to undertaking the lawn mowing/gardening since the accident: T78.20. She stated that her daughter Melinda did the mowing and gardening and in summer this could take up to two hours: T94.14. Since about September/October 2019, the plaintiff has paid a third party, Mr Bradley to do these tasks: T94.38.
Different evidence was given by the plaintiff's daughter Melinda in her oral evidence. Melinda confirmed that she did lawn mowing for her mother after the accident: T166.44. However, in cross-examination Melinda gave evidence that she undertook the lawn mowing and gardening duties at her mother's house prior to the accident for payment: T168.5-.34. She also gave evidence that she did the gardening for her mother before the accident: T169.17. Ms Baker gave evidence that she was paid about $50 by her mother before the accident for lawn mowing: T168.37. This was not paid every time but when she needed money she asked for it: T168.40.
There is thus a significant difference in the evidence of the plaintiff and her daughter, Ms Baker. The plaintiff's evidence obviously assisted her damages case. In my view, the daughter Melinda's evidence is more likely to be correct on this issue and I prefer it. Ms Baker appeared to be straightforward and direct on the issue and she had nothing to gain by the evidence she gave. Therefore, the position prior to the accident was that Melinda did the lawn mowing and gardening for about $50 per occasion but was not paid every time and this continued after the accident. What occurred therefore was a continuation of a domestic arrangement sometimes involving the payment of money. No additional domestic or commercial services were provided by Ms Baker to the plaintiff in relation to lawn mowing and gardening after the accident.
The evidence was that Mr Martin Bradley now did the gardening and lawn mowing and had done so from about September/October 2019. Ms Baker said that this was because both the plaintiff and she were "getting old": T169.25.
The defendant submits these paid services do not fall within s 15(2)(c) of the CLA. The plaintiff submits they do.
In my view, it was reasonable for the plaintiff to engage Mr Bradley to do the gardening/lawn mowing from September 2019 in the light of her injury and the other help provided to the plaintiff by Ms Baker. There was some suggestion that the payment could have altered from $50 to $60 per occasion. It was unclear when this change occurred and I will allow $60. Looking at the position from 1 September 2019 to May 2020, I would allow 27 occasions of lawn mowing/gardening assistance at $60 per occasion totalling $1,620. The number of occasions takes into account that different frequency is needed during colder months compared to warmer months. In my view, each of the requirements in s 15(2) of the CLA is satisfied. The fact Melinda Baker did the services prior to the accident is not decisive. The plaintiff cannot do them due to her injury in the accident. Melinda Baker is getting older and assists the plaintiff in other domestic tasks. A third party has reasonably been retained to provide them in those circumstances.

Future out-of-pocket expenses

The plaintiff claims numerous amounts for likely future out-of-pocket expenses.
One claim by the plaintiff was for future lawn mowing and gardening services. This could be considered either under a future out-of-pocket expense or for future commercial assistance. I will consider it here as a future out-of-pocket commercial expense.
The plaintiff gave evidence that in relation to gardening although she might pull out "the occasional weed" she has Mr Bradley now provide gardening services. I find that it is reasonable for the plaintiff to engage Mr Bradley to provide future commercial gardening and lawn mowing services, having regard to Melinda's involvement in assisting the plaintiff with gratuitous attendant care services in relation to cleaning, and the plaintiff's injuries as a result of the accident.
In relation to handyman matters, I allow a buffer of $1,000 in the future for occasional handyman tasks. I do not accept Ms Skibby's opinion that a greater sum is needed. I note the plaintiff's abilities as shown on page 28 of Ms Hammond's report. It is likely the plaintiff would have engaged a tradesman or handyman for more complex tasks even if the accident had not occurred. Also the plaintiff would have likely needed someone to assist her to provide such services from about age 80 even if she had not been injured.
In relation to Mr Bradley and future commercial lawn mowing/gardening, I allow $60 weekly for 16 weeks during the warmer weather: 16 x $60 = $960. I also allow $60 per month for the remaining eight months of the year: 8 × $60 = $480. These two amounts total $1,440. This amounts to $27.70 weekly ($1,440 ÷ by 52 = $27.70). Ms Skibby in her report allowed one hour a week for the future: paragraph 5.2.2 and paragraph 7.2. Ms Hammond in her report also supported the reimbursement of the cost of lawn mowing up to 20 sessions per annum: paragraph 4.2.5.
In my view, the amount that I have allowed above is consistent with the plaintiff's oral evidence which is more likely to be correct as to frequency. The amount allowed is slightly in excess of the amount recommended by Ms Hammond. I accept the evidence that the plaintiff would have real difficulty resuming lawn mowing and gardening duties: see paragraph 4.3.2 of Ms Hammond's report. This is consistent with the medical evidence. Ms Hammond states that she is currently paying $50 per session, but the plaintiff's evidence was $60 and I prefer the plaintiff's evidence. I accept Ms Hammond's recommendation to this being provided to age 80 at which point the plaintiff would likely have needed help in any event due to age and comorbidities. The plaintiff has had a number of problems with her back, shoulders and left knee and a termination of the activities at about age 80 is in my view appropriate.
I accordingly allow gardening and lawn mowing assistance in the future for 11 years. I thus award a sum of $12,301.57 under this head (multiplier 444.1 on the 5% tables x $27.70 weekly = $12,301.57).
In her report, Ms Skibby recommends substantial future care assistance for the plaintiff on a commercial basis: paragraph 7.2. This is considered further below. For the reasons given below, I do not consider on the evidence that the plaintiff needs commercial assistance in the light of the plaintiff's evidence and the evidence of her daughter except on a buffer basis. The plaintiff's daughter Melinda seems more than willing to provide the plaintiff with any domestic assistance she needs. The plaintiff's daughter appeared to be in good health. There was no evidence of her having any health issues.
Having regard to the age of the plaintiff's last two grandchildren living with her, and the plaintiff's evidence about her present abilities, I see no need arising from the accident for future childcare assistance. The plaintiff's grandchildren residing with her are now 12 and 13 years of age. The plaintiff mentioned no such need in her oral evidence. I agree with the opinion of Ms Hammond on this issue that no allowance for future childcare should be made. I reject Ms Skibby's opinion to the contrary in the light of the evidence.
It seems to be accepted that the requirements in s 15 of the CLA are different and separate from those in s 15B of the CLA, apart from the situation of common benefits in s 15B(10): White v Benjamin [2015] NSWCA 75 at [69]-[75] per Basten JA (with whom Meagher JA agreed). This is consistent with the defendant's submissions.
I therefore turn to consider the rehabilitation and treatment recommendations of Ms Skibby in paragraph 7.3 of her report and the equipment recommendations in paragraph 7.4 of her report.
Ms Hammond in her report comes to the view that other than in relation to podiatry and relevant shoes, the other matters are generally not recommended: report paragraph 2.1.2. I will consider each of the recommendations of Ms Skibby: 1. Dietician: in paragraph 7.3.1, Ms Skibby recommends the plaintiff seeing a dietician to assist in weight control as she is much less mobile as a result of her injuries. Ms Hammond does not support this: joint report transcript and report paragraph 2.1.2. Ms Hammond notes in the joint transcript that the plaintiff was previously seeing a dietician as part of diabetes management and it was reasonable for the dietician to address weight management in this consultation. I prefer the opinion of Ms Hammond on this issue. The plaintiff gave evidence that she was seeing a dietician prior to the accident. She was cross-examined in relation to her weight which showed that she was heavier on occasions before the accident. It is clear that the plaintiff needs ongoing dietician assistance from time to time as part of managing her diabetes. I do not consider that an amount for a dietician is reasonably caused by the plaintiff's injury in the accident; 1. Podiatrist: Ms Skibby makes recommendations about the plaintiff seeing a podiatrist: paragraph 7.3.3 of her report. Ms Hammond makes no allowance for this. Ms Hammond in the joint transcript defers to a podiatrist but notes that prior to the accident the plaintiff was seeing a podiatrist as part of her diabetes management. In my view, a lump sum should be allowed for this treatment contrary to the specific recommendations of Ms Skibby. This will allow a podiatrist to review the plaintiff where necessary relating to the foot injury. I would allow $500 under this head. This takes account of the fact that the plaintiff also consulted a podiatrist before the accident on diabetes issues; 1. Pool membership: Ms Skibby recommends an allowance for pool membership for 80 visits per year at $328 per year. Ms Hammond agrees with Ms Skibby's recommendation that the plaintiff should be able to access a heated pool environment where she resides: Exhibit A page 110. However, at T35.44, the plaintiff confirmed what she said to Mr Tisdell, that pool exercises were not beneficial as they tended to irritate the injury to her foot. In the light of this somewhat inconsistent evidence, and in the light of the opinions of the occupational therapists, in my view the appropriate way to approach the pool membership issue is to allow a lump sum amount of $500 for the plaintiff to utilise where she would find occasional visits to a heated pool of assistance, particularly if her condition progresses with more arthritis in the ankle; 1. Beach wheelchair: at paragraph 7.4 of her report Ms Skibby recommended the provision of a beach wheelchair. In the joint meeting, the two occupational therapists agreed that the purchase of a beach wheelchair was not necessary: Exhibit A page 105; 2. Orthotics and shoes: on page 8 of his report, Dr Powell notes that the plaintiff does have considerable stiffness at the joint and continued use of arch support orthoses will assist her and modified shoe wear may also assist her in mobilising. In the occupational therapists' joint conclave, both occupational therapists agreed with the medical opinion of Dr Powell and Ms Hammond deferred to medical opinion and podiatry opinion as to the frequency of replacement of orthotics. In his report, Dr Cromer expresses the opinion that the plaintiff's life expectancy of 19 years would be reduced by about four years because of her diabetes. I accept the opinion of Ms Skibby set out in paragraph 7.4 of her report relating to orthotics and the supply of shoes in the light of the opinion of Dr Powell. Ms Hammond does not disagree with this. Using a life expectancy of 15 years for the plaintiff, I arrive at the amount of $9,235.20 under this head (annual cost of orthotics and shoes: $864.98 ÷ 52 = $16.64 weekly. Using a multiplier of 555 for 15 years on the 5% tables times $16.64 = $9,235.20); 1. Bathroom modification: Ms Skibby supports a bathroom modification for the plaintiff for the reasons given in her report: paragraphs 7.4 and 8.6. In the joint consultation, Ms Skibby continued to support the modification (Exhibit A pages 106-107). Ms Hammond does not support it: Exhibit A page 107. It was not clear from the plaintiff's submissions whether this amount was claimed. In my view, Ms Hammond's opinion should be preferred on this issue. First, the plaintiff can currently transfer in and out of the shower over the sitting bath. There is no suggestion the grandchildren cannot use the sitting bath when required. In addition, the plaintiff has a further shower down a ramp off her garage which she used when she first came out of hospital. There does not seem to be any strong reason why the plaintiff could not use this shower now. I am not persuaded of the need for the bathroom modification in the light of these matters. Ms Hammond allows $700 for the removal of the shower screen door and for a vertical grab rail being installed on the bathroom wall. In my view, this is a means of assisting the plaintiff in the light of her limitations and should be allowed. I accordingly allow $700. 1. Physiotherapy: Dr Bodel expressed the opinion that the plaintiff would require some intermittent physiotherapy on an as needs basis: Exhibit A page 14. Dr Powell expressed the opinion that further physiotherapy was unlikely to improve the range of motion at the ankle and hind foot: page 8 of his report. The plaintiff told Mr Tidsell that physiotherapy was not beneficial as it tended to irritate her foot: T137.40. Dr Bodel noted in one report that the plaintiff has an increased risk of post-traumatic osteoarthritis: Exhibit A page 13. In his last report he was of the view that this would progress over time: Exhibit A page 16. Balancing all of the evidence on this issue, in my view there may be a need for some physiotherapy consultations on an as needs basis as the plaintiff's ankle becomes increasingly osteoarthritic over an uncertain period. As the position is somewhat unclear, I would only allow $500 as a buffer under this head. I allow $500. 2. Orthopaedic review/MRI arthrogram/arthroscopy/future surgery: in his various reports, Dr Porteous refers to the plaintiff reasonably needing orthopaedic specialist review, an MRI arthrogram and possible future surgery: Exhibit A page 40. In his 3 April 2020 report, Dr Bodel saw no indication clinically for any interventionist treatment including no definite need for surgery: Exhibit A page 14. Dr Powell saw no need for any further direct management: report Page 8. In my view, the opinion of the orthopaedic surgeons should be preferred to the opinion of Dr Porteous who is an occupational physician, on issues relating to orthopaedic review and orthopaedic procedures and surgery. I accordingly would allow nothing under this head. This equally applies to the corticosteroid injections under radiological guidance recommended by Dr Porteous: Exhibit A page 40. None of the orthopaedic surgeons recommend this; 1. Ongoing pain relief long-term: Dr Porteous recommends an allowance of $35 a month for pain relief for the plaintiff long-term: Exhibit A page 40. Dr Bodel makes no reference to this in his 3 April 2020 opinion: Exhibit A page 14. Dr Powell does support analgesic relief on an as needs basis: page 8 of his report. In my view, the allowance recommended by Dr Porteous is fairly modest in the light of the plaintiff's reported ongoing pain and I accept it. This totals $4,484.40 for the remainder of the plaintiff's life ($35 per month x 12 months = $420 ÷ 52 = $8.08 per week. Multiplier 555 × $8.08 = $4,484.40). 1. Occupational therapist assessment: Dr Porteous recommends the plaintiff needing an occupational therapist assessment of her function and the ergonomic requirements at home. This has been provided in the two occupational therapy reports. I would allow nothing under this head; 2. General practitioner visits: Dr Porteous would allow general practitioner visits two to four times a year in the long term: Exhibit A page 40. Dr Bodel recommends the plaintiff seeing her general practitioner every three months to monitor her progress: Exhibit A page 14. Dr Powell seems to contemplate general management of the plaintiff's condition. In my view, two annual visits at $110 per visit (Dr Porteous Exhibit A page 40) to the plaintiff's general practitioner are warranted for the remainder of the plaintiff's life to assess and manage her position. The plaintiff also requires regular management and review for her diabetes by her general practitioner. There would accordingly be some visits for this purpose where ankle problems could also be discussed. This amounts to $2,347.65 (2 × $110 annually = $220 ÷ by 52 = $4.23 weekly. Multiplied by a multiplier of 555 for the plaintiff's life expectancy of 15 years = $2,347.65).
Accordingly, in total I would allow an amount for future out-of-pocket expenses excluding gardening and lawn mowing in the sum of $19,267.25.

Past domestic assistance

The plaintiff makes a considerable claim for past gratuitous attendant care services and damages for the loss of the capacity to provide domestic services to her grandchildren. Sections 15 and 15B of the CLA provide as follows: "15 Damages for gratuitous attendant care services: general (1) In this section - 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 unless the services are provided (or to be provided) - (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive 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. 15B Damages for loss of capacity to provide domestic services (1) Definitions In this section - assisted care, in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously) - (a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements), (b) if the dependant is a minor (but without limiting paragraph (a)) - any care that is provided to the dependant by a person other than the claimant where - (i) the person is a parent of the dependant (whether derived through paragraph (a)(i) or (ii) of the definition of dependants in this subsection, adoption or otherwise), and (ii) the care includes the provision of accommodation to the dependant. dependants, in relation to a claimant, means - (a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises - (i) the person to whom the claimant is legally married (including a husband or wife of the claimant), (ii) a de facto partner of the claimant, Note. "De facto partner" is defined in section 21C of the Interpretation Act 1987. (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise), (iv) any other person who is a member of the claimant's household, and (b) any unborn child of the claimant (whether derived through paragraph (a)(i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time. gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid. (2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that - (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1) - the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants - (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. Note. Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant's dependants. (3) If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2)(c)(ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may - (a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2)(c)(i), disregard the week if assisted care was (or will be) provided during that week, and (b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2)(c)(ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period, but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total. (4) Determination of amount of damages The amount of damages that may be awarded for any loss of the claimant's capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved. (5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, a court - (a) may only award damages for that loss in accordance with the provisions of this section, and (b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity. (6) Circumstances when damages may not be awarded The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant's capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity. (7) A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant's loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity. (8) If a claimant is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, damages may not be awarded to the claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants while the claimant is a participant in the Scheme if (and to the extent that) - (a) the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and (b) the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant's dependants. (9) Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that) - (a) the loss resulted from an injury caused by a motor accident (within the meaning of the Motor Accidents Compensation Act 1999), and (b) an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act. (10) Damages may not be awarded if they can be recovered as damages for attendant care services Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that) - (a) the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and (b) the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant's dependants being provided with the domestic services that the claimant has lost the capacity to provide. (11) Determining value of gratuitous domestic services In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account - (a) the extent of the claimant's capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and (b) the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and (c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages."
Under s 15 of the CLA, gratuitous attendant care services damages are limited. No damages may be awarded to a plaintiff for gratuitous attendant care services unless the court is satisfied that there was a reasonable need for the services to be provided, the need has arisen solely because of the injury to which the damages relate, the services would not be provided to the plaintiff but for the injury and the services are provided for at least six hours per week and for a period of at least six consecutive months: s 15(2) and (3) of the CLA.
See also s 15B(2)(c) of the CLA. Section 15B also requires services in relation to children or grandchildren to be provided for at least six hours per week for at least six consecutive months. As stated above, White v Benjamin [2015] NSWCA 75 seems to hold that s 15(3) and s 15B(3) are separate requirements for the two different types of care.
As held by the Court of Appeal in Samco Pty v Wurth [2015] NSWCA 117 at [91] an assessment of past domestic services is to be made on a weekly basis and not an average over many weeks. Looking at a plaintiff's damages in terms of periods having regard to her medical condition is however permissible.
The two occupational therapists in their reports looked at past domestic services in terms of periods: see paragraph 1.4.1 of Ms Skibby's report and paragraph 2.2.1 of Ms Hammond's report. There are substantial differences of opinion in relation to these periods. The opinions have to be seen in the light of the plaintiff's evidence that she was in hospital for about six days (T72.37), was totally non-weight weight bearing for about six weeks (T73.21), and then was only partially weight bearing for a considerable period. The plaintiff stated that she had an arrangement with an entity called ComPacks who provided homecare for about six weeks (T88.30) and that her daughter Melinda moved into her house and stayed for about three months: T89.27. In the week after the plaintiff was in hospital, her daughter Michelle came to look after the grandchildren (T88.28).
The plaintiff gave evidence that after Melinda moved out, the plaintiff undertook more duties and Melinda came about once a month for a thorough clean where she stayed about two to three hours: T81.1-.10. A grand-daughter also helped for about 20 minutes doing vacuuming per week: T81.14; T157.1. This grand-daughter also provided other domestic services for a period of about two hours per day: T92.27. The granddaughter also provided domestic household services, however, prior to the accident: T156.27-.34 and T171.9-.27. As is discussed further below, the plaintiff's daughter Melinda suggested that the thorough clean she conducted after the accident took longer and was about one day or even possibly two days every month with other intermittent assistance from between an hour to three to four hours as required: T165.14 cf T174.18.
The issue for the court is whether the plaintiff has satisfied the requirements for intensity and duration set out in ss 15 and 15B of the CLA. That is, that gratuitous attendant care services or services to third parties who are dependents within s 15B were provided for at least six hours per week and for a period of at least six consecutive months.
The evidence establishes that Melinda was present in the plaintiff's house providing assistance for about three months after the plaintiff returned from hospital. Accordingly, the court must focus on the period from the day of the accident until about three months after 8 November 2017 (when Melinda came to stay), say to 8 February 2018. It must also consider what changed after Melinda left the plaintiff's house. It should also be noted that Ms Melinda Baker gave evidence that she was away from Port Macquarie for 12 weeks in 2018 and for six months in 2019: T174.1-.9.
I find, doing the best I can on the limited evidence, that: 1. The plaintiff's grand-daughter Magenta assisted the plaintiff with domestic tasks for about an hour per day prior to the accident: T156.18-.34. After the accident, the grand-daughter assisted for about two hours per day: T92.27; 2. The plaintiff's daughter Melinda assisted the plaintiff after she left the plaintiff's house. I will consider the degree of assistance below; 3. The assistance provided by the daughter after the accident with domestic and personal duties would not have been provided but for the plaintiff's injuries in the accident and it was reasonably needed; 4. The additional assistance provided by the plaintiff's grand-daughter Magenta after the accident would not have been provided but for the accident and it was reasonably needed; 5. The grand-daughter Magenta left the plaintiff's house at the beginning of 2018: T156.2; 6. There is no evidence whether anyone took up all of Magenta's additional assistance after the accident. However, I find that the plaintiff's other grand-daughter has undertaken the 20 minutes of vacuuming when Magenta left: T157.1. This was done by Magenta before the accident: T156.29.
I therefore consider the period from the day of the accident to 8 February 2018 and then the period after this date. The degree of assistance should be considered for the following periods: 1. 25 October 2017 - 30 October 2017: during this period the plaintiff was at Port Macquarie Hospital as an inpatient. She had three grand-children at home. There is no direct evidence as to who assisted in this period in relation to the grand-children. The plaintiff's daughter Michelle assisted when the plaintiff came home and she probably assisted when the plaintiff was in hospital in relation to the grand-children but there is no direct evidence on the issue, including as to the time of any assistance. Ms Skibby allows nothing for this period: Exhibit A page 86. Ms Hammond allows 40 hours for a week of childcare. I accept Ms Hammond's opinion in relation to this period which is logical and can be inferred from the later help provided and the ages of the children. Forty hours of childcare is allowed. However this does not satisfy the duration requirement under s 15B(2)(c) of the CLA. Unless those services were provided for a period of at least six consecutive months no allowance can be made. This will be considered further in the later periods; 2. 30 October 2017 - 7 November 2017: The plaintiff's daughter Michelle assisted in this period with care of the plaintiff, domestic duties and childcare assistance: T88-89 especially at T88.27. Ms Skibby's allowance for this period was 47.25 hours per week. Ms Hammond allows a lesser amount due to the ComPacks assistance. Overall, I prefer the detailed reasoning for this period in Ms Skibby's report, subject to an allowance for the ComPacks assistance. Taking into account the ComPacks assistance provided to the plaintiff, I would reduce the hours allowed to 40 hours per week, consisting of 10 hours of personal care, 20 hours of domestic assistance and 10 hours of childcare assistance/child transport; 3. 8 November 2017 (T89.17) - 20 December 2017: Ms Skibby allows 47.25 hours per week for this 6.29 week period. Ms Hammond allows a more limited period and amount taking into account the assistance of ComPacks, more limited domestic assistance and childcare assistance. The plaintiff gave evidence that she preferred the care of her daughter and her more thorough cleaning. I accept that evidence. I accept the evidence that Melinda was helping substantially in this period. I find that Magenta was providing about one hour per day of required additional assistance in this period. Having considered the two occupational therapy reports, I prefer the detailed opinion of Ms Skibby on this issue as being more consistent with the plaintiff's evidence and the severity of her injury particularly as she was totally or partially not weight bearing for over three months. I allow the amount recommended by Ms Skibby reduced to 40 hours per week because of the ComPacks assistance; 4. 20 December 2017 - 8 February 2018: There are different opinions of Ms Hammond and Ms Skibby in relation to the hours. Ms Skibby allows a greater number of hours of assistance and childcare than Ms Hammond. Magenta was still assisting in this period. Having regard to the plaintiff's evidence and the analysis of the two occupational therapists, I prefer the opinion of Ms Skibby for the period I have indicated as being more consistent with the level of the assistance required by the plaintiff due to her injuries. Thus I allow 28 hours per week for the period indicated as set out in Ms Skibby's report: paragraph 7.1 Exhibit A page 86; 5. 9 February 2018 - 19 November 2018: By this time on the evidence, the plaintiff's daughter Melinda had left the plaintiff's residence to return to her own residence. She only came around on an intermittent basis as the plaintiff required and undertook a "deep clean" once a month with some irregular additional assistance as needed: T165.14. The plaintiff was able to drive. Her two younger grandchildren were also assisting with miscellaneous small domestic duties. Magenta had left the plaintiff's house: T155.42-T156.2. The evidence establishes assistance by the plaintiff's daughter for about 2 hours per week. The younger grand-daughter provided very limited assistance with vacuuming per week. There is no persuasive evidence childcare was still provided or needed by anyone. No such need was mentioned by the plaintiff in her oral evidence. Accordingly, in the light of the above analysis, I am not satisfied that the intensity and duration requirements for attendant care services or care services to the plaintiff's grandchildren under ss 15 and 15B of the CLA are satisfied for this period. Even taking the plaintiff's daughter's evidence at its highest, an amount of at least six hours per week has not been established. I reject Ms Skibby's recommendations to the contrary. Contrary to the plaintiff's submissions, I prefer the evidence of the plaintiff and Ms Melinda Baker which was subject to cross-examination and was thus tested; 6. 20 November 2018 - 4 December 2018: The plaintiff had her plate and screws removed on 20 November 2018. It seems to me that the plaintiff would clearly have required additional assistance in this period and possibly childcare assistance. However, there was no evidence that the intensity or duration requirements under s 15B were satisfied or that the intensity and duration requirements under s 15 were satisfied. I would therefore allow no amount for this period. The figures set out in Ms Hammond's report should be accepted; 7. 4 December 2018 - date of trial: Again, the evidence did not satisfy me that the intensity and duration requirements of s 15 and s 15B were satisfied. Ms Skibby's recommendations for this period do not appear to be established on the plaintiff's oral evidence or Ms Melinda Baker's oral evidence. It seems on the evidence of the plaintiff that about one hour per week of assistance was provided gratuitously by Melinda in this period. On Melinda's evidence about two to three hours of gratuitous assistance was provided by her to the plaintiff per week in the period: cf T174.18. This does not satisfy the requirements of intensity and duration in ss 15 or 15B. I reject the evidence of Ms Skibby for the period from 4 December 2018 as being inconsistent with the oral evidence of the plaintiff and Ms Melinda Baker which I prefer as it was tested in cross-examination; 8. Conclusion: Whilst the intensity requirement of both sections is satisfied until 8 February 2018, the duration requirement is not satisfied for any relevant period of at least six consecutive months. The period of 25 October 2017 to 8 February 2018 is less than 6 months. Therefore the claims for past services under ss 15 and 15B of the CLA are rejected.

Future domestic assistance

Very substantial sums were claimed in the occupational therapist report of Ms Skibby for future domestic assistance for the plaintiff. Very limited future assistance is recommended by Ms Hammond which does not satisfy the intensity requirement in s 15: Hammond report page 33.
The plaintiff gave evidence that she could undertake most aspects of domestic duties presently, apart from more demanding cleaning duties: T79.10-.18. The plaintiff's evidence was that her daughter Melinda and her grand-daughter did the inside cleaning and vacuuming which she could not do: T78.37-T79.8.
The domestic assistance provided by the daughter Melinda was, according to the plaintiff, provided about once a month for two to three hours: T81.1-.10. The vacuuming was provided by the plaintiff's grand-daughter for about 20 minutes per week: T81.12-22. This was done by another grand-daughter prior to the accident. The plaintiff's daughter gave a higher estimate of all day once a month or possibly into a second day: T165.16 cf T174.18. The plaintiff's daughter appeared to have some difficulties providing accurate estimates of the hours of assistance: T164.37, T165.1 T165.12-.22. In my view, the plaintiff's estimate appeared to be more reliable and I prefer it.
Even if the plaintiff's daughter's estimate is accepted, in my view the gratuitous attendant care services provided by the plaintiff's daughter and grand-daughter do not satisfy the requirements of intensity of at least six hours per week set out in s 15(3) of the CLA. No damages may be awarded to a plaintiff for gratuitous attendant care services provided to the plaintiff unless the services are provided and are to be provided for at least six hours per week. Even allowing for the plaintiff's daughter providing say eight hours per month for a thorough or "deep clean" and occasional additional services when required (T165.20-.22) and allowing 20 minutes per week for vacuuming for the younger grand-daughter, the provision of likely future gratuitous attendant care services does not meet the intensity requirement of at least six hours per week.
Accordingly, in my view, no amount should be allowed for future gratuitous attendant care services as claimed by the plaintiff.

Future commercial assistance

It is clear that in order for a person to claim an award, whether by way of a buffer or not, for future paid commercial assistance, a need for that assistance arising from a breach of duty of care must be established by the plaintiff: Smith v Alone [2017] NSWCA 287 at [73-77].
I have already dealt with the plaintiff's need for future lawn mowing and gardening assistance above. In Smith v Alone, Macfarlan JA referred to asking the question whether commercial care was "necessary" (at [73]) and whether commercial care would be "needed in the future": at [75]. In Miller v Galderisi [2009] NSWCA 353, the Court of Appeal held that there was no evidence in that case that commercial care was necessary. The Court of Appeal in Galderisi at [18] referred to "a need for commercial domestic assistance likely to arise in the future".
In the present case, since a period of about three to four months after the accident, the plaintiff's daughter has been assisting the plaintiff with a thorough, or as the plaintiff called it a "deep clean" (T78.39) about once a month (T81.5). The plaintiff estimated the time it took her to be between two and three hours: T81.9. I have preferred that estimate.
As to whether there is a need in the future for commercial care as opposed to the plaintiff's daughter and grandchildren continuing with their assistance to the plaintiff, I am satisfied that it is very likely that the plaintiff's daughter Melinda and one or other of her grandchildren will continue to provide her with domestic assistance. Even after the grandchildren eventually grow up and leave home, I think it is very likely that the plaintiff's daughter Melinda will assist her. The plaintiff gave evidence that there was no imposition on her daughter Melinda in assisting her with the cleaning as all her children have left home and are independent and her daughter is able to assist her: T80.43 and T78.48. The evidence of the plaintiff's daughter Melinda was to a similar effect. She appeared very keen to assist her mother in any way possible, to her credit.
I find that the plaintiff's daughter, and grandchildren where necessary, will continue to provide domestic assistance as the plaintiff requests that or needs it. An exception is handyman assistance, which I have referred to above and for which I have allowed a buffer.
The defendant concedes, properly in my view, that Melinda's various absences from Port Macquarie in the past to visit her son, may warrant an allowance for future commercial assistance for a thorough monthly clean. Melinda may also be sick or may suffer injury herself. The defendant allows $10,004.57 as a buffer (calculated as three hours per month for a period of 10 years ($35 x 3 hours x 12 months = $1,260 per annum or $24.23 (rounded) per week) (5% multiplier for 10 years 412.9 x $24.23 = $10,004.57). I accept that such an award is justified. Ms Skibby allows for a higher hourly rate (see page 94 of her report). I allow the assistance proposed by the defendant at $50 per hour, allowing a slight reduction for the possibility that the care may not be needed as provisioned for. This arrives at the sum of $14,294.60 ($50 x 3 hours per month = $150 x 12 divided by 52 = $34.62 per week x 5% multiplier for 10 years 412.9 = $14,294.60).
I reject the plaintiff's submission that a higher sum is appropriate as recommended by Ms Skibby, in the light of the evidence from the plaintiff and Melinda Baker which I have referred to above and accept. Contrary to the plaintiff's submissions, Ms Melinda Baker and the grand-daughter seem to provide all the domestic assistance which the plaintiff presently needs in response to her injuries in the accident.
In my view, no additional need arising from the accident has been established for future commercial assistance.

Summary

Accordingly, I would allow the following amounts as damages. The reduction of 20% for contributory negligence needs to be applied to the figures: Non-economic loss $92,000 Economic loss Nil (None claimed) Past out of pocket expenses $2,782.35 Past lawn mowing/gardening $1,620 Past domestic care Nil Future out of pocket expenses $19,267.25 Future lawn mowing/gardening $12,301.57 Future gratuitous attendant care services Nil Future childcare services Nil Future commercial services $14,294.60 (buffer)

Disposition

For the above reasons, I make the following orders: 1. Judgment for the defendant. 2. The plaintiff is to pay the costs of the defendant of the proceedings as agreed or assessed. 3. Liberty to any party to make an application within 14 days to vary order (2) above. 4. The exhibits are to be retained for 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2020

Safety Act 2011(NSW)

Safety Regulation 2011(NSW)

Photographs

At pages 131 to 155 of Exhibit A are a number of photographs some of which the plaintiff stated were taken by one of her daughters. In relation to the photograph at Exhibit A page 131, the plaintiff stated that the pallet of goods to the left and the sign were not present on the day of the accident but the caged area with the gas bottles to the right of the photograph were present. The raised concrete area is clearly shown in the photographs. Darker lines apparent on the photographs show the expansion joints of the kerb on each side of the raised concrete area. The photograph at page 133 of Exhibit A shows the normal direction in which the plaintiff would usually go to leave the pedestrian entrance to the timber area of the Bunnings store. The photograph at page 138 of Exhibit A shows the altered area of the exit kerb of the raised concrete area closer to the pedestrian entrance to the timber section. This is also shown in other photographs. A closer look at the area of the kerb which is altered is shown in the photograph at page 148 of Exhibit A. The darker line which is an expansion joint near the kerb closer to the timber entrance is clearly apparent in the photograph at page 148. Caution, however, must be exercised in assessing photographs, "particularly as to perspective and distance": Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [54].

Consideration of the opinions in the report of Mr Dimopoulos

I have set out above a summary of the report of Mr Dimopoulos dated 28 February 2019: Exhibit A page 111.
In paragraph 7.1 of the report, Mr Dimopoulos states that his reasoning "is based on an adoption of the facts assumed". The facts assumed by him are set out in Part 4 of his report. A number of the facts assumed by Mr Dimopoulos are inconsistent with the evidence and internally inconsistent in his report: 1. In paragraph 4.4, Mr Dimopoulos has the plaintiff arriving at Bunnings on 20 May 2008 at about 9:30am. The accident occurred on 25 October 2017. The correct date is, however, referred to in paragraph 2.2 of Mr Dimopoulos' report. Why there is an inconsistent and incorrect date in paragraph 4.4 is unclear; 2. In paragraph 4.5 of his report, Mr Dimopoulos says that the plaintiff was holding a sample of a paling under her arm which was two and a half to three feet in length. Inconsistently, the plaintiff in her evidence in chief states that she was carrying three, three feet palings with her at the time of the accident: T64.12; 3. In paragraphs 4.8 and 4.10 of his report, Mr Dimopoulos assumes that the plaintiff realised there was a kerb present but she was not expecting that the surface was damaged and uneven. This is a significant assumption by him. This is inconsistent with the plaintiff's evidence. The plaintiff's evidence was effectively that she was not aware that there was a kerb or as she describes it "another step down". She thought that the level of the concrete island continued at the same level towards the store. She said that she did not visually see any change in height: T66.18-.32. The assumption is important as Mr Dimopoulos' report is primarily focused on the "damage", as he puts it, to the kerb, not the fact that there was a kerb there at all; 4. In paragraph 4.4 of the assumptions, Mr Dimopoulos assumes that the plaintiff was going to the Bunnings store to purchase some timber palings. The plaintiff's evidence was that she was going to Bunnings to have the palings which she had with her cut down: T63.15. I do not regard this as a significant difference but it is a further incorrect assumption by Mr Dimopoulos; 5. In paragraph 4.11, Mr Dimopoulos assumes that there were no obstructions in the plaintiff's way such as pallets of pool salt observed during his view in 2018. I have found that there was a pallet of pool salt present slightly off the island consistent with the photograph behind the Report in Part D2.1 in Exhibit 1. This however, due to its location, was not an obstruction to the plaintiff; see also paragraph 4.17 of Mr Dimopoulos' report.
Mr Dimopoulos relies heavily on what he describes as the "damage" to the kerb in his analysis. In paragraph 5.5, he states that the damage to the kerb was "not obvious from this angle". The reference to "significant damage" is made in paragraph 4.7 of his report. See also paragraphs 5.8-5.11. As stated, Mr Dimopoulos says in paragraph 7.1 of his report that his reasoning is based on the adoption of the facts assumed. A number of these are incorrect as indicated. In paragraph 7.2, Mr Dimopoulos states that the plaintiff stepped "onto a damaged and uneven section of a kerb causing her to misstep and fall". Importantly, in paragraph 7.13 of his report, Mr Dimopoulos states that his conclusion that the plaintiff was placed at risk of injury by the defendant in the circumstances, was based on the following: "the reasoning process leading to that concluded opinion consists in the pedestrian hazard created by the damaged kerb in an area where pedestrians would be expected to go, with insufficient means of warning." However, the plaintiff's clear evidence was that she did not realise there was a kerb at all not that she saw there was a kerb but did not realise that it was damaged. Having regard to the other island at the vehicular entrance, the edge was not damaged but deliberately cut away: See Exhibit 1 Part 2.1.3.

Obvious risk

In paragraph 12 of the Defence filed 20 December 2018, the defendant pleads that if there was a risk, which it denies, it was an obvious risk. Although no specific reference is made in the Defence, this appears to be a reference to ss 5F, 5G and 5H of the CLA. These sections were relied on by the defendant in its written submissions.
Sections 5F, 5G and 5H of the CLA provide as follows: "Division 4 Assumption of risk 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (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 gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to 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 a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if - (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection."
In my view, any reasonable person in the position of the plaintiff on the day of the accident, would have been careful where they were walking in the carpark and its surrounds. In considering whether the risk was obvious, I take into account the photographs (while exercising care in reviewing them), the evidence of the plaintiff and the evidence of the defendant's witnesses as to their observations and the history of falls known to them. In my view, any reasonable person exercising care for their own safety, and having stepped up onto the island, would be carefully looking for a step down.

Causation

The principles in relation to causation which are applicable under the CLA are set out in ss 5D and 5E of the CLA which are as follows: "Division 3 Causation 5D General principles (1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent - (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
Therefore, the plaintiff has the legal onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings. I refer to the relevant principles in Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [18] and Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]. As has been held by the High Court, the determination of factual causation under s 5D of the CLA involves the application by the court of the "but for" test of causation. This involves a determination that in accordance with the section, negligence was a necessary condition of the occurrence of harm. That involves a determination on the balance of probabilities that the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: Strong v Woolworths Limited, above, at [18]. In the present case, that involves a determination whether but for any breach of duty of care, any loss or damage suffered by the plaintiff would not have occurred. There was no suggestion in the submissions made that the present case was an exceptional one for the application of the approach referred to in s 5D(2). See Lloyd v Thornbury, above at [82].

Contributory negligence

The defendant has pleaded contributory negligence against the plaintiff: paragraph 13 of the Defence. The particulars of contributory negligence relevantly include a failure to take adequate care for the plaintiff's own safety, failing to maintain any or any proper lookout, failing to observe her surroundings and failing to perceive and take steps to avoid an obvious risk.
Sections 5R and 5S of the CLA provide as follows: "Division 8 Contributory negligence 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose - (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
In Lloyd v Thornbury, above, Gleeson JA stated as follows at paragraphs 92-94: "92. The question of whether a person has been guilty of contributory negligence is to be determined objectively - whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [54] (McColl JA); see also at [94] (Basten JA, Emmett JA agreeing). 93. Section 5S provides that, when apportioning responsibility, a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence. 94. The principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury: s 5R. Accordingly, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk: Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241 at [14]- [15] (Basten JA)."
Accordingly, an analysis has to be made objectively whether the plaintiff has taken that degree of care for her safety that an ordinary reasonable person would take in the circumstances. This involves the analysis set out in ss 5B and 5C of the CLA. The existence and extent of a plaintiff's contributory negligence is, according to Gleeson JA, to be assessed by reference to the risk of harm which is the subject of the plaintiff's claim for damages in the light of the precautions that a reasonable person in the plaintiff's position would have taken against that risk.

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