Barcos v Fairfield City Council

District Court of NSW|2022-10-07

Introduction

The plaintiff sues the defendant Council in negligence, as the occupier of land being the road surface of Hill Street Cabramatta.
The Defendant was as at material times the road authority for Hill Street, and any duty it owed to the plaintiff as a pedestrian utilising the road was in that capacity.
The claim falls to be determined by reference to first, the statutory non feasance immunity contained in section 45 of the Civil Liability Act NSW 2002 ("the CLA"). If that special protection is overcome, then the proceedings are to be determined by common law principles of negligence as explained in Brodie v Singleton ("Brodie") and Ghantous v Hawkesbury Council (2001) 206 CLR 512 ("Ghantous"), as modified by the CLA.

Facts

On 11th February 2019 at about midday, the plaintiff was with her husband. They parked about a block away from Hill Street in Hughes Street. They then walked towards Hill Street along the footpath of Hughes Street and turned right onto the footpath of Hill Street.
The plaintiff was on her lunch break from TAFE, and intended to make a purchase in John Street.
There were pedestrian crossings on Hill Street at the Hughes Street and John Street intersections.
Rather than availing herself of either pedestrian crossing, the plaintiff crossed Hill Street at a point opposite Dutton Lane. She walked towards the western corner of Dutton Lane and Hill Street. Dutton Lane is a one way exit for vehicular traffic from the carpark situated behind the shops fronting Hill Street (see Ex D2 p.231; Ex P1, p.27, 332,327)

Section 45, Civil Liability Act

It is convenient to consider the plaintiff's case by reference to specific defences pleaded by the defendant, as certain of them, if established, are fatal to the plaintiff's claim.
Section 45 of the Civil Liability Act ("CLA") is at the forefront of these sections.
Section 45 is in the following terms: "45 Special non-feasance protection for roads authorities (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."
At the outlet it is important to note what is required to be established by the plaintiff in order to defeat the protection afforded by s 45, is that the knowledge of the risk concerned must be "actual" knowledge. Thus, constructive notice is insufficient. Further the actual knowledge must relate to the "particular risk" which has materialised.
In Eddy v Goulburn Mulwaree Council [2022] NSWCA 87, Kirk JA (with whom Bell CJ and Gleeson JA agreed) considered s 45. His Honour discussed the concept of "particular risk" where it appears in the section. His Honour stated: "Again, in my view, in general the risk should be characterised with greater specificity than that which is required for the purposes of the breach analysis.[70] As indicated above, as a matter of text and context the particular risk spoken of in s 45 must be a manifestation of a kind of risk identified for the purposes of s 5B, and commonly will be a narrower, more particular risk than that which is identified for the forward-looking purposes of s 5B. The word "particular" must be given work to do. The question is how much work.[73] That does not require that the authority know of every detail of the risk. In the Goondiwindi situation there can be no doubt that the council in question had a real chance to respond to the risk of harm (and had in fact done so) regardless of whether it knew precisely how many potholes there were, exactly what size they were, or whether it knew of the existence of the particular pothole that caused the claimant's injury. It knew that there was a risk of harm of a particular kind at a particular location.[81] What is necessary is meaningfully to capture the practical reality of the risk which came home, such that the risk of harm which led to the injury to the claimant was a risk that the roads authority was already actually aware of at the time of the incident in question. The specificity of the identity of the location and of some particular risk (beyond that roads can deteriorate, or be dangerous, or the like) will be relevant.[83] That understanding reflects the apparent purpose of the provision, which is to limit liability of roads authorities for liability arising from omissions unless they have actual knowledge of the particular danger, and thus have had some opportunity to respond. It should be noted that it is not necessary to undertake some assessment of whether or not there was in fact sufficient time or resources to respond to the prior knowledge of the risk. The notion of having been put on notice so as to have had an opportunity to respond is relevant as a purposive consideration influencing the level of characterisation of risk to be adopted. It is not a legal test. Those are the sorts of issues which may be involved in the separate question of assessing whether any claim in negligence can be made out.[84]"

The Occasions Alleged of Council's Actual Knowledge

It was suggested by the plaintiff that there were two occasions upon which Council, via its relevant officers, had actual knowledge of the particular risk which manifested itself in this case. The first time was when the Council's Environmental Standards Officers inspected the works, including the asphalt inlay, for the purposes of issuing an Occupation Certificate.
It was not disputed that an inspection of some kind must have occurred at a time close to completion of the works in 2013, when the Occupation Certificate was sought and obtained.
What the plaintiff has failed to prove however, is whether any depression in the bitumen was evident in 2013. To the contrary, in my view, it is highly unlikely that there was a depression evident immediately after the works were undertaken and the pre Occupation Certificate inspection took place.
No doubt cognisant of this difficulty, the plaintiff relied upon the fact that Mr Arunasalam agreed that saw cuts in bitumen sometimes sink. As I understood the submission, it was suggested that in these circumstances the Environmental Officers had actual notice of the need to regularly monitor that segment of road for sinkage in the asphalt.
I do not accept this argument. To my mind this contention is quite inconsistent with s 45, as explained in Eddy. The section is concerned with particular risks, not potential risks, that is to say risks which may or may not materialise in the future.
The second occasion upon which the plaintiff contends that the Council had actual knowledge of the depression in the road surface was at the time when it was inspected by council officers, during their regular inspection of the council's roadways. The Council Asset Maintenance program required that all of its extensive road network be inspected every four years.
The existence of this inspection policy, and the assumption that such an inspection of Hill Street did in fact take place, does not in my view assist the plaintiff. This is so as: 1. There is no evidence of when the inspection of the relevant portion of Hill Street took place; 2. and as a consequence, there is no evidence of the state of the relevant bitumen segment at the time of the inspection.
Mr de Merrick of counsel, who appeared for the plaintiff, attempted to overcome this problem by reference to Google Maps images which are quite indistinct, but seem to show some discolouration in a segment of the roadway, which may have been consistent with the bitumen having commenced to subside in March 2017 (Ex P1 pp 332-333).
Even on the most generous interpretation of these Google Maps images, I do not believe that they can establish actual knowledge of Council Officers who inspected Hill Street required by s 45. The Google Maps images do not overcome the plaintiffs difficulties to which I have earlier referred, as it is unknown when this inspection took place, and it is impossible to determine what the dimensions of any subsidence in the bitumen was at the time of impact.
There are to my mind further reasons as to why regardless of when the inspection took place, the relevant Council Officers were not seized of actual knowledge of the particular risk which materialised.
This is so as the Council's Asset Maintenance Plan did not call for any intervention to remedy the depressions in the road surface in existence at the time of the plaintiff's fall. Definitionally therefore, no intervention would be required prior to that time.
Thus, in my view, a Council Officer who saw the depression sometime prior to the plaintiff's fall, would realise that the subsidence existing in the road surface did not meet the Council's required criteria for intervention. As such, that officer would in my view not have "actual knowledge" of the "particular risk" which has materialised. To the contrary he or she would merely notice an imperfection on the road surface which did not pose a risk, and which did not warrant intervention.

Conclusion on s 45

For these reasons I consider that the proceedings are not maintainable against the defendant council as a roads authority pursuant to provisions of s 45 of the CLA.

The Potential Liability of the Defendant at Common Law, as Modified by the CLA

Notwithstanding this conclusion, as other matters by way of defence were argued before me, I shall now move to consider certain aspects of the defendant's contentions in support of the proposition that absent the protection of s 45, the Council would nonetheless not be liable to the plaintiff in negligence. As these contentions are unnecessary to be determined by me, I shall deal with them in a more truncated manner, than the issues might otherwise have warranted.
As I have indicated, Mr Glascott of counsel who appeared for the defendant, submitted that even if his client was not protected by s 45, the defendant nonetheless was not liable to the plaintiff in negligence
At the forefront of this contention was his reliance on what fell from the High Court on the duty of care of roads authorities in Brodie v Singleton Shire Council (2001) 206 CLR 512. He relied particularly on the judgment of Callinan J where his Honour stated: "There was no concealment of the difference in height. It was plain to be seen. 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. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level."[355]
He also referred me to the judgments of Gleeson CJ at [8], Gaudron, McHugh and Gummow JJ at [163] which have a similar effect.
Reliant on this authority the Council argued that it was under no legal obligation as a road authority to warn of, or repair, the depression. This was submitted on the basis that: 1. The depression in the asphalt was a ubiquitous irregularity in the road pavement surface which did not pose a danger in the nature of a "trap" disguised from view, and 2. The depression was an obvious risk of a kind which was not concealed, was open to view by pedestrians.
The NSW Court of Appeal has held that minor footpath discrepancies do not render an occupier liable in negligence for failure to repair. To similar effect in 2021 Schmidt J held the Council was not liable in negligence for a failure to remedy a 12mm lip in a pedestrian crossing (Holland v City of Botany Council [2017] NSWSC 1120 at [78], [147]).
I will briefly turn to appellate authority.
In Bruce v Apex Software Pty Ltd [2018] NSWCA 330, the Court of Appeal held that an aged care home was not liable in negligence for failing to repair a 10 to 20 millimetre difference between a concrete slab and brick pavers in the main entranceway of an aged care facility. This was because the difference in heights was per Meagher JA: "readily apparent, both from the different surface materials and their colouring. The fact of a difference in the levels of the two surfaces was also obvious to anyone giving some attention to the surface on which they were walking. Whilst the extent of the difference in levels at any point may have been difficult to determine, the fact of the difference remained obvious and recognisable as something which ordinary life experience and common sense showed must be avoided or accommodated…" (Leeming and White JJA agreeing) at [27])
Likewise in Council of the City of Sydney v Bishop [2019] NSWCA 157 Macfarlan JA (Basten JA agreeing) stated: "In my view the risk of a person such as the respondent tripping on the kerb was an obvious one for the purposes of s 5H of the Civil Liability Act. As a consequence the appellant did not owe a duty of care to warn the respondent of it. As in Ghantous v Hawkesbury City Council, there was a "discernible difference" between the kerb and the lower level and "[t]here was no concealment of the difference in height. It was plain to be seen". Further, as the extracts from that case quoted above indicate, occupiers are entitled to assume that people will take care not to trip on the multitude of obstacles, both large and small, that are likely to be in their paths in walking from one place to another. Pedestrians are not entitled to assume that they are traversing "a level playing field" (ibid at [355]). (emphasis added) There was nothing in the circumstances of the present case that rendered it necessary for the appellant to draw further attention to the step constituted by the concrete kerb. It was a hazard of an ordinary character that a person walking through the pedestrian precinct could be expected to encounter and could be expected to watch out for. A contrast can be drawn with a situation such as that in Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 at [66]-[69] where the plaintiff tripped over a low but raised platform which the Court found that a pedestrian would not ordinarily expect to encounter in a hotel lobby".
In Rankilor v City of South Perth [2016] WASCA 29, the Western Australian Court of Appeal (Buss, Newnes and Murphy JJA) unanimously dismissed the plaintiff's appeal from judgment in favour of the Council for a trip on a paver edge which had been raised about one inch by tree roots.
The plaintiff's liability expert expressed her opinion that differences greater than 5mm are unsafe and require repair. I reject this opinion which in my view does not accord with the authorities as to the obligations of road authorities.
Mr Glascott went on to contend that it could not be said that the depression in the road was "a trap". I also accept that contention. He drew my attention to Hastings Council v Giese [2003] NSWCA 178; (2003) 127 LGERA 109 at [21], where 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, and qualified that proposition by stating: "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."
The Council further submitted that the expectation that road users will exercise reasonable care for themselves has a special significance in this area of legal discourse as it is an integer duty owed by a road authority to road users. This is so as the road user's duty to exercise reasonable care for their own safety is a specific element in the scope of the duty of the road authority. This was made clear by the High Court in RTA v Dederer [2007] HCA 42 at [45] at [47] where Gummow J stated: "the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe "for users exercising reasonable care for their own safety". The essential point is that the RTA did not owe a more stringent obligation towards careless rod users as compared with careful ones. In each case, the same obligation was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by the road users themselves" (at [47]).
Mr Glascott went on to analyse the authorities which establish that the need to keep a watch for traffic did not relieve a pedestrian of the need to look where they were going. At the end of the day, I did not understand the plaintiff to contend otherwise.

Was Hill Street a "High Pedestrian Traffic Area"

Indeed, in oral submissions Mr de Merrick made a concession that as a general proposition, it is not negligent for a council to fail to repair every pothole or sunken area in roads (see TP 123.14 - 17). He submitted that what distinguished the present case from this general proposition, was that the area in Hill Street where the plaintiff's fall occurred was a "high pedestrian traffic area". This reference was a reference to a signpost on the Hill Street footpath adjacent to the fall site which stated as such.
The plaintiff's argument, as I understood it, was that the effect of the sign was to designate that Hill Street itself was a high pedestrian traffic area, and it thus became the duty of the council to remedy imperfections in the road surfaces to a standard to be equated to Council's requirements in respect of foot paths or pedestrian crossings, rather than the standard imposed by its policies, and the common law in relation to road surfaces.
I do not accept this contention, nor do I accept that Mr de Merrick's contention found some support in Mr Arunasalam's evidence at TP 101 - 102.
In fact, as Mr Arunasalam said, the sign which gave rise to the plaintiffs submission was not a sign directed to pedestrians inviting them to cross the road, rather it was a sign urging motorists to slow down in the area, to take into account the high likelihood of pedestrians being on the footpath. Mr Arunasalam expressly denied the proposition that the designation was designed to warn drivers that many pedestrians will be crossing Hill Street at about the point adjacent to the sign.
I do not accept that the footpath sign upon which the plaintiff heavily relies, places a duty on the Council to attend to the road imperfections in the present case beyond its duty at common law as a road authority. As such I do not accept that the imperfection in the road surface with which I am concerned fell outside of the general proposition to which I have referred, and which was accepted by the plaintiff.
For these reasons I accept the defendants' submission that the council did not owe a duty of care at common law to the plaintiff to repair the Hill Street road surface in the present circumstances.
The defendant raises further defences upon which I will touch briefly.

Section 5F, Obvious Risk

The defendant further submitted that the sinkage in the bitumen inlay was an obvious risk for the purposes of section 5F of the CLA. I agree with this contention. As I have indicated, the plaintiff was looking forward in addition to checking for traffic as she crossed Hill Street. It is thus clear to me that she could have readily seen the depression, had she paid attention. The difference in levels of the bitumen would have been obvious to a reasonable person in her position.
As a consequence, the council is under no obligation to warn of the risk.

Section 43A, Special Statutory Power

Finally, the defendant asserted that the plaintiff's allegations against it attract the operation of section 43A
Section 43A of the Civil Liability Act NSW 2002 relevantly provides: "43A Proceedings against public or other authorities for the exercise of special statutory powers (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power - (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44".
The defendant submitted that each of the allegations of failure to repair the road surface of Hill Street, involves the doing of "road work" or "traffic control work" which only a road authority could perform (see ss. 71, and 87 of the Roads Act 1993 (NSW)). These powers are "special statutory powers" by dint of the fact they are "of a kind that persons generally are not authorised to exercise without specific statutory authority": see section 138, and sections 114 and 115 of the Roads Act (1993) NSW.
The Council contended that s 43A was attracted to the alleged (non) exercise of these powers. In so doing, it referred to Wells v Council of the City of Orange (No 2) [2017] NSWSC 510: "An analysis of the power to "carry out traffic control work" can be found in Roads and Maritime Services v Grant [2015] NSWCA 138 at [31] - [32]. It was also considered in Curtis v Harden Shire Council [2014] NSWCA 314 where Basten JA said at [254]:"254 ... It was submitted that the Council was exercising powers as a landowner. Attention was also drawn to the possibility that the use in s 43A(2)(b) of the term "specific statutory authority" might invite a comparison with powers exercised under some more general statutory authority. However, these factors have no direct application in the present case: the prohibition on any person installing prescribed traffic control devices combined with the requirement for statutory authority to undertake such an activity, placed the grant of authority for such activities squarely within the concept of a "specific statutory authority", as used in s 43A(2)(b)." For those reasons, whether by way of "carry out road work" or "carry out traffic control work", the defendant's power to close Jilba Street and deploy barriers and signs for that purpose was a "special statutory power" as that expression is defined under s 43A(2) CLA. Accordingly, I accept that the provisions of s 43A CLA apply to the facts of this case."
The Council contended that it was the plaintiff's onus to prove that the requisite elements and standard under s 43A have been satisfied in order to prove her case in liability: see Mansfield v Great Lakes Council [2016] NSWCA 204; 217 LGERA 317 per Basten JA.
The Council in its submissions further noted that s 43A imposes a higher threshold for the plaintiff to satisfy than that which applies to negligence generally.
In that regard it referred to Roads and Maritime Services v Grant [2015] NSWCA 138, where Basten JA stated: "The test to be applied is, as noted in Curtis, [15] grammatically awkward. There are, three separate elements to the test which need to be identified. First, the requisite assessment of unreasonableness is to be made by an hypothetical reasonable public authority: while the court must make the assessment, it must do so by reference to the approach properly taken by such an authority. The significance of that element is that the exercise must be undertaken having regard to the limits beyond which a person (such as an authority) having necessary expertise in traffic engineering would not step. "Secondly, the test is formulated in the negative. By contrast with s 5B(1)(c) of the Civil Liability Act, it is not satisfied by evidence of what a reasonable traffic engineer would have done as a precaution against an identified risk. Rather, it is only satisfied by proof that no traffic engineer acting reasonably would have failed to take the precaution identified by the plaintiff. That is, accepting that there will be a range of views amongst reasonable traffic engineers, the omission must be such that no person with the requisite expertise could properly consider the omission to be reasonable. The fact that a high threshold is being prescribed is revealed by the double negative, "so unreasonable that no authority … Thirdly, the section reformulates the standard by which a breach of duty is to be judged. Once the section is engaged, the plaintiff will have to establish negligence beyond the statutory threshold in order to succeed. [16] An assessment of the relevant evidence in the present case demonstrates that the plaintiff failed on any view to establish that burden. (Indeed, it may be doubted whether the evidence established breach according to the ordinary standard identified in s 5B.)"
The Council contended that its failure to carry out the repair work was not so unreasonable that no reasonable authority could consider the failure to be a reasonable exercise of the Roads Act powers. I accept this contention. Indeed, in my view, the contention must be correct where the decided cases have emphasised that such slight differences in footpaths, where the difference is not obscured or concealed so as to constitute a "trap", are normal tolerances within footpaths and to be expected in everyday life (see Brodie; Ghantous v Hawkesbury City Council per Callinan J at [355]; Gaudron. McHugh, and Gummow JJ agreeing at [167]).
In my view the same principle applies a fortiori to road surfaces.
I thus accept the defendants contention as to the operation of s 43A.

Damages

Having so concluded, it is strictly unnecessary for me to decide questions of loss and damage, though it is appropriate for me to do so (Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339 at [64] - [65]). As findings on damages issues are unnecessary on my reasoning, I shall express a view on them in a more abbreviated manner than may otherwise have been appropriate.

Non-economic loss - section 16 CLA

The assessment of non-economic loss includes an assessment of the degree of the "loss of amenities of life" (which is related to the injury and related disability(ies)) and "pain and suffering" caused by the negligence (see s.3 CLA definition of "non-economic loss").
The plaintiff twisted her right ankle in the fall. It caused a tear of a ligament which was successfully repaired by syndesmosis surgery.
The right ankle injury is described in the orthopaedic conclave report by Dr Maxwell as: "a twisting injury to the right ankle…The injuries sustained were a partial tear of the anterior inferior tibio-fibular ligament and a sprain of the posterior tibio -fibular ligament without division of the fibres…It was therefore a stable syndesmosis injury which is usually treated conservatively…[in the MRI of 8/4/2019]…" (see conclave report p.2).
The plaintiff suffered pre-existing osteochondral defects in both ankles which were not rendered symptomatic in the accident. Dr Maxwell's opinion in the conclave report at pp.3.4 is: 1. "The bilateral medial talar dome osteochondritis lesions are long standing developmental variants which were asymptomatic both before and after the subject incident"; 2. Dr Maxwell doesn't consider the accident had any affect on the underlying osteochondral lesions…".
The osteochondral defect in the right ankle was debrided in the surgery (as both Dr Gehr and Maxwell note) however Dr Maxwell comments that it did not change in appearance on later MRI "indicating the chronic nature of the lesion" (p.60).
Dr Maxwell noted, "Dr Visawanathan stated in his letter to the GP on the 14/6/2019 that the left ankle was asymptomatic and he again stated that the left ankle was asymptomatic in a letter to the GP on the 22/2/2021" (Ex P1 p. 59). The defendant contended that if the left ankle was painful due to favouring the right ankle after the surgery in September 2019, as the plaintiff suggests in the submissions, this discomfort was temporary and had disappeared by 22 February 2021. I agree with this submission.
The plaintiff agreed the pain in her right ankle comes and goes, as she told Dr Edwards (Ex D1, Dr Edwards report p.3)
To the extent the left ankle was involved in the fall, there was no initial complaint and no continuing symptoms (see Dr Maxwell's comments in conclave report at pp.2, 4 agreed by Dr Gehr at pp.4,5).
The left ankle is asymptomatic which is no doubt why the plaintiff has refused surgery in relation to it.
In the conclave report there is general agreement as to the present condition of the plaintiff's right ankle.
Both doctors agreed that the plaintiff does not need physiotherapy because the lack of atrophy indicates "she is using her left leg relatively normally" (Ex P1, p.61).
They both noted that "while attending her GP for other conditions after the surgery she made no complaints in relation to her ankles" (Ex P1 p.61).
Both doctors agreed that the prognosis for the syndesmosis injury is good.
Dr Gehr says the plaintiff does not need any treatment other than "one or two appointments with the orthopaedic surgeon" (Ex P1 p.61, question 6).

Psychiatric injury

There was disagreement between the psychiatrists as to whether the plaintiff suffered "a persistent depressive disorder" as a result of the accident. Dr Samuell's concluded she did not. Dr Khan expressed the opposing view.
I prefer Dr Samuell's opinion.
It is clear from the medical records that the plaintiff was accustomed to making clear her symptoms as to both physical and psychological matters in her frequent attendances on medical practitioners. When attending upon those medical practitioners, the plaintiff made no reports of depressive symptoms after the accident, a factor which both Dr Samuell and Dr Khan said was significant.
Dr Khan based his opinion on the plaintiff's reports to him in a single consultation. He did not test the validity of the plaintiff's reports by analysing her medical history.
This observation is not intended to be critical of Dr Khan. He did not have any medical treatment records post injury except for a few related to the physical injury. He stated that he had been given limited documents (TP 80.30).
In my opinion, Dr Khan was necessarily limited in assessing the plainitff's presentation in consultation without knowing the extent of her previous psychiatric history, as he conceded (TP 80).
The history which the plaintiff gave to Dr Samuell was that she was not affected psychologically as a result of her fall (T83.34). This he concluded was consistent with the GP records which showed no psychological complaints after the fall despite numerous and varied complaints about other symptoms.
In summary, I prefer and accept Dr Samuell's opinion that the plaintiff did not suffer a persistent depressive disorder as a result of her fall.

Assessment of percentage of a most extreme case

The defendant submitted the appropriate range was between twenty to twenty two percent (20% to 22%) of a Most Extreme Case ("MEC").
This, it was contended, was the appropriate range on the basis that the pain in the right ankle is intermittent and non-existent in the left ankle. The contention as to the appropriate ranges was also put forward on the basis of a finding of no psychological injury from the fall.
The defendant directed me to cases in support of its contention as to the appropriate range. They referred me to: Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 at [26], State Rail Authority of NSW v Chu [2008] NSWCA 14, Sutherland Shire Council v Major [2015] NSWCA 243 at [49], George v Lifese Steel Erections Pty Ltd [2003] NSWSC 1146, Penrith City Council v Parks [2005] NSWCA 201, Coleman v Barratt [2004] NSWCA 27 and Seage v NSW [2008] NSWCA 328.
The plaintiff contended that non-economic loss should be accepted as constituting 29% of the MEC. I believe that this is excessive.
To my mind the authorities to which I was referred by the defendant suggests that the range as put forward by the defendant is appropriate.
I find non-economic loss should be assessed at 22% of the MEC.

Future and Past Economic Loss

The plaintiff's economic loss claim, both past and future, was predicated on the fact that she was at the time of the fall, in her first year of a TAFE Commercial Cooking class, and that upon its competition, she would obtain employment as a chef.
The defendant contended that the plaintiff had not lost any earning capacity, either past or future.
In assessing the plaintiff's case on economic loss, it is important to note that the plaintiff had never worked in all of the time in which she had lived in Australia. She immigrated to Australia from Uruguay in 2009. In addition, she has suffered from multiple physical and psychological ailments. She also has very limited English language skills.
The evidence which the plaintiff gave concerning the offer of a job as a chef on completion of her TAFE course was to my mind was unsatisfactorily vague. She did not even name the restaurant which made the offer. I place no store on that evidence.
In addition, in relation to past economic loss, there was evidence that the plaintiff refuses to be vaccinated for Covid-19. This fact in my opinion leads to a conclusion that in any event she would not have worked up to at least the beginning of 2022.
I thus consider that the plaintiff has suffered no past economic loss.

Future Economic Loss

The defendant correctly contended that the plaintiff's future earning capacity is unaffected by the accident. The Council submitted that to the extent that the plaintiff has a residual earning capacity it would be working in a sedentary capacity which is unaffected by any finding of aggravation of the osteochondral defect in her right ankle.
The defendant further submitted that the plaintiff was unlikely to have worked as a commercial cook or in any capacity involving standing for long periods of time or handling heavy items. As I have indicated, she had a history of multiple physical and psychological ailments and continuing attendances upon her general practitioners for these ailments. Amongst these complaints is the fact that before the fall and up until 2017 she was diagnosed as suffering from "major depression".
The pre-existing ailments also included a left wrist fracture which has limited her lifting capacity to 20 kilograms more or less. The evidence also disclosed the plaintiffs numerous attendances upon her GP for neck and neuropathic pain up until January 2016, neck and shoulder pain three(3) months before the accident in November 2018, and for shoulder pain shortly after the accident in May 2019.
The plaintiff agreed she had a continuing left wrist injury which affected her ability to seek work (T45.40).
The plaintiff submitted that if I was unable to assess future economic loss I should nonetheless award a buffer.
In Brown v Hewson [2015] NSWCA 393 per Sackville JA (Macfarlan and Adamson JJA agreeing): "…. The award of a "buffer" may be appropriate if the impact of the injury upon the plaintiff's earning capacity is difficult to determine. There is, however, an important qualification. A plaintiff must establish, on the balance of probabilities, that he or she has suffered some loss of earning capacity. The difficulty confronting the Plaintiff in the present case is that the evidence does not establish that he has suffered a loss of earning capacity by reason of the injury to his elbow….".
Thus, although a buffer is an available method of assessment of loss under s 13, the plaintiff still must prove an impairment of his or her earning capacity which is or will be productive of financial loss in order to be awarded a buffer (Fegan v Lane Cove House Pty Ltd [2007] NSWCA 88; cited in Zreika v State of NSW [2009] NSWCA 99 at [39] per Ipp JA). The assessment of future events is not a finding of fact, but of hypothetical possibilities and is to be assessed as a matter of probability.
In this case, in my opinion, the plaintiff has not established that as a matter of probability, her physical restrictions arising from the fall cause any loss of earning capacity or are productive of economic loss.
Thus, in my view, this is not a case where it is difficult to assess future economic loss justifying a buffer, rather it is a case where no future economic loss has been established.
In summary, for these reasons I find that the plaintiff has not established future economic loss.

Past out of pocket expenses

The plaintiff asserted past out of pocket expenses at $1206. I did not understand the defendant to put this in issue

Future out of pocket expenses

In their the conclave report, Doctor Maxwell and Doctor Gehr stated that they "agree that she doesn't need physiotherapy because she has no atrophy of the right thigh or calf indicating she is using her left leg relatively normally. We note while attending her GP for other conditions after the surgery she made no complaints in relation to her ankles".
Dr Gehr thinks the plaintiff needs one or two appointments with the orthopaedic surgeon. I do not accept this evidence. It was agreed between the orthopaedic experts that there was no need for further surgery, and in fact Dr Maxwell considers that the syndesmosis repair itself was unnecessary.
I find that the plaintiff has not established future out of pocket expenses.

Past care

I consider that the gratuitous care provided by family or friends to the plaintiff as disclosed in the evidence did not exceed the relevant statutory threshold to be compensable under s. 15 of the Civil Liability Act. Section15(3) CLA stipulates the level of gratuitous care must be at least six hours per week for a continuous period of six months in order to qualify for compensation (section 15(3) CLA).
I consider that the plaintiff has not proved that she has achieved the statutory threshold to be entitled to gratuitous domestic assistance from her husband or any other person.
Further section 15(2)(b) requires the accident related need has arisen "solely" because of the injury. I am not satisfied of this requirement given the plaintiff's unrelated conditions, especially the left wrist injury.

Future cost of care assistance

For the same reasons the plaintiff also does not qualify to be compensated for the cost of commercial assistance. These costs would not be unreasonable in the circumstances. In this regard it is well to note that the plaintiff's husband conceded the plaintiff's wrist injury affected her capacity to undertake domestic tasks (TP 53.30)
The plaintiff conceded that can do what she did before the fall in terms of domestic tasks, if only more slowly (T44.45 - T45.10)
Any task which her intermittent ankle pain prevented her performing in the future would be provided by the plaintiff's husband or friends on a gratuitous basis and therefore commercial care should not be allowed. Moreover, in my view, such an award would in any event be so speculative as to not permit an allowance to be made for it.
In ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193: 'Sections 15 and 15B of the Civil Liability Act deal with gratuitous attendant care services. In order for the respondent to be entitled to damages in respect of commercial care services, she had to show not only a need for paid commercial care but also that gratuitous assistance to satisfy the need was unavailable: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [148] (Tobias AJA, Basten and Meagher JJA agreeing)'.
The plaintiff has not proved that such assistance as she may require is not available gratuitously. Her husband, Mr Cabrera says that he assisted the plaintiff and, in my view, there is no reason to doubt that this would not continue.

Contributory negligence

In assessing contributory negligence, the Court is required to carry out a comparative analysis of the culpability of both the plaintiff and the defendant (see Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492). This involves an analysis of the degree of departure from the standard of care by a reasonable person (Pennington v Norris (1956) 96 CLR 10 at [16]) and in addition, an analysis of the relative importance of the acts of the parties causing the damage (Stapley v Gypsum Mines Limited (1953) AC 663 at [682]).
In my view the extent of the plaintiff's contributory negligence is high. At the forefront of the plaintiff's negligence is her failure to look where she was stepping. It is also demonstrated by her failure to cross Hill Street at a pedestrian crossing. As I have earlier indicated, the exercise of care for oneself is an expectation which is a "specific element" of the duty of a road authority and so limits the scope of the duty (RTA v Dederer [2007] HCA 42 at [45]).
In this case, the contributory negligence should be attributed as 70% of the cause of the accident.

Conclusion

For these reasons, there should be judgment and verdict for the defendant against the plaintiff with costs following the event.

Orders 1. Judgment and verdict for the defendant against the plaintiff. 2. That any party wishing to be heard on the issue of costs notify my associate of that fact on or before noon on 20 January 2023 ("Notification"). 3. That in the event of Notification, the notifying party shall file and serve any evidence and submissions on the issue of costs on or before 4:00pm on 27 January 2023. 4. That the non-notifying party file and serve any evidence and submissions which it wishes to make on the issue of costs on or before 4:00pm on 3 February 2023. 5. That the notifying party file and serve any submissions in reply on or before 8 February 2023 6. That the filing of the documents referred to in orders (3), (4) and (5) be effected by way of email transmission to my associate. 7. That any issue as to costs be decided on the papers. 8. That in the absence of Notification, the Court will order that the plaintiff pay the defendants costs.

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: 16 December 2022

(2003) 127 LGERA 109

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