Benton v Historic Houses Trust of NSW [2017] NSWDC 324 | Case summary

District Court of NSW|2017-07-25

Solicitors: CMC Lawyers (Plaintiff) Crown Solicitor for NSW (Defendant) File Number(s): 2015/39522 Publication restriction: None

Table of Contents Nature of case [1] Factual background [2] - [19] Issues [20] - [21] Evidence overview [22] - [24] Credibility and reliability of testimony [25] - [41] Plaintiff [26] - [30] Mr Bowden [31] Mr Poole [32] Mr Champion [33] - [34] Mr McPherson [35] - [41] Facts [42] - [155] Plaintiff's background circumstances and work history [43] - [53] The premises [54] - [55] Plaintiff's pre-accident familiarity with the site [56] - [60] Circumstances preceding the plaintiff's fall and injury [61] - [68] Fall and rescue [69] - [73] Injuries identified and initial treatment received [74] - [78] Defendant's records referring to plaintiff's fall [79] - [82] Subsequent medical and allied treatment and assessments [83] - [84] Findings reconciling conflicting medical opinions [85] - [102] Disabilities that remain [103] - [138] Work effects [139] - [145] Domestic effects [146] - [153] Mitigation [154] - [155] Issue 1 - Relevant risk of harm [156] - [159] Issue 2 - Whether voluntarily assumption of risk [160] - [173] Issue 3 - Whether materialisation of an obvious risk [174] - [215] Consideration of s 5F - Obvious risk [183] - [207] Consideration of s 5G(1) - Rebuttable presumed awareness [208] - [211] Consideration of s 5H - Whether there was a duty to warn [212] - [214] Conclusions on obvious risk [215] Issue 4 - Duty of care owed by the defendant [216] - [240] Issue 5 - Whether there was negligence [241] - [289] Plaintiff's particularised case [242] Expert opinion [243] - [249] Consideration of the three pre-conditions required by s 5B(1) [250] - [269] Consideration required by s 5B(2) [270] - [283] Consideration required by s 5C [284] - [288] Conclusion on breach of duty of care [289] Issue 6 - Causation of the harm suffered by the plaintiff [290] - [295] Consideration of the requirements of s 5D(1)(a) [291] - [292] Consideration of the requirements of s 5D(1)(b) [293] Consideration of the requirements of s 5D(2) - (4) [294] Conclusion on causation [295] Issue 7 - Whether there was contributory negligence [296] - [324] Contributory negligence submissions and legislation [297] - [309] Consideration of whether there was contributory negligence [310] - [321] Conclusion on contributory negligence [322] - [324] Issue 8 - Nature and extent of employer's liability [325] - [338] Concession by plaintiff [330] Consideration of s 151Z apportionment [331] - [338] Issue 9 - Assessment of damages [339] - [461] Non-economic loss [340] - [349] Past economic loss [350] - [360] Fox v Wood damages [361] Future loss of earning capacity [362] - [392] Past loss of superannuation [393] Future loss of superannuation [394] Past domestic assistance [395] - [430] Future domestic assistance [431] - [444] Future treatment expenses [445] - [459] Past out-of-pocket expenses [460] Summary of damages assessment [461] Disposition [462] - [464] Costs [465] Orders [466]

Nature of case

The plaintiff, Ms Michelle Benton, brings these proceedings against the defendant, the Historic Houses Trust of New South Wales, a body incorporated pursuant to s 5 of the Historic Houses Act 1980, claiming damages for personal injuries for alleged breach of the duty of care the defendant owed as the occupier of premises known as Vaucluse House, at Vaucluse, New South Wales. The Civil Liability Act 2002 (the "CL Act") and s 151Z of the Workers Compensation Act 1987 (the "WC Act") apply to these proceedings.

Factual background

At about 6.00pm on the evening of Saturday 31 May 2014, in the course of her employment for a catering company providing services at a wedding function which was in progress in the grounds of Vaucluse House, the plaintiff suffered a fall and sustained a fractured right wrist, a laceration to her forehead, and related soft tissue injures. These injuries have had lasting adverse physical, psychological and practical day-to-day effects on the plaintiff.
The plaintiff's fall occurred when, in darkness, she walked from a gravel pathway onto an adjacent brick paved area located in an unlit portion of the grounds. This occurred after she had mistaken that paved area for a pathway. The plaintiff then fell down the precipice of an embankment, into what has been variously described as a ravine, ditch, or gully of a creek, located near the Vaucluse House Tearooms within the grounds of Vaucluse House.
The plaintiff was on the premises in her capacity as a venue manager for her employer, Fresh Catering Pty Ltd, a company which held a longstanding licence issued by the defendant for that company to provide catering services for the wedding function that was in progress in the grounds on the day in question. The plaintiff's role at that function was generally of a supervisory nature, which required her to do what was necessary to ensure the function ran smoothly.
The licence held by the plaintiff's employer enabled it to serve food and drinks at pre-booked functions at the premises, including at the wedding function in question. The contractual arrangements provided that the defendant was to be paid an agreed percentage of the revenue the caterer would derive from the function.
The defendant had hired out specific portions of the Vaucluse House premises for that wedding function. The first part of the function took place on that part of the premises known as the Lone Pine Lawn, between the hours of 3.30pm and about 5.30pm. The second part of the function followed in the form of a reception convened from about 5.30pm to 6.00pm in another part of the premises, namely at the Tearooms.
These two segments of the function took place on opposite sides of a creek that coursed through the grounds. Access between the Lone Pine Lawn area and the Tearooms was by means of various pathways and bridges that spanned across the ravine and the creek. In between the first and the second parts of the wedding function, atmospheric darkness was descending: T31.4 - T31.7.
In the course of the outdoor part of the function on the lawn, the staff of the plaintiff's employer had been serving canapés and drinks to the guests who were in attendance on the lawn. Between about 5.15pm and 5.30pm, those guests were then encouraged to start to move from the Lone Pine Lawn area, across a bridge spanning the ravine and creek, to go to the terrace area of the Tearooms for the second part of the function.
In those events, some of the plaintiff's co-workers were engaged in packing up glassware, platters and other catering items, and carrying them away from the lawn area, and towards the kitchen area at the rear of the Tearooms.
Shortly before her injury, as the venue manager at the time, the plaintiff found that she needed to walk from the Tearooms to the lawn area to secure the assistance of staff who were engaged in packing up items relating to the function on the lawn, as those staff members needed to be re-deployed for the next phase of the function on the terrace of the Tearooms. In those events, to get to the Lone Pine Lawn area she crossed the ravine and creek by means of the nearby pathway and bridge which spanned that area.
After arranging for staff re-deployment as was required, the plaintiff then proceeded to walk back towards the Tearooms, at which time she was carrying a few items away from the lawn area, and to the kitchen of the Tearooms.
At the time, in determining which route she would take when walking back to the Tearooms, the plaintiff decided that, rather than detracting from the aesthetic appearance of the function by mingling with guests whilst carrying items from the lawn, onto the access pathway and bridge across the ravine and onto the Terrace amongst guests, instead, she would take what she believed to have been an available alternative route to the kitchen area so as not to detract from the function.
At that time, the plaintiff was not fully familiar with the layout of the grounds. It transpired that part of the alternative route that she had chosen had only limited areas of direct outdoor lighting during the hours of darkness.
At the time it was drizzling with light rain and it had become dark. In taking that alternative route, the plaintiff had decided to follow the route to the kitchen taken by a fellow employee, Mr Keriakos, who had greater experience of the site than did the plaintiff. In those circumstances, that employee had been walking more quickly than the plaintiff towards the Tearooms, and he soon disappeared from her view in the surrounding darkness.
Soon after losing sight of that employee, the plaintiff then stepped from a gravel pathway onto a brick paved area located in an unlit area of the grounds, unwittingly thinking the brick paved area was a pathway which she could follow to get to the kitchen area. There were lights in the area, but they were not switched on, and they were not wired to be activated by motion sensors.
The plaintiff then took a few steps along that brick paved area not realising that at the time she was near the precipice of the creek embankment. In taking those steps, she then fell some 2 - 3 metres into the creek bed below, and found herself in the creek at the bottom of the ravine.
It later transpired that the brick paved area in question, which was located near the western wall of a nearby toilet block, was not a pathway but was by design intended to have a drainage function in order to channel rainwater from the roof of an adjacent building and drain any run-off rainwater towards the edge of the ravine, and into the creek in times of wet weather.
After the plaintiff fell, she became greatly distressed over her situation and her isolated circumstances, and because of the effects of her injury. At that time, she found that she was unable to extricate herself from the bottom of the ravine.
The plaintiff's initial calls for help were not heard because of the loud music emanating from the nearby function. It was not until some time had passed before other staff noticed that she was missing, and she was then found in the creek by a co-worker, and she was then given assistance. In those circumstances the plaintiff was experiencing feelings of anxiety and of terror.

Issues

My review of the pleadings, the evidence and the submissions, identifies the following issues that arise for determination after making relevant findings of fact. Those issues are set out in the following convenient order: Issue 1 - The identification of the relevant risk of harm in relation to the defendant's occupation of the premises; Issue 2 - Whether, in the circumstances, the plaintiff had voluntarily assumed the risk of injury, as was pleaded by the defendant in answer to the plaintiff's claim; Issue 3 - Whether the pleaded defence of obvious risk, pursuant to s 5F, s 5G and s 5H of the CL Act, provides an exculpatory benefit to the defendant in this case; Issue 4 - The nature, scope or content of the duty of care owed by the defendant as occupier of the premises; Issue 5 - Whether the defendant was in breach of the duty of care it owed to the plaintiff, such that findings of negligence should be made in favour of the plaintiff, having regard to the requirements of s 5B, and s 5C of the CL Act; Issue 6 - Whether causation of harm has been established according to the requirements of s 5D of the CL Act; Issue 7 - Whether, in the circumstances, there was contributory negligence on the plaintiff's part, and if so, to what extent; Issue 8 - Whether, for the purpose of s 151Z of the WC Act, there should be a finding of notional negligence in respect of the plaintiff's employer, and if so, to what extent should the plaintiff's entitlement to damages be reduced on that account; Issue 9 - The assessment of the plaintiff's entitlement to damages.
Before identifying any findings of fact and addressing the issues, it is necessary to say something about the credibility and the reliability of the testimony given by the respective witnesses.

Evidence overview

The oral evidence in the plaintiff's case comprised the plaintiff's own evidence, and that of her partner, Mr Adam Bowden, whose evidence was limited to damages issues.
In the defendant's case, oral evidence was given by Mr Damien Poole, the defendant's venue manager, and head of commercial services, who was responsible for booking the premises for hired events, Mr Edward Champion, the defendant's Visitor Services Co-ordinator for the Vaucluse and other historic sites, who fulfilled the role of property manager, and Mr Stuart McPherson, the defendant's team leader of horticulture, or head gardener, at the site.
The parties tendered several evidence bundles. The detail of these voluminous bundles, documents and photographs, will be referred to where it becomes relevant to do so.

Credibility and reliability of testimony

In the paragraphs that follow, I set out my conclusions on matters concerning the credibility and the reliability of the testimony of the witnesses who gave oral evidence.

Plaintiff

I considered that the plaintiff gave her evidence carefully, accurately, and in a truthful and forthright manner. She was plainly very stressed by the subject matter when she gave her evidence. She was also obviously embarrassed over her occasional and intrusive involuntary facial grimaces and tics. These had emerged following her injury, and according to un-contradicted medical evidence, they were related to her post-injury disabilities.
The defendant conceded that the plaintiff gave her evidence in a forthright manner except, it was submitted, in relation to her awareness of the creek on the property, and in relation to the justification given by the plaintiff for taking the route she did immediately prior to her injury. The defendant submitted that the plaintiff's evidence on those matters should be rejected: Defendant's written submissions, par 38 - par 44.
In oral submissions the defendant submitted that the plaintiff's evidence to the effect that she felt the need to avoid walking amongst the guests on the terrace on the day of the accident, on account of aesthetic reasons due to the presence of those guests, because to take that route, carrying items amongst the guests, would be "tacky", should be viewed with some scepticism: T32.22; T104.29; T348.16. This was in the context where the expectation of the defendant was that the presentation should be in good taste, and not "tacky": T221.30 - T222.1.
In view of those submissions, I have considered the plaintiff's account with care, and for the reasons that will be identified in the appropriate context, I have reached a conclusion that is contrary to the force of the defendant's submission critical of the evidence given by the plaintiff on these points. I record my conclusion that I held no concerns over the credibility or the reliability of her evidence.
I considered the plaintiff's evidence was characterised by an air of stoicism, reserve and understatement, even at the times when she was visibly distressed and embarrassed at the subject matter of her evidence. The defendant made no significant challenges to the plaintiff's evidence concerning her post-injury disabilities, or to the summarised accounts of those matters as set out in the various medical reports that were tendered.

Mr Bowden

Mr Bowden is the partner of the plaintiff. They commenced their relationship after the plaintiff's accident, namely about 18 months before the hearing. The focus of his evidence was to describe the process and the pattern for the carrying out of domestic tasks in their joint household as part of the claim made by the plaintiff for the value of past domestic assistance that had been gratuitously provided to her, and to provide some insight into the plaintiff's future needs for domestic assistance. No issues emerged from his evidence concerning either the credibility or the reliability of his testimony.

Mr Poole

Mr Poole gave evidence as to the general layout of the grounds, and the terms upon which the premises were hired for functions, and the basis for the provision of catering. His evidence went to explaining the administrative matters to do with the site, and the contractual arrangements and documentation that had passed between the defendant and the plaintiff's employer. No issues emerged from his evidence concerning either the credibility or the reliability of his testimony.

Mr Champion

Mr Champion's evidence related to the topography, lighting, layout and the accessibility of the site, including its natural and built landmarks. His evidence included reference to markings made on various photographic exhibits. He also gave evidence concerning his understanding of the content of historical records relating to the site.
The plaintiff's criticism of Mr Champion's evidence was that he was reluctant to make due concessions on the effectiveness of a deployment of warning signs. In his evidence, he conceded that in considering the potential hazard posed by the presence of the creek on the property, as was pointed out, he did not make any distinction between day time and night time considerations as was acknowledged in the defendant's written submissions, at par 84 and par 89. I considered that Mr Champion's evidence was given in a guarded and defensive manner, where concessions along the lines cited were due.

Mr McPherson

Mr McPherson had been a gardener at the Vaucluse House site since January 2007. By the time of the plaintiff's accident, he had been promoted to the position of head gardener or team leader. He was very familiar with the site, its structures, including the creek and environs, as well as the state of vegetation on the site, and the purpose of placement of that vegetation.
Mr McPherson described the concave laid patterns of bricks on the property, and of the kind the plaintiff had walked upon just before her fall, as culverts, comprising three parallel bricks laid in a concave fashion, which acted as drains: T315.25 - T315.48.
Mr McPherson gave undisputed evidence in which he stated that the plantings around the brick drainage culvert were intended "as much of a visual barrier as possible": T316.20. He said that the aim was to keep those plantings as lush as possible to hide (the creek) as much as possible and to give the appearance of a garden bed and a visual barrier to deter people from continuing to walk through that part of the property: T316.22 - T316.38.
After Mr McPherson had heard about the plaintiff's fall, he arranged to plant a tall thin shrub, an umbrella tree, to be placed on a ledge of the embankment about half a metre below near where the brick paving drain meets the embankment, so that the trunk of that plant, and its foliage, would serve as a greater visual barrier to deter pedestrians from proceeding further in that vicinity: T317.35 - T317.49; T321.25 - T321.45; T323.10. Those extra plantings took place about 6 weeks after the plaintiff's accident: T325.20.
Mr McPherson described the purpose of the plantings at the edge of the creek as being to delineate the difference between a path and a garden bed without blocking the space for the flow of water at ground level: T324.32 - T325.2. It is of some significance that this area was in the vicinity of the laid pattern of brickwork.
Mr McPherson's evidence on those matters must be read in the context of the prevailing conditions that applied in the hours of darkness when the plaintiff was injured, where there was no outdoor artificial illumination at the scene.
There were no concerns over the credibility or the reliability of the testimony of Mr McPherson.

Facts

I now turn to a more detailed consideration of the facts. Unless otherwise stated, my findings of fact now follow concerning the plaintiff's background circumstances, her employment history, her familiarity with the site, the events leading to her fall, the injuries she sustained, the initial treatment she received, the further medical and allied reviews she had attended, the reconciliation of conflicting opinions in the expert medical evidence, the nature of her disabilities, the effect of those disabilities upon her work, and upon her domestic activities, and on the question of mitigation.

Plaintiff's background circumstances and work history

At the time of the accident the plaintiff was aged 41 years. She is presently aged 44 years. She had completed her schooling to Year 12 in Queensland and then proceeded to pursue tertiary studies. In 1993 she graduated with a Bachelor of Arts degree. In 1995, she moved to Sydney from Queensland, and obtained work in the hospitality industry, initially commencing as a bar attendant, by 1996, she had quickly progressed to a management role.
The plaintiff had an impressive pre-accident work history which demonstrated a capacity to successfully change employers and employment situations when it suited her to do so. Whilst there was no dispute as to the details of the plaintiff's work history, it is necessary to set out some of the detail of that history for the purpose of identifying some later findings that are required by s 13 of the CL Act concerning the plaintiff's claim for damages for future loss of earning capacity.
The plaintiff had changed employers a number of times between 1996 and 2013, working in various capacities in the hospitality industry, including in the roles of a hotel duty manager for a 24 hour venue offering alcohol, food and gaming services.
In about 2000, she became general manager of another hotel owned and operated by her previous employer. Her responsibilities in that job included ensuring compliance with late trading obligations, gaming, financial control, overseeing functions, and overseeing staff management. In the same year, she changed her employment to work for another hotel organisation, and was promoted to a senior position as general manager, with associated significant financial and supervisory responsibilities.
The plaintiff continued in that employment until 2005, at which time, for a period of about 6 months, she left and worked as a self-employed gaming consultant. In the course of the plaintiff's work as a gaming consultant, one of her hotel clients asked her to become the licensee of one of his city hotels. She took on that role for about 12 months, before changing her employment to another hotel in Sydney, where she continued to work in a senior role between 2006 and 2009.
In 2009, the plaintiff moved her employment to another hospitality group, for which she ran venues in Balmain and in Chinatown. In that position, the plaintiff's roles were financial, overseeing staff and customers, as well as overseeing gaming and food services. It transpired that employer had encountered some financial difficulty, so in 2010, the plaintiff then changed her employment to return to work with a previous employer, and in that situation she became the licensee of a hotel in Chinatown. In that role, apart from fulfilling management duties, her responsibilities included overseeing renovations to the premises.
Between 2011 and 2013, the plaintiff worked as a manager for a bakery company. In 2013, she left that employment to work with another hospitality group, initially in sales and marketing, and then as the licensee of licensed premises.
By the end of 2013, the plaintiff had been working in licensed premises for many years, sometimes for up to 12 hours per day, and on call, with full responsibility on behalf of the owners of those businesses. Without challenge, she described her pre-injury disposition as being a person who was confident, outgoing, tenacious and sociable, strong, and without any mental health issues of the kind she subsequently encountered with her post-accident problems of anxiety or depression: T26.30 - T26.45.
In November 2013, in seeking to achieve a change in her work-life balance, the plaintiff decided to take a break from the pressures and demands of working in licensed premises, and she then obtained employment with Fresh Catering Pty Ltd, a successful catering company that catered for big events and private functions at various premises.
In that employment, the plaintiff managed the Vaucluse House Tearooms on behalf of that employer. Her duties as manager in that role included staff management, customer relations which included the handling of complaints, rostering duties, budgeting, hands on waitressing when required, as well as overseeing and supervising functions. The Vaucluse venue was open 5 days per week from 10.00am to 4.30pm, and 7 days per week at school holiday times.
At the time of the plaintiff's injury, in that employment, she was earning $75,000 per annum gross, plus superannuation entitlements. I accept that before the subject accident, the plaintiff was due to have a discussion with her employer about her role with that company, and concerning her remuneration. That decision was to be in the context of a scheduled pay review, and where the plaintiff found that she was doing more waitressing duties than she had anticipated, and she had wanted to discuss her future options with her employer: T160.5 - T160.41.

The premises

The following copy photograph, extracted from Exhibit "8", gives an indication of the nature of the brick paved area adjacent to the edge of the creek embankment within the premises. In my view the defendant's description of that structure as being a culvert is somewhat inapt. [Exhibit "8" & Exhibit "1", Tab 25, p 95]
The following copy photograph, extracted from Exhibit "B", although not showing the precise location, gives an indication of the nature and the depth of the embankment down which the plaintiff fell into the ravine and creek bed below, when she sustained her injuries. [Exhibit "B", p 52]

Plaintiff's pre-accident familiarity with the site

The plaintiff had commenced her employment with Fresh Catering Pty Ltd on 11 November 2013, which was about six months before her injury. Apart from being shown the actual Tearooms location and layout before her injury, the plaintiff had not received an on-site induction from her employer concerning the general layout of the Vaucluse House premises: T80.50; T83.8; T84.38; T86.5.
Historically, the plaintiff's employer provided catering services at the Vaucluse House location for booked reception functions at the premises "fairly infrequently": T28.18; T29.23. The plaintiff's primary role was to manage the Vaucluse House Tearooms: T28.26.
In the months before her injury, the plaintiff's experience in that employment was that functions of the kind in question on the lawn of the Vaucluse House grounds were relatively infrequent, and relatively small in number, being on about 14 occasions, or averaging about once per fortnight: T100.29; T100.43; T100.46.
In that period, the plaintiff had only been to the lawn area on about 2 - 3 occasions, including for the function during which she was injured: T101.15 - T101.39. The plaintiff's experience on those prior occasions was that those functions on the lawn had been held during the hours of daylight saving, and the functions were mostly completed by 6.00pm, which therefore meant she had not previously gone to the lawn area, or used nearby access routes, in darkness, or in low light conditions: T130.48.
Although the plaintiff had received only limited training from her employer concerning matters of site orientation at the Vaucluse premises, she had a general awareness of the presence of the ravine, the creek, and the related bridges on the premises: T28.47 - T29.9. She had an actual awareness that there was a bridge enabling access to and from the Lone Pine Lawn area, and she also had a general awareness that there was another bridge located somewhere towards the back of the Vaucluse House grounds.

Circumstances preceding the plaintiff's fall and injury

At the time of the accident, the plaintiff had only limited awareness of the extent and the depth of the ravine and the creek that ran through the premises. She said, and I accept, that she had not had occasion to give those matters much prior consideration. In that regard, she was not aware as to whether the ravine was continuous. She knew the ravine was not very deep at the location of the bridge which provided access to the lawn area, but she did not know of its depth or of its continuity elsewhere on the grounds: T29.1 - T29.8.
The creek and the associated ravine, and the surrounding vegetation, comprised a natural feature of the land: T276.50 - T288.36. The Vaucluse House premises and land comprising those premises covered an extensive area that was accessible to the public at all hours of the day or night, including permitting access for persons walking their unleashed dogs at night, and the defendant was aware of that fact: T289.1 - T289.2; T293.19; T311.2. Not all of the grounds, which included some undulating grassed areas, and some buildings, were lit during the night time hours of darkness.
Just before her fall, the plaintiff had gone to the lawn area of the grounds to send some of the staff there back to the Tearooms where they were needed to be re-deployed to assist with the next phase of the function.
Whilst the plaintiff was at the lawn area, she had gathered a couple of items, including a metal jug and a guest's camera, and she then followed her fellow employee Mr Keriakos, down the hill in the belief that by doing so, she was walking on a back route to the kitchen at the rear of the Tearooms: T33.5. To the knowledge of the plaintiff, Mr Keriakos was a co-employee with greater experience of the site: T31.20 - T31.40; T32.8 - T32.12.
The plaintiff considered that the back route she thought she was following to the Tearooms, and which was to where Mr Keriakos appeared to be walking at the time, was a reasonable course to take because she did not think it was appropriate or congenial to the ambience of the function to mingle with the guests whilst carrying items back to the Tearooms: T32.15 - T32.26. The general items on the lawn that had to be carried back to the kitchen of the Tearooms from the lawn area comprised glassware, canapés, trays of food, serviettes, beverages and ice: T33.35 - T33.50.
The plaintiff formed the understanding that Mr Keriakos was in the course of proceeding towards the back bridge on the grounds. After she had followed him and had lost sight of him, she found herself walking on a stony or gravel path from the lawn: T32.48. She had lost sight of him near an out-house toilet block that was located near the side of the house within the grounds: T34.10 - T34.29.
At that point, the plaintiff observed the presence of an adjacent brick paved area which she perceived to be a path, and she then turned to walk to the right on that brick paved area, intending that she would continue along that course (T34.31 - T34.35), thinking that it was in fact a walking path available for use. In those events the plaintiff had observed that there was a clear opening in what appeared to be the otherwise dense ground vegetation at that point, which led her to think she was on a path that would lead her back to the Tearooms: T35.1 - T35.5.
In those circumstances, that area was not lit by direct lighting: T34.38. However, immediately beforehand, the plaintiff could see some lights from the Tearooms in the distance: T34.47. In those events, the plaintiff thought she was on the correct path towards the kitchen of the Tearooms because she had seen Mr Keriakos in that general area directly in front of her before she had lost sight of him: T34.48.

Fall and rescue

The plaintiff's next recollection was that when she stepped to the right on the paved area, she then stumbled and fell, and she then woke up to find that she was located in the creek bed, thinking that she had knocked her head on the way down to the bottom of the ditch, where she found herself in deep water in the creek: T35.6 - T35.44.
The plaintiff then began calling out for help. At that time she was in a state of shock, panic, disorientation and confusion, and she felt petrified because she could not get up because of the height of the embankment. She was disoriented and scared, and she felt that she could not make herself heard because of the loud music being played at the function: T35.8 - T35.36; T36.18.
In the unchallenged history obtained by an examining psychiatrist, the plaintiff described her feeling of terror from being in that situation at that time. That item of the plaintiff's history is of some significance to resolving a conflict within the medical opinions as to whether or not she in fact suffers from the condition of post-traumatic stress disorder.
Eventually, Mr Keriakos found the plaintiff in the creek. He then led her to a shallower portion of the ditch or creek, and he helped her to get out, whereupon he escorted her back to the Tearooms: T36.20 - T36.28.
At that time, the plaintiff was bleeding profusely, she felt something was amiss with her right arm and her right wrist, she was in shock, and felt dazed and confused: T36.33 - T36.44. The plaintiff was embarrassed by the events, and she didn't want a fuss made: T36.44. She declined to have an ambulance called, but she called a friend who was nearby, and he came to the scene and took her to the Prince of Wales Hospital at Randwick, where her injuries were identified, documented and treated.

Injuries identified and initial treatment received

At 18:52 hours on that evening, the plaintiff attended at the Prince of Wales Emergency Department for the assessment of her injuries. In hospital, the plaintiff found that the pain she was experiencing was excruciating: T41.10.
The plaintiff's injuries and the related problems were identified in the hospital notes as comprising a deformed right wrist, with associated discomfort, a 1cm cut to the right forehead, and a pins and needles sensation to the fingers of the right hand with swelling, and a right palmar abrasion: Exhibit "D", pp 4, 8 - 10.
On that occasion, an x-ray of the plaintiff's right wrist was performed, which showed a markedly comminuted transverse fracture involving the distal radius of that wrist, with associated dorsal and ulnar deviation and dorsal displacement, with a small degree of bony shortening. There was also an extension of that fracture to the articular surface, with overlying soft tissue swelling seen to be present: Exhibit "D", p 10.
On 1 June 2014, the plaintiff underwent an orthopaedic surgical procedure for open reduction and internal fixation of the radial fracture with the insertion of a plate and screws, performed by Dr Schick: Exhibit "D", p 6. After 3 nights in hospital, the plaintiff was discharged home on 3 June 2014, with antibiotic and analgesic medication, and with arrangements for her to be followed-up by Dr Schick in his private rooms. At that time, there was a risk of the plaintiff developing a related pain syndrome: Exhibit "D", p1.
Thereafter the plaintiff's right arm remained in a cast for about 6 - 8 weeks: T42.1. She took painkilling medication to control her significant pain levels: T42.5. In that time, she felt helpless, frustrated, teary, experiencing panic and she had anxiety that she did not understand: T42.18 - T42.26. She rated her pain as being moderate to severe (T42.47) and she described this pain as having persisted over the last 3 years: T42.41.

Defendant's records referring to plaintiff's fall

The defendant's after-the-event records contain two significant references to the fall suffered by the plaintiff.
The first such record comprised an emailed report from Ms Irene Hunter, the defendant's events manager, about the way the function on 31 May 2014 had progressed. That report made no mention of the plaintiff's accident. However, it made reference to the fact that "it was very dark" when she had arrived at the function, and that it was "pitch black" when the equipment was packed down, that it was "not particularly safe in the dark" and that it was "slippery underfoot" at the place the ceremony had taken place on the lawn. She was in a position to know those matters. Ms Hunter's stated assessment was that a work light was needed in that area because "at this time of year [it was] very dark": Exhibit "1", Tab 34, p 157.
It would appear from Ms Hunter's note, as cited above, that since she arrived when it was already "very dark", this suggests she was not present until there was a need to "pack down" the event on the Lone Pine Lawn. Since that point was not explored in the evidence or the submissions, the timing of Ms Hunter's arrival is non-determinative.
The second such record comprised some minutes dated 3 September 2014. Those minutes related to the defendant's Work, Health and Safety Committee and they noted that "A staff member of the Fresh catering contractor fell into the creek late one evening at Vaucluse House. In the low light she walked through the one small gap in the plants, mistakenly thinking that it led to the bridge and fell into the creek. No SLM staff were onsite at the time. She later discovered that she had broken her arm, and it was only some time later that Fresh reported this to SLM. Neil Piper reported that the bridge was not well illuminated, but that a couple of bulbs that were out around the property have been replaced. Stuart Macpherson notes that it is not a main thoroughfare and that some additional plants have been planted in the gap to try to prevent it from happening again": Exhibit "1", Tab 32, p 112; Exhibit "B", p 58.

Subsequent medical and allied treatment and assessments

Subsequent to her initial treatment, the plaintiff underwent a long series of medical, allied and related reviews, as well as conservative and surgical treatments.
The following summary extracted from the evidence of those extensive instances is set out below as a framework for resolving disputed matters within the conflicting medico-legal opinions, and for determining the plaintiff's ongoing disabilities, as well as assessing the plaintiff's damages for non-economic loss, and other heads of claimed damage. The chronological sequence of those numerous events is set out as follows: 1. On 12 June 2014, the plaintiff was reviewed by Dr Schick who viewed a post-operative x-ray and noted the reduction was well fixed and in a good position. He advised the plaintiff to avoid lifting weights of more than 1kg with the right hand, and he suggested a further x-ray and review in a further 5 weeks: Exhibit "D", p 13; 2. On 9 July 2014, the plaintiff was again reviewed by Dr Schick, who noted the plaintiff was still in significant pain, with sensitivity and stiffness of the right fingers and wrist. At that time he considered the plaintiff had a mild pain syndrome (CRPS). That was a perspicacious observation in light of subsequent developments. He referred her for hand therapy, prescribed Endep, and suggested a further review of progress: Exhibit "D", p 14; 3. On 31 July 2014, the plaintiff was again reviewed by Dr Schick, who noted much improvement, with the CRPS being described as mild. The plaintiff reported being able to tolerate only small doses of Endep, she had scar sensitivity, and she noticed a dorsal wrist clicking sensation. Hand therapy and pain management were suggested, with a review scheduled in a further 6 weeks: Exhibit "D", p 15; 4. On 29 August 2014, the plaintiff was examined by Dr James Yu, a pain management specialist, who noted complaints of sharp right wrist pain, occasional radiation of pain to the right elbow and right thumb, tingling sensation in the second and third right fingers, with pain rated at 5-6/10. The plaintiff also reported erratic sleep patterns, she was teary, and a diagnosis of a post-traumatic stress disorder was then identified. A multidisciplinary approach to treatment was recommended: Exhibit "D", pp 16 - 17; 5. On 19 September 2014, the plaintiff was again reviewed by Dr Schick, who noted a clawed posture of the right little finger, with some clicking of the wrist in the region of the distal radial ulnar joint, which he did not consider to be grossly unstable. He provided the plaintiff with reassurance and arranged a further review: Exhibit "D", p 18; 6. On 22 September and 22 October 2014, the plaintiff was re-assessed by Dr Yu, who reviewed the plaintiff's anti-neuropathic medications and symptoms, and the hand and psychological treatments the plaintiff had been receiving: Exhibit "D", pp 19 - 20; 7. On 31 October 2014, Dr Schick conducted a further review of the plaintiff's right upper limb, at which time he noted that the plaintiff was experiencing some tendon clicking and a lump on the back of the distal radius. Dr Schick was reluctant to re-operate because of the plaintiff's complex regional pain syndrome, and instead suggested an ultrasound guided steroid injection: Exhibit "D", p 21; 8. On 21 November 2014, the plaintiff was reviewed by Dr Yu, who noted continuing complaints of right arm neuropathic pain, sleep disturbance requiring medication, PTSD, anxiety and stress. Dr Yu noted a limited attempt at return to work. Continued exercises and psychological treatment was recommended: Exhibit "D", p 22 - 23; 9. On 27 November 2014, Dr John Korber, a radiologist, undertook an ultrasound study of the plaintiff's right wrist, at which time he performed an ultrasound guided steroid injection with local anaesthetic. The ultrasound study identified some abnormalities, which included a mild tenosynovitis: Exhibit "D", p 24; 10. On 11 December 2014, the plaintiff was again reviewed by Dr Yu, who noted minimal improvement following the recent steroid injection. He noted that in addition to continuing her therapies, the plaintiff had been working 4 hours per day three days per week: Exhibit "D", p 25; 11. On 18 December 2014, the plaintiff was again reviewed by Dr Schick, who noted an ongoing CRPS, and he recommended and MRI scan of the triangular fibro cartilage complex (TFCC) and possible surgical intervention in the event of a tear being found in the TFCC : Exhibit "D", p 26; 12. On 9 January 2015, the plaintiff underwent a high resolution MRI of her right wrist which revealed a mid-circumference tear of the TFCC insertion to the radius, with some joint effusion and synovial thickening, focal tendinopathy and related findings: Exhibit "D", pp 27 - 28; 13. On 15 January 2015, the plaintiff was re-assessed by Dr Yu, who noted that she was quite depressed in her mood. He planned a further review and for the plaintiff to have continued treatment in the interim: Exhibit "D", p 29; 14. On 28 January 2015, the plaintiff was again reviewed by Dr Schick, who interpreted the MRI findings to represent a probable granuloma, and he recommended surgery to treat the lump in the plaintiff's right wrist: Exhibit "D", p 30; 15. On 12 February 2015, the plaintiff was re-assessed by Dr Yu, who adjusted the medications and noted Dr Schick's plan for further surgical treatment: Exhibit "D", p 31; 16. On 11 March 2015, Dr Schick again reviewed the plaintiff one week post plate and screw removal, and post removal of the right wrist granuloma, which was considered to have been due to a foreign body in the form of gauze, stitch material or a drill bit tip introduced at the time of surgery: Exhibit "D", p 33; 17. On 12 March 2015, the plaintiff was again reviewed by Dr Yu following the recent surgical procedure: Exhibit "D", p 34; 18. On 2 April 2015, at the request of her solicitor, the plaintiff underwent a vocational assessment by Dr James Athanasou, a consultant vocational psychologist. Dr Athanasou expressed the opinion that the plaintiff had, as a result of her accident, lost the potential to continue working as a venue manager and an events organiser which were avenues of employment she had already had a record of achievement. He also expressed the opinion that she may be limited in working at a managerial level in a hands-on role, and that her employment prospects were restricted by her age, a relative lack of transferrable skills, her prolonged absence from the labour market, and any negative employer perceptions of her ability: Exhibit "C", Tab 1, pp 1 - 14; 19. On 10 April 2015, the plaintiff was again reviewed by Dr Schick, who noted the continued presence of CRPS symptoms: Exhibit "D", p 35; 20. On 16 April 2015, the plaintiff was again reviewed by Dr Yu, who noted increasing pain, and adjusted the medication regime: Exhibit "D", p 36; 21. On 8 May 2015, the plaintiff was again reviewed by Dr Schick who noted a history of some painful clicking in the right wrist: Exhibit "D", p 37; 22. On 18 May 2015, the plaintiff was re-assessed by Dr Yu, who noted the plaintiff was extremely depressed and anxious, in the context of the continued presence of pain, albeit with some noted improvement: Exhibit "D", p 38; 23. On 5 June 2015, the plaintiff was again reviewed by Dr Schick, who noted continued pain and a clunking sensation in the right wrist. He suggested an MRI as an investigatory step: Exhibit "D", p 39; 24. On 9 June 2015, the plaintiff underwent an MRI of the right wrist which was reported by Dr Ron Schnier using the 9 January MRI scan as a comparison. He noted the previously evident dorsal wrist lump had been removed, as well as some surgical changes, and a tear in the radial attachment of the mid-circumference of the TFCC: Exhibit "D", p 40; 25. On 18 June 2015, the plaintiff was re-assessed by Dr Yu, who noted the plaintiff was working 6.5 hours per day, 4 days per week. He supported the continued hand therapy, medication and psychological treatment: Exhibit "D", p 41; 26. On 26 June 2015, the plaintiff was again reviewed by Dr Schick with some focus on the impact of the plaintiff's CRPS upon her, and a discussion on the need for further x-rays and a possible further attempt at a TFCC repair: Exhibit "D", pp 42 - 43; 27. On 30 June 2015, the plaintiff underwent a psychological assessment by Ms Carol Manns, who noted the reports she had reviewed, and she recorded a history from the plaintiff of right hand restrictions, apprehensiveness, and increased anxiety about her future, previous panic attacks, psychomotor retardation, nightmares about falling, and a sense of a foreshortened future. Ms Manns made a provisional diagnosis of PTSD, major depressive episode, somatic symptom disorder and predominant pain, for which she recommended a series of 12 cognitive behaviour therapy sessions: Exhibit "D", pp 44 - 47; 28. On 7 July 2015, at the request of Dr Schick, the plaintiff was assessed by Dr Stuart Myers, a consultant hand and wrist surgeon, who, after recounting the history, the medications taken by the plaintiff, and after considering surgical options, recommended an ultrasound guided steroid injection to the right wrist. He also noted significant psychological distress in the plaintiff, which indicated that the approach to surgery should hasten slowly: Exhibit "D", pp 48 - 49; 29. On 7 July 2015, the plaintiff underwent bilateral x-rays of her wrists which Dr O'Connell reported as raising a concern over avascular necrosis of the trapezoid bone of the right wrist: Exhibit "D", p 50; 30. On 15 July 2015, Dr Schick carried out a right wrist arthroscopy and TFCC repair, a tendon stabilisation procedure, and the excision of a dorsal wrist lump: Exhibit "D", p 32; 31. On 16 July 2015, the plaintiff was re-assessed by Dr Yu for persistent right arm pain with neuropathic features. He suggested a stellate ganglion block injection and the provision of guidance regarding work matters, followed by a further review: Exhibit "D", p 51; 32. On 17 July 2015, Dr Yu convened a multidisciplinary case conference meeting to discuss treatment and management options in advance of the plaintiff's next attendance at the clinic on 3 September 2015: Exhibit "D", p 52; 33. On 24 July 2015, the plaintiff was again reviewed by Dr Schick in light of the earlier consultation the plaintiff had with Dr Myers, and his recommendations. Dr Schick determined that in light of the plaintiff's worsening symptoms of wrist irritability, he arranged for the plaintiff to have a steroid injection into her right wrist: Exhibit "D", p 53; 34. On 30 July 2015, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Yvonne Skinner, a consultant psychiatrist. Dr Skinner reviewed the plaintiff's history, and her complaints elicited at that time, noting the complaints of symptoms of anxiety, depression, panic attacks and cognitive dysfunction, and expressed the opinion that the plaintiff was suffering from a generalised anxiety disorder which probably explained the plaintiff's memory and concentration problems. Dr Skinner also stated that the plaintiff's "underlying anxiety disorder … is causing an aggravation of pain symptoms and concerns about her future". Dr Skinner also identified the possibility of medication being a contributing factor to those problems. Dr Skinner was of the opinion the plaintiff was not suffering from a psychiatric disorder that would prevent her from working, although she acknowledged that the plaintiff's prognosis remained guarded because of the duration of her symptoms and the aggravating effects of her most recent surgery: Exhibit "10", p 8; 35. On 30 July 2015, Dr Korber carried out an ultrasound guided steroid injection into the plaintiff's right wrist as suggested by Dr Schick: Exhibit "D", p 54; 36. On 3 September 2015, the plaintiff was reviewed by Dr Yu, who noted the fact of his negotiations with the workers' compensation insurer to approve further treatment for the plaintiff, including seeking approval for an appointment for the plaintiff to see an occupational physician: Exhibit "D", p 56; 37. On 14 September 2015, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr David Dilley, a consultant hand surgeon: Exhibit "C", Tab 10, pp 130 - 134; 38. On 21 September 2015, at the request of her solicitor, the plaintiff was assessed by Professor David Champion, a consultant rheumatologist. Professor Champion noted that following her fall, the plaintiff went on to develop the majority of the essential elements of post-traumatic stress disorder, some adjustment symptoms, and an adverse chronic pain experience, with a relatively severe post-traumatic chronic regional pain syndrome at the right distal forearm, wrist and hand, with an unfavourable prognosis: Exhibit "C", Tab 3, pp 38 - 47; 39. On 28 September 2015, the plaintiff's wrist issues were the subject of an assessment and presentation meeting and discussion amongst a group of hand surgeons at a Sydney Hospital clinical meeting. The consensus was that the plaintiff had a mechanical instability problem with her right wrist, including a CRPS which was secondary to the fracture injury. The consensus of that meeting was that it was appropriate for the plaintiff to undergo a repeat TFCC repair, as well as an ulnar joint stabilisation procedure, but not an ulnar shortening osteotomy. The workers' compensation insurer was asked to approve the cost of the procedure: Exhibit "D", p 57; 40. On 28 September 2015, at the request of her solicitor, the plaintiff was assessed by Ms Trudie Warner, a consultant occupational therapist. Ms Warner concluded the plaintiff was a genuine person with significant ongoing functional restrictions resulting from her injuries in the fall. She referred to the physical and psychological problems diagnosed by the other experts who had issued reports. Ms Warner's assessment identified permanent restrictions in performing heavier household domestic tasks, requiring long term support services to maximise independence in the activities of daily living whilst minimising the likelihood of aggravating symptoms: Exhibit "C", Tab 4, pp 50 - 94; 41. On 1 October 2015, the plaintiff was reviewed by Dr Yu, who noted the plaintiff's pain levels had diminished, and that she was seeing two clinical psychologists as part of her treatment. The result of the hand surgeon's review was still awaited: Exhibit "D", p 58; 42. On 12 November 2015, the plaintiff was reviewed by Dr Yu. He recorded that she rated her pain as being 5-9/10. He continued her medications pending further surgery, which was awaited: Exhibit "D", p 59; 43. On 19 November 2015, the plaintiff was again reviewed by Dr Schick. He noted she was more depressed lately. Surgery was being planned for when her emotional state had improved: Exhibit "D", p 60; 44. On 17 December 2015, the plaintiff was reviewed by Dr Yu, who urged a multidisciplinary approach to the management of the plaintiff's complex pain condition and related psychological issues: Exhibit "D", p 61; 45. On 14 January and 26 February 2016, the plaintiff was again reviewed by Dr Yu, who encouraged a regime of home exercises and a stellate ganglion block injection for the neuropathic pain. He pursued the insurer for approval of that treatment: Exhibit "D", pp 62 - 63; 46. On 21 January 2016, at the request of her solicitor, the plaintiff was assessed by Dr Jonathan Phillips, a consultant psychiatrist. Dr Phillips identified the important observation of the evolution of the plaintiff's symptoms over time to the point that they had become chronic and pervasive. After reviewing the DSM criteria, he considered that following the accident the plaintiff had suffered a post-traumatic stress disorder and a major depressive disorder, which he characterised as co-existing major depressive symptoms. He predicted that with treatment, the plaintiff would make slow but useful progress with her symptoms, but she would remain vulnerable to future stressors, with re-activation of her symptoms. He agreed with Professor Champion's opinion that the plaintiff would be restricted to part-time work in a low stress environment: Exhibit "C", Tab 5, pp 95 - 110; 47. On 17 March 2016, at the request of her general practitioner, the plaintiff underwent a psychiatric assessment by Dr Alex Pilsky. He recorded significant psychological symptoms which included, dysphoric mood, ruminations about the accident, intrusive recollections, nightmares, panic attacks with associated distressing symptoms, anhedonia and feelings of hopelessness, suicidal thoughts, insomnia, increased appetite and weight gain, and significant alcohol consumption for relief of anxiety. He considered the plaintiff was at an increasing risk of suicide and required close psychiatric observation: Exhibit "D", pp 64 - 65; 48. On 29 March 2016, the plaintiff was again reviewed by Dr Schick, who suggested postponing further surgery for the ongoing wrist clunking problem until the psychological problems receded: Exhibit "D", p 66; 49. On 8 April 2016, the plaintiff was reviewed by Dr Yu, who noted that the plaintiff was awaiting approval for the surgery, and in the meantime, he recommended the plaintiff continue with psychological and psychiatric treatment: Exhibit "D", p 67; 50. On 18 April 2016, the plaintiff was reviewed by Dr Pilsky, who noted the plaintiff exhibited abnormal movements consistent with the onset of Tourette's Syndrome, which was a rare but known co-morbidity of depressive and anxiety disorders and her PTSD, which required observation: Exhibit "D", p 68; 51. On 11 May 2016, the plaintiff was reviewed by Dr Pilsky, who noted that she continued to struggle with depression and symptoms of PTSD, for which he changed her medication: Exhibit "D", p 69; 52. On 29 May 2016, the plaintiff was again reviewed by Dr Pilsky, who adjusted her prescribed medications: Exhibit "D", p 70; 53. On 2 June 2016, at the request of the solicitor for the defendant, Dr Skinner: Exhibit "9". She prepared a letter of commentary on the report of Dr Phillips dated 21 January 2016: Exhibit "C", Tab 5. The questions which the defendant had asked of Dr Skinner in this context were not in evidence. Dr Skinner's commentary was undertaken on the papers without a further examination of the plaintiff. Dr Skinner had last seen the plaintiff on 30 July 2015. After reviewing the report of Dr Phillips, Dr Skinner expressed the opinion that her earlier opinion dated 31 July 2015, which was that the plaintiff's presentation did not fulfil the criteria for a diagnosis of post-traumatic stress disorder, although the plaintiff had developed symptoms of severe anxiety with occasional panic attacks, remained unchanged. That opinion requires evaluation in the context of the entire body of the medical evidence. 54. On 9 June 2016, the plaintiff was reviewed by Dr Yu, who noted a reduction in the neurological complaints but ongoing mechanical pains in the right wrist: Exhibit "D", p 71; 55. On 16 June 2016, the plaintiff was again reviewed by Dr Pilsky, who adjusted the plaintiff's medication regime: Exhibit "D", p 72; 56. On 26 June 2016, the plaintiff was again reviewed by Dr Pilsky, who adjusted the plaintiff's medication regime whilst she was awaiting surgery: Exhibit "D", p 73; 57. On 20 July 2016, Dr Schick re-operated and carried out a series of complex orthopaedic procedures on the plaintiff's right wrist and upper limb comprising an Adams procedure for revision of previous tendon repairs and a reconstruction of the right radio-ulnar joint: Exhibit "D", p 74; 58. On 26 July 2016, at the request of the plaintiff's solicitor, Dr Phillips commented upon the report of Dr Skinner which had been served by the defendant. On comparing the respective histories they obtained, Dr Phillips stood by his earlier opinion, and considered that his views and those of Dr Skinner were not all that far removed from each other. The difference appeared to be one of terminology, in that, whereas Dr Phillips diagnosed a post-traumatic stress disorder, Dr Skinner diagnosed a generalised anxiety disorder, and the difference appeared to be accounted for by the more detailed history obtained by Dr Phillips: Exhibit "C", Tab 7, pp 117 - 119; 59. On 27 July 2016, the plaintiff was reviewed by Dr Pilsky. He considered that she should be able to engage in more meaningful rehabilitation after her post-operative pain improves: Exhibit "D", p 75; 60. On 29 July 2016, the plaintiff was again reviewed by Dr Schick following the re-operation and ligament reconstruction procedure. He provided her with reassurance and he referred her back to Dr Yu for pain management: Exhibit "D", p 76; 61. On 4 August 2016, the plaintiff was reviewed by Dr Yu, who made adjustments to her regime of prescribed medications and encouraged her to continue with psychological treatment: Exhibit "D", p 77; 62. On 19 August 2016, the plaintiff was again reviewed by Dr Schick, who noted some settling of arm pain, and a reduction in swelling. On this date, the plaintiff's plaster was changed to a short arm cast: Exhibit "D", p 78; 63. On 7 September 2016, the plaintiff was reviewed by Dr Pilsky, who adjusted her psychotropic medications in the hope of reducing her vocal and motor tics: Exhibit "D", p 79; 64. On 8 September 2016, the plaintiff was again reviewed by Dr Schick, who noted the plaintiff's report of ongoing shooting pain around the ulnar side of the right wrist. He also noted that the plaintiff was quite anxious. He recommended further hand therapy, with care, and further consultation with Dr Yu: Exhibit "D", p 80; 65. On 15 September 2016, the plaintiff was reviewed by Dr Yu for her continuing right arm pain. He planned to book the plaintiff for a further stellate ganglion block injection under ultrasound guidance: Exhibit "D", p 81; 66. On 25 September 2016, the plaintiff was reviewed by Dr Pilsky, who noted a degree of subsidence of the earlier described vocal and motor tics. He was uncertain whether this would be a lasting reduction, and he noted that the tic problem was becoming a nuisance for the plaintiff at her work. He made some adjustments to her prescribed medication regime: Exhibit "D", p 82; 67. On 1 October 2016, Dr Schick wrote to the workers' compensation insurer to answer questions raised about the plan for the plaintiff to have further surgical treatment following the earlier failed ligament repair. Dr Schick explained that the recommendation for further surgery was as a result of extensive consultation with the plaintiff concerning her case, which he described as complex, and following consultations with his colleagues at the Sydney Hospital Hand Clinic. He noted the indication for further surgery to be a continuing mechanical problem with the right wrist, and secondary CRPS. He noted these problems and the associated wrist instability were impacting upon the plaintiff's ability to return to a productive working life: Exhibit "D", p 83; 68. On 23 October 2016, Dr Pilsky reviewed the plaintiff and noted a history of a lot of anxiety, irritability and a lot of mood changes. This seemed to be in part due to the effects of the medication regime, which he reviewed and changed: Exhibit "D", p 84; 69. On 28 October 2016, the plaintiff was again assessed by Dr Schick, which was 3 months post wrist reconstruction surgery. He noted continuing anxiety about an occasional click in the wrist. He noted the ongoing symptoms were due to post-surgical soreness and the CRPS. He recommended continuing with hand therapy and he noted the plan for a further stellate ganglion block procedure: Exhibit "D", p 85; 70. On 16 November 2106, the plaintiff was reviewed by Dr Pilsky, who noted a more stable mental state in the plaintiff following cessation of the medication Pristiq, which had resulted in a mixed state of depression and hypomania. He made adjustments to the medication regime and he noted the plaintiff remained impaired both in terms of her physical and mental state. Dr Pilsky tentatively supported the plaintiff's wish to increase her working hours from 20 to 24 hours per week: Exhibit "D", p 86; 71. On 18 November 2016, Dr Schick wrote to the workers' compensation insurer to answer questions about the plaintiff's progress. He recommended further hand therapy and pain management. He also noted continuing unfitness for pre-injury work, with the barriers being pain and weakness, and he suggested that the residual work activities be according to the plaintiff's levels of tolerance and comfort: Exhibit "D", p 87; 72. On 28 November 2016, the plaintiff was reviewed by Dr Yu, who noted he would chase the insurer for approval for a further stellate ganglion block procedure under ultrasound guidance in light of the plaintiff's persistent right wrist pain. He also recommended continuing with physiotherapy, and consultations with the psychologist and the psychiatrist, along with ongoing analgesic medication: Exhibit "D", p 88; 73. On 9 December 2016, the plaintiff was again reviewed by Dr Schick five months post TFCC repair and wrist reconstruction surgery. He recorded a history of better hand function and strength, but also occasional clicking, some continuing pain albeit reduced, and a stable distal radial ulnar joint. He noted continuing signs of the pain syndrome previously identified, and emphasised the importance of ongoing hand therapy and pain management treatments: Exhibit "D", p 89; 74. On 9 December 2016, at the request of the solicitor for the plaintiff, Dr Pilsky wrote a detailed report setting out his involvement in the plaintiff's treatment, since 17 March 2016, and from the viewpoint of his specialty, identifying his accident-related diagnoses of severe and chronic PTSD, major depression of moderate severity with mixed features, chronic pain, and a traumatic brain injury, distressing vocal and motor tics, anxiety, poor stress control and cognitive difficulties: Exhibit "D", pp 90 - 98; 75. On 11 December 2016, Dr Pilsky reviewed the plaintiff and provided a short update of her problems, noting that she continued to complain of significant motor and vocal tics, and an increased level of internal agitation and tension, which he said was usual in the case of someone trying to supress tics: Exhibit "D", p 99; 76. On 13 December 2016, Dr Yu wrote to the workers' compensation insurer to address questions that were posed to him concerning referrals, treatment, and return to work issues: Exhibit "D", p 100; 77. On 18 January 2017, the plaintiff was reviewed by Dr Pilsky, who noted that she remained of labile mood, and continued to experience significant agitation, although her previous hypomanic and suicidal thoughts had subsided. He was concerned about the considerable amounts of Endone the plaintiff was taking for her ongoing right wrist pain. He was also concerned about the problems she experienced with antidepressants, which meant these were ceased: Exhibit "D", p 101; 78. On 18 January 2017, Dr Phillips provided a supplementary report in which he addressed questions that were posed to him by the solicitor for the plaintiff in relation to the reports of Dr Pilsky. Dr Phillips pointed to the fact that the treating psychiatrist and his own opinion coincided, in relation to the diagnosis of a post-traumatic stress disorder, and in respect of the difference between those opinions and that of Dr Skinner, Dr Phillips pointed out that all three psychiatrists shared the view that the plaintiff had anxiety spectrum symptoms, irrespective of the assigned diagnostic label. Dr Phillips summarised the position by stating there was no doubt the plaintiff had ongoing psychopathology as a direct result of the traumatic incident in question: Exhibit "C", Tab 8, pp 120 - 121; 79. On 23 January 2017, the plaintiff was reviewed by Dr Yu, who noted the plaintiff was working about 16 hours per week. He also noted that due to her persistent right wrist pain, she should continue with physiotherapy, treatment by a psychologist and a psychiatrist, continue with various medications, and have a repeat right stellate ganglion block under ultrasound guidance, with pulsed radiofrequency neurotomy: Exhibit "D", p 102; 80. On 21 February 2017, the plaintiff was reviewed by Dr Pilsky, who noted the plaintiff's report of continued quite severe right wrist pain. He also noted that her mood had stabilised and her sleep had improved since ceasing Imovane. He continued other medications, and thought that her work capacity was limited by pain more than psychiatric considerations, although those factors interacted: Exhibit "D", pp 103 - 104; 81. On 22 March 2017, the plaintiff was reviewed by Dr Pilsky, who noted her mood had stabilised on Quietapine, albeit with some associated tiredness, which indicated she should keep to her work regime of 16 hours per week, subject to further review: Exhibit "D", p 105; 82. 11 April 2017, the plaintiff was reviewed by Dr Pilsky, who noted her mood was relatively stable, and that there had been some positive developments in her life, including a reduction in the vocal and motor tics, although she still had a tearful presentation: Exhibit "D", p 106; 83. On 18 April 2017, at the request of her solicitor, the plaintiff was reassessed by Professor Champion, who identified his agreement with the assessment made by Dr Phillips in the report dated 21 January 2016. Professor Champion reiterated his opinion from the viewpoint of his specialty, that the plaintiff had post-traumatic and post-surgical chronic regional pain disorder of the right wrist, with features of a continuing post-traumatic stress disorder, unfavourably interacting with the chronic pain disorder, and ongoing depression, with spin off effects, including in relation to unfitness for employment in a managerial role for the foreseeable future: Exhibit "C", Tab 9, pp 122 - 129; 84. On 12 May 2017, Dr Schick wrote to Dr Peter Scougall seeking a second opinion regarding the plaintiff's continuing and persistent severe ulnar sided wrist pain as he was unconvinced of the benefits of a distal ulnar replacement, and he was seeking a fresh perspective: Exhibit "D", p 107. No further surgery is being planned for the plaintiff's right wrist following the consultation with Dr Scougall: T55.20 - T55.43; 85. On 24 May 2017, the plaintiff was reviewed by Dr Pilsky, concerning her increasing anxiety and deteriorating sleep, which seemed to have coincided with a cut in her pay at work. The plaintiff also reported nightmares and visual hallucinations from taking Imovane, and he ordered that medication to cease. He noted her mood to be labile, her presentation to be tearful. He indicated the plaintiff required very close monitoring until she returned to her previous baseline state: Exhibit "D", p 108; 86. On 29 May 2017, the plaintiff was reviewed by Dr Yu, who noted, despite operations to the right wrist, that the plaintiff was experiencing persistent wrist pain and secondary psychological issues. He recommended referral to a multidisciplinary intensive and integrated pain management programme, and he indicated that he would write to the insurer for approval for that course: Exhibit "D", p 109; 87. The report of Professor Champion dated 18 July 2017 indicates that the solicitor for the plaintiff had been provided with reports from Dr Vijay Maniam, an orthopaedic surgeon (24 June 2015) and Dr Stephen Buckley, a rehabilitation specialist (24 October 2005). Whilst Professor Champion made some reference to the contents of those reports, they were not in evidence, and they did not feature in the submissions of the parties. Therefore, no adverse inferences arise as to the content of those reports.

Findings reconciling conflicting medical opinions

The only significant emergent matter of medical dispute that requires reconciliation is a diagnostic issue within the expert medical evidence of the consultant psychiatrists who provided medico-legal reports. In my view, this was a terminological dispute between the reports of Dr Phillips, as is relied upon by the plaintiff, and the reports of Dr Skinner, as is relied upon by the defendant.
That terminological dispute concerned the use and the technical application of the Diagnostic and Statistical Manual (DSM 5) diagnostic nomenclature, and how the plaintiff's injury and her related psychological symptoms, which were not in dispute, should be classified for diagnostic purposes.
Dr Phillips was of the view that the plaintiff's symptom's met the requirements for DSM 5 criteria, for the diagnosis of a post-traumatic stress disorder and a co-existing major depression (Exhibit "C", Tab 5, p 106), whereas in her report dated 2 June 2016, Dr Skinner was of the view that the plaintiff's symptoms did not fulfil the diagnostic criteria for post-traumatic stress disorder because the requirements of Criterion A of that manual, namely the requirement of "exposure to actual or threatened death" was absent from the history she obtained from the plaintiff, although Dr Skinner accepted that the plaintiff had developed symptoms of severe anxiety with panic attacks: Exhibit "10", p 2.
It is therefore apparent that this dispute raises a factual matter to be determined concerning the nature of the plaintiff's psychological reaction to the circumstances of her fall, as was foreshadowed at paragraphs [42], [70] and [73] above.
In my assessment, the basis for reconciliation of the divergent opinions is appropriately summed up and explained by Dr Phillips, who in his second report, identified the fact that the psychiatric diagnosis was dependent upon the detail within the history that was obtained by the respective examiners. In that regard, he pointed out, correctly in my view, that the history he obtained from the plaintiff was more comprehensive than that taken by Dr Skinner with regard to matters of psychological and cognitive symptoms.
In that regard, in my assessment, Dr Skinner's summary of the plaintiff's history of injury was rather bland as to detail, and seemed to be devoid of any description that conveyed the extent of the plaintiff's experience of shock, alarm, terror, petrification, and distress at the circumstances of her injury, as described in her evidence, and as was recorded by other medical examiners. Dr Skinner's summation of that history was simply that "… She walked onto a path and fell. She was not sure whether she lost consciousness. She woke in a drain/ravine feeling disoriented": Exhibit "9", p 2.
The plaintiff's more graphic and emotion-laden account of those events, as cited in paragraph [90] above, was absent from Dr Skinner's summary. Furthermore, Dr Skinner's summary of the plaintiff's return to work, where she described the plaintiff as feeling like she "was a wreck", was minimally informative, and conflated.
In that regard, Dr Skinner's summary did not delineate the fact that the plaintiff's return to work occurred about 6 weeks post-injury and was associated with her experience of coping difficulties, and Dr Skinner's summary did not refer to the detail of the plaintiff's physical and psychological suffering in the interim period. I considered Dr Skinner's account of the plaintiff's history to be relatively and comparatively superficial in the context of the evaluation of the course of the plaintiff's psychological problems.
Dr Skinner's evaluation did not refer to the fact that, as was emphasised and reiterated by Dr Phillips, the condition known as post-traumatic stress disorder is usually conceptualised as being a severe and unique form of anxiety disorder, which led Dr Phillips to the view that, amongst all three psychiatric opinions, at the least, there was a shared view that the plaintiff had anxiety spectrum symptoms, irrespective of whether the diagnosis was that of a generalised anxiety disorder, or that of a post-traumatic stress disorder: Exhibit "C", Tab 8, p 121.
That characterisation by Dr Phillips, which I accept, indicates that the distinction sought to be made by Dr Skinner concerning post-traumatic stress disorder and a generalised anxiety disorder, was ultimately immaterial in this case.
It is for those reasons that I prefer and accept the opinions of Dr Phillips when compared to those of Dr Skinner. In my view, on a factual basis, the plaintiff's account, in which she described her experience of distress, petrification and terror at her isolated circumstances when injured, where the plaintiff found that she was unable to extricate herself from the bottom of the ravine, seems sufficiently consistent with the plaintiff having been exposed to a death threatening experience.
In arriving at this factual finding on the nature of the plaintiff's experience at the time of the accident, I am guided by the plaintiff's factual accounts which I accept, and by the factual descriptions which based the opinions of Dr Pilsky, Dr Phillips and Dr Champion, and the assessing psychologist, Ms Mann.
I am also reinforced in the conclusion that the plaintiff suffered post-traumatic stress disorder because Dr Phillips' opinions are consistent with those of the plaintiff's treating psychiatrist, Dr Pilsky, where his opinions to that effect, were not the subject of challenge by the defendant. The defendant did not require Dr Pilsky for cross-examination. In those circumstances, the opinions of the treating psychiatrist carry significant persuasive weight.
The parties did not require any of the consultant psychiatrists to give oral evidence to further elaborate upon the factual basis and reasons for their respective opinions. Furthermore, the parties did not avail themselves of the readily available procedure for a meeting of experts to take place after preparing a joint report, and for the taking of their evidence concurrently. That process would have enabled the respective experts to each comment on any matters of contention within the opinions expressed by their colleagues: UCPR r 31.35.
In those circumstances, where, by reason of the operation of UCPR r 31.30 in the District Court, the respective expert opinions remain in a state of conflict, such conflict stands to be resolved according to whether or not the onus of proof on a particular factual question has been discharged by the party relying upon a particular opinion: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].
In the present case, although Dr Skinner and Dr Phillips obtained histories of broadly similar content concerning the manner and the circumstances of the plaintiff's injury, as cited at paragraphs [90] - [95] above, the more detailed exposition of the plaintiff's history, as set out in the reports and the opinions of Dr Phillips, as was commented upon by Dr Champion, persuades me that the opinions of Dr Phillips should be preferred and accepted compared to those of Dr Skinner which are less descriptive, where those opinions remain in unresolved conflict.
In my view, the factual assumptions made by Dr Skinner for the purposes of expressing her opinions in her reports were not sufficiently like the factual experiences described by the plaintiff so as to render Dr Skinner's opinions acceptable in this case: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]; HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, at [39].
Instead, for the reasons I have stated, I prefer and accept the opinions of Dr Phillips and Dr Pilsky in preference to the opinions of Dr Skinner concerning the diagnosis of the plaintiff's post-traumatic stress disorder, and the nature and extent of her depression.

Disabilities that remain

Given my acceptance of the plaintiff's credit as a witness, and given my acceptance of her evidence generally, in the absence of significant challenge on matters of history, I propose to treat the histories summarised by Professor Champion, Dr Phillips and Dr Pilsky, and the other practitioners who have provided reports, as evidence of the plaintiff's early post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995.
Similarly, and consistent with that approach, in addition to the plaintiff's oral evidence, I have drawn upon the content of the tendered medical reports to identify relevant aspects of the plaintiff's history, and her reported disabilities.
Despite the successive surgical procedures that have been carried out to the plaintiff's right arm on 1 June 2014, 25 February 2015, 21 May 2016, including a radio-ulnar joint reconstruction and tendon transfers (T53.35 - T53.45) the plaintiff has continuing physical problems in her right wrist and arm. This includes a residual mechanical problem with the right wrist: T54.20. For a long time, the plaintiff has experienced an abnormal clicking sensation in her right wrist: T48.5 - T48.20.
Physically, the plaintiff has been left with pain, stiffness, discomfort, weakness and reduced grip strength and function in her right wrist, and a residual and troublesome complex regional pain syndrome with neuropathic symptoms. In addition to having the described mechanical problems with her right wrist, she has reported experiencing shooting pains in the ulnar side of her right wrist. She cannot write for long periods: T49.3. She also reported experiencing a tingling sensation over the dorsum of her right wrist. There is radiological evidence of sclerosis and partial collapse of the trapezoid bone in the right wrist. These physical problems are associated with a poor prognosis for significant improvement, and there is a prospect that the plaintiff may need further surgery in the form of a joint replacement procedure to her right wrist, which is associated with significant risk of a poor outcome.
Cosmetically, the plaintiff has multiple unsightly surgical scars to her right forearm and wrist which she would not have had but for the effects of her injuries. At the request of the parties, I have viewed these scars: T56.24 - T57.26. At that time, I observed the plaintiff's obvious embarrassment at having to demonstrate the presence of that scarring, although she did not vocalise that embarrassment. She makes no complaint of the cosmetic consequences of the stitched wound to her forehead: Exhibit "D", p 13.
Psychologically, the plaintiff has a constellation of residual symptoms, none of which were challenged when she gave her evidence. An unfortunate effect of the plaintiff's injuries and disabilities and her impaired functional capacity, combined with her physical and psychological problems (Exhibit "D", p 86) has been an interaction between the plaintiff's experience of pain, and her fluctuating psychological symptoms: Exhibit "D", p 104.
Those matters have had a significant, deleterious and negative impact upon the plaintiff's day-to-day functioning.
An untoward development for the plaintiff has been the emergence of vocal and motor tics, which produce tension and agitation in the plaintiff when she tries to suppress them: Exhibit "D", p 99. Although the vocal tics have subsided to a degree, they cause her embarrassment in her communications at her workplace: Exhibit "D", p 82.
The plaintiff suffers from impaired and deteriorated sleep patterns and nightmares. She suffers from severe anxiety, irritability, mood changes, emotional lability, tearfulness, nihilistic thoughts, and depression.
She has had to endure multiple prescribed variations in drug therapies aimed at alleviating her symptoms. Some of the drugs she has trialled have caused her to suffer significant adverse reactions. She still needs to take strong painkilling, and psychotropic medication which will require ongoing general practitioner, specialist, and multidisciplinary supervision and pain management for her chronic residual problems.
The plaintiff experienced deterioration in her mental state because she saw less value and purpose in her life: T48.25. She experiences physical and mental exhaustion from her work, despite the fact that her employer has allocated her to carry out lighter duties. She is conscious of the fact that she is no longer performing work at her former high level: T49.12 - T49.16.
Some of the features and impacts of the plaintiff's ongoing disabilities have been described in a more detailed context in the medical reports that have been tendered in the proceedings.
In Dr Champion's report dated 21 September 2015, he noted that the plaintiff reported ongoing relatively severe combined effects of her right wrist injury and sequelae, and her psychological injury: Exhibit "C", Tab 3, p 42.
In Dr Champion's report dated 18 April 2017, he identified the plaintiff's ongoing physical problems with her right wrist as comprising continuing pain-related disability to her right wrist/carpus, and more generally, in her right forearm, wrist and hand, with a movement disorder of the right hand more prominent than evident at his earlier examination, and complicated by what was considered to be a chronic regional pain disorder or syndrome. He considered the pain-related disability to be at quite a high intensity. This has resulted in reduced supination, digital dyskinesia, and quite marked impairment of function of the right hand and wrist: Exhibit "C", Tab 9, p 128.
Dr Champion noted that additional important features of the plaintiff's post-injury predicament included impaired sleep, persistent fatigue, cognitive impairment (partially influenced by drug therapy) and the apparent need for continuing complex drug therapy, unfortunately including opioids, which have a number of adverse consequences, including difficult withdrawal and potentially, a hyperalgesic state: Exhibit "C", Tab 9, pp 128 - 129.
Dr Champion was of the opinion that the plaintiff's history did not identify any pre-accident potential for adverse psychological or physical/somatic responses to trauma: Exhibit "C", Tab 3, p 44. He observed that the plaintiff had the main essential features of post-traumatic stress disorder due to the fall she had experienced: Exhibit "C", Tab 3, p 41. He considered the plaintiff's prognosis was not at all favourable: Exhibit "C", Tab 3, p 46.
Overarching the period between Dr Champion's 2015 and 2017 assessments, Dr Champion noted the plaintiff to be severely depressed, which he described as being major, with a concerning prognosis, with post-traumatic stress disorder, with unfavourable interaction with the chronic pain disorder in a bi-directional manner: Exhibit "C", Tab 9, pp 128 - 129. I take that expression to mean that the plaintiff thereby experienced negative feedback with her pain, which prolonged or accentuated her symptoms.
Although Dr Champion is not a consultant psychiatrist, his medical opinion on the plaintiff's psychological state is no less valid. His specialty straddles the disciplines of physical assessment as well as assessing and managing the long-term consequences of chronic pain.
In September 2015, Dr Dilley, a hand surgeon retained on behalf of the defendant, considered that, at that time, further attempts at surgical repair would only have a fair to moderate degree of success, and that the plaintiff's overall prognosis was only "fair": Exhibit "C", Tab 10, p 132. The chronology of medical attendances and treatments has borne out that opinion.
As identified at paragraphs [85] to [102] above, I have preferred the analysis of the plaintiff's problems, as explained by Dr Phillips, compared to the analysis proffered by Dr Skinner.
Dr Phillips focussed his psychiatric diagnosis on the basis of the plaintiff's summarised complaints of tendency to panic, intermitted catastrophic thinking, persisting hypervigilance, described as constantly looking for danger, nightmares linked thematically to the subject injury, and the plaintiff's ongoing preoccupation with pain: Exhibit "C", Tab 5, p 99.
Dr Phillips additionally identified the plaintiff's stated physical symptoms, as he has outlined, as an extensive range of ongoing psychological symptoms which, in summary form, can be conveniently summarised as involving anxiety, panic attacks, poor sleep, depression, nihilistic thoughts, feelings of helplessness, hopelessness, uselessness, self-pity and guilt, frustration at loss of control of various aspects of her life, resentful at being less able to achieve, worsening daytime flashbacks, hypervigilance, avoidant behaviour, impatience, lessening of cognitive focus, struggles with tasks of daily life, difficulty articulating her thoughts, and some problems with short-term memory: Exhibit "C", Tab 5, pp 100 - 101.
The history of the plaintiff's ongoing complaints obtained by Dr Phillips was not all that different to Dr Skinner's history of the plaintiff's current complaints, the details of which were described as a worsening psychological state following unsuccessful surgery, constant pain in the right wrist extending into the upper arm, increase in pain with exercise, worsening of wrist and arm pain when experiencing anxiety, at times being kept awake by pain, anxiousness if sleep has been disturbed, often recurring dreams of falling; feeling stress about her future, inability to control her emotions, emotional overeating leading to weight gain, feelings of being "weak" in contrast to previously being "strong", impaired short term memory, and irritability and emotional lability.
Dr Phillips considered the plaintiff's symptoms had become chronic and pervasive. He was in no doubt that as a consequence of the fall, the plaintiff had post-traumatic stress disorder and a major depressive disorder consistent with DSM 5 diagnostic criteria. He considered that the plaintiff would remain vulnerable to react adversely to future stressors, with possible re-activation of symptoms: Exhibit "C", Tab 5, pp 104 - 107.
On 26 July 2016 and 18 January 2017, Dr Phillips prepared two supplementary reports which respectively commented upon both the defendant's expert report from Dr Skinner and the plaintiff's treating psychiatrist, Dr Pilsky: Exhibit "C", Tabs 7 and 8, pp 117 - 121.
In those supplementary reports, Dr Phillips reiterated the continued applicability of his earlier diagnosis and opinions. He considered the plaintiff's diagnosis was that of the more severe syndrome of post-traumatic stress disorder which, followed a potentially life threatening situation in which she found herself in the subject accident: Exhibit "C", Tab 7, pp 118 - 119.
In formulating his most recent commentary, Dr Phillips placed significant weight on the historical reports from the plaintiff's treating psychiatrist, which identified post-traumatic stress disorder and co-morbid depression in the plaintiff: Exhibit "C", Tab 8, p 121.
In my view, it is of persuasive significance that Dr Phillips undertook a synthesis of his own opinions with those of Dr Pilsky and Dr Skinner, and concluded that it was obvious that there was a shared view amongst those three psychiatrists, that the anxiety spectrum symptoms suffered by the plaintiff, irrespective of whether the diagnosis was that of generalised anxiety disorder (as propounded by Dr Skinner) or post-traumatic stress disorder (as propounded by himself, Dr Champion and Dr Pilsky). In that regard, he noted that post-traumatic stress disorder, as a concept, is a severe and unique form of anxiety disorder: Exhibit "C", Tab 8, p 121
The plaintiff continues to feel despondent about the future of her right wrist because further surgery does not seem to be an option for her: T55.34 - T55.44.
I infer from the plaintiff's embarrassment in revealing her scarring in the Court room setting, that this would apply equally in other settings.
The plaintiff continues to experience some significant and deleterious psychological consequences from her injuries. She continues to have ruminations about having experienced suicidal thoughts and her depression, particularly when experiencing a panic attack: T57.40 - T57.49. Her panic attacks occur at random on a daily basis with trivial triggers: T58.9 - T58.12. She experiences feelings of desperation and helplessness which she has difficulty explaining: T58.1 - T59.6.
When the plaintiff experiences anxiety, she has noticed a "weird" and uncontrollable facial tic, which has made her self-conscious and which has inhibited her ability to effectively communicate with others and this has also affected her social life, and has resulted in some social withdrawal on her part when she is overcome with fear, a phenomena she did not experience before her injury: T58.14 - T58.30.
The plaintiff's vocal tics have abated after she was prescribed Ability for a time: T65.30; T65.42. When she gave her evidence, she was observed to speak with facial grimaces, and she appeared to raise her voice when apparently stressed whilst giving her evidence in chief: T65.31 - T65.34.
Although the plaintiff is at times tearful, and labile in her mood, she has assured her psychiatrist that she is safe, and not at risk of self-harm: T65.45 - T66.5.
The plaintiff remains vulnerable to the interaction of her experience of physical pain and her psychological condition, in that when her pain is aggravated, she experiences anxiety, which reflects on her mood, and her experience of tiredness, and whilst this has in the past lessened as a problem, these problems had deteriorated by the time of the hearing: T66.7 - T66.19.
The plaintiff continues to take the psychotropic medications Palexia, Lyrica and Seroquel: T59.17. The plaintiff has experienced the unpleasant side effect of the drug Imovane, that caused her to suffer visual hallucinations, and which resulted in her ceasing that medication: T66.27; Exhibit "D", p 103. It seems likely, from the various prescription drugs that she has already trialled, that process will most probably continue.

Work effects

The plaintiff returned to work for her pre-injury employer about 6 weeks post-accident but she found that she could not cope with her pre-accident duties: T43.37. It was a confusing time for her as beforehand, she regarded herself as being a strong and capable person, but after her injury she felt distracted, unable to focus, and found that she could not communicate with people properly.
The plaintiff has lost her confidence in returning to her pre-accident managerial duties. This is influenced by her experience of pain, her feelings of panic, loss of concentration, her inability to do physically demanding tasks, and the tiredness that comes from her experience of pain, and her self-consciousness about her communication skills, which is associated with her facial tics, and her fumbling for words due to nervousness: T60.15 - T60.36.
On returning to work, the plaintiff could not understand what was going on with herself at that time, and she could not cope with her management duties: T43.7 - T44.6. After a short return to work in July 2014, the plaintiff remained off work until November 2014, on returning to work she gradually increased her days and hours at work, just doing ad hoc office duties for her employer at a different location and in a job with different and much lesser duties: T44.35; T44.37.
The plaintiff currently works approximately 16 hours per week between 8.00am and 12.30pm, but this regime exhausts her physically and mentally: T59.24 - T59.31. The plaintiff found that she often left work in tears: T49.13. The combination of her pain and her psychological state plainly limits her work capacity: Exhibit "C", p 86. These are matters that are relevant to assessing her entitlement to damages for future economic loss.
The plaintiff continues to have pain in her right arm, including after she finishes her work: T59.40. Her employer has provided her with a modified work station with a left-handed keyboard and a special wrist rest to reduce the strain on her right wrist: T60.1 - T60.5. She is despondent in her outlook about the future of her left wrist because there is no likelihood of further surgery being available to address her ongoing problems in that regard: T55.41.
The plaintiff felt her sense of purpose had been deeply compromised as she has difficulty carrying out menial tasks, which caused her embarrassment. She continues to have difficulties with focus and concentration, but has persevered, despite quickly tiring, and being easily distracted, and having difficulty with focus, concentration, and with coping: T44.39 - T44.50.
I will refer to the medical opinions on her work capacity in more detail when identifying my findings with regard to the claim for economic loss.

Domestic effects

In the 6 month period between the time of her injury and November 2014, the plaintiff's ability to carry out general tasks around the home was very limited, and her flatmate ended up doing most of the housework because the plaintiff was unable to use her right hand and arm: T44.49 - T45.3.
The plaintiff had difficulty recalling the precise details of the household tasks that were involved (T45.26), and cleaning tasks. Her wrist problems may have prevented her from writing a record of such matters. Her evidence on that topic was unfortunately deflected by an interruption: T45.35. She was unable to do any lifting, she had limited strength and had weakness in her right wrist, and her flatmate assumed responsibility for tasks such as scrubbing the bath and shower, the heavier housework, and a lot of the food preparation and the cooking (T45.26 - T46.5) as well as washing up, cleaning, and carrying the shopping due to her experience of significant pain, what she rated at 7 - 8 on a scale of 10: T46.7 - T46.20.
The described domestic arrangements with the plaintiff's flatmate continued until December 2015, at which time her housemate left for overseas, following which the plaintiff could not cope alone, and therefore decided to move to a location that was closer to her family, moving from a shared house to a 2 bedroom unit: T50.49 - T51.28.
After her second operation, on 25 February 2015, the plaintiff was in an arm splint, she was off work for a further 6 - 8 weeks, she was unable to move her right wrist and arm, and could not engage in activities such as cleaning, cooking and gardening, and only had a limited ability to do shopping: T47.25 - T47.50.
For the ensuing 18 months, from December 2015 / January 2016 the plaintiff said, and I accept, that she had a limited capacity to carry out cleaning tasks in her 2 bedroom unit: T51.30 - T52.2.
The plaintiff's current ability to carry out domestic tasks remains limited. She now lives in a single storey three bedroom dwelling with her partner. She has a limited ability to carry out tasks associated with meal preparation, and her partner therefore does some of those things because of her limitations, and because of the fact that her right wrist becomes sore with use: T61.15 - T61.28.
The plaintiff continues to have limited endurance for minor cleaning tasks because the effect of 5 - 10 minutes of such activities causes aggravation of the pain in her right arm, and this is dependent on the extent of her prior use of her right hand earlier in the day: T61.30 - T61.50. She is restricted to carrying out small tasks: T61.36.
The plaintiff struggles with pain every time she tries to use her right arm, she is slower in her activities involving her right arm, and her partner carries out the heavier cleaning tasks as she is very limited in what she can do: T62.1 - T62.18. She has not driven since her injury: T62.30. She is unable to push a shopping trolley with both arms: T62.27. She has limited grip in her right hand / arm / wrist, and exerting increasing pressure, such as trying to open jars, results in pain: T62.32 - T62.46. She has restrictions in relation to managing laundry tasks, and these problems have caused the plaintiff to modify her right arm movements, and her partner generally attends to the clothing on the clothesline: T62.48 - T63.6. She is restricted to only small gardening tasks: T63.10.

Mitigation

The defendant made no submissions to suggest that there had been any failure on the plaintiff's part to take reasonable steps to mitigate her damages.
I now turn to consider the issues identified at paragraph [20] above and which require determination in these proceedings.

Issue 1 - Relevant risk of harm

At the commencement of the liability analysis, it is necessary to identify the relevant risk of harm: Solomons v Pallier [2015] NSWCA 266, at [68] - [69].
The formulation or identification of the relevant risk of harm does not need to be narrowly confined to the precise injury circumstances: Shaw v Thomas [2010] NSWCA 169, at [43].
In this case, the relevant or material risk of harm that subsisted on the grounds of Vaucluse House during the hours of darkness, was the location of the unlit, un-barricaded and un-signposted precipice of the ravine or creek (T333.20) that could foreseeably lead to a person such as the plaintiff, when walking in conditions of darkness near the embankment and near an adjacent toilet block, mistaking the laid pattern of bricks forming part of the drainage system on the ground, for a pathway, so that when a person in the position of the plaintiff took steps forward onto the brick paved area, he or she could unwittingly fall down the steep precipice of the embankment, and into the creek, thereby sustaining an appreciable personal injury: s 5B(1) of the CL Act; Vincent v Woolworths Ltd [2016] NSWCA 40, at [34]; [48].
In this case, the context for the identification and the consideration of the risk of harm is the fact that the defendant had the complete care and control of that part of the premises where the plaintiff suffered her fall and her resultant injuries.

Issue 2 - Whether plaintiff voluntarily assumed the risk of injury

In the defendant's amended defence filed on 10 June 2016, there is a combined chapeau heading "Voluntary assumption of risk / Assumption of an obvious risk" which appears over paragraph 20. However, the content of paragraphs 20 and 21 which follow that heading, make no particular or particularised mention of any defence seeking to invoke the concept of a voluntary assumption of risk by the plaintiff.
Nevertheless, in final submissions, the defendant relied on a defence of voluntary assumption of risk on the part of the plaintiff. In conformity with its reliance on that defence, the defendant argued that the plaintiff should not receive any award of damages in this case.
The submissions made on behalf of the plaintiff set out an analysis which argued against the applicability of a defence of voluntary assumption of risk. In those circumstances, having regard to the way in which the case proceeded, despite the sparse if not absent particularised content of a defence of voluntary assumption of risk, I take the view that there had been an adequate implied joinder of issue between the parties on this question.
The basis for the defendant's argument by which it sought a finding of voluntary assumption of risk against the plaintiff was the presence of a ravine or a ditch within the premises: par 20 of the amended defence. However, that part of the defendant's pleading seems to relate to the statutory concept of an obvious risk: s 5G of the CL Act.
Nevertheless, and opposing the defendant's voluntary assumption of risk submission, the plaintiff submitted that in order for the defendant to make good that defence, the defendant was necessarily obliged to, but had failed to, put to the plaintiff a number of key propositions.
These were, when she turned onto the path she had been following, she knew that she was at risk of falling into the creek; that when she turned to the right on the nearby brick pathway, she was at risk of falling into the steep-sided embankment of the creek, and she nevertheless persisted in taking that path; or that if there had been a warning sign such as to the effect "Beware" or "Hazard", or "No Passage", such signage was ignored, and the plaintiff just kept going forward to the point where she fell.
The underlying basis of the defendant's submission was that because the plaintiff knew it was dark, and because she knew that there was a creek "somewhere nearby", and because she elected to go down that path (T136.28 - T136.32) there should be a consequential finding, by way of inference, that the plaintiff and voluntarily assumed the risk of falling and sustaining injury.
The plaintiff's counter-arguments against that position and the contended inference were as follows.
First, there was no evidence to reasonably support a finding or an inference that the plaintiff freely and voluntarily decided to embark upon a course of conduct that involved risk. Secondly, at the time she had been following her fellow employee Mr Keriakos, who had greater experience of the site, thinking, in the absence of lighting which may have revealed otherwise, that they were proceeding towards a bridge which she knew to be in the vicinity. Thirdly, it was not suggested to the plaintiff that she knew there was a steep-sided embankment that dropped off into the creek from the path that she chose. Fourthly, for the plaintiff to have known about the existence of a risk, and to therefore be taken to have voluntarily assumed the consequences of such risk, she must be shown to have turned her mind to the risk at the relevant time, and to have then persisted with the risky conduct, regardless of the risks: Carey v Lake Macquarie City Council [2007] NSWCA 4, at [108].
I accept the validity of those submissions made on behalf of the plaintiff and therefore reject the defendant's stated arguments to the contrary. The plaintiff has submitted, correctly in my view, that there was no evidence of the kind outlined in paragraph [168] above and which might be capable of supporting a finding of voluntary assumption of risk on the part of the plaintiff, thus precluding such a finding: T389.20.
Instead, I find that when the plaintiff was following the route she thought Mr Keriakos, a more experienced employee, had taken, she believed and understood that she was proceeding on a back route towards a bridge which she knew to be on the site, and that this involved no risk. At the time she thought it was the reasonable thing to do in the circumstances: T32.14 - T32.30.
The plaintiff submitted that the rational decision she made in following the route taken by Mr Keriakos contraindicated a finding of voluntary assumption of risk: T342.34 - T342.50. I accept that submission as a reasonable and correct summation of the circumstances.
It follows from those findings that the defendant has not established that the plaintiff was aware of the risk of harm presented by the possibility of a fall down a steep-sided drop-off of the embankment into the creek near the path or route she had chosen to take. It also follows that the defendant has not established that the plaintiff had consciously made the decision to continue to proceed along the route she had chosen, regardless of the risk of harm: Carey v Lake Macquarie City Council [2007] NSWCA 4, at [106] and [108].
I therefore find that the defendant has failed to make good its claimed defence that the plaintiff had, by her actions, voluntarily assumed the risk of injury in the circumstances in which her injuries occurred.

Issue 3 - Whether there was materialisation of an obvious risk

Paragraphs 20 and 21 of the amended defence filed on 10 June 2016, raise a defence claiming that the plaintiff's fall was the result of the materialisation of an obvious risk in the sense that is contemplated by s 5F, s 5G and s 5H of the CL Act.
At this point it is convenient to consider that aspect of the defence because, if the defendant's submission concerning the claim of materialisation of an obvious risk is accepted as correct, this may have a sheltering effect for the defendant, and it may also have the effect of limiting the scope of the duty of care the defendant might otherwise owe to the plaintiff concerning any duty to warn of the relevant risk of harm.
The defendant's submission concerning obvious risk was that it is open on the facts to find that the plaintiff was aware of the existence of the creek in the grounds, and that when she was proceeding in an unlit area of the grounds at night, it must have been apparent to her that the location of the nearby creek presented an obvious risk of falling.
The defendant also submitted that the plaintiff has not proven that she was not aware of the risk that she might fall into the creek. The defendant consequently argued, it had no duty to warn the plaintiff of the presence of the risk, which it maintained was an obvious one: Defendant's written submissions, par 95, par 96, par 97 and par 99.
In contrast, the plaintiff's submissions on the issue of whether or not an obvious risk existed in the circumstances, was that there should be no finding of the existence of an obvious risk. It was submitted this should be so because the plaintiff did not know that the route she was taking was unsafe, or that it contained hazards, or that she was not proceeding upon an established walking path immediately before her fall: Plaintiff's written submissions, par 25(f) - (h).
At this point in the consideration, it should be observed that in this case, the question of obviousness or otherwise of a risk of the plaintiff falling, was not a matter that was static and independent of any particular time of day.
This must be so because the question of obviousness was dependent upon the prevailing circumstances, which includes matters of observability of relevant conditions pertaining to the risk. Those matters raise questions concerning obviousness in daylight conditions, obviousness in conditions of poor lighting or in artificial lighting, or in conditions of darkness at night, also having regard to the state, location and density of nearby planted vegetation.
In this case, there is no direct evidence that the plaintiff was aware of the risk of harm occurring at the place where she happened to fall. Nevertheless, the defendant seeks to impute such knowledge to the plaintiff from the surrounding circumstances.
It is therefore necessary to proceed to consider the defined meaning of obvious risk.

Consideration of s 5F - Obvious risk

Section 5F of the CL Act provides: 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.
The determination of whether a risk of harm was one which should be seen as being obvious requires the application of an objective test by reference to what a reasonable person in the position of the plaintiff would have known, and in this case, it relates to the risk of injury to a person by falling down the embankment and into the creek below: s 5F(1) of the CL Act.
This means that the relevant question here is not necessarily what the plaintiff had in mind at the time of her actions under review, but rather, and objectively, according to whether what she had in mind at the time, would have been what a reasonable person in her position, would have had in mind as to what should be regarded as being obvious in terms of risk at that particular time: Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482, at [59], [61].
In determining the obviousness or otherwise of the risk, the considerations referred to in s 5F(2), s 5F(3) and s 5F(4) are inclusive and not exhaustive considerations.
It is necessary to identify the position of the plaintiff at the relevant time in order that a comparison may be made with her situation, and that of a reasonable person in her position at that time.
The plaintiff commenced work for her employer at the Vaucluse House Tearooms during daylight hours, 6 months earlier, in November 2013. This was in circumstances where the Tearooms were located in the grounds within which there was a ravine and a creek, and where it appears that the extent of her induction to that site was limited to daylight hours.
In my view, this indicates that a reasonable person in the position of the plaintiff, having had recourse to routine periodic access to and egress from the Tearooms over that time, and in one or two instances, would also have had access to the Lone Pine Lawn obtained via a bridge across the ravine, would have known there was a ravine and an associated creek that ran a course through the grounds.
It follows, as a matter of generality, that a reasonable person in that position, knowing there was such a topography, would have known that, at least in some places along the course of that ravine and in the course of that creek, the distance a person could or might suffer a fall, from the edge of the embankment and down into the creek bed, was a significant one, even though that distance was not the subject of precise measurements as to its depth in various places along the course of the creek.
In my view, that much is evident from the fact that the plaintiff knew that there were at least two bridges spanning the ravine within the grounds, and that the plaintiff had on about three occasions, including during daylight hours on the day of her fall, crossed over the ravine on one of those bridges. She was also otherwise generally aware of the existence of another bridge across the ravine located more towards the back of the premises.
In my view, in those circumstances, a reasonable person in the position of the plaintiff would also have acquired the above understanding concerning the appearance and the general layout of the Vaucluse House grounds from the observations that had been made of the grounds during daylight hours at the site over the course of the previous 6 months from November 2013.
It also follows, as a matter of generality, and in accordance with common sense, that a reasonable person in the position of the plaintiff must be taken to have been aware, that if she knowingly walked near the edge of the embankment of a ravine within those grounds at any point along the course of that ravine and its adjacent creek, when walking in close proximity to the embankment, there was an obvious risk associated with such an activity, namely that she might fall down the embankment, into the creek below, and sustain injury.
However, in this case, findings concerning presumed general awareness of a reasonable person in the position of the plaintiff along the lines stated above is not the end point of the consideration of what a reasonable person in the position of the plaintiff would have, and should be taken to have known about the cited risk in the immediate lead-up to a fall of the kind she in fact suffered.
This is so because in this case, a general awareness of that kind, taken alone, is an insufficient basis for a finding of the existence of an obvious risk of the kind contemplated by s 5F(1) of the CL Act.
To establish its s 5F(1) defence, the defendant must go further and show that the risk was one that would have been obvious to a reasonable person in the position of the plaintiff at the relevant time, that is, at the time she fell, and immediately beforehand: s 5F(1) of the CL Act.
In my view, an objective consideration of that question requires an understanding of the extent of the plaintiff's knowledge and experience of the grounds at that time, and a consideration of the actions she took at the time.
I consider that a reasonable person in the position of the plaintiff, being a person whose employer had not inducted her as to the specific layout and configuration of the grounds in the area where she ultimately fell, and who was not relevantly familiar with the features of the Vaucluse House grounds from a risk assessment viewpoint, when unlit at night, and who was intending to walk from the Lone Pine Lawn area to the kitchen whilst carrying items on behalf of her employer, would have done what the plaintiff did, and would have followed the route taken to the kitchen of the Tearooms by Mr Keriakos because he was known to the plaintiff to have a greater knowledge of, and familiarity with, the features of the grounds.
I find that in the circumstances which prevailed, it was reasonable for the plaintiff to have followed Mr Keriakos in the belief that the course he appeared to be taking would lead her to her intended destination of the kitchen of the Tearooms.
Absent evidence of direct knowledge on the part of the plaintiff to the effect that she knew of the nearby presence of the precipice of the embankment of the creek in the immediate vicinity where she was walking, in darkness, I find that the close proximity of that embankment would not have been obvious to a reasonable person in the position of the plaintiff: s 5F(1) of the CL Act. The circumstances do not compel the contrary inference as sought by the defendant.
All that the plaintiff saw, and which a reasonable person in her position would have seen in the immediate vicinity, was the location of some dense vegetation near the pathway, which appeared to be less dense in the area of the brick paving where she turned right just before her fall. In my view, that vegetation, as described in the evidence, particularly in conditions of low light or in darkness, would have masked or disguised from the view of a person in the position of the plaintiff, the nearby presence of the embankment of the ravine and the creek.
The plaintiff's limited induction to the site by her employer had not provided her with an insight into the topography and the risk related features of the Lone Pine Lawn area, or the particular area where she had followed Mr Keriakos, and where beforehand, she had no reason to familiarise herself with the area where she was following Mr Keriakos to the Tearooms.
For the defence of obvious risk to be made out in this case, the obviousness of the risk must be assessed at the time immediately before the plaintiff's fall, taking into account other relevant background circumstances that provide the relevant context for what a reasonable person would have perceived, understood or experienced in the plaintiff's circumstances.
On the evidence, there is no dispute that it was dark at the time when the plaintiff made a turn to walk to her right, at which time she then walked onto the brick paved area and then walked to the edge of the embankment and fell. Similarly, there is also no dispute that immediately before she fell, she could not, and did not, see the embankment or the ravine, or the creek below.
I find that the situation described in the immediately preceding paragraph would have been no different for a reasonable person in the position of the plaintiff at that time: s 5F(1) of the CL Act.
This is so because the area was not the subject of direct lighting or signage, and there is no evidence that the indirect lighting coming from the Tearooms in the distance would have illuminated the area in question to reveal to a reasonable person in the position of the plaintiff that there was a nearby embankment, a ravine, and a creek below. This is also particularly because of the arrangement of the dense vegetation in the immediate vicinity.
In my view, the preponderance of the evidence indicates that immediately before the plaintiff stepped to her right and then fell down the embankment and sustained her injuries, a reasonable person in her position would not have considered there was an obvious risk of falling into the ravine and creek: s 5F(1) of the CL Act. In summary, I base that conclusion on the following aggregation of factual circumstances: 1. There was no direct evidence the plaintiff was aware of the risk of falling as she was walking in the location where she fell in conditions of darkness, and there is no reasonable basis for drawing an inference that the plaintiff was aware of such a risk at that time; 2. At the time when the plaintiff received an induction to the site from her employer, she was not given details as to the layout of the grounds with specific focus upon risks associated with the presence of the ravine and the creek in the grounds. Furthermore, there was no evidence that she had been told by her employer or anyone else on behalf of the defendant, to avoid particular areas within the grounds, particularly during the hours of darkness; 3. Whilst the plaintiff was walking along the route she thought she was taking to the Tearooms, she believed, reasonably, that there were no observable hazards, and she thought that she was walking on a safe path to the Tearooms: T167.25; T167.29; 4. In light of the matters referred to in sub-paragraph (3) of paragraph [207] above, in the surrounding circumstances of darkness, it cannot be reasonably concluded that the risk of falling down the embankment at the particular place where the plaintiff in fact fell, was either "patent", or "a matter of common knowledge": s 5F(2) of the CL Act. In light of my findings as to the plaintiff's limited state of knowledge about the embankment and the ravine, and the state of knowledge of a reasonable person in her position, in my view, the provisions of s 5F(3) and s 5F(4) of the CL Act do not operate to make the risk of falling into the ravine at the place she was walking, an obvious risk; 5. Although the evidence comprising the aerial photographs of the grounds shows that the ravine and the creek track a course through the grounds generally, presumably involving varying depths which "can" support a finding of obvious risk even though there was a low probability of the risk, here, the materialisation of a fall (s 5F(3) of the CL Act), the circumstances do not compel a finding of obvious risk. This is because I consider that a reasonable person in the position of the plaintiff would not have concluded, in darkness, on an apparent path, and following a more experienced fellow employee, that there was an "obvious risk" of falling down an embankment: s 5F(1) of the CL Act; 6. I find that the facts of this case indicate that the prevailing circumstances at the time were to the contrary of the defendant's propositions identified in sub-paragraph (5) of paragraph [207] above. In making that finding I accept the correctness of the factual propositions outlined in paragraph 16 of the plaintiff's submissions dated 8 September 2017 concerning obvious risk. In essence, without intending what follows to be an exhaustive review of those submissions, those matters were as follows: 1. At the time in question, it was getting dark, if not already dark: T31.7; T131.15. Darkness would have obscured from the view of a reasonable person in the position of the plaintiff, the prominence, conspicuousness or physical observability of the presence of the embankment, the ravine and the creek; 2. Whilst the presence of those described features "can" in some situations give rise to the conclusion that there was an obvious risk, such as the risk of falling, a construction to that effect is in this case outweighed by the fact that the plaintiff, being unfamiliar with the area at night, reasonably believed that she was on a safe pathway; 3. The reasonable basis for the plaintiff's belief she was on a safe pathway, was that she thought she was following Mr Keriakos, the more experienced employee who had preceded her. This was in circumstances where Mr Keriakos appeared to be carrying out the instruction to go to the kitchen, and the plaintiff had no reason to doubt the safety of the route that he appeared to be taking towards the Tearooms; 4. The plaintiff had limited awareness of the embankment, ditch, ravine and creek: T29.1 - T29.7. In those circumstances, the route chosen by Mr Keriakos made perfect sense to her (T32.15; T33.5) given that he had about 2 years' experience of the site (T31.15 - T31.24) and to take that route was in keeping with the need to maintain an expected aesthetic presentation and appearance of the function: T32.15 - T32.26; T167.10 - T167.20. The stated plaintiff's view in that regard was also in accordance with the evidence the defendant called from Mr Poole as to the defendant's expectation of how the function would look: T221.30 - T221.39; 5. In those circumstances, the plaintiff felt she had made a reasonable decision to follow Mr Keriakos: T131.10. She then followed him until she lost sight of him when he was in front and ahead of her: T34.22; 6. It was only after she lost sight of Mr Keriakos that she saw she was on what appeared to her to be a brick path near the gravel path she had been walking upon (T34.30 - T34.35; T131.25) and she believed that apparent path would take her to the back bridge. There were no lights in the area that would have given her a contrary understanding: T131.28. However, from the described circumstances, the plaintiff reasonably believed she was on a safe path to the Tearooms: T167.25 - T167.36; 7. The plaintiff took that course because in the distance she could see the kitchen in some light that emanated from the Tearooms ahead, and she therefore assumed that she was on the correct path and she saw that either side of the path was very clear: T34.47 - T34.49; T136.31; 8. The dense vegetation around the path near where she fell also had an opening near the brick paving, which led the plaintiff to believe that she was on a course that would lead her to the Tearooms: T35.1 - T35.5; 9. No direct suggestion had been put to the plaintiff in cross-examination to the effect that, even as an infrequent visitor to that area of the site, she was in fact aware of the actual risk of harm, namely that the path she had been walking upon, and the laid brick pavers, would lead to a nearby steep-sided embankment and a drop into a creek: Plaintiff's supplementary submissions, MFI "12", par 8 and par 9.

Consideration of s 5G(1) - Rebuttable presumed awareness of risk of harm

In the event that I may be wrong in my analysis of the question of obvious risk as appears in paragraphs [183] to [207] above, in which I concluded the plaintiff's fall was not as a result of the materialisation of an obvious risk, it is necessary to consider whether the plaintiff has satisfactorily shown on the balance of probabilities that she was not aware of the risk.
Section 5G of the CL Act provides: 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.
The effect of s 5G(1) of the CL Act is to provide for a rebuttable presumption of the awareness of an otherwise obvious risk.
In my view, the reasons outlined in my consideration of s 5F of the CL Act as appears in paragraphs [183] to [207] above, compel the conclusion that on the balance of probabilities, particularly in the prevailing conditions of darkness, and where the extent of the plaintiff's site induction was limited, that at the relevant time when she continued to walk on the brick paved area thinking that she was on a walking path, the plaintiff was not aware of the risk of falling in the location in question: s 5G(1) of the CL Act.

Consideration of s 5H - Whether there was a duty to warn of the risk

The findings outlined above therefore lead to the need to consider whether the defendant should have taken reasonable steps which would have had the effect of warning the plaintiff of the risk of harm in the described circumstances.
Section 5H of the CL Act provides: 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 circumstances of obvious risk, a disapplication of a duty to warn of a risk can arise from the operation of s 5H(1) of the CL Act. However, in my view, the facts of this case as explained in my earlier findings do not lead to any disapplication of a duty on the part of the defendant to warn of the risk of harm. It follows from those findings that there was no materialisation of an obvious risk. The defendant therefore had a duty to warn of foreseeable risks. The defence based on s 5H(1) of the CL Act has therefore not been made out in this case.

Conclusion on obvious risk

The defence of obvious risk pursuant to s 5F, s 5G and s 5H of the CL Act must therefore be rejected.

Issue 4 - Nature and extent of the duty of care owed by the defendant

The defendant concedes that as the occupier of the Vaucluse House grounds, it owed lawful entrants onto the premises, including the plaintiff, a duty to take reasonable care aimed at avoiding a foreseeable risk of harm: MFI "10".
The existence of that duty presupposed that, for her part, the plaintiff would take reasonable care for her own safety: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, at p 488. This was in the context where the occupier owed a duty in relation to the physical state or condition of the premises over which it had knowledge and control: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, at [13], [18]; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [45].
The defendant's duty to take reasonable care prevailed in the context where the defendant knew that, during the night time hours of darkness, parts of the grounds of Vaucluse House, including near the toilet block and the adjacent brick paved area where the plaintiff fell, remained unlit by either installed, transmitted or reflected lighting as the defendant's staff considered that area did not need to be illuminated: T282.15 - T282.20; T290.8. This was in circumstances where it was known to the defendant that the grounds of the site were open and accessible 24 hours per day, for example, to persons who might walk their dogs upon the grounds at varying hours, including at night: T289.1 - T289.2; T293.19; T311.2 - T311.10; Jackson v McDonalds Australia Ltd [2014] NSWCA 162, at [82].
In this case, the duty owed by the defendant was not an abstract one, and it must be viewed in the context of the surrounding circumstances. At the time in question, the defendant did not have or maintain a staff presence on the premises whose duties extended to either supervising or implementing access controls concerning some risk laden areas where persons might walk within the grounds, including during the hours of darkness. Another relevant circumstance was that the defendant did not illuminate these areas or have in place any signs or barriers prohibiting or restricting walking access to areas that posed a risk of falling down the embankment. This was so in relation to staff access, and other staff such as the plaintiff in the employ of contractors.
This was also in circumstances where, in the reasonable contemplation of the defendant's staff, there was an identifiable risk of harm to persons walking near the creek embankment. That risk of harm comprised the risk of falling into the creek below and sustaining injury. This was an ever-present risk against which the defendant was required to exercise reasonable care in accordance with the duty of care that it owed to lawful entrants onto the grounds. The risk was posed to persons walking in the area either intending to access the toilet block, or to access the nearby walkable paths or brick paved areas.
The scope of the duty of care owed by the defendant as the occupier of the premises stands to be determined according to the totality of the relationship between the respective parties, including the ability of the defendant, as the occupier of the premises, to control activities that are conducted on the premises: Vincent v Woolworths Ltd [2016] NSWCA 40, at [18] and [28],
In this case, the defendant argued that the scope of its duty of care to the plaintiff was limited because it had a lesser degree of control of the plaintiff's activities on the premises than was the case with regard to the plaintiff's employer. That argument stands to be evaluated by reference to the documents produced by the parties.
In contrast to the position maintained by the defendant, the plaintiff pointed to a number of factors relating to the grounds, and to the defendant's actions in hiring out the grounds, and argued that the scope and the content of the defendant's duty of care extended to the circumstances in which the plaintiff sustained her injury. I find those matters compelling. They include the following considerations: 1. The defendant was the owner and occupier of the whole of the property, and not only the venue hire spaces and the pathways leading to, from and around the Tearooms where the plaintiff's employer had assigned her to carry out her work duties; 2. By reason of s 7 and s 8 of the Historic Houses Act 1980, the defendant had the care, control and management of the entire premises, which included the Tearooms, as well as the lawns, pathways, the planted areas, including the paths and brick paved areas adjacent to the historic structures at Vaucluse House; 3. At the time the plaintiff was present and working on the site she was permitted to be there as an incident of the defendant's business and commercial undertaking on the premises. That undertaking involved the management and control of that part of the premises generally, and that part of the premises where the plaintiff was injured. This is clear from the fact that the defendant had hired out limited areas of the grounds, namely, the Lone Pine Lawn area and the Tearooms for events such as wedding functions; 4. The effect of the contractual or licensing arrangements that had been entered into between the defendant and the plaintiff's employer, meant that the defendant expected to gain a significant monetary commission from the hiring based on a percentage of the gross revenue that the plaintiff's employer would derive from functions, including the particular wedding function on the day the plaintiff was injured; 5. A part of the defendant's business model involved the defendant encouraging persons hiring the Lone Pine Lawn for events to also use Fresh Catering Pty Ltd to provide catering for events such as weddings, and this also involved encouraging the use of the Tearooms for wedding receptions. The defendant's clear intention behind such encouragement was so that it could derive additional income from the hired use of the site; 6. The geographic layout of the premises was that the Lone Pine Lawn area and the Tearooms were each located on either side of the historic creek that traversed the grounds where the lawn was located on the eastern side and the Tearooms were located on the western side of the creek; 7. It was inevitable that when the defendant hired out the Lone Pine Lawn area for a wedding, and Fresh Catering Pty Ltd provided catering services for a function at that location, the staff employed by Fresh Catering Pty Ltd who were tending to the function on the Lone Pine Lawn would be required at various times to move from the Tearooms to serve beverages and canapés on the Lone Pine Lawn, and at the conclusion of the function at that location, the staff would then be required to "commence pack down of the event" (T189.44) and to return to work at the Tearooms, where the reception would take place. On 31 May 2014, the timing of this pack down, and the timing movement of staff serving at the function, would have been expected to occur in conditions of decreasing light, leading to darkness; 8. It was also very likely, and reasonably foreseeable that, during "pack down of the event", employees of Fresh Catering Pty Ltd would be engaged in the task of taking used items to the kitchen at the rear of the Tearooms, and when walking and carrying such items, they would be likely to seek to avoid disturbing or mingling with, and walking through groups of wedding guests whilst they were making their way from the lawn area to the Tearooms; 9. In relation to a function that was scheduled to be held within the grounds of Vaucluse House on 31 May 2014, it would have been reasonably foreseeable to the responsible staff of the defendant that it would be near dark, if not dark at the time the function on the lawn would have to be packed down at the conclusion of that part of the function or event. At that time, it was known to the defendant that during the hours of darkness at night, some parts of the premises would have had no lighting, whether artificial or otherwise; 10. As at 31 May 2014, the defendant employed Ms Irene Hunter as a full time events supervisor for the site and from the defendant's viewpoint, she had particular responsibilities for implementing the event as planned, as well as setting up and packing down: T86.46 - T87.5. The events supervisor was the point of contact and control: T186.12; T192.1 - T192.7; T210.43; T226.5 - T226.26; T245.45 - T245.49; T302.46 - T302.48; Exhibit "1", Tab 33, p 128, cl 7.1; T226.8; Exhibit "1", Tab 18, p 65; T245.21 - T246.9; 11. There was always an events supervisor in charge of the function: T29.25. That supervisor was an employee of the plaintiff's employer: T72.5 - T73.2. It was known that person would liaise with the "events person" employed by the defendant at Vaucluse House in this instance, Ms Hunter: T63.31; 12. There are a number of relevant statutory and regulatory provisions, which, whilst not forming the basis for any arguments concerning allegations of breach of statutory duty, nevertheless provides some useful guidance to the task of assessing the scope of the duty of care owed by the defendant in the context of the premises being a workplace: Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011; 13. For the purpose of the interpretation of those provisions, by the operation of s 21 of the Interpretation Act 1987, the defendant, although a statutory body, must be taken to be a "person" who, on 31 May 2014, was conducting a business that was concerned with the hiring and the management of events on the premises as well as the licensing of the premises as a venue where catering could be provided; 14. At the time of the plaintiff's injury, her "workspace" or workplace comprised and included what was described as "Venue Hire Spaces" and the area between the Lone Pine Lawn and the Tearooms. The plaintiff's workplace included not only the Tearooms part of the site but also the Lone Pine Lawn area. Given that she was required to walk between those areas, it follows that her workplace also included existing access pathways to, from, and surrounding those areas; 15. In respect of that statutory and regulatory framework which affected the conditions prevailing in the plaintiff's workplace, it is relevant to note that: 1. In essence, s 19 of the WHS Act provides that a person conducting a business or an undertaking must ensure, so far as is reasonably practicable, the health and safety of persons (which means not just employees) is not put at risk as part of the conduct of the business: s 19(2) of that Act. 2. Furthermore, the person conducting the business or undertaking must, so far as is reasonably practicable, ensure the provision of training, instruction or supervision to protect all persons from health and safety risks arising from the work carried out as part of the conduct of the business or undertaking, and that the workplace be monitored for the purpose of preventing injury (or taking steps to minimise the risk of injury) arising from the conduct of the business or undertaking: s 9(13)(f) of that Act; 3. In essence, s 20 of the WHS Act broadly provides that a person with the management and control of a workplace must ensure so far as is reasonable practicable, that the workplace, and the means of entering and exiting the workplace, and anything arising from the workspace, are without risks to the health and safety of any person; 4. In essence, s 16 of the WHS Act provides that every duty holder must comply with the duty to the standard required. That standard must include the obligation to take reasonable care in the circumstances; 5. The WHS Regulation essentially provides that: "A person conducting a business or undertaking" is described as a "duty holder" and that duty holder must identify hazards that could give rise to risks to health and safety (r 34) and eliminate and minimise risks to health and safety so far as is reasonably practicable (r 35), which includes risks in the vicinity of an edge over which a person could fall: r 78; 6. The defendant relevantly conducted a "business or undertaking" on the premises, and was therefore "a duty holder".
The requirements of the regulatory provisions cited above, whilst not of themselves establishing a cause of action in the event of non-compliance, are factors which are informative of, and available to form part of an ordinary common sense analysis of the circumstances which are said to give rise to a duty of care, and a potential liability if that duty was breached.
The fact that the defendant was carrying out an "undertaking" on the premises required that it exercise a duty to take reasonable care which encompassed the consideration of the safety of persons who might lawfully be on the premises. In my view that conclusion naturally flows from a relatively high degree of control and supervision that the defendant reserved to itself regarding the hired use of the premises for functions such as the one under present consideration, even though the plaintiff was not an employee of the defendant: Exhibit "1", Tab 17; Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, at [9]. That view is reinforced by the significant monetary benefit the defendant stood to gain not only as a hiring fee, but also from a commission arising from the catering charges for the function.
Those conclusions also arise from the presence on the site of the defendant's employee Ms Hunter, and her supervisory role as the liaison person at the hours in question. This strongly suggests that the defendant reserved for itself ultimate decisions of control over functions and related activities that took place in the grounds.
The defendant's venue procedures allowed for the fact that the gates to the grounds were not locked at night, at least when there were functions in progress on the premises, which confirmed that the grounds were capable of being generally accessible during the hours of darkness at night: Exhibit "1", Tab 17, p 58.
The defendant maintained floodlights in the car park for night time events. This included the location of lights near the bridge and access route leading to the Lone Pine Lawn area: Exhibit "1", Tab 17, p 59. The defendant recognised the importance of those lights because it required the Vaucluse House venue manager to be informed if any light bulbs had blown so that they could be replaced by maintenance staff: Exhibit "1", Tab 17, pp 60 - 61.
The defendant's procedures for use of the premises for functions contemplated that the car park toilets would be locked, including at night, so that they could not be used for functions: Exhibit "1", Tab 17, p 60. A consequence of this was that if persons on the premises needed to use a toilet they could foreseeably walk within the grounds in search of one.
The defendant's licensing agreement with Fresh Catering Pty Ltd was a compendious document: Exhibit "1", Tab 33, pp 115 - 156. It was said to commence on 1 April 2013 and to continue until 30 June 2015, but it was dated 6 March 2015: Exhibit "1", Tab 33, p 117.
The defendant's licence to the plaintiff's employer to use the premises was only for a limited area, i.e. "109, 264 sqm" (sic): Exhibit "1", Tab 33, p 139; Exhibit "B", p 25, cl 14.10. On 25 October 2017 this was clarified as referring to 109,264 square metres.
According to the defendant's documentation, the description "Vaucluse House Venue Hire Spaces" means the grounds and lawns of Vaucluse House and Vaucluse House Museum and outbuildings: Exhibit "1", Tab 33, p 121; Exhibit "B", p 7, cl 1.24.
The defendant, in its agreement with the plaintiff's employer, made no representations, and gave no warranty, as to the condition or state of repair of the premises, and provided the employer with access to the premises in the existing condition and state of repair, subject to all defects, whether latent or patent: Exhibit "1", Tab 33, p 126; Exhibit "B", p 12, cl 6.20.
The defendant was responsible for the maintenance and repair of the lighting on the premises other than, it appears, lighting in the actual Tearooms: Exhibit "1", Tab 33, p 128; Exhibit "B", p 14, cl 7.1.
After the plaintiff's fall, the defendant's safety review had recognised that the plaintiff's employer would not be able to implement safety measures such as "lighting, signage, etc" at the defendant's site in order to mitigate further risks in the future: Exhibit "B", p 50. A safety consideration contemplated by the defendant after the plaintiff's accident was to increase lighting in the area and to repair existing lighting, as well as limiting walking access to the gully by increasing vegetation in the area to form "a natural barrier": Exhibit "B", p 55. In my view, that was an after-the-event consideration, it also applied equally to the prospective consideration required of the defendant: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [105].
In my view, the scheduled plan for the late hour of the "pack down" of the event in circumstances of diminishing daylight and increasing darkness warranted the defendant exercising supervision and reasonable care towards lawful entrants involved in foreseeable activities on the premises. This included questions of access and the accessibility of the premises.
In that regard, Ms Hunter's controlling role, as an employee of the defendant occupier, must be assumed to have been overarching and more encompassing concerning activities on the site when compared to what was required of Fresh Catering Pty Ltd, which was a mere licensee without the power to change, control, or limit activity or conditions prevailing within the grounds.
In my view, in the described circumstances, the defendant's duty of care extended to take reasonable care against the foreseeable possibility or risk of an uninstructed or unwarned person, walking in the grounds in darkness and unlit conditions, falling down the embankment and into the ravine and the creek below.
A fall of that kind could easily have occurred if a guest looking for an available toilet attempted to access the toilet block in conditions of low or absent lighting, or where a guest or someone else walking on that part of the grounds, either with or without a dog, was under the mistaken belief that they were on a pathway that was safe to walk upon.
I now turn to consider the question of whether the defendant was in breach of the duty of care that it owed.

Issue 5 - Whether there was a negligent breach of the duty of care owed

I approach the task of assessing the claim that the defendant was in breach of the duty of care it owed, by identifying the particularised case sought to be made by the plaintiff, identifying the content of expert evidence tendered by the plaintiff, then considering those matters in light of the evidence, and with regard to the requirements of Pt 1A Div 2 of the CL Act.

Plaintiff's particularised case

Of the 23 individual particulars of negligence (a) to (kk) pleaded by the plaintiff against the defendant in paragraph 13 of the amended statement of claim filed on 24 February 2016, some were generalised or repetitive variations, and some overlapped. Those allegations can conveniently be summarised into the following formulation of categories of alleged failures on the part of the defendant, separate and distinct from any alleged acts, neglects or defaults on the part of the plaintiff's employer: 1. Failure to warn of the danger of falling down the embankment; 2. Failure to ensure, including by inspection for safety purposes, that there was adequate lighting of pathways at night in the immediate vicinity of the embankment; 3. Failure to provide and maintain, including by inspection for safety purposes, a safe and adequately illuminated walkway within the grounds and in the immediate vicinity of the embankment; 4. Failure to provide sufficient edge protection to the embankment, including by the provision and the maintenance of sufficiently dense "soft barrier" plantings; 5. Failure to develop and implement an appropriate risk management process according to known industrial safety principles and regulatory guidelines for managing hazards and risks, such as the International / Australian / New Zealand Standard Guidelines, comprising ISO AS / NZS 3100.2009 and ISO AS / NZS 4804-2001; 6. Failure to comply with the requirements of the Work Health and Safety Regulation 2011 (NSW), namely clauses: 20(2); 34; 35; 37; and 78(1), the effects of which provisions are summarised at sub-paragraph (15) of [223223(15)] above.

Expert opinion

In support of the plaintiff's claim that the defendant was negligent, the plaintiff relied upon the expert opinion of Mr Steve Williams, of Total Risk Solutions Pty Limited, an expert with occupational health, safety and risk management qualifications: Exhibit "C", Tab 2, pp 15 - 37. Mr Williams was not required for cross-examination. His opinion was not materially challenged or contradicted: T9.21; T89.40 - T89.47.
Mr Williams focussed on the question of the foreseeability of the risk of injury on the premises by reference to the unlit path near the edge of the ravine, which he referred to as a drainage culvert, and which also involved an existing gap in the vegetation near the edge. He described the circumstances as comprising a high risk of a fall in that area due to flawed edge protection: Exhibit "C", Tab 2, p 26, par 3.1.
Mr Williams saw the defendant's obligations as including the requirement for a risk assessment to be undertaken for hazard identification and, if reasonably practicable, the elimination of the risk, or alternatively, minimising the risk, associated with traversing the pathway: Exhibit "C", Tab 2, p 27, par 3.2.
Relevantly, Mr Williams identified the most cost effective reasonable means of discharging that duty as being the provision of suitable solar lighting on the edge of the drop or on the paths, where such lighting could have been of a kind that was in keeping with the style and aesthetics of the facility: Exhibit "C", Tab 2, p 28, at point (1).
Mr Williams also went on to refer to a suggested precaution that involved the option of maintaining plantings alongside the edge of the drop in order to provide a dense "soft barrier" to pedestrian traffic at that place: Exhibit "C", Tab 2, p 28, at point (2).
The report of Mr Williams made reference to the need to develop a risk management approach along the lines contemplated by Australian / New Zealand Standards AS/NZS 31000:2009 Risk Management Principles and Guidelines AS/NZS 4804 - 2001 Occupational Health & Safety Management Systems.
It appears that the defendant had in fact previously undertaken a risk assessment at some stage before the plaintiff's fall. This appears to be so because after the plaintiff's fall, a communication from the defendant contemplated "a new risk assessment" (Exhibit "B", p 55) to seek to remove or reduce the risk in question: Exhibit "C", Tab 2, p 28, at point (3). Mr Williams identified that Risk Management Tool at Appendix C to his report: Exhibit "C", Tab 2, p 32. I infer from that reference to a new risk assessment, that there had been another risk assessment that pre-dated the plaintiff's fall on the premises.

Consideration of the three pre-conditions required by s 5B(1) of the CL Act

To obtain a finding of negligence against the defendant, the plaintiff must satisfy the requirements of Pt 1A Div 2 of the CL Act, by first meeting the three essential statutory pre-conditions required and identified by s 5B(1), as well as by then satisfying the considerations required by s 5B(2) of that Act, in conformity with the principles set out in s 5C of that Act.
Section 5B of the CL Act provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
The consideration of those three pre-conditions embodied within s 5B(1)(a), (b) and (c), now follows in light of the factual matters that have been established in the evidence in this case.

Section 5B(1)(a) - foreseeability of harm

As to the first pre-condition, there can be no issue that when the defendant accepted the booking for the wedding function for 31 May 2014, and then permitted that function to proceed at its premises, there was a reasonably foreseeable risk of harm associated with the activity of someone such as the plaintiff walking within the grounds near the embankment to the ravine in darkness at night. Co-extensive with the foreseeability of that kind of activity was the foreseeable risk that such a person might fall into the ravine and into the creek, and thereby sustain a perceptible injury: s 5B(1)(a) of the CL Act.
In making the Vaucluse House grounds available as a hired venue, the defendant occupier maintained a "workplace" which would be used by workers, customers and visitors. Although the defendant did not employ the plaintiff, she was a worker employed by one of the defendant's customers, Fresh Catering Pty Ltd, or at the very least, she was a lawful visitor to the premises: Exhibit "C", Tab 2, Appendix E, p 34: NSW Work Health and Safety Act 2011.
Accordingly, in terms of foreseeability of the risk of harm, the defendant had to consider and discharge the duty of care it owed to visitors and customers. That risk of harm did not only relate to the defendant's own workers.
The foreseeability to the defendant of a relevant risk of harm arises in this case because of the presence of the embankment within the grounds, in the following aggregation of circumstances. Firstly, there was an absence of lighting in the area where the plaintiff fell. Secondly, the nearby juxtaposition of walking paths and adjacent areas of brick paving which served a drainage function, where such a brick paved area, might reasonably be mistaken for a walking path. Thirdly, this was especially in the absence of any lighting or signs indicating or warning of the danger or risk of falling over the edge of the embankment in those circumstances. These were all matters that were in the knowledge of the responsible employees of the defendant and which compel the finding of foreseeability of the identified risk of harm.

Section 5B(1)(b) - "not insignificant" risk of harm

As to the second pre-condition, the identified risk of harm was not one that was insignificant in that a person falling down the embankment of the ravine at or near the place where the plaintiff fell, a distance of some 2 metres, had the real and not fanciful potential to result in a significant injury: s 5B(1)(b) of the CL Act. In this context, it is not necessary for the plaintiff to narrowly predict the precise form that such injuries might take: Solomons v Pallier [2015] NSWCA 266, at [68] - [69].

Section 5B(1)(c) - availability of reasonable precautions against risk

As to the third pre-condition, namely that of taking reasonable precautions, in this context, this requires a prospective analysis, and not one influenced by considerations of hindsight: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [105]. The relevant precautions to be considered in this context involve a common sense analysis, aided by the expert opinion already identified: Exhibit "C", Tab 2, pp 15 - 37.
In summary, the suggested precautions fall into the respective categories of lighting, warning signs and barriers, either naturally occurring or created, aimed at preventing or tending to prevent, access to areas of danger, or at least provide a warning of danger and risk.
The evidence reveals a number of relevant features with regard to the question of reasonable precautions against the risk of harm: 1. The defendant's internal procedures made provision for a security guard to be required for all evening functions at the Tearooms: Exhibit "1", Tab 17, p 61. It is not clear as to whether a security guard was in fact present on the premises on the night the plaintiff was injured; 2. The defendant's Events Sheet specified the anticipated timetable for the event, and also specified the equipment needs and the provision of direction signs for toilet access in circumstances where the defendant controlled the use of such signs: Exhibit "1", Tab 18, p 65; Exhibit "B", p 44; 3. The defendant's Events Sheet also specified the provision of 12 white marker lanterns to be placed in the grounds to mark the path from the car park to the Lone Pine Lawn: Exhibit "1", Tab 18, p 67. It appears most likely from the context and description in that document, that those marker lanterns were portable; 4. A Vaucluse House Work Health & Safety assessment prepared by the defendant's employee Mr Champion as at May 2014, which from the content, pre-dated the plaintiff's fall, indicated that automatic veranda lighting had been programmed at Vaucluse House as an additional safety measure for use on the site at the end of the day: Exhibit "1", Tab 29, p 104; 5. The assets of Vaucluse House included "M & S Electrical - Lights" which were valued as at 1 July 2012 at $2536: Exhibit "1", Tab 33, p 148. It is argued that this referred to fixed lighting: MFI "13". On 25 October 2017, this was clarified as referring to fixed lighting; 6. In May 2014, the defendant's Vaucluse House Tearooms venue had been booked for a total of 29 events, which included 8 weddings. These bookings resulted in considerable commission income being derived by the defendant arising from those functions: Exhibit "1", Tab 35, p 158.
Whilst there was lighting in the area where the plaintiff fell, it was switched off, and usually left off, and was not operated by motion sensors: T299.48. The defendant's staff had no idea whether or not it was in working order: T302.29. There would have been no difficulty turning the light on at night: T300.1; T302.40 - T302.49. This was so where there were other lights located within the grounds, for example in the car park and other paths, which were activated to turn on by sensors that detected movement: T127.39 - T128.6; T262; T280.50 - T281.12; T311.46.
The evidence of Mr Champion indicated that there would be no apparent difficulty in placing sensor activated lights: T300.5. A light of that kind installed to illuminate the area near the toilet block and the adjacent brick paved area would have been easily achieved, and this would have made it clear to the plaintiff that she was walking towards the embankment and creek below, as she was not proceeding on a safe walking path.
The defendant had clearly contemplated the use on the site of signs for directions for toilet access when functions were in progress on the grounds: Exhibit "1", Tab 18, p 65; Exhibit "B", p 44.
The compelling inference is that this was plainly in response to some kind of pre-accident risk assessment carried out by the defendant. In my view, given the foreseeability of the relevant risk of harm, the defendant ought to have considered and placed illuminated signs either denying access to areas associated with such risks, or signs warning of the danger associated with seeking to access those areas at night in circumstances where the defendant knew that the edge of the ravine would remain unlit and would therefore pose a risk of a fall of the kind incurred by the plaintiff.
In those circumstances, I consider that the defendant's failure to implement such illumination, and the placement of signage, amounts to a breach of the duty of care that it owed as the controlling occupier of the premises.
Before the plaintiff's fall the defendant had already arranged and maintained strategically planted vegetation that bordered the edge of the ravine. The defendant argued that it was not possible to increase the density of the edge vegetation at the place where the brick paved area that served as a drainage point to the creek, because of that drainage function: T324.41 - T325.2.
If it was not possible to increase the density of plantings at that place, in my view, a prudent risk assessment required the suitable and strategic placement of advisory warning signage, or some sort of sympathetically designed barrier, that would serve to impede foreseeable mistaken use of that brick paved area as an access pathway, particularly at night. The defendant could have easily achieved this by the placement of a light that would become activated by a movement sensor, as was already in place elsewhere in the grounds as referred to in paragraph [261] above.
I find that in the circumstances leading up to the plaintiff's fall, a reasonable person in the position of the defendant would have taken the precautions as identified above as reasonable and readily available measures against the relevant risk of harm from falling materialising, and which might cause injury to someone in the position of the plaintiff: s 5B(1)(c) of the CL Act.
On a prospective view, in the context of the described consideration required by s 5B(1) of the CL Act, I consider that the identified precautions were reasonable, and were steps that should have been taken by the defendant in the discharge of its duty of care as occupier: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [105].

Consideration required by s 5B(2) of the CL Act

As explained in the preceding paragraphs, upon being satisfied that the plaintiff has established the three pre-conditions within s 5B(1) of the CL Act as the necessary justification for the taking of the identified precautions against the identified risk of the plaintiff (or someone in her position) falling and sustaining injury when walking near the embankment at night in darkness, that conclusion necessarily leads to the consequential consideration of the requirements of s 5B(2) of the CL Act.
In that regard, it becomes necessary to consider, amongst other relevant matters, the factors identified in s 5(2)(a) to (d) of the CL Act in determining whether a reasonable person in the position of the defendant would have, at the relevant time, taken the identified precautions.
Those matters are relevant to the consideration of whether a reasonable person in the position of the defendant would have at the relevant time, taken as reasonable, relevant precautions against the inherent risk of harm to persons in the position of the plaintiff in such circumstances. The consideration of those matters now follows.

Section 5B(2)(a) - probability of occurrence of harm

There is little room for doubt that the probability of a person in the position of the plaintiff falling down the described embankment, and into the ravine and the creek below, was high if that person was to be walking in the unlit unguarded location where the plaintiff had walked, at night time.
That probability arises in circumstances where a person could find themselves on the property, in darkness at night, in a number of situations. Without attempting an exhaustive analysis of those situations, these could have included not just a person such as the plaintiff who in the course of her employment, only having had a limited site induction which did not include the ramifications of darkness on site safety, but also persons walking their dogs in the grounds at night without restriction in accessing the area of the embankment and ravine in such circumstances. This was in the context of the absence of visible, and illuminated signage warning of the dangers associated with such a course.

Section 5B(2)(b) - likely seriousness of harm

The possibility of a fall resulting in a person incurring likely serious harm in the described circumstances is not controversial. In this context, it is not necessary in this analysis to prospectively predict the precise nature or extent, or degree of seriousness of potential injuries: Solomons v Pallier [2015] NSWCA 266, at [68] - [69].

Section 5B(2)(c) - burden of taking precautions against risk of harm

The burden of taking precautions by the provision of lighting, solar powered or otherwise in the area where the plaintiff fell, whether in association with the use of a movement sensor or not, seems to have been a relatively slight one, especially given that similar lighting with sensors was installed in other areas of the premises, and in the case of the area where the plaintiff fell, there was a nearby pathway and toilet block which had the potential to attract pedestrian traffic: s 5B(2)(c) of the CL Act. Alternatively, the defendant's employee on site could have simply and easily switched on the existing lighting in the grounds when darkness approached.
In my view, in the circumstances, the burden to the defendant in providing a sign that was illuminated at night, whether solar powered or otherwise, and whether in association with a movement sensor or not, was also a relatively slight burden: s 5B(2)(c) of the CL Act.
The same conclusion arises in relation to an illuminated warning sign appropriately placed with the aim of alerting persons walking near the edge of the ravine at the point where the vegetation was less dense, or where there was a gap in the vegetation, and where it was not a safe walking path.
The defendant maintained a plant nursery on the premises and had ample gardening staff available and assigned to maintain the grounds. It had stocks of the plant that was ultimately planted in the ravine after the plaintiff's fall: T324.4 - T324.15. There appears to have been no difficulty for the defendant to have strategically placed that plant at the end of the brick paved area, in conjunction with the other identified resources, well before the plaintiff's fall.
I consider that the burden of taking any of those precautions would have been relatively slight and non-burdensome in the circumstances.

Section 5B(2)(d) - social utility of the activity

If the simple precaution of providing lighting in the area near the embankment and the nearby toilet block at night time were not taken against the risk of harm of someone falling, there was a high probability that someone walking in that area, for whatever lawful reason, in darkness, could fall down the embankment and sustain bodily injury: s 5B(2)(a) of the CL Act.
The likely seriousness of the harm occurring to a person falling in such circumstances was significant, given the potential depth of the ravine at the point where the plaintiff fell, was about 2 metres: s 5B(2)(b) of the CL Act.
There is no suggestion in the evidence, or in the submissions, that considerations of social utility are a relevant limiting factor that operates to diminish the need for the taking of the contended precautions, especially where the premises were accessible to persons 24 hours a day: s 5B(2)(d) of the CL Act; T289.1 - T289.2; T311.2 - T311.10.

Consideration required by s 5C of the CL Act

Section 5C of the CL Act provides: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
The burden on the defendant in taking the identified precautions involved a commonplace consideration undertaken by occupiers of premises where there are recognisable risks associated with the use of the premises: s 5C(a) of the CL Act. The defendant previously had a risk assessment procedure in place, as identified at paragraph [264] above.
The burden on the defendant of undertaking a risk assessment and of pursuing a reasonable response was in the context of the ever-present risk of someone falling over the edge of the embankment in the premises, in darkness: s 5C(b) of the CL Act.
The after-the-event action of the defendant in planting a small tree on a ledge within the space of the ravine near the edge of the brick paved area does not of itself constitute evidence of an earlier causative breach of the duty of care owed: s 5C(c) of the CL Act. However, it also happens to be an example of an available simple measure that if implemented beforehand, would have been a reasonable, prudent, and readily available precaution the defendant could have taken.
This is plain from the detailed and regular attention the defendant's gardening staff gave to grooming the grounds for aesthetics, and from the attention given by the defendant's gardeners to maintain the camouflaging dense foliage along the embankment near, but not at, the place where the plaintiff came to fall, and where a gap appeared in the vegetation at that place.

Conclusion on breach of duty of care

For the reasons outlined in the preceding paragraphs dealing with the issue of breach of duty of care, I am satisfied that the defendant was in breach of its duty of care in relation to the premises, and that the defendant was negligent in the circumstances that led to the plaintiff's fall.

Issue 6 - Causation of the harm suffered by the plaintiff

The plaintiff must show that the harm that she suffered was relevantly caused by the negligence of the defendant: s 5D of the CL Act. That section provides: 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.

Consideration of the requirements of s 5D(1)(a) of the CL Act

The plaintiff must first establish factual causation: s 5D(1)(a) of the CL Act. In this case, I find that factual causation has been established in that but for the failure of the defendant to take the identified precautions, especially illumination of the area near the toilet block, the plaintiff would have in all probability seen that the brick paved area she turned to walk upon was not a suitable walking pathway: Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182, at [18] and [32].
If she had followed an illuminated path in such circumstances, she would have seen that it would lead to the edge of the embankment, which risked her falling. The plaintiff's fall would have been an unlikely occurrence if there had been illumination of the area.

Consideration of the requirements of s 5D(1)(b) of the CL Act

In considering the question of whether the scope of the defendant's liability should extend to the harm suffered by the plaintiff, a determinative consideration is that the defendant stood to gain financially from having employees of Fresh Catering Pty Ltd on the premises for the function. The defendant had a duty of care as explained at paragraphs [216] to [240] above, and in these circumstances, I consider that the scope of the defendant's liability should extend to the circumstances of the plaintiff's fall: s 5D(1)(b) of the CL Act.

Consideration of the requirements of s 5D(2) - (4) of the CL Act

In this case there are no exceptional or exclusionary considerations that arise from the provisions of s 5D(2), s 5D(3) or s 5D(4) of the CL Act.

Conclusion on causation

I find that the plaintiff has proven that her injuries were relevantly caused by the negligence of the defendant: s 5D of the CL Act.

Issue 7 - Whether there was contributory negligence on plaintiff's part

By paragraph 18 of the amended defence filed on 10 June 2016, the defendant has pleaded extensive particulars to support a claimed defence of contributory negligence. In essence, those particulars may be conveniently condensed into the following categories: 1. Failure to care for her own safety by keeping a proper lookout, including by familiarising herself with the layout of the Vaucluse House Tearooms and by keeping to designated pathways ("claim of failure to keep a proper lookout"); 2. Intentionally walked into an area that was unsafe because of the absence of an illuminated pathway whilst knowing there was a creek at the bottom of a nearby ravine or ditch ("claim of walking into an unsafe area"); 3. Failing to comply with the workplace health and safety obligations of her work duties, including failure to identify and report a workplace hazard, being the non-illumination of the area where she was walking, and the failure to make periodical risk assessments for identifying hazards ("claim of failure to observe workplace safety").

Contributory negligence submissions and legislation

The defendant argued that its case on contributory negligence is supported by the combination of the factual circumstances in which the accident scene was in darkness when the plaintiff suffered her fall, and the plaintiff had elected to take a walking route to the kitchen of the Tearooms where that route had previously been unknown to her, and where another route to the Tearooms kitchen was known to be available to her: T369.42 - T369.45.
The defendant submitted that by taking the route she did, the plaintiff failed to take reasonable precautions against the risk of harm. The defendant developed that argument by reference to its formulation of an election made by the plaintiff not to travel on the properly illuminated path and bridge that otherwise provided a direct and safe access to the Tearooms, and instead taking an unlit route which was unknown to her, at night, knowing there was a nearby creek: Defendant's written submissions, par 101.
On that argued basis, the defendant relied upon the provisions of s 5S of the CL Act, and sought a finding of 100 per cent contributory negligence to be apportioned against the plaintiff, with the effect that, it was submitted, the plaintiff ought not be awarded any damages: Defendant's written submissions, par 102.
Section 5S of the CL Act provides: 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 support of its contributory negligence argument the defendant pointed to the plaintiff's evidence, given in hindsight, at T135.29 - T135.35, where she made the concession that at the time she had lost sight of Mr Keriakos, she could have either moved ahead into the darkness or gone back along the path from which she had come before arriving at that point.
In my evaluation of that evidence, I consider that it should not be read in isolation, as submitted, but it should instead be read in conjunction with the evidence that the plaintiff could see the lights from the Tearooms in the distance, in circumstances where she knew that there was a back bridge within the grounds that would lead to the Tearooms, and she had assumed Mr Keriakos was taking that route because he was required to go to the Tearooms. Accordingly, she reasonably thought, that she was on a safe path without hazards (T167.25; T167.29) not withstanding that she had lost sight of Mr Keriakos.
In answer to the defendant's contributory negligence submissions, the plaintiff submitted that the defendant has failed to satisfy the objective test for establishing that she had been contributorily negligent as alleged.
That submission was based on the following factual circumstances which I accept: 1. As the responsible manager for the catering of the function, the plaintiff thought, reasonably, that "presentation was everything" and it was therefore "tacky" or detracting from the aesthetics presentation of the function to carry used catering items back to the kitchen through the guests as they made their way to the Tearooms: T32; 2. The plaintiff was intending to go to the back of the Tearooms because the reception was being held in the front of the Tearooms: T33.25 - T32.50; 3. The plaintiff was following Mr Keriakos who was regularly employed at functions on the Lone Pine Lawn: T31.10 - T31.30. In the circumstances, it was reasonable for her to assume he would be taking a safe and available route to the kitchen where she knew there was a back bridge that would cross the creek: T34.10; 4. Because it was getting dark (T31.1 - T31.8) the plaintiff lost sight of Mr Keriakos who, it transpired was walking relatively fast, or at least faster than the plaintiff was walking: T34.20 - T34.22; 5. There were no lights on in the area that would otherwise have illuminated and revealed available pathways: T131.17 - T131.32; 6. The plaintiff saw the lights of the Tearooms in the distance and headed that way at a time when she could not orient the direction or course of the ravine and the creek; 7. In those circumstances, the plaintiff encountered the brick paved area which, absent lighting, had the appearance of a pathway: T131.25; 8. The plaintiff turned and walked on that paved area where there was a very clear opening in the otherwise dense vegetation, thinking (in darkness) that opening represented the path to the Tearooms: T35.1 - T35.4; T131.36; 9. The plaintiff thought she was making the right decision to take that path, thinking that it was safe to do so: T131.5 - T131.10; T135.40 - T135.50; T167.25; 10. The plaintiff did not know there were hazards ahead of her: T167.29.
At common law, contributory negligence occurs where a plaintiff has failed to take reasonable care for his or her own safety: Astley v Austrust Ltd [1999] HCA 6; (1999) CLR 1, at [21].
The consideration of whether there was contributory negligence must proceed by way of a prospective analysis: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [105]. That analysis must also proceed in accordance with the requirements of s 5B, s 5C and s 5R of the CL Act.
Section 5R of the CL Act provides: 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.
The correct legal question for determining the issue of contributory negligence in conformity with s 5R of the CL Act is the factual question of "whether a reasonable person in the position of the [plaintiff], i.e. having the knowledge which the [plaintiff] had or ought to have had, was negligent": Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139, at [47].
The plaintiff submitted that, for a number of reasons that I will shortly review, it was open to a reasonable person in her position, to decide to take a back bridge route knowing there was an alternative route to the Tearooms: Section 3 of Plaintiff's submissions, par 23. I accept that submission as apt in this case.

Consideration of whether there was contributory negligence

To sustain a finding of contributory negligence against the plaintiff, the defendant must at the outset satisfy the three pre-conditions within s 5B(1) of the CL Act. The consideration of the identified bases for the claim of contributory negligence now follows in light of that statutory framework.

Claim of failure to keep a proper lookout

In my assessment, the claim that the plaintiff failed to keep a proper lookout having regard to the layout of the grounds should be rejected. I consider this to be so because at the time the plaintiff commenced to follow Mr Keriakos, there was no evidence that suggested to her that she had any obstacles or hazards in her field of vision or view of the pathway ahead of her. It was therefore reasonable for her to follow Mr Keriakos.
By the time the plaintiff had lost sight of Mr Keriakos as he walked more quickly ahead of her, and by the time she reached the unlit area where she ultimately fell, in darkness, the edge of the embankment was not readily observable to her. The appearance of the brick paved area adjacent to the gravel path she had been walking upon had, reasonably, misled her into thinking she was on a safe walking path. It is difficult to identify what further or proper lookout would have been available to the plaintiff in the circumstances where that location was within the control of the defendant, and it was the defendant that kept it in darkness.
Accordingly, I find that the defendant has failed to demonstrate that the plaintiff knew or should have known and therefore should have foreseen the risk of falling: s 5B(1)(a) of the CL Act.

Claim of walking into an unsafe area

I consider that the claim that the plaintiff walked into an unsafe area should also be rejected. This is so because the plaintiff was walking on what reasonably appeared to her to be a safe pathway. She had no notice to the contrary. In the circumstances, a reasonable person in her position would have acted as she did.
In the absence of illumination, warning signs or other barriers to the plaintiff proceeding, there was no reason for the plaintiff to believe that she was walking on an unsafe course for so long as she remained on what appeared to her to be a pathway. There was no indication to her that the changed walking surface, from the path comprising stony gravel to brick paving, was indicative of a nearby hazard, or the danger or risk of falling down the embankment.
The plaintiff had formed the view that the route she was taking was safe because it seemed to her, in low light conditions, that Mr Keriakos, an employee with greater experience of the grounds and of the site, was taking that route. That was a reasonable assumption for her to make in the circumstances. The absence of lighting meant that her view was a reasonable one in the circumstances.
Those findings lead me to conclude that the defendant has failed to satisfy the requirements of s 5B(1)(a), (b) and (c) of the CL Act.

Claim of failure to observe workplace safety

I consider the claim that the plaintiff failed to observe workplace safety must also fail. This is because of the limited site induction the plaintiff had received from her employer.
The defendant sought to argue that as the plaintiff's duties encompassed an obligation to consider workplace hazards, and since the plaintiff did not identify the risk that ultimately materialised, it was argued that she was in breach of the duty to take reasonable care for her own safety.
In my view, that submission must be read in the context where it was the plaintiff's employer, and not the plaintiff herself, who had the non-delegable duty and responsibility for providing and maintaining a safe system of work for the plaintiff: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, at [12].
The plaintiff's terms and conditions of employment do not in this context form a proper basis for a contributory negligence finding where the plaintiff's actions in deciding and in seeking to follow the route taken by Mr Keriakos to the Tearooms was incidental to her work, in the further context of a limited site induction. In those circumstances, the plaintiff was not the relevant "duty holder". She was not personally obliged to carry out safety and risk assessments on the site. She was not responsible for her own safety induction for the site. Those matters were her employer's responsibility. Her responsibility was for conducting her employer's retail business on the site. Her employer had allocated its own separate staff to supervise the event on the Lone Pine Lawn: T64.23 - T64.26; T72.8 - T73.17; T86.48 - T87.1. Her purpose in going to the Lone Pine Area on the occasion she was injured was incidental, namely to summon staff to assist at the Tearooms.

Conclusion on contributory negligence

The plaintiff believed, reasonably, in the circumstances, that the path she was taking in following Mr Keriakos made perfect sense to her. It was in that sense that she elected to take that path: T136.12 - T136.32. She had spoken to Mr Keriakos beforehand: T31.45. In that conversation, she told him that he was needed back at the Tearooms: T32.5. It was only after that conversation that she proceeded to follow him, believing he was taking a safe route to the place where he was required: T32.7 - T33.5.
At best, the plaintiff, in deciding to follow the path that Mr Keriakos took before she lost sight of him, undertook what I consider to have been no more than a casual act of negligence that falls well short of the requirements of s 5B of the CL Act to sustain a contributory negligence finding against her.
I therefore conclude that the defendant has failed to establish contributory negligence on the plaintiff's part and that defence must be rejected.

Issue 8 - Nature and extent of the employer's liability: s 151Z of the WC Act

The defendant relied on its pleaded defence pursuant to s 151Z(2) of the WC Act. The defendant submitted that by reason of the operation of that section, the amount of the plaintiff's damages should be significantly reduced, if not extinguished. The defendant did not formulate any specific particulars of negligence as against the plaintiff's employer, other than the general matter of insufficient induction to the grounds where the plaintiff would be required to work.
The defendant submitted that on any apportionment between the employer and the defendant, the employer ought to bear the sole responsibility for the plaintiff's injury: Defendant's written submissions, par 104.
Section 151Z(2) of the WC Act relevantly provides: "151Z Recovery against both employer and stranger … (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that: (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise - the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution - subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution."
The non-delegable duty of care owed by an employer towards its employees is to take reasonable care to avoid exposing them to unnecessary risks of injury: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, at [12], following Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18, at p 25.
In addressing that duty of care in order that it be adequately discharged, the employer must also take into account the possibility of thoughtlessness, or inadvertence, or carelessness on the part of the employee: Smith v Broken Hill Co Pty Ltd [1957] HCA 34; (1957) 97 CLR 337, at pp 342 - 343.

Concession by plaintiff

In the above context, the plaintiff concedes that, for the purpose of applying s 151Z of the WC Act, there should be a notional finding to reflect the contribution of the plaintiff's employer to her injuries. The plaintiff submitted the respective apportionments should be 85 per cent to the defendant and 15 per cent to the plaintiff's employer.

Consideration of s 151Z apportionment

There is no authoritative standard discount or benchmark for applying a discount required by s 151Z of the WC Act: Maricic v Dalma Formwork Australia Pty Ltd [2006] NSWCA 174, at [74]
I consider that the facts of this case indicate that the defendant should carry the larger bulk of the major responsibility for the plaintiff's injury. The salient factual circumstances which lead to that conclusion are as follows.
The defendant was the owner of the property and had control over the lighting in the area. The defendant's staff was in a position to decide whether or not to illuminate the toilet block area and adjacent pathways, including the pathways to and from the Venue Hire Spaces and the Tearooms and the Terrace. This was in circumstances that there would be a function in the grounds at night time where the defendant would derive income from that function, and would have a staff member on the grounds.
The fact that the plaintiff's injury occurred at premises that were not controlled by her employer is also an important consideration: Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, at [48].
The defendant had remained in control of the area where the risk of harm arose. The defendant carried on a commercial enterprise on the premises in respect of which it was a duty holder under the WHS Act. In that regard, it had a duty to identify foreseeable hazards existing in its own premises.
Given that the premises were known by the defendant to be used at night, the absence of directions given to the staff of Fresh Catering, and the absence of warning signs alerting persons to the existence of the risk of harm from falling down an unlit and unbarricaded embankment and ravine below, and given the defendant's exclusive management and control over such matters on the premises, all these considerations point to the defendant bearing the major proportion of the responsibility for the occurrence of the plaintiff's injury.
In that evaluation, given that the plaintiff was entitled to bring a claim for damages against her employer, independently of this action, I consider it to be appropriate that the responsibility for the plaintiff's damages should be in the proportion of 80 per cent by the defendant and 20 per cent by the plaintiff's employer, to reflect the percentage by which the plaintiff would otherwise have been entitled to recover from the employer, if the employer were joined to these proceedings as a joint tortfeasor: s 151Z of the WC Act.
Accordingly, the plaintiff's damages assessment must be reduced by 20 per cent to reflect that finding.

Issue 9 - Assessment of damages

In the paragraphs that follow, I set out my assessment of the plaintiff's claim for damages. At age 44 years. The plaintiff's median statistical life span is identified as being a remaining 44.35 years.

Non-economic loss

The plaintiff initially claimed that her damages for non-economic loss for pain, suffering, and loss of amenity of life should be assessed at 42 per cent of a most extreme case: s 16 of the CL Act: MFI "2". Following the conclusion of the evidence and an evaluation of that evidence, the plaintiff's final submission in respect of this head of damage was for 47 per cent of a most extreme case: MFI "9".
In contrast, in its amended defence filed on 10 June 2016, the defendant pleaded that the plaintiff's damages for non-economic loss do not reach the statutory threshold of 15 per cent. In final submissions, the defendant altered its position, and ultimately conceded that those damages should be assessed at 25 per cent of a most extreme case, which does exceed the minimum percentage for a monetary assessment: MFI "1", par 113.
The defendant based its final submission on a number of features of the plaintiff's circumstances. Those were that: she had formed a romantic relationship about 15 months ago, and that relationship has developed into a domestic relationship with her partner Mr Bowden about 4 months before the hearing; there were no plans for further surgery to the plaintiff's right wrist; there was no indication of a need for further wrist physiotherapy; the plaintiff's previously observed Tourette's tics were now said to be absent; she has been able to work part-time in an administrative capacity, albeit for fluctuating hours; she was described as being articulate and confident; she was able to attend to the majority of her own domestic tasks; and she was independent for self-care.
In my view, the fact that the plaintiff has recently been able to form a romantic relationship, has little if any significant mitigatory or ameliorative impact on her ongoing disabilities of a physical, psychological, cosmetic and functional nature, so as to detract from an assessment of damages for non-economic loss.
The fact that no further surgery is planned for the plaintiff at present must be viewed in light of the previous series of operations that were unfortunately unsuccessful, and in view of the complicating fact that she now has an ongoing and entrenched injury-related complex regional pain syndrome that is difficult to treat.
The defendant's submissions as cited at paragraph [342] above, seem to gloss over, and therefore understate, some relevant aspects of the plaintiff's problems. She still struggles with communication, and her unusual facial tics, expressions or grimaces were evident rather than absent when she gave her evidence. The plaintiff's communications are affected and impaired by her struggle to suppress her tics. The requirements of the plaintiff's present part-time administrative work, are nowhere near approaching the level of her pre-accident functioning at work. For example, she cannot write for long periods. The statement that the plaintiff was described as being articulate and confident does not provide the full picture of her situation. She no longer derives the same satisfaction from work because of her altered level of functioning, even in her altered work arrangements which involve lesser duties, and she is exhausted at the end of her part time working day. I accept the plaintiff's own description that she is no longer the confident person that she once was, as summarised at paragraph [50] above.
The defendant has pointed to a selection of first instance decisions in other cases in which damages for non-economic loss had been assessed in the range of 14 per cent to 32 per cent of a most extreme case. In my view, those cited cases, including the two Western Australian cases cited, provided no useful assistance in this instance, particularly since there were insufficient points of similarity to the plaintiff's relatively unique combination of post-accident physical, cosmetic and psychological disabilities and circumstances, as described at paragraphs [102] to [108], and [345] above.
The plaintiff's injuries and disabilities have had a significant adverse effect on her. These matters continue to significantly detract from the amenity and the enjoyment of her life. The historical sequence of the serial assessments of the plaintiff's residual problems, and the detail of her treatment have been set out at paragraph [84] above. Those attendances were numerous and were undoubtedly disruptive of the normal amenity of her life. The plaintiff's disabilities have been analysed at paragraphs [103] - [138] above, together with the descriptions of the effects of those problems on the plaintiff's work and domestic life, as summarised at paragraphs [139] - [153] above. Those matters also significantly continue to interfere with the normal amenity of her life.
I have drawn upon and taken into account the combination of those matters in assessing damages for non-economic loss. In my view, contrary to the submission made by the defendant, those matters call for a significant assessment of the percentage impairment of the plaintiff when compared to a most extreme case: s 16 of the CL Act.
In my view, the evidence and the matters that I have cited, calls for an assessment at the upper end of the range of damages for non-economic loss appropriate to her case. Equating that assessment to a percentage of a most extreme case is an inherently difficult undertaking. Nevertheless, that evaluation is a statutory requirement. I consider that the matters to which I have referred indicate that the appropriate percentage assessment of the plaintiff's s 16 damages should be 44 per cent of a most extreme case. I therefore assess the plaintiff's damages for non-economic loss pursuant to s 16 of the CL Act in the amount of $269,500.

Past economic loss

The plaintiff initially submitted that her damages for past economic loss should be assessed in the amount of $141,950. This represented a loss of $850 per week net for 167 weeks: MFI "2" In final submissions, the amount claimed for this head of damage was revised and was submitted as being $154,409.15: MFI "9".
This latter sum was derived from the following calculations: an initial period of claimed loss of $1100 per week net over 20 weeks ($22,000) plus a subsequent claimed loss at an assumed increased rate of $1175 per week net over 142 weeks ($166,850) less identified mitigatory earning of $34,440.85. This yields a resultant claimed loss of $154,409.15 net.
In contrast, the defendant submitted that the amount of the plaintiff's claim for past economic loss was dictated by the past payments of workers' compensation which has been agreed by the parties: MFI "10", par 114. For the reasons that follow, I consider that submission cannot be sustained.
The elements which base the assessments of the plaintiff's claim for past economic loss are as follows:- 1. The plaintiff's gross pre-accident salary of $75,000 per annum; 2. According to the applicable published tax scales and the Medicare levy, as identified in the 2017 Edition of the Furzer Crestani Assessment Handbook, where those rates remained constant between 2014 and 2017, an annual gross salary of $75,000 attracts total annual taxes of $16,952. This yields a net annual salary of $58,042, or $1116.30 per week net. On that analysis, it is not necessary to resolve whether this was for either 38 or 40 hours per week; 3. The period for calculation of past economic loss is between 1 June 2014 and 17 July 2017, or 162.71 weeks; 4. In the above period, the plaintiff derived mitigatory earnings in the total sum of $34,440.85.
But for the accident, the plaintiff would have continued to earn at least $1116.30 per week net in the employ of Fresh Catering Pty Ltd, or in equivalent employment. On that analysis, over the 162.71 weeks post-accident, her earnings would have been $181,633.17 net.
The amount of the plaintiff's past economic loss is identified by offsetting the plaintiff's mitigatory earnings of $34,440.85 from her probable earnings of $181,663.17. The balance after that offset is the amount of $147,192.32.
The difference between that sum, and the higher amount of $154,409.50 as finally submitted on behalf of the plaintiff, is an assumption that the plaintiff's net earnings would have increased from the rounded down sum of $1100 per week as at the time of the accident, as identified in the plaintiff's submissions, to the higher submitted amount of $1175 per week in the 2015 - 2016 financial year.
Whilst there is no evidence that in the financial year following her injury, the plaintiff would have been paid her salary at the assumed increased rate of $1175 per week, I consider that it would be reasonable to infer and to allow a total cumulative average increase of a little over 5 per cent over the course of 3 years, to represent an incremental rise in her rate of earnings over those past 3 years of the post-accident period. This would be in keeping with expected annual salary reviews that ordinarily provide for increases and adjustments for the cost of living over that time, as commonly and generally occurs with salaries in the community.
An assumption of incremental rise in salary may also be reasonably inferred from the fact that before the plaintiff was injured, she was about to have a discussion with her employer concerning a pay review: T160.39. This, taken together with the fact that in the past, she had little apparent difficulty in securing alternate employment when she either had the need to, or saw fit to, make a change to her work arrangements. The compelling inference is that she would not have been satisfied to let her earnings remain pegged at that lower pre-accident level.
Recognising that analysis does not permit a precise calculation, nevertheless, on the evidence of the plaintiff's sound work history, I consider it was more probable than not that the plaintiff would have secured a pay increase in light of the fact that she was considering her options at work, as she has stated. On the cited evidence, and on the inferences I have identified, doing the best I can to make allowance for such factors, I consider that on balance, a rounded amount of $152,500 net would be fair to the plaintiff, whilst not unfair to the defendant, to reflect the plaintiff's past economic loss.
I therefore assess the plaintiff's damages for past economic loss in the amount of $152,500.

Fox v Wood damages

The amount of tax paid by the plaintiff on the weekly payments of compensation she has received has been agreed in the sum of $21,846.23: T387.17; Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. I therefore assess the plaintiff's damages for reimbursement of tax paid on past workers' compensation benefits in the amount of $21,846.23.

Future loss of earning capacity

As the plaintiff makes a claim for future economic loss, it is necessary to consider that claim in light of s 13 of the CL Act, which provides as follows: 13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

Submissions of the parties on future loss of earning capacity

The plaintiff initially submitted that her damages for future loss of earning capacity should be assessed in the projected amount of $613,020. That sum was the product of the projection of an assumed loss of $1000 net per week at 5 per cent over 23 years (x 721.2) and discounted by 15 per cent on account of possible adverse vicissitudes: MFI "2".
In final submissions, the amount claimed for this head of damage was increased to $721,200, this being the projection of a claimed loss of $1250 per week net at 5 per cent over 23 years (x 721.2) less 20 per cent for possible adverse vicissitudes: MFI "9".
The amount of $1250 per week net, or $31.25 per hour net, is a little in excess of the plaintiff's pre-accident net earnings, even allowing the scope for annual increments as explained in paragraph [357] above. Presumably that rate was selected because the plaintiff's earnings at the time she was injured did not truly represent the full extent of her earning capacity in the context where she had previously worked in managerial roles of responsibility and where she was about to engage her employer in discussions about her pay rate. In those circumstances, I consider the approach taken on behalf of the plaintiff in selecting a present net weekly rate of earnings of $1250 to be a reasonable one.
In contrast to the plaintiff's submissions, the defendant submitted that damages for future loss of earning capacity should be assessed at $336,253, being the projection of a weekly net loss of $577 at 5 per cent over 21 years (x 685.6) less 15 per cent discount for possible adverse vicissitudes.
When analysed, assuming a net weekly base rate, without allowing for annual increments to adjust for increases in the cost of living, namely $1116.30 per week, or $27.90 per hour net, the defendant's submission is revealed to assume a loss of about 20 hours per week ($577 ÷ 40 = 20.68 hours).
I consider the approach taken by the defendant to be unrealistic and unreasonable in two respects. First, the net weekly rate is too low as it does not allow for reasonable increments in the three years since the accident, and secondly, it assumes a continued rate of mitigatory earnings which, on the cited medical evidence and the plaintiff's own evidence, is unsustainable in the long term. It is unreasonable to expect the plaintiff to pursue mitigatory earnings at a rate and pace that depletes her to the point of exhaustion and tears, so that she needs to retire to bed at 7.30pm, even on light duties comprising 16 to 20 hours per week.

Plaintiff's most likely circumstances but for her injury

As is required by s 13 of the CL Act, in the sub-paragraphs that follow, I state the assumptions of fact, as proven in the evidence, upon which I base my findings concerning the assessment of the plaintiff's claim for future economic loss: 1. Prior to the subject accident, the plaintiff had a history of working successfully at a high level in a hands-on management capacity in responsible roles in the hospitality industry for a significant number of years; 2. After working for many years in the hospitality industry, the plaintiff took a break from the stresses and pressures inherent in working in hotels and licensed premises in order to consider an adjustment to the balance between her working life and her life outside of her work. In my view, this step did not necessarily mean that she had permanently downgraded the nature of her employment, or the level at which she would exercise her earning capacity in the future; 3. In taking that time out from working in hotels, after working in a bakery between 2011 - 2012, in November 2013, the plaintiff took a position as venue manager with Fresh Catering Pty Ltd, where that position was at a level which was well below her prior experience and capacity to work in a managerial role in the hospitality industry; 4. The plaintiff's salary at the time of her accident was $75,000 per annum gross plus statutory superannuation entitlements; 5. Given the nature of the plaintiff's prior work history, I do not consider the plaintiff's immediate pre-accident salary to represent the full measure of her future earning capacity because, uninjured, she had a history, an ability and a capacity, to cease and to change her employment in order to seek out and to pursue more advantageous alternative employment. In that regard, the flexibility and marketability of her employability was an unhindered asset that was not limited by any deleterious conditions of health or injury. In that context, I consider the weekly rate of $1250 net as submitted by the plaintiff to be reasonable as representative of her present earning capacity if she had remained uninjured; 6. Before the subject accident, the plaintiff was of sound health, of robust outlook, and she had an unfettered work capacity. For discounting purposes, there were no indications within her pre-accident situation which would indicate that she should be considered to have been vulnerable to anything other than the standard or ordinary vicissitudes of life insofar as they might have an impact on her earning capacity; 7. The plaintiff's own summation of her pre-accident situation, as summarised at paragraph [50] above, was not challenged, it was uncontroversial, and I accept it as being factually correct.

Consideration for assessment

In light of the matters outlined above, I accept as reasonable the baseline for the assessment of the plaintiff's claim for future loss of earning capacity at $1250 net per week, as was submitted on her behalf.
The course of the plaintiff's post-accident medical treatment and allied attendances over the time since the accident, as summarised at paragraph [85] above, have left her substantially depleted, both physically and psychologically, as recounted at paragraphs [103] to [138] above.
The post-accident alteration to the plaintiff's ability to work has, despite her more than reasonable mitigatory efforts, had and will continue to have, a significant and deleterious effect on her ability to exercise an earning capacity. The combined effect of her cited disabilities, and her need for medical and pharmacological treatment of those disabilities over the remainder of her life, has resulted in a significant diminution in her ability to attend to full time work tasks. She is unable to sustain a full day's work, and instead, she must limit her daily hours of attendance at her work. At present, in what I find to be sheltered employment, she has been managing to work at the reduced level of between 16 to 20 hours per week in a position that involves much lesser tasks, responsibilities and stresses.
In considering the plaintiff's ongoing disabilities, her physical and psychological problems as already identified at paragraphs [103] to [153] above, I consider that the baseline for the calculation of the damages for future loss of earning capacity, taking into account a residual earning capacity, should be seen as being much less than 16 or so hours per week, which she presently manages, with some considerable difficulty.
In that regard, I consider that an assessment of the plaintiff's net weekly loss of earning capacity at the amount submitted by the defendant, or an assessment based on her present mitigatory earnings for between 16 to 20 hours per week, is unrealistic. This is because at present, her work leaves her exhausted and it further exacerbates her loss of enjoyment of the amenity of her life by further diminishing that which is left to her. According to Dr Pilsky, whose opinions I have accepted, this does not auger well for her future working capacity.
I accept the effect of the plaintiff's evidence that after a working day, she is exhausted, and retires to bed just after 7.30pm: T59.36. From the perspective of mitigation and the assessment of damages, the plaintiff should not be expected to continue to exercise her residual mitigatory earning capacity to the point of daily physical or psychological exhaustion.
That view is supported by the unchallenged opinion of the plaintiff's treating psychiatrist, Dr Pilsky, who stated that the plaintiff's distressing vocal and motor tics, her anxiety, her depression, her poor stress tolerance and her cognitive difficulties, are unlikely to resolve to a degree that would allow her to return to her previous employment duties. He further stated that it was possible that the plaintiff may not maintain even the current level of her employment, which is noted to be part time, should she suffer further exacerbation of her psychiatric symptoms: Exhibit "D", p 97.
In assessing the plaintiff's damages for future loss of earning capacity I take into account that she now remains very restricted in the hours that she can work in mitigatory employment; at present, her employer, whose insurer pays her workers' compensation, has given her a light duties position which might not continue to be available in the long term; if she finds herself on the open labour market having to look for alternative work, she will most likely find herself at a marked disadvantage when competing for such alternative employment that is suitable to her post-accident condition, especially when she will be called upon to honestly disclose, as she must, her prior work, injury and workers' compensation history, and the related health consequences for her which relate to the injuries which are the subject of this case.
I also take into account that at present, the plaintiff has a benevolent employer who has in effect provided her with sheltered employment which may not continue long term. In the circumstances, one of the adverse vicissitudes that may operate unfavourably, including as against the defendant, is that such a benevolent employment situation may not remain the case at some stage after these proceedings have concluded. That possibility is one of the realities that must be recognised as a foreseeable event in the industrial landscape.
The combined effect of the unchallenged opinions of Associate Professor Champion, which are respectively dated 21 September 2015 and 18 April 2017, and which I accept, is that the plaintiff cannot return to a normal physical state, and her prognosis is that she is fit for "perhaps" 10 to 20 hours per week in a "very light capacity in a caring environment" (Exhibit "C", Tab 2, p 45) and she remains unfit for employment in a management role, being fit for light sedentary work which makes minimal cognitive demands, for 16 hours per week: Exhibit "C", Tab 9, p 129.
However, I consider that those views must be discounted somewhat to realistically reflect the expressed views of Dr Pilsky, which I accept, as summarised at par [376] above, to the effect that the plaintiff may not be able to even maintain her current level of part time employment.
Associate Professor Champion considered that it was difficult to estimate when and to what degree the plaintiff might be able to upgrade her employability. He noted that in the long term, only modest improvement was expected, and there was a long term risk of aggravation of the right wrist and upper limb systems. He also noted that it was not likely that the plaintiff would return to anything like her normal pre-accident mental health: Exhibit "C", Tab 9, p 129.
In addition to those opinions which were principally based on the plaintiff's physical problems, Dr Phillips, whose opinions I accept, was of the view that the plaintiff's future career would be likely to be impeded by the combination of both her psychological and her physical symptoms. He agreed that the plaintiff was only able to work on a part time basis, and in a low stress position: Exhibit "C", Tab 5, p 107. Dr Phillips did not identify any matters that would serve to discount the opinions of Dr Pilsky, the plaintiff's treating psychiatrist, whose opinions I have cited at paragraph [376] above.
In assessing damages for future loss of earning capacity, it would be unreasonable to do so, on the basis of a level of mitigatory earnings that could exacerbate the plaintiff's psychological state, as Dr Pilsky pointed out.
The concerns over the plaintiff's ability to exercise a future earning capacity are reinforced by the opinions of Associate Professor James Athanasou, a consultant. Dr Athanasou, whose opinions I also accept, pointed to limitations in the plaintiff's future employability in a hands-on managerial role. Those limitations related to matters such as the need for fast decision making and for harnessing a working memory capacity. The effect of his opinion was that he considered the plaintiff's psychological adjustment to be a factor that influenced her employability. He considered the plaintiff needed subsidised employment, some workplace adjustments, and a sympathetic employer, and possibly retraining in another field of employment. These are all significant qualifications that place burdens on the plaintiff's future employability.
Dr Athanasou's opinion included the following summation of the plaintiff's situation: "Her employment prospects are restricted by her age, a relative lack of transferable skills, her prolonged absence from the labour market, limitations in the labour market and any negative employer perceptions of her ability. She could expect to face a prolonged duration of unemployment prior to obtaining any job. … On the basis of the information available to me, it would appear that had the accident not occurred then this woman had the potential to continue in the workforce at a managerial level. At the time of the accident, she was a permanent employee with varied skills. As a result of the accident she has lost the capacity to continue working and it is possible that her future working capacity will be restricted. She has lost the capacity to work in occupations with average weekly total earnings in the range $1102.70 p.w. to $1689.00 p.w. (gross)." [Exhibit "C", Tab 1, pp 11 - 12]
In my opinion, the combined effect of the opinions I have cited, including Dr Athanasou's opinion cited at sub-paragraph (18) of paragraph [84] above, including the guarded prognoses, even as expressed by Dr Skinner, as cited at sub-paragraph (34) of paragraph [84] above, the functional restrictions identified by Ms Warner, and the plaintiff's own account which bases those opinions, does not auger well for the plaintiff exercising a significant and sustained residual earning capacity for the remainder of her working life. The defendant called no satisfactory evidence to contradict the plaintiff's case in that regard: Smith v Alone [2017] NSWCA 287, at [46].
In striking a balance between the competing positions advanced in the submissions of the parties as summarised at paragraphs [363] to [368] above, and in making due allowance for the above factors, I consider that long term, and for the next 23 years, the plaintiff's future loss of earning capacity should be assessed on the basis of an ongoing loss of $950 per week net over the remainder of her working life.
This assumes a weekly rate of $1250 net, which equates to $31.25 per hour, and a residual earning capacity of just under 10 hours per week in a 40 hour working week. In my view, that assessment pays proper regard to the cited and realistic views of Dr Champion and Dr Pilsky. This amounts to a loss of earning capacity of a little over 30 hours per week.
I consider that approach to be a conservative one in view of the plaintiff's pre-accident work having been predominantly more senior and responsible in management roles, which obviously involved more than a 40 hour week, and given that at the time of the accident, she was taking a temporary break from the intensity of that type of work.
In my assessment, the impairments comprising the plaintiff's disabilities, as summarised at paragraphs [103] to [138] above, taken together with the medical opinions cited in the preceding paragraphs, indicate that the plaintiff has not only suffered an impairment in her earning capacity, but that impairment is also having the ongoing deleterious effect of causing her to suffer financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; Graham v Baker [1961] HCA 48; (1961) 106 CLR 340.
Accordingly, the projection of a loss of $950 per week net, at 5 per cent, over 23 years (x 721.2) yields the sum of $685,140.
Although the evidence discloses no sound reason from within the plaintiff's pre-accident situation to indicate or apply a higher discount for possible adverse vicissitudes, I consider the 20 per cent discount conceded by the plaintiff to be reasonable in the circumstances. In my view, that increased measure of discount adequately takes into account the possibility that at some time in the future there may be some increase, whether intermittent or temporary, in the plaintiff's capacity to derive mitigatory earnings. Accordingly, applying that discount to the projected sum of $685,140, yields the discounted amount of $548,112. I therefore assess the plaintiff's damages for future loss of earning capacity in the amount of $548,112.

Past loss of superannuation

The plaintiff's damages for past loss of employer funded superannuation benefits are assessed at 9 per cent of the amount assessed in respect of past economic loss of $152,500, in the sum of $13,725.

Future loss of superannuation

The plaintiff's damages for future loss of employer funded superannuation benefits are assessed at 11 per cent of the amount assessed in respect of past economic loss of $548,112, in the sum of $60,292.

Past domestic assistance

On behalf of the plaintiff it was initially submitted that damages for the injury-related past gratuitous domestic assistance that had been provided to her following the subject accident should be assessed in the amount of $14,400: MFI "2". That submission was subsequently modified to a claim for $17,988, being for 6 hours per week of such services, over 100 weeks, at the submitted rate of $29.98 per hour.
The defendant maintained that the evidence called by the plaintiff was not sufficient to meet the required minimum threshold of 6 hours per week for 6 months, for there to be an assessment of damages for past domestic assistance: T382.27 - T382.29; s 15(3) of the CL Act.
Whilst there was no direct evidence of the precise number of hours for such attendances on the plaintiff each week in respect of particular tasks of domestic assistance, and the plaintiff's evidence on those matters comprised estimates, there is little room for doubt that, as a result of her injuries and treatment, she both needed and received such assistance. This was initially provided to the plaintiff by her flatmate when they lived in shared accommodation between June 2014 and December 2015, and then more recently, since March 2017, which is the time from when the plaintiff received domestic assistance from her partner, Mr Bowden.
In the intervening period, between those two periods, the plaintiff fended for herself, albeit inadequately (T51.30 -T51.35), with some tasks either being left unattended, or not well performed, and where the plaintiff somehow managed (T46.8) and did her best in the circumstances: T51.33.
The question to be determined here, despite the absence of precise evidence of the hours per week of domestic assistance provided to the plaintiff in respect of particular domestic tasks, is whether it might be reasonably inferred from the totality of the evidence on this topic, that the plaintiff has satisfied the threshold requirements of s 15 of the CL Act: T344.4 - T344.10.
This question arises in the context where, following the plaintiff's accident and during the phases of her various surgical and post-surgical treatments, she was significantly affected, including with psychological problems, and she was taking medication which affected her functioning. Understandably, with her dominant right wrist and upper limb affected, the plaintiff kept no records in relation to the domestic assistance she received on a gratuitous basis.
There are four relevant periods that arise for consideration: 1. The initial period of approximately 6 weeks from the plaintiff's post-operative discharge from hospital on 3 June 2014, to say, 15 July 2014; 2. The subsequent period of approximately 72 weeks between 16 July 2014 and the time when the plaintiff's flatmate moved overseas, and which was when her shared accommodation arrangements changed, on say 1 December 2015: T50.49; 3. The further period between say 2 December 2015 and 1 March 2017 during which time the plaintiff lived in an apartment on her own and somehow managed without assistance: T51.19; 4. The most recent period from say 2 March 2017, when the plaintiff commenced her relationship with Mr Bowden, and where the domestic arrangements that prevailed in that period, have continued up until the time of the hearing: T58.32
Each of those separate periods must be considered following a review of the evidence of the plaintiff, Mr Bowden, and Ms Warner concerning the provision of past domestic assistance.

Plaintiff's evidence on past domestic assistance

The plaintiff's accident-related disabilities, including the effects on ability to work, as surveyed between paragraphs [103] to [145] above, have had an inevitable carry-over effect on her ability to perform common place tasks in the domestic setting, as summarised at paragraphs [146] to [153] above.
Also relevant to a consideration of the plaintiff's evidence on this topic is the content of histories recorded at the various post-accident assessments of the condition of the plaintiff, and at the frequent and numerous medical and allied assessments she has attended, as well as the multiple surgeries she had, and from which she had to recuperate, as has been chronologically laid out at sub-paragraphs (1) to (86) of paragraph [84] above, relating to the period being 12 June 2014 and 29 May 2017.
In analysing those matters, it is relevant to observe that the plaintiff had a significant and painful restriction in the use of her dominant right wrist, and therefore regarding the use of her right upper limb. This would have undoubtedly affected her ability to perform her ordinary share of the many commonplace household tasks that were required of her, as well as some aspects of self-care, where manual activity of her right hand, wrist and arm would have been required.
As at September 2014, the plaintiff's right wrist was clicking, and was to a degree unstable, albeit not grossly unstable, and her right little finger was clawed: Exhibit "D", p 89. She needed further surgery which also had disabling effects.
It is also relevant to note that in November 2014, or the end of 2014, the plaintiff was not using her right arm, she was not doing any lifting, she had little capacity for the common household task of scrubbing the bath or shower, and did very little cooking, and chopping for meal preparation, and her flatmate undertook the significant tasks: T45.17 - T46.17.
The medical evidence which I have cited has documented the continuation of the plaintiff's pain, her chronic complex regional pain syndrome, her physically restricted ability to fully use her right wrist, and her ongoing psychological problems, as has already been described. Those problems did not lessen, and they have continued up until December 2015, and also beyond that date.
The plaintiff's ability to sustain meal preparation and domestic tasks requiring use of her right upper limb has been, and continues to be limited for periods of about 5 - 10 minutes before the condition of her right wrist becomes aggravated: T61.14 - T61.49. She has struggled with pain when she undertakes activities with her right arm: T62.4. She leaves the heavier aspects of housework: T62.18. She has limited grip and ability for pressured use of her right arm before the activity becomes too painful to continue: T62.39 - T62.50. She cannot lift clothing onto the clothes line (T63.6) and she can only undertake small gardening tasks: T63.9. The tasks she does undertake (T165.3 - T165.36) are more laborious and discomforting: T61.17; T165.40. Those problems have continued to beset her since her injury, and they continue to do so.
Also relevant to the consideration are the various further surgical procedures the plaintiff underwent on 27 November 2014 (ultrasound guided injection), 25 February 2015 (revision: T152.2), 15 July 2015 (right wrist arthroscopy with cartilage and tendon repair), 30 July 2015 (ultrasound guided injection), and 20 July 2017 (Adams procedure revising previous tendon repairs and wrist joint reconstruction), the majority of which would have resulted in further periods of significant added incapacity for manual tasks during recuperation.

Mr Bowden's evidence on past domestic assistance

The plaintiff's partner, Mr Bowden, who has a demanding job outside the home, described the limited nature and extent of the plaintiff's meal preparation activities: T177.45 - T177.50. His evidence between T177.10 to T182.1, when analysed, indicates that he spends about 3 hours per week in providing the plaintiff with domestic assistance concerning the activities of cooking, cleaning, washing and drying. This is less than the statutory threshold of 6 hours per week.

Ms Warner's analysis on past domestic assistance

In support of this head of damage, the plaintiff relied on the analysis of the consultant occupational therapist, Ms Warner who estimated that the past domestic assistance provided to the plaintiff was for 6.5 hours per week: Exhibit "C", Tab 4, pp 48 - 94. Although the defendant acknowledged Ms Warner's qualifications, which were not challenged, the defendant claimed there were deficiencies in Ms Warner's report which undermined the acceptability of her opinion: T382.31 - T382.32. I shall return to consider the validity of that submission.
In her report, Ms Warner summarised the plaintiff's post-accident history and treatment (at p 51 of Exhibit "C") and she identified relevant aspects of the plaintiff's post-accident physical and psychological complaints (at p 53 of Exhibit "C"), which, from her perspective as an occupational therapist, included difficulty for the plaintiff with a range of manual domestic tasks in respect of which she required assistance after her injury.
Since Ms Warner's report was dated 6 October 2015, it only dealt with the plaintiff's living arrangements whilst she continued to share a house with her flatmate. Ms Warner noted the plaintiff relied upon her flatmate for practical and emotional support (at p 55 of Exhibit "C"). The practical tasks were not fully defined in the report.
Ms Warner (at pp 55 - 56 of Exhibit "C"), set out her assessment of the property where the plaintiff lived at that time. She identified the need for housework to be carried out in respect of two carpeted bedrooms, a shared bathroom and shower, a courtyard and terrace, a hedge, potted plants, a shared kitchen with related cupboards, a shared laundry and clothesline.
Ms Warner (at p 56 of Exhibit "C"), noted the plaintiff's history of becoming rapidly fatigued with any activities. That account she obtained from the plaintiff, and her summaries of the plaintiff's disabilities, as related to Ms Warner, were not challenged, and I accept those matters as being the important underlying basis for her evaluation: s 60 of the Evidence Act 1995; Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25.
Ms Warner (at p 57 of Exhibit "C") noted that, given the plaintiff's functional restrictions, it was likely that the plaintiff would have required assistance with self-care tasks, which she identified as washing and styling her hair, dressing and grooming, to the order of 30 minutes per day. This equates to 3.5 hours per week, which was separate from assistance with the plaintiff's share of the housework.
It appears that the plaintiff's memory, to a degree, has been affected by the effects of her injury and she had difficulty recalling and quantifying the precise details of the household tasks for which she was provided with domestic assistance in the relevant periods that require consideration: T45.26.
Ms Warner (at p 58 of Exhibit "C"), identified the applicable post-accident statutory rate for the assessment of past domestic assistance as being $27.96 per hour. The plaintiff's submissions identified the rate at $29.98 per hour. Neither of those rates is correct. According to the 2017 Edition of the Furzer Crestani Assessment Handbook, at p 4, the correct hourly rate in respect of the immediate post-accident period is $28.24 per hour.
It is clear from Ms Warner's report that she undertook a process of estimation of the past domestic assistance provided to the plaintiff. I infer that she did so in the absence of the plaintiff's ability to recall and to precisely recall and quantify those matters.
In doing so, she estimated that apart from two periods of 6 weeks post-operatively in which time the plaintiff received 7 hours per week of domestic assistance, the plaintiff was provided with 6.5 hours of domestic assistance per week from 6 June 2014 to the time of her report, and an extra one hour per week for 12 weeks during the periods of post-operative recovery. Given the timing of Ms Warner's report, as at October 2015, it would be reasonable to infer that her analysis was also applicable to 1 December 2015.
I now turn to deal with the defendant's objection to the claim and quantification of an award of damages for past domestic assistance.

Whether damages should be awarded for past domestic assistance

In essence, the defendant points to the fact that in relation to the activities described and estimated by Ms Warner, being domestic assistance for 6.5 hours per week in the period between June 2014 and December 2015, apart from an initial 6 weeks at 7 hours per week, the ensuing time within that period involved services provided to the plaintiff by her flatmate, for less than 6 hours per week. This was because the element of gardening had to be excluded, and some of the tasks undertaken by the plaintiff's flatmate were performed by the flatmate for her own benefit, and not exclusively for the plaintiff. The defendant consequently submitted that the statutory 6 hour threshold for 6 consecutive months has not been met.
In my view, on the evidence, that submission by the defendant must be accepted. Although the plaintiff has established a reasonable need for the services provided to her (s 15(2)(a) of the CL Act), the evidence does not permit a positive finding that the plaintiff has received such services for at least 6 hours per week for a period of 6 consecutive months (s 15(3) of the CL Act) in respect of services that were needed solely because of the injuries relating to the proceedings, and not otherwise: s 15(2)(b) and (c) of the CL Act. The evidence does not permit an inference that this mandatory statutory provision has been satisfied.
I therefore find the plaintiff has not established an entitlement to damages for the value of past gratuitously provided domestic assistance. I therefore decline to award the plaintiff damages for past gratuitously provided domestic assistance.
If I had come to a contrary conclusion on the question of whether the threshold of s 15 of the CL Act had been met, I would have awarded the plaintiff damages for past domestic assistance in the amount of $17,034, for the reasons that now follow.
Taking a broad-brush approach for present purposes, in the period 3 June 2014 to 1 December 2015, a period of approximately 78 weeks, at the flat rate of $28.24 per hour (without attempting to apply quarterly increments), giving effect to Ms Warner's estimates, this amounts to $15,249: ($28.24 x 6 hours per week x 78 weeks = $13,216) + ($28.24 x 6 hours per week x 12 weeks = $2033).
In addition to the amount identified in the preceding paragraph, if it is assumed that, contrary to my finding, the plaintiff had in fact satisfied the initial qualifying threshold requirements of s 15 of the CL Act in relation to the initial period of 6 months following 3 June 2014, then the 3 hours of assistance provided to the plaintiff by Mr Bowden from March 2017 to the time of the hearing would also become assessable even though this was for less than 6 hours per week for 6 consecutive months: Hill v Forrester [2010] NSWCA 170; (2010) 79 NSWLR 470, at [2] and [100] - [112].
Accordingly, applying the more current hourly rate of $29.98 to the period from 1 March 2017 to the commencement of the hearing on 17 July 2017 this relates to a period of 19.85 weeks. The assessed value of domestic assistance of 3 hours per week for 19.85 weeks at that rate is $1785.
If the plaintiff had satisfied the requirements of s 15 of the CL Act, in her case, the combined total amount claimable for past domestic assistance is the total of $15,249 and $1785, namely $17,034.

Future domestic assistance

On behalf of the plaintiff it was initially submitted that damages for the injury-related future domestic assistance that the plaintiff would require in the future, should be assessed on a commercially paid basis in the amount of $255,015, comprising 6 hours per week at approximately $45 per hour projected at 5 per cent over the plaintiff's remaining life span of 44 years (x 944.5): MFI "2'.
In final submissions, this aspect of the plaintiff's claim was subsequently modified to the sum of $188,900, being for 4 hours per week of paid assistance, at $50 per hour, projected at 5 per cent over 44 years (x 944.5) without further discount: MFI "9". Ultimately, there was no dispute as to the rate of $50 per hour for that projection: T385.13.
In contrast, the defendant submitted that there should be no award of damages for future domestic assistance. The defendant made that submission on the basis that the plaintiff's need for domestic assistance was very minimal, and that this is unlikely to change in the future: T385.5. That submission was in part based on the generalised proposition that the plaintiff has been managing to do some work, and was also capable of doing some domestic work: T384.35 - T384.40.
I do not accept the defendant's submission in that regard as it glosses over relevant detail within the evidence. In my view, that submission is based on a superficial and unduly narrow interpretation of both the plaintiff's evidence, and the medical evidence as to her ongoing disabilities as has already been reviewed in detail, especially at paragraphs [74] to [102], and [103] to [138] above.
When those latter matters are properly taken into account, I consider it is reasonable that the plaintiff should be compensated for some hours per week of domestic assistance concerning a number of predictably recurring domestic tasks.
These tasks include her share of the heavier housework involved in cleaning and maintaining her home, managing aspects of the laundry, some aspects of meal preparation which the plaintiff finds difficult, being driven to various appointments, some aspects of gardening, the carrying of shopping, and like tasks. In view of the plaintiff's only relatively recent formed relationship with her partner, it cannot be reasonably inferred that her partner would indefinitely continue to carry out the domestic tasks he presently performs in lieu of the plaintiff, and to an extent that is below the level of the minimum assessable threshold, along the lines discussed in Miller v Galderisi [2009] NSWCA 353.
Taking into account the matters referred to in paragraph [436] above, and in light of Ms Warner's recommendations in relation to such matters (at Exhibit "C", Tab 4, at paragraphs 3.2 - 3.9, pp 57 - 72), I consider that an assessment of 4 hours per week of commercial domestic assistance, would be reasonable and fair to both the plaintiff and to the defendant.
In arriving at that assessment, which is less than the time estimates aggregated from the elements comprising the recommendations within the report of Ms Warner, I consider that an assessment of 4 hours per week also makes due allowance for the domestic tasks the plaintiff's partner presently performs in her stead, and on a gratuitous basis, as distinct from things he does for his own benefit.
The projection of the value of $50 per hour, for 4 hours per week, which is the equivalent of $200 per week, over the assessment period of 44 years at 5 per cent (x 944.5) yields the amount of $188,440, as was submitted on behalf of the plaintiff.
A further matter which needs to be taken into account in assessing this head of damage is the question of whether a discount should be applied for possible adverse vicissitudes, or other life events. That consideration now follows.
On the one hand, pre-accident, the plaintiff was in robust good health and it would have been unlikely that in the long term, in the ordinary course of events, and not until she reached a well advanced age, that she might otherwise have had to engage domestic assistance for household tasks. Those matters militate against a discount greater than the conventional discount of 15 per cent.
On the other hand, there is the distinct possibility that, against the interests of the defendant, the plaintiff's present limited abilities to carry out physical tasks, which must include domestic tasks may undergo a decline as a consequence of her accident-related disabilities, either on account of physical issues, psychological issues, or a combination of these matters, as was foreshadowed by Dr Champion and by Dr Pilsky. Those possibilities militate against applying any significant discount to this component of the damages.
In balancing these factors with the concept of the vicissitudes generally, and recognising the exercise is incapable of precision, I consider that the interests of both parties are fairly served if the period for projection for this head of damage was reduced to 40 years, without further discount. This reduced period of 40 years requires that the lesser 5 per cent multiplier of 917.5 should be applied.
The projection of $200 per week at that rate and over that period yields the amount of $183,500. I therefore assess the plaintiff's damages for future paid domestic assistance in the amount of $183,500.

Future treatment expenses

It was initially submitted on behalf of the plaintiff that damages for her likely future treatment needs and expenses should be assessed in the amount of $133,280, being the projection of an amount of $200 per week at 5 per cent over a limited period of 20 years (x 666.4). That sum included allowances for future attendances on general practitioners, rehabilitation physicians, physiotherapists, psychologists, psychiatrists, as well as pharmaceutical expenses: MFI "2'.
In final submissions on behalf of the plaintiff, this aspect of her claim was subsequently modified to the sum of $141,675, being the projection of a weekly amount of $150 at 5 per cent over the period of 44 years (x 944.5): MFI "9".
In contrast, the defendant submitted that the appropriate allowance for the plaintiff's future treatment or out-of-pocket expenses should be in the rounded amount of $60,000: MFI "6"; T386.21.
The defendant approached the future treatment issue on the basis that the treating doctors and the medical experts make reference to the need for certain periods of specific treatment over time. The defendant submitted that such damages should be allowed at a particular level for a number of years, but then reducing over time, as set out in the sliding scale within the defendant's schedule: T385.30 - T386.25. In my view, the evidence does not satisfactorily identify a meaningful sliding scale upon which to base such a calculation.
In reply to the defendant's submissions cited in the preceding paragraph, the plaintiff submitted that the future treatment regime which was advanced and relied upon in her case was for recurring lifelong treatment, as was identified in the opinions of relevant practitioners: T386.48.
In assessing the plaintiff's future medical and pharmaceutical expenses it is relevant to note that over the past 3 years, those expenses have been continuing at about $40,000 per annum: Exhibit "K".
Whilst those expenses are unlikely to continue to accrue at that rate, in my assessment, the plaintiff's ongoing accident-related disabilities and problems justify her continuing to seek out medical advice as she has done to date, and for monitoring her regime of medication for her pain management and for her psychological condition, as has been complicated by the unfortunate but injury-related development of a complex regional pain syndrome, which in combination with her other disabilities, has proved difficult to treat. In my view, these matters indicate that an allowance should be made for a more intensive regime of treatment and monitoring than that which was submitted on behalf of the defendant.
On account of those matters, the plaintiff still regularly sees Dr Parish, her general practitioner, Dr Pilsky, her treating psychiatrist, and Ms Wild, her treating psychologist, at approximately monthly intervals. She also consults Dr Schick regularly, and although further surgery has for the present been ruled out of consideration, this might change in the future. She continues to see Dr Yu, her pain management specialist about every 2 months, and she continues to take varied prescribed medications, including trials of different medications, in various combinations that are adjusted from time to time by her treating doctors.
Plainly, with the plaintiff's guarded medical prognosis, that regime is unlikely to materially change or lessen in its intensity in the foreseeable future. My reading of the evidence of Dr Champion and Dr Pilsky indicates the plaintiff's needs for medical and psychiatric treatment, with monitoring of her condition, and her continuing need for medications, will be a life-long requirement, albeit with possible variations or fluctuating intensities over the course of time.
Also relevant to this aspect of the consideration is the pessimistic prospect that the plaintiff may require additional treatment in the event that she experiences exacerbations of her physical and psychological conditions, which as Dr Champion explained, could readily occur with relatively minor physical stressors: Exhibit "C", Tab 9, p 129.
Whilst the incidence and the cost of the various treatments under consideration are difficult matters to predict, useful guidance is available in the form of the unchallenged opinion of Dr Champion who suggests that a reasonable method of assessing these future costs is to determine the costs incurred for the last 12 months (excluding the cost of surgery), and to project those costs for some years, at a gradually declining rate: Exhibit "C", Tab 9, p 129. That approach is also difficult to quantify.
At the same cited place in his report, Dr Champion also draws attention to the long-term risk carried by the plaintiff of incurring aggravation of her right wrist and upper limb symptoms from relatively minor or moderate biomechanical stressors, for example, from a fall, or, I would add, from a fair reading of his report, over-exertion with relatively minor tasks. That risk adds a further level of imponderability and therefore difficulty to the exercise of estimating the plaintiff's future treatment costs.
The plaintiff's submissions which quantify the sum of $141,675, identify a figure of $150 per week for projection. This is based on an analysis of general practitioner costs of $75 per month, Dr Pilsky at $250 per month, Ms Wild at $200 per month, Dr Yu at $125 per month, and pharmaceutical costs of $100 per week, which analyses at $180 per week, and which was then rounded down to $150 per week.
In my assessment, the many treatment imponderables facing the plaintiff in the future make it difficult to approach the exercise as one of the projection of a reliably precise weekly sum. Instead, as is the case where economic loss may be difficult to quantify, I consider the correct approach in this case is to allow a substantial buffer sum that allows for the plaintiff's likely significant treatment costs, on a continuing basis, although not attempting arithmetic precision: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
On that approach, on balance, doing the best I can to be fair to the plaintiff and not unfair to the defendant, I consider the appropriate buffer sum to be $125,000. I therefore assess the plaintiff's damages for future treatment expenses in the amount of $125,000.

Past out-of-pocket expenses

Past out-of-pocket expenses, including medical, hospital, rehabilitation and allied expenses, which appear to have in large part been paid by the workers' compensation insurer, have been agreed in the amount of $129,806.60: MFI "9": T387.3 - T387.15. This figure was updated the day before delivery of these reasons, to the amount of $133,199.30. I therefore assess the plaintiff's out of pocket expenses in the sum of $133,199.30.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: (a) Non economic loss $269,500 (b) Past economic loss $152,500 (c) Fox v Wood damages $21,846.23 (d) Future loss of earning capacity $548,112 (e) Past loss of superannuation $13,725 (f) Future loss of superannuation $60,292 (g) Past domestic assistance $Nil (h) Future domestic assistance $183,500 (i) Future treatment expenses $125,000 (j) Past out-of-pocket expenses $133,199.30 Total $1,507,674.53

Disposition

The plaintiff has succeeded in establishing that the defendant was negligent as alleged. The plaintiff's damages are assessed in the amount of $1,507,674.53. The defendant's claimed defence of contributory negligence has been rejected. Pursuant to s 151Z of the WC Act, the notional negligence of the plaintiff's employer is assessed at 20 per cent. Applying the effect of those findings, the plaintiff is therefore entitled to a verdict in the sum of $1,206,139.60.
Absent the filing of a memorandum of consent to unlimited jurisdiction, the effect of s 51(2) of the District Court Act 1973 is that in this case, which involves a claim for occupiers' liability assessed pursuant to the provisions of the Civil Liability Act 2002, the plaintiff may only maximally recover an amount of $750,000, or alternatively, an amount which is the equivalent to 50 per cent more than the court's jurisdictional limit of $750,000 for such cases, namely $1,125,000, where the exceptional conditions identified in that section are shown to be applicable: Richards v Cornford [2010] NSWCA 99; (2010) 76 NSWLR 572. Accordingly, applying the provisions of s 51(2) of the District Court Act 1973, i.e. the amount of the judgment in favour of the plaintiff must be limited to $1,125,000.
In respect of cases of like injuries for which damages are awardable, if the claim was being assessed pursuant to the provisions of the Motor Accidents Compensation Act 1999, or the Workers' Compensation Act 1987, the assessment of such damages in this court would be without such limits. This longstanding apparently discordant jurisdictional anomaly between compensation schemes deserves remedial consideration by the legislature.

Costs

The consequence of the above findings is that the plaintiff is entitled to have the costs she has incurred in these proceedings paid by the defendant on the ordinary basis unless a party can demonstrate an entitlement to some other order for costs.

Orders

I make the following orders: 1. Verdict for the plaintiff against the defendant on the plaintiff's claim; 2. The plaintiff's damages are assessed in the amount of $1,507,674.53; 3. After applying the findings made pursuant to s 151Z of the Workers' Compensation Act 1987, the plaintiff's damages are reduced by 20 per cent to $1,206,139.60; 4. After applying the effect of s 51(2) of the District Court Act 1973, judgment for the plaintiff in the sum of $1,125,000; 5. The plaintiff's costs of the proceedings are to be paid by the defendant on the ordinary basis unless otherwise ordered; 6. The exhibits may be returned; 7. Liberty to apply on 7 days' notice if further or other orders are required.

Amendments 20 November 2017 - Coversheet "Decision" and paragraphs [462], [463] and [466] - applying s 51(2) of the District Court Act 1973, correcting the amount of the judgment from $1,206,139.60 to $1,125,000. 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: 22 November 2017

Work Health and Safety Regulation 2011(NSW)

Benton v Historic Houses Trust of NSW

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