Blakemore v Moore & Clements

District Court of NSW|2014-11-24

Solicitors: Brydens Compensation Lawyers Moray & Agnew File Number(s): 12/280125

The Plaintiff's Claim - paragraph 1 Particulars of the Defendant's Negligence - paragraph 7 The Defence - paragraph 8 The Issues - paragraph 13 The Evidence Relating to Liability - paragraph 14 Defendant's Evidence on Liability - paragraph 38 Defendants' Submissions on Liability - paragraph 66 Plaintiff's Submissions on Liability - paragraph 80 Determination of the Facts - paragraph 95 Determination - Did the Defendants owe the Plaintiff any Relevant Duty of Care? - paragraph 97 Breach of Duty of Care - paragraph 104 Contributory Negligence - paragraph 110 Employer's Breach - paragraph 111 Damages - paragraph 113 Conclusions - paragraph 139 Orders - paragraph 140

Particulars of the Defendant's Negligence

The plaintiff sets out in paragraph 9 of her Further Amended Statement of Claim the following particulars of negligence: 1. Failing to take any or any adequate precautions for the Plaintiff's safety; 2. Putting the Plaintiff in a position of peril in the circumstances; 3. Providing a car park area which was unsafe; 4. Failing to periodically remove the said pebbles from the car park surface; 5. Locating next to the concrete car park surface a small garden bed filled with pebbles which were likely to become detached or to migrate so that they ended up on the car park surface; 6. Failing to erect a low timber or brick wall at the edge of the concrete car park so as to retain the said pebbles; 7. Failing to remove the said pebbles from the bed in which they were located; 8. Failing to warn or adequately warn the plaintiff that the said pebbles were slippery and dangerous; 9. Failing to prevent by means of ropes, barricades or otherwise the plaintiff from walking into the area where the said pebbles were located.

The Defence

The defendants deny the plaintiff's claim. By their Defence to the Further Amended Statement of Claim they have pleaded that they were in joint occupation of the premises with Mission Australia, which had exclusive occupation of the relevant part of the premises, including the car park area where the plaintiff fell pursuant to their lease.
The defendants deny that they owed the plaintiff a duty of care, and further deny that they breached any relevant duty of care in that they were not negligent for failing to take precautions against any relevant risk of harm pursuant to the provisions of s 5B of the Civil Liability Act 2002 ("CLA").
Further, the defendants deny they owed the plaintiff a duty to warn the plaintiff of any relevant risk of injury. Relying on s 5H of the CLA, they plead that the risk was an obvious risk to which the plaintiff is presumed to have been aware of pursuant to s 5G of the CLA.
Alternatively, the defendants allege that any injury suffered by the plaintiff was occasioned by reason of her own contributory negligence by failing to keep a proper look out.
Further, and in the alternative, the defendants have pleaded s 151Z of the Workers Compensation Act 1987 ("WCA") by alleging the plaintiff's employer, Mission Australia, owed her a non-delegable duty of care to provide her with a safe place of work, and that Mission Australia breached that duty of care and was negligent. The particulars are pleaded in paragraph 11 of the Defence as follows: "Particulars of Negligence by Mission Australia (a) The first and second defendants repeat and rely upon the particulars of negligence alleged against Mission Australia, the then first defendant in paragraphs 9(a) - (i) of the original statement of claim filed 7 September 2012, the particulars of negligence alleged against the then second and third defendants in paragraphs 9(a) - (i) of the plaintiff's amended statement of claim filed 15 March 2013 (which are denied) and the particulars of negligence alleged against the first and second third defendants in the plaintiff's further amended statement of claim filed 9 December 2013 at paragraphs 9(a) - (i) (which are denied). (b) Failing to provide the plaintiff with a safe place of work. (c) Failing to undertake any or any adequate risk assessment and/or risk response to the presence of pebbles on the pavement, including the area under lease and/or licence to the employer by the first and second defendants."

The Issues

The issues raised on the pleadings are therefore as follows: 1. Did the defendants owe the plaintiff any relevant duty of care? 2. If so, did the defendants breach that duty of care? 3. If the defendants did breach their duty of care, was that breach causative of the plaintiff's injuries? 4. Were the plaintiff's injuries occasioned by her own contributory negligence by her failure to keep proper look out for her own safety? 5. Was the plaintiff's employer in breach of its non-delegable duty of care to provide her with a safe place of work? 6. How should the plaintiff's damages be assessed? 7. How should any damages be apportioned, if at all?

The Evidence Relating to Liability

The plaintiff gave the following evidence about what happened: "Q: I understand you left work, can you tell the court what happened from the time you were leaving work? First of all, were you carrying anything? A: Yes, I was actually carrying a Woolworths green bag which had my wallet and some other items in it, in my left hand. As well as I had my keys in my right hand. I've unlocked the car, Scott was already in the car. Q: How did you unlock the car? A: Okay, so it's a remote, so just press the button and, yeah, Scott was in the car. I walked around the back of the car and to place my bag in the backseat behind the driver's side. Q: Now how far was the back of your car from where the rock garden bed started? A: Yep, it was probably a metre. It was probably a metre gap between my car and the edge of the concrete. Q: So when you walked around the back of the car did you remain on the concrete or did you walk on the rocks? A: I remained on the concrete. Q: Then what happened after that? A: As I walked around the back of the car I've walked on some rocks that were on the concrete. My left ankle has rolled and I've just gone down. Natural reflex I put my arm out and I've known straight away that something was wrong, I've just called out to Scott who was already in the car, he's coming out and I said, 'I think you need to call an ambulance', which is what he did. Q: Do you recall exactly where you were when this happened? A: Okay, I was laying on the ground and I would have been at approximately between the back door and the front door of the car."
The plaintiff gave further evidence that she fell at the side of the car. It was her left ankle that rolled. She gave the following evidence: "Q: So can you describe what happened when it rolled? A: Okay, so just yep, I've stood on some rocks, my ankle just rolled to the left and I've just fallen towards the right to just try and balance myself, could not stop myself from falling so I've just, you know, tried to brace myself and just fall - just fell. Q: When you were walking around the car where were you looking? A: I was looking towards the back door to open the door. Q: Did you see those rocks on the ground? A: I did see rocks on the ground, however, there's rocks there on the majority of cases, I did not, you know, I did not see anything."
The plaintiff gave evidence that she generally parked in the same car space which was closest to the door of the premises. She had been parking there for a period of approximately two years. She was asked whether she knew how the rocks got on to the car park area: "Q: How do you say that happened? A: The car park is open and at times there are people that come in on the weekends or of an afternoon. I've seen kids that do come in and ride their skateboards so perhaps that is how they got there. Q: Did you actually see people riding, kids riding their skateboards in the car park area? A: Yes. Q: Did you see them riding either into the rocks or having anything to do with the rocks? A: No."
The plaintiff gave evidence that the rocks that she stepped on were the same as the rocks in the garden bed. She gave further evidence that she had seen children riding skateboards around the entire car park.
In cross-examination the plaintiff gave evidence that she reversed into the same car park every day. She was very familiar with the layout of the car park and went into the car park area approximately four times each day to smoke, as well as using it for parking. She had not been in the car park on weekends prior to September 2009 and was aware that her employer had an OH & S officer. She understood that she could raise any concerns or worries about her workplace with her employer, however, she raised no concerns in relation to the car park prior to September 2009.
She agreed that she had seen rocks or pebbles from the garden bed on the concrete area of the car park on the majority of occasions she used it, however, she had never had any problems or concerns with the pebbles on that area. She did report the presence of pebbles on the concrete area to her employer, Mission Australia, or the defendants.
The plaintiff gave evidence that she had never walked through the garden bed in the car park but that she had seen the rocks and pebbles on the concrete near the back driver's passenger side door of her car before her accident. She agreed that the pebbles were orange or red in colour and were easy to see. She gave evidence that they were approximately half a dozen of them.
It was suggested to the plaintiff that in walking around the back of her car it was necessary for her to walk through, and that she did walk through, the garden bed area, which she said was incorrect. It was put to her that she rolled her ankle as a result of the difference in height between the garden bed and the concrete car park. The plaintiff said that that was not correct.
A number of people came to the plaintiff's assistance after she fell including her manager, Naisse Dermott and Kathy Almond. An ambulance was called and she was taken to Maitland Hospital. It was put to her that she told a doctor at Maitland Hospital that she had tripped on concrete onto her outstretched hand, however, she did not recall that. It was suggested to her that at no time at Maitland Hospital did she mention anything to do with rocks or pebbles being involved in her accident, however, she said she did not recall that. It was further suggested to the plaintiff that she told the business manager at Mission Australia, Marie Spokes, that the reason she suffered her accident was because she rolled her foot off the edge of the concrete and lost balance. The plaintiff said that that was not correct. Further, a Workers Compensation Claim Form was completed by her at hospital which was completed by a work colleague, Mr Aurisch. The plaintiff gave this evidence: "Q: Did you tell Mr Aurisch at any time in answering those questions that the reason you fell over was because of pebbles or rocks on the concrete area? A: I can't recall. I believed I had. It states that "walking around car, rolled ankle on concrete". It didn't say on edge of concrete. I believe that I mentioned rocks to Scott and filled this out."
There was no mention in the claim form of any involvement of rocks or pebbles in the plaintiff's accident, with which she agreed.
The plaintiff was asked about a further claim form entitled "Workers Compensation Journey Claim Form" in which she gave the following history: "Walking around car, rolled ankle, lost balance, fell on concrete and broke my arm."
She agreed that was the history given and that there was no mention of pebbles or rocks being involved in her accident. It was put to her that as of 11 September 2009 she did not know that pebbles or rocks were involved in her accident, to which she replied: "A: No. It is not the case. Q: Then why didn't you tell the person in completing the form to record anything about rocks or pebbles? A: I did tell them."
The plaintiff was also asked about an Employee Injury Claim Form completed by Mrs Kathy Buckley on 15 September 2009. The plaintiff agreed that she had been asked questions by Mrs Buckley about her accident. She also agreed that there was no mention in the description of her accident in that document of the involvement of rocks or pebbles.
The plaintiff was also cross-examined on another document referred to as an OH&S Online Incident Report which recorded the following history: "It is believed that Julie may have rolled her foot off the edge of the concrete and lost balance. Concrete edge is around 4cm high."
The plaintiff agreed that the document did not record anywhere the involvement of rocks or pebbles in her accident.
The plaintiff was also asked about the history taken by a physiotherapist at Maitland Physiotherapy Sports Injuries. She gave evidence that she didn't feel that she had to tell them the whole details of the accident and she left out details of what she had fallen on. Similarly, it was put to the plaintiff that she did not tell an Orthopaedic Surgeon, Dr Watson, who examined her at the request of the Workers Compensation Insurer, anything about rocks or pebbles being related to her accident. She said she had complained to Workcover about the content of Dr Watson's report.
It was further put to the plaintiff that she had had a conversation following her return to work in January 2010 with Mr Aurisch in which she told him that she was not sure how she fell on 8 September 2009. The plaintiff said "That's incorrect". She said it was incorrect that she fell on the edge of the concrete because of the difference in height.
Finally, the plaintiff was asked about a history given by her to Dr Bodel, who examined her on a number of occasions. It was put to her that in his report dated 26 July 2012 there was no record of the plaintiff falling as a result of pebbles or rocks, to which she replied "I've not seen the document".
It was put to the plaintiff that the first time that she mentioned the involvement of rocks or pebbles in relation to the incident was when she saw the liability expert, Mr Adams, in March 2012. The plaintiff said that was incorrect.
The plaintiff called her mother, Maureen Florence Blakemore, who gave evidence that she saw the plaintiff in hospital in September 2009. She asked the plaintiff what happened and the plaintiff said to her: "I was walking to my car. I had, my ankle twisted on some stones and I fell down and I hit my arm as I fell to protect myself."
The plaintiff relied on a report of Mr Neil Adams dated 8 September 2012 which, subject to a number of objections, was admitted as exhibit E in the proceedings. That report included a number of photographs which depict clearly the concrete car park with bordering garden bed comprised of crushed tiles. At paragraph 3.2.2.2 Mr Adams stated: "Ms Blakemore's experience over the preceding period of about 18 months of having walked within the car park at least twice a day, without slipping, tripping or falling, and of quite regularly observing pebbles on the car park surface generally, is likely to have resulted in her having a relatively low level of concern that she might experience an injurious fall as a result of encountering some of that material on that surface. This low level concern is likely to have been contributed to by the phenomenon known as habituation, whereby long exposure to a known risk leads to a reduced concern for that risk (see relevant material in the appendix)."
Mr Adams was of the opinion that there would have been a very significant risk that a slip and fall might occur unless the presence of contaminants such as pebbles or gravel were effectively excluded from it. He set out the following preventative measure which could have been implemented: "(i) The mulched beds could have been eliminated, either by extending the concrete surface fully to the boundary or paving the unpaved strips in some other appropriate manner; (ii) Suitable borders could have been installed between the concrete car park and the unpaved areas. However, I would note that any such borders would need to be carefully selected and installed to ensure that they did not constitute permanent trip hazards to users; (iii) The presence of contaminants could have been substantially reduced if children using skateboards and scooters etc, could have been prevented from gaining access to the car park. For example, the eastern border of the car park could have been fenced and a suitable gate installed. The installation of suitable signage, and perhaps security cameras might also have contributed to a reduction in the use of the car park for recreational purposes; (iv) The car park could have been swept regularly, to ensure that the concrete surface was appropriately free of potentially slippery contaminants; (v) The employer could have initiated the provision of additional cleaning services (eg. sweeping) within the car park, or required same of the owner/manager of the premises; (vi) Workers such as Ms Blakemore could have been provided with advice, and reminded from time to time, in relation to safe paths of travel to and from the car park having regard to the predictable presence of pebbles/gravel on the car park surface."
Mr Adams' opinion was that it was readily foreseeable that a user of the car park might experience a loss of balance and fall when attempting to walk across the car park surface when it was contaminated with pebbles or gravel. By implementing the preventative actions outlined above, the plaintiff's exposure to the risk of injury "could have been very much reduced, if not entirely obviated".
Mr Adams was not required for cross-examination.

Defendant's Evidence on Liability

The defendant called Mr Steven Moore, who is the first defendant and a builder by occupation. He was, at the time of the hearing, the owner of the property but had purchased it in 2003 with Mr Clements, the second defendant, as a joint owner. Their joint ownership was terminated in about 2012. On 1 July 2009 the owners had leased part of the property to Mission Australia. That lease included part of the car park being the car spaces numbered 5 to 12.
Mr Moore's business was known as Golden Edge Homes. It was conducted from one of the three units on the property.
As of 8 September 2009 Mr Moore was at the property every week day. He used car space number 1, and would come and go each day at anything up to a dozen times a day. Prior to that date he was not aware of any problems or concerns raised by any person in respect to the car park.
Of the car spaces leased by Mission Australia, between "three and five" of those spaces would have used on a daily basis. Otherwise, occasional clients would use the car park, and employees of his business.
Mr Moore gave evidence that the garden beds were not there when he purchased the property in 2003. The original property was totally demolished and a new building was constructed along with new car parking and landscaping areas. Consulting engineers, TJ Thomas & Associates, were retained to design the building and car park areas in 2004. Between 2004 and 2009 no changes were made to the layout of the car park or garden beds. He described the pebbles or rocks in the garden beds as a "crushed tile, terracotta or red in colour". There had been no changes or additions to the amount of rocks or pebbles in the garden bed on the Mission Australia side of the premises between 2004 and 2009.
As at 8 September 2009 the owners employed managing agents who were David Williams Real Estate to manage the property. They collected the rents, and looked after, organised and paid for any maintenance carried out on the property.
Mr Moore also employed a gardener for the property in September 2009. That was Mr Craig Miles, who attended monthly to do any weeding and maintain the property in general tidiness.
As to children using the car park either to skateboard or in any other way, Mr Moore gave evidence that the owners had "issues" in the very early part when the property was first developed and that would have been around 2004/2005. When asked what those issues were, he gave this evidence: "A: Look we had children would come in there skateboarding and so forth in the area where you've got a nice new concrete area. It became a bit of a spot there for a little while which - look, it didn't last long because we got rid of them relatively quickly and I suppose they really - we've developed another site within 100 metres, a larger site, so they relocated down there, I spose at the end of the day. Q: To your knowledge, when was the last time in terms of a point of time, that any children used the car park area, skateboard or do anything else in that area? A: I've not seen any children in that area on a skateboard or anything similar for quite some years."
When asked to nominate how many years, Mr Moore was unable to do so, but said that it would certainly be before 2009 since children were a problem there.
Mr Moore gave further evidence that he had seen the plaintiff in the car park prior to 8 September 2009 on a daily basis, up to six times a day, when she was at the rear of the building smoking.
In cross-examination Mr Moore gave evidence that his company built the premises. Mr Moore acknowledged that he had a knowledge of the safety requirements for commercial premises and safety standards that needed to be satisfied for building approvals.
Mr Moore was asked how many people worked in his office and he gave evidence that two people worked there every day and clients would attend occasionally. Sub-contractors may enter the premises from the rear car park, however, they would number half a dozen in a month.
Mr Moore gave evidence that he had been a smoker until he had his hips replaced some years beforehand, but he could not identify the date. He gave evidence that the gardener kept the garden beds tidy and pulled weeds. When asked what else he did, he gave this evidence: "A: That would have been his main job there. Obviously any loose pebbles on the edge where people walk through the rear of the - through the garden beds, pebbles then get kicked out. I believe he would have broomed or got those, put those back in when he was there. Q: So you were aware then, prior to this accident in 2009, September 2009, that sometimes the crushed tiles made their way onto the concrete? A: Yes, I was, yes. Q: Are you saying that you told the gardener that that was part of his role? A: No I never told him that was actually a part of his role, no. Q: Do you know how long the gardener was there when he came to your premises prior to September 2009? A: Look, I would have to go back through the invoices to verify that. I'm thinking generally probably only a quick 30 minute stop, I would think. … Q: So you knew during that time leading up to September 2009 that for a whole month it could be there were pebbles on the car park? A: I obviously can't recall whether there were any pebbles there or not, no, and I'll add, if there were at times when there were a number of them, I would actually broom them back into the garden beds. .. Q: You also knew where those pebbles came from, didn't you? A: With people walking through the garden beds predominantly, yes. Q: But you knew they were the garden pebbles because of their colour, that's right isn't it? A: Yes, most definitely. Q: Did you, prior to September 2009, tell anyone not to walk through the garden beds? A: No I did not. Q: Did you tell anyone, prior to September 2009, that they needed to be careful of rocks on the concrete? A: No I did not."
Mr Moore was asked what would be involved in erecting a low timber or brick wall along the garden bed to contain the rocks. He gave this evidence: "A: ... Righto; 1. You would - you mentioned brick or whatever; you could lay a brick on edge through the front of that area - very simple; no real issues there. The other alternative would be a timber and peg barrier against that area. Q: The cost would be insignificant? A: Minimal; minimal. … Q: Prior to September 2009 I suggest to you that you swept the pebbles back into the gardens because they knew they could be dangerous on the concrete? A: No, I don't believe so, no. It was an ascetic's point of view, the appearance was more the point with me." (sic) Q: It was, was it - you were more concerned about the appearance, is that right? A: No, I never looked upon it as a danger as such, no."
Mr Moore was asked whether the rocks on the surface of the car park were a contamination and acceded that they were possibly a minor contamination. He gave this evidence: "Q: So in your experience do you know that the rocks on concrete create a risk, don't you? A: I still don't believe so, no, not really, no. If that car park is a risk, every car park in New South Wales; every road in New South Wales is a risk - becomes a risk. Q: Sir, so let's assume that is the case. Do you then agree with me that these pebbles on that car park were a risk - were a risk to someone walking on them? A: Walking and falling - I wouldn't have thought so at the time, no."
Mr Moore denied that the rocks posed a risk. Mr Moore gave evidence that he had never thought about a risk being posed to people with a disability using the car park, knowing that rocks were on the surface. He gave this evidence: "Q: That's the point, isn't it, Sir, you've never actually turned your mind to the risk of these rocks on the car park surface, have you? A: I've always been conscious of them. I've never really considered them a risk, no."
It was put to Mr Moore that the rocks were everywhere and he agreed by saying "each side, yes and across the front, exactly". He gave evidence that when the rocks were on the car park in large numbers he would sweep them off but not because he was concerned about the risk. He did not feel it was his place to tell other people not to walk through the garden beds, nor did he instruct his managing agent to tell Mission Australia not to do this as it was causing problems. Finally, he gave evidence that to remove the rocks would not cost much money.
In re-examination Mr Moore said that when he referred to "large numbers" of rock, he meant if there were 10 to 20 rocks in the car park he would sweep them off. They were usually along the side of the car park, meaning the side used by employees of Mission Australia to park their cars and the stones had never been an issue on the owners' side.
The defendant called Mr Scott Aurisch. He first met the plaintiff when he worked with her at the Maitland office of Mission Australia in 2003. In 2007 they transferred up to the Singleton office and thereafter he drove to work on a shared basis with the plaintiff. They would park in the first marked space at the back of the office in the car park and he generally reversed in, as did Ms Blakemore if she was driving. He was asked to describe what happened leading up to the plaintiff's accident and said: "A: Yep, we went out the back door and go to the car. She's unlocked the car, I've gone straight to the passenger's door, opened the door, got in. She's walked around the back of the car. … Yeah, so then she's walked around the back of the car, I'm sitting in the passenger seat, I didn't see her walk around the back of the car. I'm just waiting for her to get in the car."
Mr Aurisch said there was between 30 and 50 cms from the back bumper of her car to the concrete edge along the garden bed. He went on to say that he heard a noise and the plaintiff called out his name. He got out of the car, walked around the front and saw her on the ground. The plaintiff said to him "Call the ambulance I've fallen over, I think I might have broken my arm".
Mr Aurisch noticed a dint in the wheel arch of the vehicle next to the plaintiff's vehicle, which belonged to Kathy Almond. He was asked: "Q: At that time that Ms Blakemore was lying on the ground what, if anything, did she say to you about the reason why she had fallen over? A: I don't know if she actually said anything at the time was the reason. I can't remember that. I think, yeah, was just in too much pain actually sort of, I think - yeah, I can't remember exact if she said anything like that."
Mr Aurisch gave evidence that the following day there was a staff meeting and as a mandatory OH&S requirement for that meeting, the staff were told that the plaintiff had fallen over and that they were to walk around the front of the cars.
Following the plaintiff's return to work in January 2010 he had a discussion with the plaintiff as to the cause of her accident. He gave this evidence: "Q: What was the effect of the words that were said to you, Sir? A: We looked at the area where she went over and the edge of the concrete with the rolled sort of similar to the sort of the front of the bench here, just like normal sort of rolled edge of the concrete and then the stoned area before the fence and we said there's a little bit of difference there, but she might have went over there, which led to the thing about saying going around the front of the cars."
In cross-examination Mr Aurisch said that he'd first had reason to recall this incident towards the end of 2013. He agreed that his evidence that the car was between 30 and 50cms away from the edge of the concrete was a guess and that he didn't actually remember that. When he examined the edge of the concrete it was probably the day following the day after the accident. There was a little bit of difference between the edge of the concrete and the garden surface.
Craig Miles was called by the defendant. He was the gardener employed by Mr Moore to go to the car park at the rear of his premises and spray the weeds in the garden beds. He said: "While I'm there, if there are any papers I'll pick them up and remove them, and also just to make sure the place looks tidy because it reflects bad on me."
He was employed to go there once a month but it could vary between three weeks and five weeks.
He gave evidence that he observed the crushed tiles on the concrete surface and said there might be three or four, sometimes none. They were adjacent to the flowerbeds. He described them as "a red tile, crushed concrete, with jagged edges". He would flick them back into the bed with his boots. Prior to 8 September 2009 no one had raised any issues or concerns with him about the crushed tiles on the car park surface. He said there was a gap between the garden bed and car park surface but the roof tiles were crushed and gripped very well. He had never seen children on skateboards using the car park area. He said the crushed tiles stood out in terms of visibility.
In cross-examination he was asked whether he saw the rocks along both sides of the car park or all over the car park and said "No, in the garden beds on both sides of the car park. They could have been on either side." There was no re-examination.

Defendants' Submissions on Liability

The defendants submitted that they owed no duty of care to the plaintiff on two bases. First, the area where the plaintiff alleged that she suffered her injuries was exclusively leased to Mission Australia and pursuant to its lease, that organisation had obligations in respect of the car park. There was no defect in the car park when it was leased, nor did the defendants have any knowledge of any risk resulting from the pebbles on the concrete car park as no problems had been raised with either the defendants or their agent.
The second basis for not owing a duty of care was that the plaintiff was not exercising reasonable care for her own safety, relying on Brodie v Singleton Shire Council (2001) 206 CLR 514. The defendants submitted that the plaintiff knew of the presence of rocks on the car park, that they were easy to see and that she had seen rocks or pebbles on the car park previously. Earlier that morning the plaintiff had chosen a different route when she alighted from her car, around the front of her car, which caused her no problems, and it was a conscious decision by her to walk behind the car when she was aware of the presence of the rocks.
In the event that I did find the defendants owed the plaintiff a duty of care, the defendants submitted there was no breach of that duty. The duty was to take reasonable care in the circumstances, not to make the premises as safe as "reasonable care and skill on the part of anyone can make them", relying on Stojan (No. 9) Pty Limited v Kenway [2009] NSWCA 364. No previous instances of injury or accidents had been reported to either Mission Australia or the defendants in respect of pebbles or rocks on the car park surface.
In applying s 5B of the CLA, the defendants submitted the duty did not extend to eliminating all risks, relying on Shoalhaven City Council v Pender [2013] NSWCA 210 at [52] to [54]. Learned Counsel for the defendants originally formulated the risk of harm as "the risk of falling as a result of rocks or pebbles that had migrated from the garden bed onto the car park surface". He accepted that it would be more accurate to state it as "the risk of falling as a result of stepping on rocks or pebbles that had migrated from the garden bed onto the car park surface".
Learned Counsel submitted that the risk was not foreseeable pursuant to s 5B(1)(a) as there was no evidence of actual knowledge on the part of the defendants as to the risk of harm. Further, the defendants submitted that the plaintiff had not discharged her onus pursuant to s 5B(1)(b) to demonstrate that the risk of harm was "not insignificant". The plaintiff's case was not assisted by the evidence of Mr Adams contained in his report, exhibit E, because his opinion was not explained. Further, the plaintiff's own evidence was important in that she did not consider the pebbles on the concrete car park surface to be a problem and did not report it to either her employer or the defendants. The car park was used by numerous people including the employees of Mission Australia and Golden Edge Homes, as well as members of the public. Also, the number of pebbles or rocks on the surface were not large numbers. Mr Moore had given evidence that there may be up 10 or 20, but otherwise it was just one or two stones, and Mr Miles gave evidence that there occasionally might be three or four, sometimes none.
In respect of s 5B(1)(c), Counsel for the defendants submitted that the system adopted by the defendants was reasonable and sufficient to address any risk of harm. The starting point was that they employed engineers, TJ Thomas & Associates to design the building and car park. They employed real estate managers to manage the property and both Mr Moore and Mr Miles, the independent contractor employed to maintain the property, cleared the car park of rocks and pebbles at least once a month. The defendants submitted that that system was sufficient to address any issues up until 8 September 2009. The preventative measures advocated by the plaintiff's expert Mr Adams at paragraph 4.1.3 of his report were not a reasonable response to the risk of harm. In applying s 5B(2), the likely seriousness of the harm of someone stepping on the rocks and falling was questionable in that it could result in no injury at all (see s 5B(2)(b)). Further, the elimination of the garden beds was not a precaution that a reasonable person in the defendants' position would have taken. There was no costing provided by Mr Adams in respect of extending the concrete car park over the garden beds and no detail given as to what "suitable borders" around those garden beds so as not to create a trip hazard.
Counsel submitted that there was no evidence that the pebbles were caused by children playing or skateboarding and hence, Mr Adams' comments at paragraph 4.13(iii) of exhibit E were irrelevant. Because the plaintiff was aware of the presence of the pebbles, there was obvious risk and no warning was required. Thus, the plaintiff had not satisfied any of the three elements in s 5B(1) to establish breach of any relevant duty of care.
Counsel for the defendants submitted that in terms of causation pursuant to s 5D and 5E of the CLA, the plaintiff had not established on the balance of probabilities that the presence of the rocks or pebbles caused her to fall. The defendants had a system in place here that was reasonable. There was no other evidence about what other system should have been employed or implemented, unlike in Strong v Woolworths Limited (2012) 246 CLR 182 where there was evidence that a reasonable cleaning system was every 20 minutes. In any event, the contemporaneous documentary evidence did not support that the plaintiff stepped on rocks and that that was what caused her to fall. Those included the ambulance report (exhibit M), the phone call to the ambulance made by Naisse Dermott (exhibit 10), Workers Injury Claim form (exhibit 3), the Journey Claim form (exhibit O), the Employer Injury Claim form (exhibit 4), the OHS Online Incident Report (exhibit 5), the Maitland Hospital Discharge Referral dated 11 September 2009 (exhibit 13), Dr Bilkey's record of her attendance on 17 September 2009 (exhibit K), and the Maitland Physiotherapy Spinal Assessment form (exhibit 6). Nor did the medical reports of Dr Watson dated 14 January 2011 and the reports of Dr Bodel dated 26 July 2012 and 11 March 2014 refer to her falling as a result of standing on rocks or pebbles.
The alternative finding, namely, that she fell for some other reason, for example, the difference in height between the garden bed and the concrete car park surface, was supported by evidence, namely, what was discussed at the staff meeting that occurred on 9 September 2009 at Mission Australia and the documents that were generated by Mission Australia (exhibits 5 and 7). Nor did the plaintiff tell Mr Aurisch that it was rocks or pebbles that caused her to fall. Rather, he inspected the concrete edge as the cause of her fall the following day. While the plaintiff's mother's evidence does support her claim, the defendants submitted that the first history of involvement of rocks or pebbles was contained in the report of Mr Adams dated 8 September 2012. As the plaintiff has failed to establish that she fell as a result of the rocks or pebbles on the car park surface, her claim must fail.
It was further submitted that if it was established that the plaintiff's foot came into contact with the rocks or pebbles, she would need also to establish how long they had been there in order to prove that any system that the defendants had in place was not satisfactory or that a reasonable system would have prevented her accident, relying on the High Court's decision in Strong v Woolworths Limited at [32], supra.
Nor did the evidence establish how the rocks or pebbles migrated from the garden bed onto the car park. The expert evidence relied on by the plaintiff did not establish what reasonable system, had one been implemented, would have prevented her accident.
As to "obvious risk", the defendants submitted that a finding of obvious risk eliminates any common law duty to warn. Further, obviousness of the risk may be relevant to the question of breach, and the plaintiff's knowledge prior to her accident is relevant to determining the obviousness of the risk. Here the evidence establishes that she well knew of the presence of the rocks and pebbles on the concrete car park. It was submitted that the definition of "obvious risk" incorporates an objective test, but one that is to be applied by reference to the position of the person concerned, referring to Glad Retail Cleaning Pty Limited v Alvarenga [2013] NSWCA 482 at [59]. That grounded a submission that there was a complete defence to particular (h) of the particulars of negligence and a complete answer to Mr Adams' comments at paragraph 4.1.3(vi) of exhibit 8(e).
As to contributory negligence, the defendants submitted that this was not a case of mere inadvertence. The plaintiff knew of the presence of the rocks. Previously, she has walked around the back of the car instead of the front of the car which would have provided a perfectly safe means of access and her evidence is that she stood on the rocks and saw them prior to stepping on them. If I got to that stage, in making a finding pursuant to s 5R of the CLA, having regard to the actual knowledge of the plaintiff of the presence of the pebbles and rocks, the reduction for the plaintiff's contributory negligence should be a reduction of 100%.
Finally, pursuant to s 151Z of the WCA, the plaintiff's employer, Mission Australia, owed her a non-delegable duty of care and was the exclusive lessee of the car park. It was the plaintiff's employer therefore who had care and control over the relevant area where the plaintiff fell. No risk assessments were carried out by her employer, notwithstanding that it had an OH&S policy in place and the plaintiff had undergone OHS training. As the plaintiff's employer took no steps to provide a safe system of work for her and safe access to and egress from her place of work, it was submitted that the plaintiff's employer was negligent and should completely indemnify the defendants.

Plaintiff's Submissions on Liability

Counsel for the plaintiff submitted that the Court would accept the plaintiff's evidence that she walked behind the back of the car where there was about a metre gap between the car and the edge of the concrete, that she proceeded around to the side of the car and rolled her ankle on rocks on the concrete car park which had come from the garden bed. Following the accident, the plaintiff was in a lot of pain and given strong medication, namely, morphine, for pain relief. It was never suggested to the plaintiff that there were no rocks on the concrete, and both the defendant, Mr Moore and the gardener, Mr Miles, supported the presence of rocks on the ground from time to time. Counsel relied on the complaint on the plaintiff's evidence that she told the doctor at the hospital, and her partner Mr Meehan, in a phone call that she had fallen over on some loose stones as she walked behind her car. She did not recall telling her mother, but her mother gave evidence that she told her that she fell on the loose pebbles or stones.
The defendants put to the plaintiff a positive proposition that she had rolled her ankle as a result of the difference in height between the garden bed and car park surface. Her manager, Ms Marie Spokes, in fact measured the difference in height, after having a conversation with the plaintiff. It was submitted that Ms Spokes was not called and no explanation was given for that by the defendants and therefore her evidence would not have assisted the defendants' case.
As to the inconsistent histories recorded in clinical notes of the hospital, physiotherapist and various doctors, the plaintiff relied on Mason v Demasi [2009] NSWCA 227 to base a submission that such inconsistencies must be approached with caution.
The plaintiff further submitted that the first defendant, Mr Moore's evidence was neither credible nor reliable and should be viewed with caution. For example, he gave evidence that his company was involved in residential home building and said nothing about operating other companies that undertook industrial or commercial work, nor that they operated out of the same premises. Secondly, his evidence about the engagement of a gardener to do some weeding, maintain the property in general tidiness and sweep the rocks into the garden, was not supported by documentary evidence which comprised an invoice which showed he engaged the gardener to spray the gardens. Mr Miles did not corroborate the first defendant's evidence and said that it was his job to weed the gardens and he did not sweep. He would occasionally flick a rock with his boot.
Counsel submitted that the defendant did, however, make a number of admissions which she set out as follows: " 1. He was 'always conscious' of the rocks being on the car park surface. 2. That the rocks were 'all on that side, the stones have never been an issue to our side'. 3. Though this was contradicted by Mr Miles who gave evidence that the rocks were observed 'adjacent to the flower beds' which were on both sides of the car park; and he agreed they could have been on either side 4. Being aware the pebbles were coming from the garden predominantly as a result of people walking through the garden beds. 5. Sweeping the pebbles into the garden bed prior to the incident in 2009. 6. Being aware the pebbles came from the garden bed. 7. He did not tell anyone not to walk through the garden beds. 8. He did not tell anyone to be careful of the rocks on the concrete, didn't feel it was his place but didn't tell the managing agent to do so. 9. It would be very simple to erect a low timber or brick wall at minimal cost. 10. Admitted he could have changed the plans by going to council. 11. Agreed it would not have taken a great deal to remove the stones and put something else in its place and nor would it cost much. 12. Agreed rocks were a 'minor' contamination on the surface. 13. Said he never thought the rocks were a 'great risk' though he then denied he thought they were a risk. But then when it was put to him that it never occurred to him that the rocks were a risk the defendant said 'other than when there were large numbers at which time he would clean them off."
The plaintiff submitted that the defendant was an experienced builder and was aware of the necessity of ensuring that surfaces complied with their relevant standards and were safe. It was submitted that a builder of 40 years standing would be aware that rocks on a concrete surface would pose a risk for those walking on it, and if he did not, he should have. It was submitted that his evidence that he swept the rocks into the garden for aesthetic reasons was not credible.
The plaintiff submitted that by virtue of Clause 11.3 of the lease, the defendants retained the obligation to maintain the car park, even though it had leased the car parking spaces numbered 5-12. The first defendant, Mr Moore, confirmed that in his evidence when he said that the car park was shared between his business and that of Mission Australia. Consistent with that, he and the gardener maintained the car park. That gave rise to a duty of care to the plaintiff.
Counsel submitted that the defendants breached that duty of care for a number of reasons. First, they knew about the problem with rocks or pebbles on the car park. They created the problem by allowing the garden beds to be there, and they knew the rocks were migrating onto the car park and they did nothing about it. The first defendant did not tell anybody about the problem, including his agent. Further, as a builder, he had numerous options available to him at very little cost to fix the problem.
Counsel agreed with the risk of harm articulated during the defendants' submissions. She submitted that that risk was significant, and relied on the evidence of Mr Adams at paragraph 4.9 of his report, namely, that: "The site controller as well as the employer should have considered that the potential for people to experience disturbances to their balance of types that could lead to falls at the premises generally, and specifically when walking within the car park." Then at paragraph 4.12: "Considering the fact that the car park was publicly accessible and that pebbles and gravel were routinely present on the surface - a very significant risk that a slip might occur unless the contaminants were effectively excluded."
Counsel submitted that the risk of harm was foreseeable. The plaintiff relied on the precautions as set out by Mr Adams which could have been taken easily and at minimal cost by the defendants. They are set out in [35] above.
In relation to causation, Counsel submitted that the defendants had no system in place at all, relying on the evidence of Mr Miles.
As to obvious risk, Counsel submitted that the presence of the rocks or pebbles on the concrete car park surface was not an obvious risk to the plaintiff from her position. She was an office worker with limited education and this was an area where she walked regularly with no previous problems.
Counsel submitted that there could be no contributory negligence on the part of the plaintiff because this was a case of mere inadvertence. If the Court did not accept that finding, then any negligence of the plaintiff would be a relatively small proportion.
With respect to s 151Z WCA, Counsel submitted that the employer had a lease with the defendants and it was their obligation pursuant to that lease to maintain the car park. The defendants had not brought to the employer's attention any problem. Further, the evidence established that as soon as the employer became aware of a risk, they put into place a risk prevention strategy (exhibit 7), even though they got it wrong, that is, they determined that the gravel area should not be used. It was submitted that the employer of the plaintiff therefore did not contribute to the accident.
Counsel responded to the defendants' submissions that there was a reasonable system of cleaning in place by submitting that was just not made out on the evidence. The clearing of the rocks was done for aesthetic reasons. Further, it was simply wrong for the defendants to submit that the evidence did not establish how the pebbles got onto the car park. The case of Coles Supermarkets Australia Pty Limited v Meneghello [2013] NSWCA 264 could be distinguished on its facts. In this case, the plaintiff gave evidence that she walked on some rocks and rolled her ankle. She was not challenged about how she knew that she stood on rocks. The evidence of her mother that she reported that to her was unchallenged.

Determination of the Facts

In determining liability in this matter, I find that the following facts are established on the evidence: 1. On 8 September 2009 the plaintiff left her place of work with a colleague, Mr Aurisch, and walked into the car park at the rear of her work premises situated at 77 John Street Singleton. 2. Her employer, Mission Australia, had leased those premises from the defendants on 1 July 2009. The property leased was identified as "Folio Identifier 11/1046653 being part shops 2 & 3, 77 John Street, Singleton and car spaces numbered 5 to 12". 3. Car spaces numbered 5 - 12 were on the right hand side of the car park at the rear of the premises as one faced to the rear of the premises. That car park was accessed from a rear lane. Car spaces 1 to 4, which were reserved for the use of the defendants in the course of their business, were on the left hand side of the car park. 4. The first defendant operated a business from part of the premises being shop 1 at 77 John Street, Singleton. 5. The defendants had purchased the property in 2003 and demolished the existing building. They had built the premises and car park which were designed by a local engineering company. 6. The car park had around its border what was referred to in evidence as a garden bed between the edge of the concrete car park and the boundary of the property. The bed was filled with crushed terracotta tile which was red in colour. 7. For some time, the plaintiff and her colleague, Mr Aurisch, had been travelling to work together as a car share arrangement. On 8 September 2009, the plaintiff drove to the premises, entering the car park from the rear lane and reversed her vehicle into the second car space from the rear of the premises. That car space is nominated as number 8 on the plan annexed to the lease. When she arrived at work in the morning, she alighted from the driver's door, and walked around the front of the vehicle and into the offices. 8. When she left work that evening, the plaintiff walked behind her vehicle to gain access to the driver's side. That involved her walking between the boot of the vehicle and the edge of the concrete car park, adjacent to the garden bed. 9. Her passenger, Mr Aurisch, walked straight to the front passenger door and got into the vehicle. 10. The plaintiff was aware of the presence from time to time of material from the garden bed, namely, crushed tiles referred to in the evidence as rocks or pebbles, being on the concrete car park. They were easily discernible being red in colour, by contrast to the concrete surface of the car park. 11. The plaintiff was looking where she was going and saw the rocks or pebbles on the ground. 12. In the process of walking behind her vehicle, and approaching the driver's side of her vehicle, the plaintiff's left foot rolled and caused her to fall. In doing so she came into contact with a vehicle parked next to hers, on its right hand side in the car parking space marked 9 on the plan attached to the lease. 13. The plaintiff fell heavily and suffered a fracture of her right humerus. 14. The plaintiff was aware of the presence of the crushed rocks or pebbles on the car park, both on previous occasions and on the day of her fall. 15. The defendant, Mr Moore, was also aware of the presence of rocks or pebbles from the garden beds migrating onto the car park surface from time to time.
It is clear that it was very much in dispute between the parties as to how the plaintiff fell. The resolution of that factual issue is set out below.

Determination - Did the Defendants owe the Plaintiff any Relevant Duty of Care?

By her Amended Statement of Claim, the plaintiff pleaded that the defendants were the owners and occupiers of the premises, that the surface of the car park was contaminated with pebbles from the adjacent garden bed, the said pebbles were roughly spheroidal in shape and when located on the hard concrete surface posed a danger to pedestrians and that the defendants knew or ought to have known that such danger existed. In those circumstances the defendants owed a duty of care to the plaintiff which it breached by failing to take precautions by sweeping the pebbles regularly from the concrete surface and installing a simple means of preventing them from accumulating on that surface, or alternatively, removing them entirely.
In Northern Sandblasting v Harris (1997) 188 CLR 313 the High Court held that a landlord owed a duty of care to tenants and those to who its knowledge were intended to occupy the premises under and for the purposes of the tenancy, in respect of defects known to the landlord that the landlord knew of or ought to have known of at the time of letting the premises.
In Lapcevic v Collier [2002] NSWCA 300 the Court of Appeal held, referring to Northern Sandblasting v Harris and Jones v Barlett & Anor (2000) 205 CLR 166 that a landlord of commercial premises owed a duty of care to a tenant's employee working on those premises where the landlord let the premises with a dangerous defect of which not only it knew, but it undertook contractually in the lease to repair.
The question arises here, whether, at the time of letting the premises to Mission Australia, the defendants knew, or ought to have known that it was letting the premises (including the car spaces) with a dangerous defect, namely, that crushed tiles would migrate from the garden beds bordering the car park onto the concrete surface of the car park, giving rise to a risk that employees using the car park would stand on the rocks or pebbles and thereby suffer injury. The determination of this question concerns a consideration of the terms of the lease first, and an examination and analysis of the evidence as to the state of the defendants' knowledge at the time of the lease.
Exhibit 1 was the lease which commenced on 1 July 2009. However, the plaintiff had been working at the premises for Mission Australia since 2007 and the premises were clearly leased from the defendants for a period of time before that. In 2004 the premises were new, having been designed by consulting engineers and presumably built in accordance with a relevant development consent issued by the local council. Exhibit 1 clearly included the area comprising the car spaces number 5 to 12, which included the area of the car park where the plaintiff fell. This area was not a "facility or service shared in common with other persons in the same building" and therefore did not attract the application of Clause 11.3.2 of the lease - see Clause 3.4. At the time of commencement of the lease, namely, 1 July 2009, the lessor had never received any complaint or comment about the presence of the crushed tile material migrating from the borders of the car park onto the car park surface itself. In those circumstances, the presence of such material could not be said to be a dangerous defect in the property known to the defendants so as to give rise to a duty of care owed by the defendants to the plaintiff as an employee of the tenant, Mission Australia. However, the defendants remained responsible for the garden beds surrounding the car park, and did owe a duty, as occupiers of that part of the property, to take reasonable care to avoid unnecessary risk of injury to persons arising from that part of the property.
As to the factual issue referred to above, I am persuaded on the balance of probabilities that the plaintiff did step on some of the crushed tile material which caused her left ankle to roll, and led to her falling. I make this finding on the basis that the plaintiff was essentially a witness of truth, despite her failing to tell Mr Aurisch at the time of the accident that that was the mechanism of her fall, and the absence of that explanation in the reports she made to her employer and to those who examined her at the hospital and subsequently, referred to in [73] above. However, I accept that she did tell her mother that evening at the hospital that she had stepped on the pebbles which had caused her to fall, and that evidence of her mother was not challenged by the defendants.
I find, however, that in doing so, the plaintiff was not taking reasonable care for her own safety. She was aware of the presence from time to time of the crushed tile material on the surface of the car park. I accept her evidence that she had seen such material on the car park on numerous occasions before the day of her accident. I further accept her evidence that she saw the material on that day. As she walked around the rear of her vehicle which was adjacent to the garden bed, she must have been aware of the presence of that material, and in stepping on it, she failed to take care for her own safety. The evidence establishes that a person taking reasonable care for himself or herself would have no difficulty at all in walking on the car park. I therefore accept the defendants' submission that by failing to take reasonable care for her own safety, no relevant duty of care was owed to her by the defendants - see Council of the City of Sydney v Hunter [2014] NSWCA 449 at [33] as a recent example of the application of this principle, as decided in Brodie v Singleton Shire Council, supra.

Breach of Duty of Care

Notwithstanding my finding that there was no relevant duty of care owed by the defendants, I must consider, if I am incorrect in that finding, whether if the defendants did owe the plaintiff a duty to take reasonable care for her safety, was that duty breached? The first issue to determine is whether the presence of the crushed tile material which had migrated from the garden bed to the surface of the car park constituted an obvious risk. This has to be determined objectively for the purpose of Division 4 of Part 1A of the CLA. "Obvious risk" is defined by s 5F(1) as being a risk that "in the circumstances would have been obvious to a reasonable person in the position of that person". A finding of obvious risk will obviate any common law duty to warn pursuant to s 5H CLA - see Angel v Hawkesbury City Council [2008] NSWCA 130.
The crushed tile which migrated onto the car park surface was clearly an obvious risk. It was a red terracotta colour, and therefore contrasted to the concrete surface of the car park. Further, its presence was well known to the plaintiff, who had never complained about the presence of the material to her employer or, for that matter, to the defendant, Mr Moore, who she saw often at the rear of the premises. I accept that his may have led to a low level of concern on her part, as opined by Mr Adams, (see [34] above), however, that does not affect the obviousness of the risk. Pursuant to s 5H of the CLA, the defendants did not owe a duty of care to the plaintiff to warn of an obvious risk to her. Therefore, that part of the plaintiff's claim which relied on particulars of negligence relating to warning the plaintiff (see [7(h)] above) must fail.
In applying s 5B of the CLA, the risk of harm to the plaintiff was the risk of falling and injuring herself as a result of stepping on the crushed tile material which had migrated onto the surface of the concrete car park. In accordance with s 5B(1)(a), that risk was foreseeable, and in accordance with s 5B(1)(b) the risk was not insignificant, given the undemanding test that that involves - see Shoalhaven City Council v Pender, supra at [65]. The real question that would have arisen in determining breach of of any relevant duty of care was that pursuant to s 5B(1)(c), namely, whether a reasonable person in the defendants' position would have taken precautions advocated by the plaintiff against the risk of harm as identified above. Those precautions amounted to either demolishing the garden beds and extending the concreting of the car park to the boundaries of the property, or erecting a barrier around the garden bed. In my view, a reasonable person in the defendants' position would not have undertaken either of such measure or precautions. The car park was designed and built in accordance with the design by consulting engineers and no doubt approved by the council. The ingress of the tile material onto the car park surface had occurred initially because of children using the new car park for recreational purposes such as skateboarding. That activity had not taken place for some years. Otherwise, the material migrated as a result of people who used the car park area walking on the garden beds. It was not a problem that had ever warranted any complaint by any user of the car park, including Mission Australia and its employees.
Further, to construct a border to prevent the ingress of the material would have merely introduced a trip hazard to those using the car park. Mr Moore, who gave evidence on behalf of the defendants, was an impressive witness whose evidence I accept. The car park itself was not an area that required a system of cleaning. Rather, the defendants employed Mr Miles to come on a regular basis to weed the area and in doing so, he would removed the few pebbles he observed from time to time from the car park surface back onto the garden bed. Similarly, Mr Moore himself would remove the pebbles from time to time.
I therefore find that a reasonable person in the defendants' position would not have taken the precautions advocated by the plaintiff and therefore the defendants were not negligent as pleaded by the plaintiff. In so finding, I reject the opinion evidence of Mr Adams set out in [35] above, so far as the preventative measures (i) to (v) applied to the defendant.
The question of causation does not arise in this case but clearly, the "but for" test required by s 5D of the CLA could not be satisfied in this case.

Contributory Negligence

As I have found that the plaintiff was not taking reasonable care for her own safety, that there was no relevant duty of care owed to her, and that if there was, no relevant breach of that duty of care occurred, the question of the plaintiff's contributory negligence does not need to be determined. However, on the basis that I found that she was not taking reasonable care for her own safety, in the event that I am incorrect in my findings in relation to the plaintiff being owed a relevant duty of care, and breach of that duty of care, a finding of contributory negligence would necessarily follow pursuant to s 5R and 5S of the CLA. Given the extent of the plaintiff's knowledge of the presence of the crushed tile on the car park surface from time to time, a finding of contributory negligence of 80% would have followed.

Employer's Breach

As my findings above mean that the plaintiff's case must fail, the issue as to whether the plaintiff's employer breached its non-delegable duty of care to provide her with a safe system of work does not arise. Nor does the application of s 151Z of the WCA arise and any apportionment of liability.
Given my findings above, I would have found that whilst the employer clearly owed the plaintiff a duty of care to provide her with a safe system and safe place of work, that duty would not have been breached by a reasonable person in the place of the employer in the circumstances outlined above. I am therefore of the view that there would have been no finding that the plaintiff's employer was negligent.

Damages

The plaintiff was born on 29 November 1971 and left school in year 10. She worked for some years in unskilled positions as a sales assistant and then completed a family management course in 1993 at the Hunter Institute of Technology and thereafter worked with the Maitland Baptist Church as a child care worker. After her traineeship she became unemployed for some years until the year 2000 when she undertook a Certificate II in Business (Office Administration) at the Hunter Institute of Technology.
The plaintiff then worked as a casual checkout operator and in August 2003 commenced employment with Mission Australia as an administrative assistant on a fixed term contract. Her position became permanent in May 2004.
The plaintiff had a relationship with James Meehan and they lived together at Ashtonfield. From about 2007 she commenced working at the Mission Australia premises at Singleton, and she commuted there by way of a car pool with Mr Aurisch.
Following the accident on 9 September 2009 she was transferred from Singleton Hospital to Maitland Hospital and underwent surgery on her right arm the following day. She was discharged from hospital on 12 September 2009 with her arm heavily bandaged and on painkillers.
The plaintiff underwent revision surgery on the fracture at Lake Macquarie Private Hospital on 23 November 2009 as a result of non-union of the fracture. She was discharged on that occasion on 26 November 2009. She returned to work on 14 January 2010 two days per week working on modified duties and on 1 March 2010 her position was changed to that of employment advisor.
She required a lot of assistance with bathing, drying herself, dressing and her toilet. That was provided by Home Care, her mother and her partner. She also required domestic assistance in terms of the housework which was provided by her partner and mother.
The plaintiff remained under the care of her General Practitioner and following the surgery in November 2009, developed pain in her knee. That pain eventually recovered. The plaintiff, however, suffered a psychological reaction to her injury and was referred for counselling for approximately six months. She was also prescribed Alfoxil, an anti-depressant medication for approximately six months, and Effexor.
Following the second surgery, the plaintiff was still suffering pain in the region of her scar and around the fixture.
On 28 June 2010 the plaintiff underwent further surgery by Dr Harbury involving trimming of the plate and removing a K-wire. She was off work for several weeks and returned to work on modified duties on 12 July 2010 and then to her pre-injury duties in August 2010. She was still taking Endone for pain relief when she returned to work. She has been left with a burning sensation down her right forearm and numbness in her fingers.
122 The plaintiff's relationship with her partner broke down in October 2011. She gave evidence that, being depressed and in pain constantly, she found it very hard to have physical contact and had a fear of being re‑injured. There was no intimacy between them and she moved out. She moved in with her parents and her mother did all of her housework including washing clothes, ironing clothes, vacuuming the house and cooking. She spent seven to eight hours a week doing those chores up until the time of trial.
The plaintiff had been offered further surgery by way of ulna nerve transposition and would undertake that surgery if advised it would benefit her. She has been left with scarring on her upper arm as a result of the surgery (exhibits A, B, C and D). The plaintiff was still depressed from time to time, gained 30 kilos in weight and gave evidence that she did not expect to be able to continue with her full time duties.
In cross-examination the plaintiff acknowledged that in November 2009 she had posted on her Facebook account a report that she had been out all night and dancing. She agreed that her relationship problems also stemmed from her partner drinking and that she had not told her doctor anything about having intimacy problems as a result of her accident. At a time when she was claiming domestic assistance of 10 hours per week, she agreed that she was working eight hours a day and that she took an hour to travel each way to work. She denied that she had returned to doing her domestic duties herself by November 2009 and she denied that she had told Dr Watson in January 2011 that she was able to carry out all of her activities of daily living. The plaintiff also agreed that she had had problems with her weight since 1996 and that she had sought psychological treatment in her mid-twenties for that.
Mr James Meehan gave evidence of the division of household and domestic duties between himself and the plaintiff up until the time of the accident. They shared the internal chores, but he did most of the outside work. He corroborated her evidence that she was unable to look after herself when she was discharged from hospital and he had to assist with her personal care including toileting, showering, washing her hair and dressing. He did that all day every day for two weeks as well all of the housework. He then started full time work and provided personal care for her after work for the next four to five weeks. He looked after her as well following her two subsequent surgical procedures. On the first occasion that was for four or five weeks. He described her as being very emotional and he described her as having "A lot of downs. A lot of tears".
The plaintiff's mother, Mrs Maureen Blakemore, also gave evidence of the assistance she provided her daughter. When she was discharged from hospital, the plaintiff's mother would clean her house and take her to doctors and specialist appointments, do her shopping as well as her washing and ironing. She estimated that she would spend nine hours per week doing housework and shopping for her. In addition, she spent a lot of time driving her to appointments. She observed her daughter to be constantly in tears from pain. She was now not as bad as she was, but she was still pretty emotional.
In cross-examination Mrs Blakemore agreed that her daughter suffered stress as a result of her partner drinking and also when, in October 2011, they were asked to leave the place they were renting. Since her daughter moved in with her in 2011, she continued to do the same household chores that she had been doing to clean her house prior to the plaintiff moving in.
There was little issue on the medical evidence relied on by both parties. The plaintiff's medical reports (exhibit F) included serial reports from Dr Harbury on the surgical treatments she underwent for a comminuted fracture of the humerus. In his report dated 24 August 2010 he reported the fracture had fully healed with occasional features of epicondylitis. She had ulna nerve dysaesthesia which was still causing her significant problems, however, nerve conduction studies carried out at the request of her GP Dr Bilkey revealed no ulna neuropathy at the right elbow. Notwithstanding that study, Dr Bilkey was of the opinion that the plaintiff had neuropathic pain affecting the ulna nerve in her right arm as a result of her fractured right humerus.
Dr James Bodel was of the opinion that whilst there was no absolute indication to remove the plate and screws in her right upper arm, if they commenced to cause local irritation, then the cost of that surgery would be between $6,000 and $7000. Dr Parmegiani was of the opinion that she had suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood and that she would require ongoing counselling with a specialist psychiatrist and anti-depressant medication.
The defendant's medical evidence (exhibit 2) included a report from Dr D O'Keefe which opined that the plaintiff may require an ulna nerve transposition at a cost of $6,500. Dr O'Keefe agreed with Dr Bodel that the plaintiff would require four hours per week domestic assistance. Dr Spittaler, Consultant Neurosurgeon, was pessimistic about the plaintiff having any improvement in her ulna neuropathy. He agreed that she required four hours a week domestic assistance. Dr Vickery, Psychiatrist, was of the opinion that there was no diagnosable psychiatric disorder, however, that the plaintiff would benefit from a further six counselling sessions with a Clinical Psychologist to continue her recovery.
The plaintiff submitted the following schedule of damages which was marked MFI 8: Non-economic loss 33% $189,000.00 Past Out of Pocket Expenses $67,269.35 Future Out of Pocket Expenses $30,000.00 Past Domestic Assistance 28 weeks x 14 hours x $25 = $9,800 $60,200.00 224 weeks x 9 hours x $25 = $50,400 Future Domestic Assistance $152,062.00 4 hours commercial care - $40 x 4 x 950.4 Past Economic Loss/Workers Compensation payments $26,958.00 Fox v Wood $5,391.00 Future Buffer for Economic Loss $150,000.00 Total $680,880.35

The defendants' schedule which was MFI 9, was as follows: Non-Economic Loss 22% - 25% $25,500.00 - $37,000.00 Past Medical Expenses Agreed at $67,269.35 Future Medical Expenses Analgesic medication at $300.00 per year - $5.77 per week x 950.4 - $5,483.00 Sub Total $13,645.70 Past Domestic Assistance 24 weeks at 14 hours per week - $8,400.00 March 2010 to present (247 weeks) at 2 hours per week - $12,350.00 Sub Total $20,760.00 Future Domestic Assistance 4 hours per week at $40.00 for 10 years (412.9) = $66,064.00 Past Economic Loss Agreed at $26,958.00 Fox v Wood - agreed at $5,391.00 Future Economic Loss Nil - (if a buffer is to be awarded, not more than $10,000.00) Total $225,578.05

133 The plaintiff did suffer a significant injury to her left upper limb, being a comminuted fracture of her right humerus in the fall. She had immediate surgery by way of open reduction and internal fixation of the fracture, and several further surgical interventions to achieve union of the fracture. I find, pursuant to s 16 of the CLA that she would have been entitled to damages for non‑economic loss equivalent to 28% of a most extreme case. Applying the Table in s 16, that means damages calculated at 14% of the maximum amount of $572,000.00, i.e. $80,000.
Past treatment expenses are agreed at $67,270.00, and I would have allowed for the future $20,000.00, including an amount for the chance of her requiring further surgery for her ulna neuropathy or removal of the fixtures.
For past domestic assistance I allow the following: 1. 28 weeks x 14 hours x $25 = $9,800.00. 2. 258 weeks x 4 hours x $25 = $25,800.00. 3. Total - $35,600.00.
For future domestic assistance there is no issue that the plaintiff is entitled to 4 hours commercial care per week. The question is for how long should that assistance endure. The defendant has allowed for 10 years, which, given that she is now 40 years of age, is in my view reasonable. I therefore allow the sum of $66,064.00 for that head of damages.
The plaintiff's past economic loss is agreed at $26,958.00, and payments pursuant to Fox v Wood are agreed at $5,391.00. The plaintiff has returned to work and there is no evidence that her injuries may be, or are, productive of any financial loss at the moment. However, if she were to lose her present employment, she may be at a disadvantage on the open market place for labour as a result of her ongoing neuropathic pain in her right upper limb. I would therefore award her, as a buffer only, the sum of $25,000.00 for this head of damages.
I therefore would have assessed the plaintiff's damages as follows: Non-economic loss $80,000.00 Past Treatment expenses $67,270.00 Future Treatment expenses $20,000.00 Past Domestic Assistance $35,600.00 Future Domestic Assistance $66,064.00 Past Economic Loss $26,958.00 Fox v Wood $5,391.00 Future economic loss $25,000.00 Total $326,283.00

Conclusions

For the reasons outlined above, the plaintiff's claim must fail against the Defendants and I therefore enter a verdict for the defendants. In the event that I am incorrect in my findings of fact, my application of the relevant legal principles or my ultimate findings, I have assessed damages as set out above in the sum of $326,283.00.

Orders

I make the following orders: 1. Verdict for the Defendants. 2. The Plaintiff to pay the Defendants' costs. 3. Liberty to apply on seven days notice for any special costs order. 4. Exhibits to be returned forthwith.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2015

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