Cases Cited: ACQ Pty Ltd v Cook (2008) 72 NSWLR 318
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Elhawat v Workers Compensation Nominal Insurer [2025] NSWCA 88
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Mohammed Abed v Canterbury-Bankstown Council [2020] NSWDC 55
Mount Arthur Coal Pty Ltd v Duffin [2021] NSWCA 49
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492
Purkess v Crittenden (1965) 114 CLR 164
Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2017] NSWCA 190
Rahme v Benjamin & Khoury Pty Ltd [2019] NSWCA 211
Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103
Reece v Reece [1994] NSWCA 259
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
Stanberg v State of New South Wales [2025] NSWCA 127
Vairy v Wyong Shire Council (2005) 223 CLR 422
Venues NSW v Kane [2023] NSWCA 192
Wallace v Kam (2013) 250 CLR 375
Watts v Rake (1960) 108 CLR 158

Cheng v Jones Lang Lasalle (NSW) Pty Ltd [2026] NSWDC 12 | Case summary | Zoe

NSWNSWDC

Cheng v Jones Lang Lasalle (NSW) Pty Ltd

[2026] NSWDC 12

District Court of NSW|2026-02-23|Before: Waugh SC DCJ

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

District Court of NSW

Decision date

2026-02-23

Before

Waugh SC DCJ

Catchwords

TORTS – Negligence – Occupiers liability – Trip and fall
on services cover in common area of shopping centre –
CONTRIBUTORY
NEGLIGENCE - assessed at 25% – DAMAGES – Non-economic Loss –

Source

Original judgment source is linked above.

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Catchwords

TORTS – Negligence – Occupiers liability – Trip and fallon services cover in common area of shopping centre –CONTRIBUTORYNEGLIGENCE - assessed at 25% – DAMAGES – Non-economic Loss –Past economic loss

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Cheng v Jones Lang Lasalle (NSW) Pty Ltd [2026] NSWDC 12

Hearing dates: 7 May 2025 – 8 May 2025
Submissions 8 August 2025, 11 August 2025

Date of orders: 23 February 2026

Decision date: 23 February 2026

Jurisdiction: Civil

Before: Waugh SC DCJ

Decision: 1. Judgment for the plaintiff against the defendant in the sum of $72,240.
2. List the proceedings before me at 9:30am on 2 March 2026 for directions.
3. Grant liberty to the parties to approach me in chambers by email to my associate in the event that they are able to agree on the appropriate orders to be made in relation to costs.

Catchwords: TORTS – Negligence – Occupiers liability – Trip and fall on services cover in common area of shopping centre – CONTRIBUTORY NEGLIGENCE - assessed at 25% – DAMAGES – Non-economic Loss – Past economic loss

Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5F, 5G, 5H, 5R, 5S, 16, 17, 17A
Law Reform (Miscellaneous Provisions) Act 1968 (NSW), ss, 8, 9

In a context where the incident was captured on CCTV and the video footage was available to the court to view, there was little dispute about the underlying facts.
On the day of the incident Mrs Cheng entered the shopping centre using the stairs from Ebley Street. She was wearing a black facemask and had on rubber soled shoes. She may have entered Coles through Liquorland, which is directly on the right using the Ebley Street entrance and has an entrance into Coles. She then went into Coles to get a couple of things. She probably paid cash. When she left Coles she went to G-Free donuts, the pop-up store I have mentioned, where she spoke to and was served by a young man. The video footage shows Mrs Cheng emerging from Coles and walking in a straight path to the pop-up store. This meant that she approached the pop-up store from the south.
The following still image taken from the video footage depicts the scene. The image is timestamped 08-29-2022 Mon 10:22:45.
In the image, the young man who served Mrs Cheng can be seen inside the pop-up store with his back to the camera. He is wearing all black clothing. Mrs Cheng is interacting with the young man and is facing towards the camera. She too is wearing all black clothing. They are on either side of the counter on the southern end of the pop-up store. In the top of the image there is a man wearing a bright yellow top with his hands on a shopping trolley. Just beyond him and to the left of the viewer is the exit from Coles taken by Mrs Cheng before approaching the pop-up store. In the foreground of the image, one can see the services cover over which Mrs Cheng ultimately tripped, and the 2 A-frame signs on top of it. They are at the northern end of the pop-up store. The services cover and the 2 A-frame signs stand in high contrast to the colour of the floor. They are very easy to see in this image and in the CCTV footage, and would have been very easy to see on the day when approaching the pop-up store from the north. There is a transparent perspex cover over the counter at the northern end of the pop—up store. That counter is in the foreground of the image.
After buying 2 doughnuts Mrs Cheng went to leave. The video footage shows that, after being served at the position shown in the above image, Mrs Cheng walked north along the Coles side of the pop-up store, turned to her left at the northern end of the pop-up store and walked away from it at an angle directly into the path of the services cover at its northern end where she tripped and fell to the floor. The video footage shows that the reason for her fall was that her forward motion came to an abrupt halt when her right foot made contact with the services cover. Her right foot made contact with the services cover on the side from which she had approached it, and near the northern end of the cover. At that stage she fell forward, in the process striking her left knee directly into the A-frame sign on top of the northern end of the services cover and knocking over the second A-frame sign with a bag she was carrying in her left hand. The A-frame sign on the northern end bent forward and sprang back into position as Mrs Cheng struck it with her knee and fell forward.
In her evidence in chief, Mrs Cheng described what happened as follows:

Mrs Cheng marked the same area on the images on pages 61 and 63 of the court book with a red rectangle. The area she marked was on the left-hand (or eastern) side of the northern counter. The top of the rectangle was just above the top of the Perspex cover. The bottom of the rectangle is drawn through the letters “G-Fre” underneath the Perspex cover.
The video footage shows that there were no boxes lined up on top of the Perspex cover on the northern counter on the day. It shows that there were boxes stacked on top of one another on the eastern counter, closest to Coles. The video footage and the still images show, including the one reproduced above, that there was a metallic object on the stainless steel countertop on the left-hand (or eastern) side of the northern counter underneath the Perspex cover.
Having regard to the video footage and the markings made by the Mrs Cheng on pages 61 and 63 of the court book, I find that she was mistaken in her evidence that there “were boxes, gluten free boxes lined up on the Perspex” cover over the counter at the northern end. There were no boxes on top of the Perspex cover of the northern counter to obscure Mrs Cheng’s view as she walked down the left-hand (or eastern) side of the counter nearest Coles when she went to leave the pop-up store.
However, the metallic object on the countertop underneath the Perspex cover would have partially obscured Mrs Cheng’s view as she walked down the left-hand (or eastern) side of the counter. The nature and dimensions of the metallic object were not the subject of any evidence. It is shown very clearly in the CCTV video footage, which is taken from a camera at a high angle, making it difficult to estimate its height other than by reference to other objects underneath the Perspex cover on the same countertop. It is not as high as the white mixer which is standing next to it. There is another video recording in evidence which gives a better indication of the height of the metallic object above the level of the countertop. The video footage shown in that recording was taken on 2 September 2022. It was taken by someone walking down the left-hand (or eastern) side of the pop-up store and turning left at the northern end. The height at which the camera was held was not disclosed in the evidence, but the angle of view is more side on to the pop-up store than above. The video footage in that recording shows, and I find, that the metallic object came to a height of about halfway up the full height of the Perspex cover from the countertop.
Having regard to that evidence I find that the metallic object underneath the Perspex cover of the northern counter would have partially obscured the view of Mrs Cheng of what lay around the corner as she walked down the side of the pop-up store. However, it would not have obscured the whole of her view because it still would have been possible to look over the top of the metallic object through the Perspex cover as she rounded the corner.
Counsel for the plaintiff submitted that the challenge to the plaintiff that she could observe the hazards through the Perspex cover was nothing more than speculation. Counsel also submitted that a review of the footage taken on 2 September 2022 demonstrates that the warning signs were not observable prior to a person coming around the corner. Counsel for the defendant submitted that the video footage taken on 2 September 2022 provided no perspective on what might be visible through the Perspex cover because of the low level from which the video was taken. Counsel for the defendant submitted that it had been taken from the level of the benchtop. I do not agree with that submission. However, as I mentioned earlier, the evidence does not establish the height at which the camera was held. It does appear to have been held higher than the benchtop, but I do not accept that it was taken at a level high enough to be indicative of the view that Mrs Cheng would have had through the Perspex cover on the day of the incident.
Mrs Cheng did not recall looking through the Perspex cover, or “screen” as it was put to her in the evidence I have set out above. It is difficult to say what she would have seen had she looked through the top half of the Perspex cover over the metallic object.
There was no evidence before the court of the dimensions of the pop-up store, the access cover or the A-frame signs on top of it. It is only possible to make estimations based on the relative size of other objects. According to 2 doctors’ reports in evidence, Mrs Cheng is herself either 173 cm or 174 cm tall. As she walked past the stacked boxes on the left-hand (or eastern) side of the pop-up store one can see her head and shoulders above the level of the boxes on the CCTV footage. As she rounded the corner to turn left, her eyes appear to be about level with the top of the Perspex cover. Immediately before she struck the A-frame sign on top of the access cover, the top of the sign appears to be taller than her knee.
In my view none of these matters assist in determining what Mrs Cheng, or someone of her height, would have been able to see looking through the Perspex cover. Further, the CCTV video shows that there was some decoration and lettering on the side of the Perspex cover which may have further obscured the view when looking through the cover from the side. On the evidence before me, I am not satisfied that had Mrs Cheng looked through the Perspex cover she would have been able to see the services cover or either A-frame sign on top of it.
The position is different, however, upon rounding the corner. There was nothing obscuring Mrs Cheng’s view of the access cover and the 2 A-frame signs on top of it once she had reached the corner. Given the size, dimensions and colouring of the access cover and the 2 A-frame signs, particularly in comparison to the light colour of the floor, I agree with the submission of counsel for the defendant that they were brightly coloured and conspicuous. I find that they were highly visible.
It is not possible to see from the CCTV video footage the times at which Mrs Cheng was speaking to the young man in the pop-up store because she was wearing a face mask. It is obvious, however, from the CCTV footage that she spoke to the young man when she arrived and bought and paid for 2 doughnuts. It is also obvious from the CCTV footage, and consistent with Mrs Cheng’s oral evidence, that she had a further discussion with him after she had placed the doughnuts into her shopping bag and before she went to walk away. The CCTV video is also consistent with Mrs Cheng’s oral evidence that just as she was about to turn the corner she heard the young man say something so she turned her head. Her evidence about that was not challenged, and I accept it.
What happened after that happened quickly and emerges more clearly from the CCTV video footage rather than Mrs Cheng’s oral evidence. The CCTV video footage shows that Mrs Cheng turned her head to the left in the direction of the young man before arriving at the corner. As she did so she continued walking at more or less the same pace. When she arrived at the apex of the corner she was still looking to her left in the direction of the young man and continuing to walk at more or less the same pace. As she turned the corner she moved her head back to centre whilst continuing to walk. At this point, her head was facing straight ahead but she was moving at an angle to the right. As she went forward, she maintained the same path of travel but turned her head to the right. Her head was facing to the right as her right foot made contact with the services cover. At no time either before, as she rounded the corner or afterwards before she tripped did Mrs Cheng appear to be looking in the same direction her feet were travelling. As she rounded the corner, she took a further 3 steps, making contact with the access cover on her third step from the apex of the corner.
Having regard to the evidence before me, which I have summarised, I find that:
Mrs Cheng tripped on the access cover. This is shown very clearly in the CCTV video footage and was admitted on the pleadings.
Mrs Cheng did not see the access cover or the A frame signs on top of it. Mrs Cheng’s evidence that she had not seen them was not challenged in cross-examination. The CCTV footage shows that she did not slow down or try to walk around the access cover but walked straight into it at full pace. It is highly likely that if she had seen it, she would not have tripped over it or attempted to alter her course.
Mrs Cheng was not looking where she was walking. That conclusion emerges clearly from the CCTV video footage. Had she been looking in the direction she was walking she would have seen the A-frame signs and the access cover because they were highly visible.
Counsel for the plaintiff invited the court to make findings that during the course of Mrs Cheng rounding the corner, her attention was diverted by reason of the young man working in the store calling out to her, or at least speaking words which she understood were directed at her, that resulted in the plaintiff, at the time she was rounding the corner of the pop-up store, not looking ahead of herself for entirely understandable reasons.
I am not prepared to make findings in those terms.
I find, that having regard to the evidence before me, as Mrs Cheng walked away and down the eastern side of the pop-up store, she heard the young man in the store say something and she turned her head to the left in his direction as a result. This diverted her attention. She was distracted. This happened before Mrs Cheng arrived at the corner. As she turned the corner she straightened her head. By then, her attention was no longer being diverted. By then, the distraction had ceased.

In submissions, counsel for the defendant submitted that the credit card statements in evidence showed 10 point of sale transactions at Coles Eastgate over a period from 2020 until 2022. I do not accept that submission. The credit card statements do not make good the submission or bear out the assumption Mrs Cheng was asked to make in cross-examination. The credit card statements do not identify “Coles Eastgate” in terms. They have 11 entries with transaction details “COLES 0853 BONDI JCTN” and one entry with “COLES 0809 BONDI JCTN”. Assuming the different numbers signify different Coles stores, the evidence did not identify which of the 2 stores in Bondi Junction was which, Eastgate or Westfield.
I accept Mrs Cheng’s evidence about the frequency of her visits and the fact that she had not noticed any services covers on the floor of the common area on prior visits.
Secondly, I have already mentioned that the video shows that Mrs Cheng was wearing a face mask on the day of the accident. Mrs Cheng gave evidence that she was wearing a face mask because she had sarcoidosis which left her with scarring on her lungs. Her doctor had advised her to continue wearing a mask post Covid in an area which is built up, which she understood was consistent with health warnings at the time. When asked what impact this had on her vision, Mrs Cheng said “it meant that I can see straight ahead of me, but it does limit looking down if I had to look down on anything”. In cross-examination, Mrs Cheng agreed that she had “donned” a mask quite early during the Covid phase because of her sarcoidosis. She agreed that she wore the Covid mask when she went out shopping. In answer to the question “Is it fair to say that you were well aware by 29 August 2022 that the bridge nose mask did reduce your field of vision?”, Mrs Cheng said “It was, I was, I was used to wearing it, if that’s what you mean, and yes”. She agreed that the impairment or reduction in the field of vision was an effect she had got used to but said “it’s not something I thought of all the time when I’m, when I’m walking”.
Counsel for the plaintiff submitted that the court should find that Mrs Cheng’s peripheral vision was impacted by the mask she was wearing. Counsel for the defendant submitted that Mrs Cheng would be aware, and would condition her behaviour accordingly, that the Covid mask restricted her vision.
Having regard to that evidence and those submissions, I find that Mrs Cheng’s peripheral vision was impacted by the mask she was wearing and that she was aware that it restricted her vision.
Thirdly, there was a question as to whether or not Mrs Cheng was walking “quickly” as she rounded the corner before tripping on the services cover. This is a question I raised with counsel in submissions, having watched the video.
Counsel for the plaintiff submitted that it would not be appropriate to make such a finding on the evidence. Counsel submitted that it had not been put to Mrs Cheng in cross-examination. Further, counsel submitted that it was not something the Court would find on the basis of the CCTV footage alone. Counsel submitted that in order to make such a finding it would be necessary to identify what is not a quick and what is a quick pace of walking.
Counsel for the defendant submitted that the court should find that Mrs Cheng was walking quickly having regard to the video.
Having regard to the plaintiff’s submissions I accept that it is not appropriate to make such a finding based on the video alone. There are limits to what conclusions one can draw from a video or photograph, no matter how clear or sharp the image. I accept also that the suggestion was not put to Mrs Cheng in cross-examination. This provides an added reason.
I would however conclude that Mrs Cheng was not walking away slowly or ambling.
I will now identify the issues raised by the parties on liability.

Counsel for Mrs Cheng submitted that persons in commercial shopping centres, which are inherently busy places, may be expected to be distracted, inattentive or have their field of vision obstructed from time to time. Counsel submitted that this was common knowledge, reflected in the judgment of Meagher JA in Ratewave (referred to below), supported by the evidence of Mr Adams and demonstrated by what the video shows other people were doing on the day of the accident.
Counsel submitted that in the circumstances of the place of the accident, Mrs Cheng’s prior experience in the centre (being that she had not come across any hazards there before), that she was wearing a mask, that her attention was distracted, and there was an inability to observe the hazard prior to rounding the corner, it followed that the hazard was hidden.
Counsel submitted that looking at the matter with foresight, not hindsight, it was entirely and readily foreseeable to a reasonable person in the position of the defendant that a person, unaware of the hazard may be momentarily distracted rounding the corner of the pop-up store and thus walk straight into the hazard without being aware of its presence, causing the person to trip and fall.
Counsel submitted that on no view can the presence of a hazard around the corner which is not observable prior to rounding the corner be viewed as an “obvious risk” to a reasonable person in the position of the plaintiff. Counsel added that the very placement of warning signs on the services cover indicated that the risk was not obvious.
Counsel submitted that informed by the mandatory considerations in s.5B(2), the court should find that there was a real prospect of the risk of harm materialising if the precautions were not taken, if a person fell onto the hard floor of the centre they could suffer serious injury and damage and there was no material burden on the defendant to take the precautions identified by Mr Adams.
I will refer to the plaintiff’s further submissions about particular precautions when I set out my analysis on the question of breach.

Counsel for the defendant submitted that the enquiry under s.5B(1)(c) as to the reasonable person taking precautions against the risk of harm is a prospective one, and so must be assessed as if one did not know what had occurred. Counsel submitted this is of considerable importance in the present case. Counsel submitted that the analysis Mr Adams had engaged in was a retrospective one with all the benefit of hindsight. Counsel submitted that this retrospective analysis was impermissible and vitiated Mr Adams’ conclusions.
Counsel submitted that the signage was there, was brightly coloured and conspicuous and was highly visible if one was looking straight at it without any potential obstruction of vision in between. Counsel submitted that what Mr Adams had seized upon was the obstruction of vision presented by the northern end of the pop-up store.
Counsel submitted that the short video (filmed in early September 2022) showed that the corner of the signage (on top of the services cover) could be seen before one fully rounds the corner to face the hazard square on.
Counsel submitted that against the greyish background of the tiles, the yellow and black of the services cover and the A-frame signs were very prominent. Counsel submitted that if one accepts that people’s attention is drawn to prominent and conspicuous items, then prospectively an occupier would be confident that people’s eyes would be drawn to those objects.
The defendant accepted that Mrs Cheng clearly did not see the A-frame signs and that she had been distracted by what she thought were some words from the man behind the counter of the pop-up store. Counsel submitted that the distraction had ended at some point either during or immediately after she rounded the corner. Counsel submitted that the defendant would accept that people in shopping malls do look about, and the mere fact that they are looking about does not exculpate an occupier of responsibility for injuries if they trip over a hazard. Counsel submitted, however, that the defendant could not reasonably have foreseen this particular series of events that occurred in assessing the safety or otherwise of the services cover and signage. In saying this, Counsel accepted that the defendant did not have to foresee the particular set of circumstances that actually occurred. Counsel submitted that the defendant merely has to take reasonable precautions against the risk of harm.
Returning to the theme that Mr Adams had undertaken an impermissible retrospective analysis, counsel submitted that Mr Adams had identified the defect as being the failure to observe that it was possible for someone coming around the corner, distracted and wearing covert masks, not to observe the presence of the signage.
Counsel submitted that Mrs Cheng was walking quickly and she would be aware, and would condition her behaviour accordingly, that the Covid mask restricted her visibility. As I understood this submission, counsel was suggesting that Mrs Cheng should have been aware that the mask restricted her visibility and should have conditioned her behaviour accordingly, rather than that is what she actually did.
Counsel submitted that Mrs Cheng did not look where she was going. Counsel submitted that the idea that she had no reason to think there might be any hazard around the corner was untenable. Counsel submitted that she did not have sufficient familiarity to assume that it was safe, and a reasonable person in her position would not necessarily have assumed it was safe. Counsel submitted that it was common experience for hazards to be encountered in the precincts of a shopping mall and for them to be signposted in precisely the way this one was, namely with A-frame signage. Counsel submitted that one encounters it most often when there has been a spillage of something, or when there has been some water leakage or something onto the floor, but it could encompass a range of different hazards. This, it was said, is a feature of shopping malls, that a reasonable person would anticipate as a possibility.
Counsel submitted that it was incumbent upon Mrs Cheng to be looking where she was going. Instead the video showed that Mrs Cheng was not looking where she was going and when she did look in the direction she was travelling, she looked off into the distance and also glanced to the right.
Counsel submitted that trip hazards and slip hazards do occur and are encountered and what lawful entrants are entitled to expect is a warning of any hazards on the floor surface. The defendant conceded that in the context of a shopping mall floor, any hazard would be unusual and that is what drives the need for a warning. Counsel submitted that is precisely what happened in the present case: there was a hazard, it was recognised and addressed by the placement of signage. Counsel submitted that that was adequate or reasonable when viewed prospectively from the perspective of the defendant.
The defendant sought findings that (a) the signage was clearly visible to lawful entrants on the premises taking reasonable care for their own safety and looking where they were going; and (b) the placement of the signage on the services cover was or constituted the taking reasonable precautions against the risk of someone tripping on it in all the circumstances and the cause of the plaintiff’s accident was her failure to look where she was going.
In so far as sections 5F, 5G and 5H about obvious risk were concerned, the defendant accepted that the presence of the service cover alone without the signage could not be described as an “obvious risk” and the mere fact that the signage was placed on top of it is evidence of that. Counsel submitted that the question then became whether the “whole package”, that is to say the services cover with the signage on top, was an obvious risk. Counsel submitted that the whole package was an obvious risk and that section 5H negated any obligation on the defendant to put up any further warning signs along the lines suggested by Mr Adams.

The applicable legal principles are as follows.
Section 5B applies to the question of breach. I set it out earlier.
Once the conditions in section 5B(1)(a) and (b) are established (which the parties agreed is the case), the question under section 5B then becomes whether a reasonable person in the position of the defendant would have taken the precautions that the plaintiff alleges should have been taken (ss 5B(1)(c), 5B(2)): Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 per the Court at [28].
Whether a reasonable person would have taken precautions against a risk is to be determined prospectively, not with the wisdom of hindsight: Adeels Palace at [31] and [40]. For elaboration on what that means, see Hayne J in Vairy v Wyong Shire Council (2005) 223 CLR 422 at [105] and [126]-[129]; and Gummow J in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at [65]-[67].
Section 5B(2)(a)-(d) are mandatory considerations to be borne in mind in determining the critical conclusion in section 5B(1)(c), namely whether a reasonable person in the defendant’s position would have taken the precaution. Section 5B(2)(a)-(d) does not set out an exhaustive list of matters to be brought to bear in answering the question posed by section 5B(1)(c), “other relevant things” may be taken into account: Venues NSW v Kane [2023] NSWCA 192 at [60] & [62] per Leeming JA (Adamson JA & Simpson AJA agreeing).
The consideration mandated by s.5B(2)(c) – i.e. the burden of taking precautions to avoid the risk of harm – is required to be undertaken in accordance with s.5C(a) – i.e. the court must have regard to the burden of taking precautions to avoid similar risks of harm for which the person may be responsible: Venues NSW v Kane [2023] NSWCA 192 at [64] - [65] per Leeming JA (Adamson JA & Simpson AJA agreeing).
Counsel for the plaintiff referred to Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 and Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2017] NSWCA 190. Both of those cases are relevant.
In Ratewave Meagher JA (with whom Macfarlan JA agreed) explained at [52] and [54] that the duty of an occupier to an entrant is governed by the general principles of the law of negligence, and the measure of its discharge is what a reasonable person would in the circumstances do by way of response to the relevant foreseeable risk of injury. Whether that duty has been breached must be considered by reference to s.5B. In assessing what reasonableness requires in response to a particular risk of harm, the reasonable person in the occupier’s position is entitled to take into account with due allowance for human nature, that a person it permits to be on its premises will use reasonable care for their own safety. The weight to be given to that expectation is in each case a matter for factual judgment and the matters to be considered include the obviousness of the risk, and the remoteness of the likelihood that other people will fail to observe and avoid it.
In Ratewave the respondent had tripped over the corner of a raised timber platform in the lobby area of the Manly Pacific Hotel providing pedestrian access to and from the main bar area. In concluding that the risk of harm was foreseeable and not insignificant, Meagher JA said at [57] that “**…it was reasonably to be expected that users of that means of access would include those who were distracted or inattentive or even less than careful”. In considering whether a reasonable person in the appellant’s position would have sought to warn of the risk of harm, Meagher JA at [66] took into account that “**…that people using the hotel lobby would not ordinarily expect to come across a low but raised platform in an area providing pedestrian access to and from different facilities in the hotel” and “that people walking in the lobby area would include those who were looking where they were going, with varying degrees of care, as well as those who might be distracted or inattentive”.
In Raad the appellant was injured when he slipped and fell on a wet, tiled, outdoor area of a shopping village occupied by the respondent. In confirming that the occupier had breached its duty of care Macfarlan JA (with whom Simpson JA and Sackville AJA agreed) said at [26] “As the tiled area provided access between the shopping village and the car park, it was to be expected that all manner of people would be using it, including the young and the old, the attentive and the inattentive, and the hurried and unhurried*. The camber of the tiled area and lack of covering over it meant that it was likely to be wet and have water pooled on it when it rained. The respondent should have anticipated* that some people might run over the tiled area or at least proceed at above a normal walking pace*, including at times when it was raining.”*. His Honour went on to endorse the observations of Meagher JA in Ratewave at [57].
Would a reasonable person in the defendant’s position have taken one or other of the precautions that the plaintiff alleges should have been taken?
The precautions that the plaintiff alleged should have been taken by the defendant were set out in paragraph 19 of the statement of claim. There “the Cover” is a reference to the services cover and “the Store” is a reference to the pop-up store. The precautions were said to be:

The relevant risk of harm, as agreed by the parties, was that a lawful entrant could trip on the services cover, that is the black and yellow services cover the plaintiff tripped on, placed in the common area of the shopping centre. This risk of harm was recognised and sought to be accommodated by having two A-frame signs on top of the cover warning of its presence. The real question is whether a reasonable person in the defendant’s position would have taken additional or different precautions, of the type of one or more of the precautions suggested by Mr Adams.
In my view, a reasonable person in the position of the defendant would have recognised that whilst the two A-frame signs, and perhaps the services cover itself, were highly visible if approaching them from the north, the position was markedly different if approaching them from the south, particularly if someone was walking along the Coles side of the pop-up store from south to north. Approaching from the north, the services cover and the 2 A-frame signs were in relatively open space and easily observable from a distance. By contrast, approaching from the south along the Coles side of the pop-up store, the services cover and the two A-frame signs were likely to be hidden from view, unable to be observed until reaching and rounding the corner. By then there would be little time and space to see the services cover, or the signs on top, and react. A reasonable person in the position of the defendant would have taken these things into account. A reasonable person in the position of the defendant would have also recognised or expected that people taking that path would include all manner of people, including the young and the old, the attentive and the inattentive, the hurried and unhurried, and those who were looking where they were going, with varying degrees of care, as well as those who might be distracted or inattentive. A reasonable person in the position of the defendant would have recognised that there was a considerable probability that someone would trip if care were not taken and that a person who tripped on the services cover would sustain serious injuries. In my view, a reasonable person in the defendant’s position would have considered taking additional or different precautions.
Was the risk of harm an “obvious risk” within the meaning of s.5F? For much the same reasons in my view it was not. The risk of harm of tripping on the services cover, even with the 2 A-frame signs on top, would not have been obvious to a reasonable person walking along the Coles side of the pop-up store from south to north. It would be different to a reasonable person approaching the pop-up store from the north.
The first precaution suggested by Mr Adams was that the pop-up store could have been positioned such that the service access point (that is to say the power outlet in the floor) was located within the footprint of the pop-up store. This would have obviated the need to run a cable across the common area and have a services cover in the common area at all.
The defendant submitted that the precaution proposed by Mr Adams of moving the pop-up store on top of the general power point was just conjectural. Counsel submitted that perhaps this could have been done or perhaps not and it was merely in the area of theory, conjecture and speculation.
Anticipating a submission by the defendant that there was a lack of evidence that the location of the pop-up store could have been different, counsel for the plaintiff submitted that the defendant ought not to be permitted to advance that point because it had taken objection to the scope of a subpoena to produce documents issued by the plaintiff.
The evidence before me showed that what happened in relation to that subpoena was as follows. The plaintiff had sought production of *“2. All documents relating to the approval and erection of G-*Free Donuts at Eastgate Bondi Junction before the plaintiff’s fall on 29 August 2022.”. In correspondence (email 29 April 2025 10:49 AM), the solicitors for the defendant stated that *“**…*the request is too broad. We have limited the scope to ‘all documents relating to the approval and erection of G-Free Donuts at Eastgate Bondi Junction in relation to the electricity conduit servicing the G-Free Donuts pop-up store”. The solicitors went on: “We are seeking our client’s instructions in relation to these documents and will respond as soon as possible. Please advise if you agree to the limited scope.”. The solicitors for the plaintiff responded (email 29 April 2025 11:18 AM) saying “we agree”. Later in the day (email 29 April 2025 5:08 PM) the defendant’s solicitors informed the plaintiff’s solicitor that they were instructed that “Final Phase Building assisted G Free Donuts in setting up its stall, which would have likely included providing an electrical connection and the installation of the service cover over the connection and the direction of 2 warning signs.”. The defendant’s solicitors also informed the plaintiff’s solicitor that they were instructed that their client did not hold any further documents in relation to the subpoena and “does not hold any records from Final Phase Building or G Free Donuts in relation to the installation”.
Alternatively, if the defendant was permitted to advance the point, counsel for the plaintiff submitted that the court should take the approach identified by Judge Abadee in Mohammed Abed v Canterbury-Bankstown Council [2020] NSWDC 55 at [66], being that once some evidence is identified from which inferences may be drawn, and information to the contrary is solely within the defendant’s knowledge, an evidentiary or tactical burden shifts to the defendant to produce such evidence. Counsel submitted that Mr Adams had given evidence as to the issue in his report and in his oral evidence. In paragraph 4.2.2(i) of his report, Mr Adams had said “(t)here were reasonable means available to the defendant” which included “the outlet could have been positioned such that the service access point was located within the footprint of the outlet components”. In cross-examination, Mr Adams agreed that the precautions he referred to included “locating the outlet closer to or indeed on top of the service hatch”. He was then asked “Q. You say that though, I’d like to suggest to you, without any knowledge of any constraints that may have led to the siting or the pop-up where it actually was?”, to which he responded “Yes, I, I made that comment having viewed the situation and I, I did not notice any obvious reasons why the outlet could have been located differently. But I do accept that there may have been reasons that I wasn’t aware of.”.
I do not accept the submission that the defendant should not be permitted to advance the point because it had taken objection to the scope of the subpoena to produce documents. The correspondence between the parties in relation to that subpoena shows that they agreed to limit the documents required for production, not the issues in the case.
In the introduction to his report, Mr Adams said that he attended the shopping centre and viewed the incident location. In circumstances where the defendant chose not to call any evidence on the question, I have no reason not to accept his evidence that “…having viewed the situation“ one of the “means available” to the defendant was to position the pop-up store so that “the service access point was located within the footprint” of the pop-up store.
Positioning the pop-up store so that the electrical outlet in the floor was inside the pop-up store itself would have involved placing the pop-up store a little further to the north. This would have imposed little or no burden on the defendant or those responsible for erecting the store.
The second precaution suggested by Mr Adams was that power could have been run down from the ceiling as shown in photographs 2 and 3 of his report.
In his report (paragraph 2.2.4) Mr Adams said “I took Photographs 2 and 3, to demonstrate that it is reasonable to accept that the cover plate was not an inherent trip hazard (ie. it is level with the floor when it is not open). They also demonstrate the availability of an alternative means of supplying power to nearby pop-up outlets, in the form of electrical cables running down from the ceiling.”. He described Photograph 2 as “a view of the subject area, taken on 14 March 2024 when a different pop-up was nearby…”. He described photograph 3 as “Another view from 14 March 2024, showing the electrical supply for the current outlet emanating from the ceiling above the outlet, and not from the floor nearby.”.
Once again, the defendant submitted that supplying electricity through a conduit from the ceiling was just conjectural and merely in the area of theory, conjecture and speculation. I reject that submission. Mr Adams’ evidence and Photographs 2 and 3 provide practical demonstration and proof of the fact that an alternative means of supplying power to the pop-up store was to run an electrical cable down from the ceiling directly into the store.
This would have come at some cost because the work would have needed to be done by an electrician. There is no evidence before the court as to what the cost would have been, however I infer that it would not have been particularly burdensome. Further, it was likely to have been a cost that the defendant could have recovered from the operator of the pop-up store.
The third precaution suggested by Mr Adams was set out in paragraph 4.2.2(ii) of his report. He described it as “proactive inspection undertaken after the installation process had been completed”. Counsel for the plaintiff referred to this as a “risk assessment”. In closing submissions counsel for the plaintiff emphasised that undertaking a risk assessment linked back to adopting one of the precautions identified by Mr Adams. As I understood it, the plaintiff submitted that in this case failing to undertake a risk assessment did not provide an independent ground for liability. As such, I will not consider it further.
The fourth precaution suggested by Mr Adams was that an object of suitable size, such as a table, could have been positioned above the services cover to eliminate the potential for trips to occur in that area. In his oral evidence Mr Adams explained that he had in mind a table of a suitable size – not a small coffee table but a larger table that would be unlikely to be tripped over and more likely to be seen. He agreed that such a table “possibly could’ve been bumped into” but added that it was less likely to cause a trip than low level obstacles such as a cable cover and low warning signs. Whilst such a table may have eliminated the potential for someone to have tripped over the services cover, the introduction of a table provided a new source of a foreseeable risk of harm in that it was foreseeable that people taking the path I described earlier walking north on the Coles side of the pop-up store would instead bump into the table rather than trip over the services cover. So much seems to have been recognised by Mr Adams himself. In my view, a reasonable person in the position of the defendant would not have adopted the precaution of positioning a table or some other object of suitable size over the services cover as suggested by Mr Adams.
The fifth precaution suggested by Mr Adams was that the existing warning signs could have been repositioned, or additional warning signs provided, so that warning signs were located in alignment with each side of the outlet, and slightly beyond the northerly end, so that they were visually obvious to pedestrians, irrespective of direction of approach. Earlier in his report (paragraph 4.1.3) Mr Adams had referred to the failure “to position warning signs where they would be visually obvious from all angles of approach”.
In my view, a reasonable person in the position of the defendant would not have repositioned the 2 A-frame signs on top of the services cover, but would have placed additional warning signs of the same type at or slightly beyond the northerly end so that the signs would be visually obvious to people walking along either side of the pop-up store from south to north. Placing signs in that position would be visually obvious to anyone approaching from the north, as were the two A-frame signs on top of the services cover, and so would not create an additional hazard or obstacle to anyone approaching from the north. However importantly placing signs in that position would quite likely alert anyone walking down the side from south to north of the hazard or potential hazard around the corner.
I infer that it would not have been particularly burdensome to have done so.
The sixth precaution suggested by Mr Adams was to position temporary barriers running from each of the two northerly corners of the pop-up store to just beyond the northerly end of the services cover, as depicted in Image 9. Mr Adams described Image 9 as “A still from the footage with temporary barriers superimposed as an indication of a readily available means by which the tripping risk might have been minimised.”.
Counsel for the plaintiff submitted that Mr Adams was not challenged on this evidence. That appears to be correct. As I understood the plaintiff’s submission, what this means is that the defendant did not challenge the fact that the precaution could have been adopted.
The defendant of course still submitted that precautions that had been taken were enough and that a reasonable person in its position would not have taken any of the additional precautions suggested by Mr Adams.
I am not satisfied that a reasonable person in the position of the defendant would have taken this precaution. Because the suggested barrier is set at an angle and appears to about the same height as the 2 A-frame signs, it would appear to add little if anything by way of warning to the presence of the services cover to anyone approaching along the side of the pop-up store from the south to the warning already provided by the 2 A-frame signs which Mr Adams would have left in the same position according to Image 9. Mr Adams did not say that the temporary barrier would be visually obvious before arriving at the corner. The proposed barrier itself would appear to add a further hidden hazard to someone approaching from the south, which defeats the purpose of taking the suggested precaution.
The seventh precaution suggested by Mr Adams was that the operator of the outlet could have been instructed or requested to ensure that its attendants provided verbal warnings to customers leaving the outlet by walking in a northerly direction (noting that the provision of suitable warnings would have reduced the overall level of risk, without eliminating or even minimising that risk).
Neither counsel for the plaintiff nor the defendant addressed their submissions to this precaution. It is not clear to me what Mr Adams meant by the qualification he added in parentheses – particularly his reference to “without eliminating or even minimising that risk”.
I am not satisfied on the evidence before me that a reasonable person in the position of the defendant would have taken this precaution.
No relevant question arose in respect of any of the proposed precautions as to the social utility of the activity that created the risk of harm.
Having regard to all of those matters, I am satisfied that in the circumstances, a reasonable person in the defendant’s position would have taken either the first precaution, or the second precaution or the fifth precaution suggested by Mr Adams.
It follows, and I find, that the defendant was negligent in failing to take one or more of those precautions.

“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”: Wallace v Kam (2013) 250 CLR 375 per the Court said at 383 [16], citing Strong v Woolworths Ltd (2012) 246 CLR 182 at [18].
If the first precaution or the second precaution had been taken no electrical cable would have been run across the common area at all and there would have been no services cover over it. There would have been nothing for anyone to trip on. It follows that but for the defendant’s failure to take those precautions Mrs Cheng would not have tripped and fallen. Putting the same thing in terms of section 5D, the negligence in failing to take those precautions was a necessary condition of the occurrence of the harm suffered by Mrs Cheng.
I am satisfied that if the fifth precaution had been taken, on the balance of probabilities, Mrs Cheng would have noticed the additional A-frame warning sign as she walked along the side of the pop-up store because it would have been in her field of vision for a relatively long period. Her attention having been drawn to that sign she was more likely to have been paying attention and to have noticed the other 2 A-frame signs and the services cover as she proceeded to round the corner and taken evasive action to avoid tripping on them. It follows, and I find, that but for the defendant’s failure to take the fifth precaution Mrs Cheng would not have tripped and fallen. In other words, the negligence in failing to take that precaution was also a necessary condition of the occurrence of the harm suffered by Mrs Cheng.
I do not accept the defendant’s submission that Mrs Cheng suffered her injuries wholly because of her own negligence. I will address the question of Mrs Cheng’s contributory negligence next.

The first question is whether Mrs Cheng tripped and fell as the result partly of her own failure to take reasonable care, where the standard of care required is that of a reasonable person determined on the basis of what Mrs Cheng knew or ought to have known at the time.
Counsel for the defendant submitted that under sections 5R and 5S the questions as to contributory negligence are objective, although they have regard to the personal characteristics of the plaintiff to some degree. Counsel submitted that applying those sections, the court would find that the combinations of these circumstances – that the plaintiff was moving quickly, looked away without slowing down, was wearing a mask, and should have been aware of the possibility of hazards – would point to a significant reduction of damages on account of contributory negligence.
Counsel for Mrs Cheng submitted that whether or not Mrs Cheng’s conduct constituted a departure from the exercise of reasonable care for her own safety must be viewed through the prism of (a) her own experience in the centre, where she did not encounter hazard on the floor and (b) the reason why her attention was diverted from looking ahead of herself. Counsel submitted that in those circumstances, the mechanism of the accident resulted from the hidden trap in the context of Mrs Cheng being distracted, not by herself, but by the young man she had just interacted with. Viewed in the context, counsel submitted that the court should find there was no departure by the plaintiff, and no deduction for contributory negligence ought to be made.
Counsel submitted that such a finding was also supported by the evidence of Mr Adams regarding ordinary human perception in relation to areas with which they are generally familiar. Counsel submitted that as the plaintiff was not aware of any hazard, and had never previously observed to hazard on the floor of the centre, it was reasonable for her to proceed in the manner which she did, and fail to observe, or perceive, the cover on the warning signs prior to her fall.
I have already accepted Mrs Cheng’s evidence about the frequency of her visits to the Centre and the fact that she had not noticed any services covers on the floor of the common area on prior visits. Her evidence was that she went to the Centre 2 or 3 times a year maybe in the period from 1995 to the date of the accident.
Counsel submitted that such a finding was also supported by the evidence of Mr Adams regarding the effect of wearing a mask on the plaintiff’s vision. In paragraph 2.2.5 of his report Mr Adams said that wearing a face mask involves significant, but in his experience not widely recognised, compromise of the peripheral vision below the nose line and directly in front of the person. He said that he had made assessments that “they can effectively hide the floor for up to 3 m in front of a person, unless they deliberately tilt their head forwards see over the mask”. At paragraph 3.2.5 of his report Mr Adams said that the mask would have significantly compromised the ability Mrs Cheng would otherwise have had to detect and avoid the low obstacles when she approached sufficiently closely for them to be within her normal field of view.
I have already found that Mrs Cheng’s peripheral vision was impacted by the mask she was wearing and that she was aware that it restricted her vision.
The CCTV video footage shows that as she rounded the corner, Mrs Cheng took a further 3 steps, making contact with the access cover on her third step from the apex of the corner (see paragraph 31 above).
I have already made a number of findings which in my view lead to the conclusion that Mrs Cheng tripped and fell as the result partly of her own failure to take reasonable care. Those findings are:
upon rounding the corner there was nothing obscuring her view of the access cover and the 2 A-frame signs on top of it, and given their size, dimensions and colouring they were conspicuous and highly visible (paragraph 29);
as Mrs Cheng turned the corner her attention was no longer being diverted, by then the distraction had ceased (paragraph 35);
Mrs Cheng was not looking where she was walking (paragraph 32.3); and
had she been looking in the direction she was walking she would have seen the A-frame signs and access cover because they were highly visible.
In my view, a reasonable person would have been looking where they were walking upon rounding the corner. Had Mrs Cheng been looking where she was walking she would have noticed the A-frame signs and access cover within time to take evasive action by either stopping or walking around them. Mrs Cheng’s failure to look where she was walking and failure to notice the A-frame signs and access cover constituted a failure to take reasonable care for her own safety.
For those reasons I find that she tripped and fell, and suffered damage, as the result partly of her own failure to take reasonable care.
The defendant submitted that a reduction in the plaintiff’s damages of one third would be appropriate.
Counsel for the plaintiff submitted that if the court were to make findings about contributory negligence, it would find that the defendant was far more culpable than the plaintiff because if it had taken reasonable precautions there was no risk of harm at all. Counsel submitted that because of the reason the plaintiff was distracted her own culpability was not high. Counsel submitted that it was not something that she set out to do, it was another person who caught her attention and was attempting to engage with her. Counsel submitted that it would not be a large percentage on the part of the plaintiff.
As I have found, by the time Mrs Cheng turned the corner the distraction had ceased. However, in my view the placement of the signs around a corner and the limited space and time in which Mrs Cheng had to notice them means that her share in the responsibility for the damage is much less relatively than the responsibility of the defendant who allowed the access cover to be placed in the common area in the first place and failed to take any of the precautions I have referred to.
In all the circumstances I think it is just and equitable that the damages recoverable by Mrs Cheng be reduced by 25% as a result of her own failure to take reasonable care.

In these further reports, both Dr Millons and Dr Smith agree with Dr Nicholas that the CT images of 12 February 2025 reveal there is arthritic change in Mrs Cheng’s left elbow joint. However they do not agree on the reason for or cause of the arthritis.
Dr Millons expressed his opinion in various ways: “she does appear to be developing degenerate changes through the elbow joint as a consequence of the fracture” (report 2 April 2025 p.3); “one has to consider the connection between the injury of 29th August 2022 as not only causing a supracondylar fracture of the humerus but also causing some elbow joint injury, with the development of degenerate change in the elbow now recorded” (report 1 June 2025 p.5); “one can only say that the current symptoms in the elbow flow from that fall on 29th August 2022. It is possible, although not necessarily probable, that the degenerate changes in the elbow joint were occasioned by the after-effects of that fall.” (report 1 June 2025 p.5); “suggesting to me that there is a nexus between the fall and her current problems” (report 1 June 2025 p.5); “not possible to be totally dogmatic that the elbow joint arthritis is constitutionally based and not post-traumatic … The current state of her elbow seems to me to reflect, at least in part, the after effects of the fall.” (report 1 June 2025 p.6); and “There does therefore seem to be a nexus between the fall, the fracture of her humerus and the current state of the elbow joint, including the degenerate change that has been flagged” (report 14 June 2025 p.3).
Dr Smith’s opinion was that “the elbow joint osteoarthritis is constitutional and not post-traumatic” (report 23 May 2025 p.2).
Neither doctor examined Mrs Cheng again before providing the further reports. Neither doctor gave oral evidence.
Because they disagree it is necessary to consider their reasons for those opinions in some detail.
Dr Smith’s report of 23 May 2025 was provided essentially in response to Dr Millons’ report of 2 April 2025. I have referred to it already.
Dr Smith commenced his report of 23 May 2025 by stating that the CAT scan images of 12 February 2025 “demonstrate osteoarthritic change in the elbow joint. There is sclerosis regarding every component of the elbow joint. There is osteopenia. There is a healed lower humeral fracture.”.
After referring to Dr Millons report of 2 April 2025, Dr Smith said:

The parties addressed the further reports of Dr Smith and Dr Millons in the following written submissions:
Defendant’s Supplementary Submissions on Damages Pursuant to Directions of Waugh SC DCJ 8 May 2025 (As Amended), dated 8 August 2025.
Plaintiff’s Outline of Further Closing Submissions in Reply, dated 11 August 2025.
The defendant submitted that the further reports demonstrated that the plaintiff’s arthritic progression predated the injury. Counsel submitted that on the totality of the evidence, the defendant had discharged its evidentiary and persuasive onus, as explained in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164, on the issue of the ongoing effect of the plaintiff’s constitutional arthritic condition. The defendant submitted that for purposes of assessing any damages to which the plaintiff may be prima facie entitled for symptoms, disabilities or the need for treatment in the future, the plaintiff’s entitlement should be discounted on the basis of the principles explained in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 and subsequent authorities. The defendant submitted that the appropriate discount, based on the exchange of reports between Dr Smith and Dr Millons is two thirds to 80%.
The plaintiff submitted the relevant question was one of medical causation. Counsel submitted that the legally correct approach is for the Court to determine whether the subject accident made a material contribution to the plaintiff’s present injuries and disabilities. The plaintiff submitted that the Court should make a finding that material contribution has been established, for the reasons explained by Dr Millons in his reports of 1 and 14 June 2025.
The plaintiff submitted that the defendant had not discharged or even engaged with its onus of disentangling any non-tortious disabilities in accordance with Watts v Rake because Dr Smith did not say in any of his reports that but for the accident the plaintiff would be in the same position now in any event, and on the evidence it is not possible to make a finding as to what position the plaintiff would be in but for the subject accident.
Counsel submitted that the Court should find that the Plaintiff had underlying, asymptomatic osteoarthritic changes in the left elbow joint, and the cause of the Plaintiff now suffering from the symptoms related to the osteoarthritic changes in the left elbow joint is the subject accident.

“When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high — 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded: see Mallett v McMonagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219; McIntosh v Williams [1979] 2 NSWLR 543 at 550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.

I find that prior to the accident Mrs Cheng did not have any symptoms of pain or restriction of movement in her left elbow joint. That is based on Mrs Cheng’s own evidence, which I have accepted, and is consistent with the history she gave her treating doctor, Dr Seeto, as recorded in his report of 12 December 2022.
I do not accept the suggestion of Dr Smith in his reports of 15 and 28 July 2025 that it is very probable that the lack of full extension he observed when examining Mrs Cheng in January 2025 had “long predate(d) the injury in 2022” and “had gone unnoticed by the patient”. I say that for 2 reasons. Firstly, as I have found, Mrs Cheng was a long-time practitioner of ballet and an active swimmer prior to the accident. I do not accept that she would not have noticed the fact, had it been the case, that she could not straighten her left elbow. Secondly, as submitted by her counsel, the proposition had not been put to Mrs Cheng in cross-examination.
I find that since the accident Mrs Cheng has had, and continues to have, symptoms of pain and restriction of movement in her left elbow joint. That is consistent with her own evidence; the report of her treating doctor, Dr Seeto, as recorded in his report of 12 December 2022; the history given to and findings on examination of Dr Millons, as recorded in his report of 16 January 2024; and the history given to and findings on examination of Dr Smith, as recorded in his report of 11 February 2025.
I find that since the accident Mrs Cheng has experienced arthritic change in her left elbow joint. That appears to be common ground. However, I find that it is the case based on the report of the radiologist Dr Cathy Nicholas of 12 February 2025, and on the reports of Dr Millons and Dr Smith.
Generally, I find the reasoning of Dr Millons more persuasive than the reasoning of Dr Smith about the reason for or cause of the arthritic change.
I say that because Dr Millons’ reasoning is more consistent with the factual findings I have just made. It is also consistent with Dr Seeto’s, the treating doctor’s, opinion in December 2022 that there was a chance, albeit a “small chance” of Mrs Cheng “developing posttraumatic arthritis in the future”. It is also consistent with Dr Millons’ own observation made in January 2024 that there was a possibility, albeit a “remote” one, that Mrs Cheng “will go on to develop some arthritic changes”. Dr Millons’ assessment of what the CT images of 29 August 2022 and 12 February 2025 is consistent with the contemporaneous reports of the radiologists. Dr Millons takes account of the x-ray of 12 April 2023.
Although Dr Smith refers to Dr Millons’ mention of the x-ray of 12 April 2023, he appears to disregard the fact that it showed “the joint space is well preserved” – something that Dr Millons thought was important. Dr Smith did not explain why he disregarded the x-ray and what Dr Millons said it showed. I assume that Dr Smith’s reference to seeing “the MRI images” from 12 February 2025 was a mistake, and that he was actually talking about the CT scan images seen by Dr Nicholas and Dr Millons. In any event, Dr Smith does not explain how or why he formed the opinion that the images demonstrated “change that is quite long-standing” and an “osteophyte that is a number of years old”. He does not explain how he could tell these things from the images when they were not mentioned by either Dr Nicholas or Dr Millons. He does not explain how or why he thought the “bony configuration of the olecranon” “long predates the injury in 2022”. To the extent he formed his opinion based on an assumption that the lack of full extension of the elbow would have gone unnoticed by Mrs Cheng, I do not accept the assumption for the reasons I have already given. Dr Smith appears to pay little or no regard to the clinical history referred to by Dr Millons. In his report of 28 July 2025 he states his opinion of what is shown on the CT scan images of 29 August 2022, however he does not explain the significance, if any, of what he says is shown, and how or why it either undermines or supports the opinions either he or Dr Millons had expressed in previous reports.
I do not accept the defendant’s submission (paragraphs 11 and 12) that in concluding his report of 1 June 2025 Dr Millons voiced qualified acceptance to Dr Smith’s point that the plaintiffs elbow joint arthritis is constitutionally based. It is necessary to read what Dr Millons said there in light of the balance of his report, together with his other reports. I have already referred to the various ways in which Dr Millons expressed his opinion, his reasons and his other reports.
For those reasons, I do not accept the opinion of Dr Smith that “the elbow joint osteoarthritis is constitutional and not post-traumatic”. Nor do I accept the defendant’s submission (paragraph 14) that the further reports of Dr Millons and Dr Smith, assisted by the provision to them of primary radiological images in addition to the radiological reports, has demonstrated that the plaintiff’s arthritic progression predated the injury.
Having regard to the above findings and reasons, I am satisfied on the balance of probabilities that the defendant’s negligence did contribute materially to Mrs Cheng’s symptoms of pain and restriction of movement and ongoing disability in her left elbow, including arthritic change.
I do not accept the defendant’s submission (paragraph 15) that on the totality of the evidence it has discharged its evidentiary and persuasive onus as explained in Watts v Rake and Purkess v Crittenden on the issue of the ongoing effect of the plaintiff’s arthritic condition. The defendant’s submission was based on the opinion of Dr Smith, which I have not accepted, that “the elbow joint osteoarthritis is constitutional and not post-traumatic”. Even had I accepted Dr Smith’s opinion about that, in my view the evidence adduced by the defendant did not go far enough to permit the effects of that “constitutional” condition to be disentangled from the effects of the injury for which the defendant was responsible.
It follows that Mrs Cheng is entitled to succeed on the issue of damages concerning the pain and restriction of movement of the left elbow, including the consequences of the arthritic change in the elbow joint, and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which she complains about her left elbow, as explained in Purkess v Crittenden (114 CLR at 168).
Questions as to the future about the likely progression of her symptoms and disability and her need for elbow replacement surgery, however, are hypothetical and bring into play the principles discussed in Malec v J C Hutton Pty Ltd.

Counsel for the plaintiff submitted that Mrs Cheng’s non-economic loss should be assessed at 30% of a most extreme case. Counsel for the defendant submitted that it should be 23%.
Counsel for the plaintiff submitted that there is no material issue between the parties that Mrs Cheng suffered a serious fracture to her left elbow and there is no dispute that she continues to be affected by the subject injuries. Counsel referred to Mrs Cheng’s unchallenged evidence when asked at the hearing what if any restrictions or issues she continued to have with her left elbow she responded “Yes, it feels - my elbow just feels like it's got a lock on it, like, like it's heavier than, then normal. It aches at night time, and that possibly because I keep it in one position. And I can't reach the things like I can, I have to change into my right arm to reach up high, because it obviously doesn't straighten. And then I also have problems or difficulties getting some coats, long sleeve and things.”. Counsel submitted that the accident has had a substantial impact on Mrs Cheng’s life, including day-to-day activities and her enjoyment of ballet and swimming. Counsel drew attention to Mrs Cheng’s oral evidence about how she continues to be affected. Her evidence was that she has been able to return to doing ballet online, however she is impeded with it because her arms are lopsided because she cannot stretch the left elbow out to full strength because she cannot straighten it. She has not returned to swimming since the accident because she usually swims over arm and is “a bit nervous about the strength of (her) arm … pulling it over (her) head”. Counsel for Mrs Cheng accepted that part of the period in which she could not do ballet or swim since the accident was due to having a hip replacement. However that was for a short closed period and is no longer the case.
Counsel for the plaintiff submitted that there was really not much difference between Dr Millons and Dr Smith. Counsel submitted that the primary fracture was diagnosed the same, and the ongoing restrictions, including of movement, are accepted by both doctors. Counsel for the plaintiff submitted that the arthritis in Mrs Cheng’s left elbow factored into the assessment of the percentage of a most extreme case at 30% in 2 ways. One is the requirement to undergo surgery and the second is the arthritis makes the pain at night and the restriction of movement and everything just that much worse.
Counsel for the defendant referred to Mrs Cheng’s age. She was 66 at the time of the accident and is now 70 years old. Counsel submitted that the injury was to her non-dominant arm and she has suffered a number of injuries to that arm over the years. Counsel submitted that Mrs Cheng had downplayed the significance of those other injuries. Counsel submitted that for example Mrs Cheng recalled that she had no ongoing problems as a result of the injury to her left wrist in February 2022 whereas her GP recorded during a consultation with Mrs Cheng on 3 August 2022 “pain improving gradually”. The GP’s notes also show that this was pain in relation to a “left pisiform fracture”. As I understand it, the pisiform bone is the smallest bone wrist.
Counsel for the defendant submitted that Mrs Cheng’s routine of ballet had been interrupted by various injuries, most recently a hip injury in 2023. The defendant conceded that she does suffer some ongoing symptoms in her left elbow. Counsel submitted that the court would not find them at a high level of disablement and pain.
Counsel for the defendant referred to the decision of Reece v Reece [1994] NSWCA 259 as providing some guidance. In that case, the plaintiff was 64 years old at the time of her accident. Counsel submitted that although the case was decided under the motor accidents regime it employed the same quantification measure based on the percentage of the most extreme case. The primary judge had assessed the plaintiff’s non-economic loss at one third of a most extreme case. Handley JA (with whom Clarke and Sheller JJA agreed) determined that the primary judge’s assessment of the plaintiff’s case as being one third of the most extreme case was a wholly erroneous assessment and disproportionate to a true assessment of the extent of her loss. Handley JA said that this became evident when one seeks to compare the position of the plaintiff with a woman, say, 30 to 35 years younger than herself at the date of injury. Bearing in mind the position of a much younger woman with the same range of interests and the same injuries, His Honour concluded that an appropriate assessment would be that the plaintiff’s case represented 22.5% of a most extreme case.
Counsel for the defendant submitted that if one compares the catalogue of symptoms of the plaintiff in Reece v Reece one would find that those injuries together with the resulting disabilities were at least as severe as those suffered by Mrs Cheng.
Counsel for the defendant submitted that having regard to the plaintiff’s age and to the level of her symptoms and disabilities the figure of 30% of a most extreme case nominated for the plaintiff is excessive. Counsel submitted that instead, a figure of 23% is appropriate.

There is no suggestion that Mrs Cheng has suffered a loss of expectation of life or disfigurement. Her non-economic loss comprises pain and suffering and loss of amenities of life.
Dr Seeto reported on 22 December 2022 that Mrs Cheng suffered bruising to her knees in her fall. Dr Millons reported on 16 January 2024 that Mrs Cheng did not complain much of her knees now and he doubted whether there were any real ongoing effects following the fall. I infer that Mrs Cheng would have suffered some pain and restriction of movement in her knees for a relatively short period after the accident, which in any event had ceased by no later than January 2024.
The more serious injury has been the fracture to Mrs Cheng’s left upper arm, with lasting and ongoing consequences for her left elbow. Her various pains and restrictions of movement were described fully in Dr Millons report of 16 January 2024. I have already set out the details from that report (see paragraph 146 of these reasons). At that time Dr Millons was of the view that Mrs Cheng’s condition seemed to have plateaued and further improvement was unlikely. His description of her “current situation” was consistent with Mrs Cheng’s oral evidence. His description therefore gives a fair representation of Mrs Cheng’s ongoing symptoms, which are that the left upper limb does not feel strong; she gets aching around the elbow just above the elbow joint where there is some bony swelling; she has some discomfort over the very proximal end of the left forearm; she is limited lifting; she has difficulty reaching up into cupboards or putting on a coat.
At the same time, Dr Millons reported that Mrs Cheng had quite a marked stiffness in her elbow and her elbow movements were restricted. He considered that she had reached maximum medical improvement and the persisting stiffness at the left elbow was likely to be ongoing. When he provided his report of 11 February 2025, Dr Smith was also of the opinion that it was unlikely there will be any further improvement with regard to the range of movement of the left elbow. He went so far as to say at that time that there will be no further improvement.
It follows that the pain and restriction of movement that Mrs Cheng has been suffering in and about her left elbow is likely to be permanent. It may even worsen in light of the degenerate arthritic change that is occurring. In his report of 2 April 2025, Dr Millons said that Mrs Cheng “may well go on to develop increasing pain and stiffness as that degenerative change progresses”.
In his report of 12 December 2022, Dr Seeto said that if post traumatic arthritis did develop, then Mrs Cheng “will be facing a form of elbow replacement surgery”. In his report of 16 January 2024, Dr Millons’ opinion was that if Mrs Cheng did go on to develop some arthritic changes through the elbow joint itself that “may require elbow replacement”. Dr Millons returned to the possible need for surgery in his report of 2 April 2025. He said there, which I have already set out but repeat for ease of reference:

The underlying facts are not in dispute. I will set those out before addressing the parties’ submissions.
Prior to the accident Mrs Cheng conducted her own business as a headhunter, recruiting people to place them in jobs mainly for the advertising industry. She conducted her business as a sole trader under the name Lesley Cheng & Associates. She had been doing that since 2019. Prior to that time she had worked as a headhunter for her own company of the same name. Prior to that she had worked for a company called Apple Consulting. She had worked in the recruitment industry since about 1994.
At the time of the accident Mrs Cheng had had the same terms of business since 2000. She was remunerated for her services by charging a fee to the employer, usually an advertising agency, of 15% of the annual salary package plus GST for the permanent placement of staff. Under her usual terms of business she was entitled to charge an extra 5% for overseas placements, however she usually waived that requirement.
At the time of the accident Mrs Cheng had been in contact with 3 people she was in the process of attempting to place in new jobs. She had been approached by 3 people who were overseas – 2 young men from New York who wanted to move from New York to Los Angeles and another young man from India who was wanting to spread his wings and Mrs Cheng suggested may be able to obtain employment in Amsterdam. The 3 young men had been referred to Mrs Cheng by a young man she had placed earlier in New York.
The young man from India had been working as a graphic designer and also a brand specialist. He had been on the Forbes list of 30 most talented people under 30, an international one, so Mrs Cheng considered him “quite placeable”. He was working freelance in India and getting quite a bit of work, but wanted to move into a steadier environment, and also out of India. Mrs Cheng was looking to place the young man from India with an advertising agency in Amsterdam where his salary would be around $130,000 to $150,000 Australian. She would have charged a fee of 15% had she placed him with an advertising agency.
The 2 young men from New York were a creative duo. Creatives in advertising agencies usually work as a team. One does the graphics and one does the words. One of them had a partner who was a promising actress and she wanted to move to Los Angeles. The 2 young men wanted to move as a team. They were earning $200,000 US in New York at the time and Mrs Cheng was looking to place them in Los Angeles on the same salaries. If she had been able to do that she would have charged the employer 15% of the salary and would have waived the extra 5%.
Immediately after the accident, when her arm was in a cast, Mrs Cheng was not sleeping very well “so I was a bit in a haze for most of the days following. It was a bit painful and I wasn’t sleeping and it was very heavy to cart around so I just didn’t feel like doing anything for a long time.”. She said this lasted for a month.
After the accident Mrs Cheng did not have any further interaction with the 3 young men. She said that what usually happens when you are speaking to somebody is that it has to happen quite quickly, otherwise they move on or are happy to stay in the place they are at.
Mrs Cheng agreed that the nature of her work was speculative in the sense that she got paid upon successful placement.
At the start of her cross-examination Mrs Cheng gave the following evidence:

Cheng v Jones Lang Lasalle (NSW) Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English brief of this case

Catchwords

Judgment

Judgment

LIABILITY

A. The facts in more detail

Three further questions of fact

B. Identifying the issues

(a) Duty of care

(b) Breach of duty

(c) Causation

(d) Contributory negligence

C. The parties’ submissions on liability

The plaintiff’s (Mrs Cheng’s) submissions

The defendant’s submissions

The plaintiff’s submissions in reply

D. Did the defendant breach its duty of care**?** My analysis and findings

E. Causation

F. Contributory Negligence

DAMAGES

G. Mrs Cheng’s injuries and disabilities

Arthritic change in Mrs Cheng’s left elbow

The parties’ submissions

Legal principles

My analysis and findings

H. Non- economic loss: percentage of the most extreme case

Legal principles

Parties’ submissions

My analysis and conclusion

I. Out of pocket expenses

J. Past economic loss

More facts

The parties submissions

My analysis and conclusion

K. Summary of damages

L. Costs

M. Orders

Amendments

02 March 2026

Parties

Legislation Cited (4)

Cases Cited (12)

D. Did the defendant breach its duty of care? My analysis and findings