[1999] HCA 6
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7
(1987) 162 CLR 479
Baker v Willoughby [1970] AC 467
[2014] NSWCA 139
Brodie v Singleton Shire Council
Source
Original judgment source is linked above.
Catchwords
[2009] HCA 27
Astley v Austrust Ltd (1999) 197 CLR 1[1999] HCA 6
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7(1987) 162 CLR 479
Baker v Willoughby [1970] AC 467[2014] NSWCA 139
Brodie v Singleton Shire CouncilGhantous v Hawkesbury City Council (2001) 206 CLR 512[2001] HCA 29
Commissioner for Railways v Ruprecht (1979) 142 CLR 563
Dare v Pulham (1982) 148 CLR 658Truong v Gordon [2014] NSWCA 97
Guthrie v Spence (2009) 78 NSWLR 225[2009] NSWCA 369
Hunter and New England Local Health District v McKenna[1952] HCA 19
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705[2001] NSWCA 305
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638205 CLR 254
Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383[1970] HCA 60
Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116[1985] HCA 34
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330[2007] HCA 42
Selby v Bankstown City Council [2013] NSWDC 84
State of NSW v Moss (2000) 54 NSWLR 536[2000] NSWCA 133
Strong v Woolworths Ltd (2012) 246 CLR 182
Judgment (112 paragraphs)
[1]
W) v Dederer (2007) 234 CLR 330; [2007] HCA 42
Selby v Bankstown City Council [2013] NSWDC 84
State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Tapp v Australian Bushmen's Campcraft & Rodeo Association Limited [2022] HCA 11
Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326
Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320
Warren v Gittoes [2009] NSWCA 24
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Wollongong City Council v Williams [2021] NSWCA 140
Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85
Category: Principal judgment
Parties: Lynda Gabriel de Roma (Plaintiff)
Inner West Council (First defendant)
Ausgrid Operator Partnership t/as Ausgrid (Fourth defendant)
Representation: Counsel:
Mr L Robison (Plaintiff)
Mr J Guihot (First defendant)
Mr C O'Neill (Fourth defendant)
Table of Contents
Nature of case and parties [1] - [4]
Factual background [5] - [7]
Issues [8] - [9]
Summary of outcome [10]
Dismissal of a procedural application by first defendant [11] - [14]
Evidence overview [15] - [16]
Summary of the oral evidence and reliability conclusions [17] - [47]
The plaintiff [18] - [19]
The plaintiff's son [20]
Dr John Cooke - expert architect [21] - [26]
Mr Colin Casha - Ausgrid employee [27] - [47]
Document review - defendant's documents [48] - [80]
Inner West Council documents [49] - [58]
Ausgrid documents [59] - [80]
Factual findings on relevant matters [81] - [174]
(1) Interpretation of Inner West Council records [82] - [87]
(2) Ausgrid records [88] - [92]
(3) State of the pit lid at the time plaintiff tripped and fell [93]
(4) Plaintiff's background prior to the fall [94] - [95]
(5) Plaintiff's previous health [96] - [102]
(6) Circumstances of injury [103] - [117]
(7) Injuries [118]
(8) Initial treatment [119] - [120]
(9) Medical investigations, assessments and reviews [121] - [123]
(10) Illness since the subject fall [124] - [125]
(11) Evaluation of medical opinions [126] - [150]
(12) Disabilities that remain [151] - [153]
(13) Effects on plaintiff's employment [154] - [163]
(14) Effects on plaintiff's domestic capabilities [164] - [169]
(15) Mitigation [170]
(16) Plaintiff's most likely circumstances but for the fall [171] - [173]
Issue 1 - Ausgrid's criticism of plaintiff's pleaded case [175] - [184]
Issue 2 - Relevant risk of harm [185] - [191]
Issue 3 - Duty of care, scope and content [192] - [204]
Issue 4 - Breach of duty of care [205] - [239]
Particulars of negligence [206] - [207]
The duty of the plaintiff [208]
The duty of the defendants [209] - [220]
Legislative provisions: s 5B & s 5C of the CL Act [221] - [222]
Consideration of the claim against the Council [223] - [226]
Consideration of the claim against Ausgrid [227] - [238]
Conclusions as to negligence [239]
Issue 5 - Causation [240] - [245]
Legislation: s 5D of the CL Act [241]
Consideration and conclusions as to causation [242] - [245]
Issue 6 - Obvious risk [246] - [272]
Legislation: s 5F, s 5G & s 5H of the CL Act [247] - [250]
Submissions as to obvious risk [251] - [259]
Consideration of the obvious risk defence [260] - [271]
Conclusion as to obvious risk [272]
Issue 7 - Alleged contributory negligence [273] - [309]
Submissions [274] - [282]
Legislation: s 5B, s 5C, s 5R & s 5S of the CL Act [283] - [284]
Relevant principles [285] - [289]
Particulars of contributory negligence [290]
Consideration and conclusion as to contributory negligence [291] - [309]
Issue 8 - Assessment of damages [310] - [360]
Plaintiff's probable life span [311] - [315]
Non-economic loss [316] - [322]
Past economic loss [323] - [333]
Past loss of employer funded superannuation [334]
Future economic loss [335] - [342]
Future loss of employer funded superannuation [343]
Future out-of-pocket treatment expenses [344] - [345]
Future domestic assistance [346] - [348]
Past out-of-pocket expenses [349] - [359]
Summary of damages assessment [360]
Disposition [361]
Costs [362]
Orders [363]
[4]
Nature of case and parties
On 2 February 2017, the plaintiff, Ms Lynda de Roma, was injured when she tripped and fell whilst walking over the sunken surface of a checker-plate metal utility pit cover embedded within the footpath surface near a bus stop adjacent to premises at 195 Parramatta Road, Ashfield, New South Wales.
The plaintiff claims the sunken configuration and height discrepancy within the structure where she fell was a trip hazard for pedestrians. Consequently, by an amended statement of claim filed on 7 October 2021, the plaintiff brings these personal injury damages proceedings alleging public liability negligence against the first defendant, the Inner West Council ("Council"), and the fourth defendant, a partnership of five entities trading as the Ausgrid Operator Partnership ("Ausgrid"). The claim is that the defendants were the occupiers responsible for the inspection, maintenance and safety of the pit cover and footpath.
The Ausgrid partnership comprises Blue OP Partner Pty Limited as trustee for the Blue OP Partner Trust, Eric Alpha Operator Corporation 1 Pty Limited as trustee for Eric Alpha Operator Trust 1, Eric Alpha Operator Corporation 2 Pty Limited as trustee for Eric Alpha Operator Trust 2, Eric Alpha Operator Corporation 3 Pty Limited as trustee for Eric Alpha Operator Trust 3, and Eric Alpha Operator Corporation 4 Pty Limited as trustee for Eric Alpha Operator Trust 4 t/as the Ausgrid Operator Partnership (Ausgrid) (ABN 78 508 211 731).
In the plaintiff's original statement of claim filed prior to the 7 October 2021 amendment, she had joined Transport New South Wales (formerly Roads and Maritime Services) and Telstra as the former second and third defendants. Following some post-filing liability investigations as to the correct identity of the occupiers of the site in question, she no longer proceeds against those defendants. The correct defendant occupiers are the Council and Ausgrid. The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) ("CL Act").
[5]
Factual background
At about 11.00am daylight saving time on Thursday 2 February 2017, the plaintiff, then aged 53 years, was walking on the footpath near 195 Parramatta Road, Ashfield, near the intersection of that road with Bland Street. She was proceeding towards a bus stop intending to board a bus she knew was waiting for her when she sustained injury after tripping over the raised edge of a metal frame which formed part of an Ausgrid utilities pit embedded within the surface of the concrete footpath.
The metal checker-plate surface of the pit cover was sunken below the height of its surrounding housing frame. The checker-plate surface was not flush with the top of that frame that housed it within the concrete footpath. When the plaintiff tripped and fell she sustained multiple injuries, contusions and abrasions to her face, chest, fingers, hands, and knees.
It was common ground between the parties that the appearance of the pit cover at the time of the incident was as is shown in the following photograph that has been extracted from the evidence:
[6]
Issues
From my review of the pleadings, the evidence, and the submissions of the parties, in addition to determining relevant foundation matters of fact, the issues calling for decision in these proceedings may be identified as follows:
1. Consideration and determination of Ausgrid's criticism of the form in which the plaintiff's case was pleaded. My findings on this issue appear between paragraphs [175] to [184] of these reasons;
2. Identification of the relevant risk of harm for the purposes of the consideration of the application of s 5B, s 5F and s 5G of the CL Act. My findings on this issue appear between paragraphs [185] to [191] of these reasons;
3. The scope and content of the duty of care owed by the respective defendants as occupiers of the site where the plaintiff tripped. My findings on this issue appear between paragraphs [192] to [204] of these reasons;
4. Whether the plaintiff has satisfactorily proven that either of the defendants had respectively breached the duty of care they owed to her in order to sustain a finding of negligence against them according to the requirements of s 5B and s 5C of the CL Act. My findings on this issue appear between paragraphs [205] to [239] of these reasons;
5. Whether, in terms of s 5D of the CL Act, the plaintiff's injuries were relevantly caused by the negligence of the defendants. My findings on this issue appear between paragraphs [240] to [245] of these reasons;
6. Whether the plaintiff's injuries occurred as a result of the materialisation of an obvious risk within the meaning of s 5F and s 5G of the CL Act. My findings on this issue appear between paragraphs [246] to [272] of these reasons;
7. Whether and to what extent there was contributory negligence on the part of the plaintiff as alleged by the defendants, and whether such contributory negligence was a relevant cause of the plaintiff's injury. My findings on this issue appear between paragraphs [273] to [309] of these reasons;
8. The assessment of the plaintiff's entitlement to damages. My findings on this issue appear between paragraphs [310] to [360] of these reasons.
The parties made disparate submissions on quantum. The plaintiff's submitted quantum assessment was in the amount of $737,294. The quantum submissions made on behalf of the defendants were in the amount of $44,884. In the event the defence of obvious risk was not sustained, the plaintiff's alleged contributory negligence was submitted to be 100 per cent. This was disputed by the plaintiff.
[7]
Summary of outcome
For the reasons that follow I have found the plaintiff has failed to establish her claim against the first defendant Council but she has succeeded in establishing her claim against the fourth defendant Ausgrid. I have assessed the plaintiff's damages in the sum of $354,142.38, which required discount by 20 per cent due to the findings made as to the plaintiff's contributory negligence. The plaintiff therefore obtains a judgment against Ausgrid in the sum of $283,314.
[8]
Dismissal of a procedural application by first defendant
At the commencement of the hearing, the first defendant Council made an oral application for leave to amend its filed defence. That application was advanced without any of the customary supporting documentation. The application was opposed by the plaintiff. The proceedings were stood down for a short time to enable the first defendant to formalise its application for amendment, supported by evidence.
The first defendant subsequently filed its application in Court seeking leave to amend its defence. If allowed, this would have enabled the first defendant to rely on the liability sheltering provisions of s 45 of the CL Act. After argument that application was refused: T23.24. At that time the parties were informed that my reasons for refusing that application would be included in these reasons for judgment.
Those reasons now follow in a shorter form than was originally anticipated, for two reasons. First, as the transcript records, the basis of the refusal was made sufficiently plain in the exchanges that occurred during argument at the time the ruling was made refusing the application. Secondly, given the outcome where the first defendant has succeeded on its filed defence, the foreshadowed reasons can be stated with greater economy than was previously anticipated, as follows.
In my view, after a total of 42 interlocutory case management and interlocutory listings, between 24 March 2020 and 1 August 2022, an application seeking leave to amend a defence, left to the morning of the hearing, without prior service of supporting affidavit material and documents, represented an unacceptable ambush to the plaintiff: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346. Those circumstances deservedly attract the criticisms identified in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, at [5], [27], [35]-[36], and as per the plurality, at [72], [90], [98] and at [111].
[9]
Evidence overview
The parties provided a series of compendious Court Books containing the main documentary evidence. The plaintiff's documentary evidence comprised two Court Books: Exhibit "C", pp 1 - 501, augmented by Exhibit "D", pp 1 - 47. The first and fourth defendants tendered a joint Court Book: Exhibit "1", pp 1 - 147. The first defendant augmented the joint Court Book: Exhibit "4", pp 1 - 252. The fourth defendant augmented the joint Court Book with further documentary materials: Exhibit "2", pp 1 - 8. Those materials, and the other documentary exhibits that were tendered will be referred to where it becomes necessary to do so.
The plaintiff and her son, Mr Evan de Roma, and Dr John Cooke, an expert architect from UNISEARCH, who was retained by the plaintiff's solicitor, were the only witnesses to give oral evidence in her case. The fourth defendant called one of its employees, Mr Colin Casha, an Ausgrid electrical engineer and projects portfolio manager, to explain aspects of its business records relating to the inspection and maintenance of Ausgrid assets, including the particular utility pit and lid in question. The first defendant did not call any oral evidence, although a number of its employees with relevant information were identified by name in the documentary evidence.
[10]
Summary of the oral evidence and reliability conclusions
A summary of the evidence of the respective witnesses now follows.
[11]
The plaintiff
In my assessment, the plaintiff was a truthful and generally reliable witness who gave her evidence without embellishment. In reaching that conclusion I have not overlooked that she was mistaken as to when a particular photograph of the pit lid was taken: Exhibit "E"; T45.20 - T45.50.
In my view, that error was understandable given the way in which the questions on that matter had unfolded. In my view, no adverse credit issue attaches to her evidence on that account. She candidly qualified her answers in reference to that photograph by saying she was unsure. It was understandable that she had limited recollection as to some details of the events due to the passage of time. However, overall, and except for her mistaken evidence as to the timing of the taking of the photograph in question, I am satisfied that the plaintiff's account of the events of her injury and its sequelae was reliable and truthful. I have drawn upon her evidence in making findings on relevant matters of fact.
[12]
The plaintiff's son, Evan de Roma
The plaintiff's son Evan de Roma was called to give evidence describing his before and after impressions of the plaintiff and to support aspects of her claim for damages, including in relation to the claim for damages for domestic assistance. Relevant aspects of his evidence will be cited in that context. In my view, he was a careful and truthful witness whose evidence should be accepted. No adverse credit issues arise from his evidence.
[13]
Dr John Cooke - expert architect
Dr Cooke, a consultant architect, prepared an expert report dated 30 September 2020, at the request of the plaintiff's solicitor: Exhibit "C", pp 198 - 482. He also gave oral evidence on the liability issues where he expressed opinions on matters of pedestrian safety. No credit issues emerged from his evidence.
In essence, the expert opinion within the report of Dr Cooke was to the effect that the surface height discrepancy that was evident between the level of the surface of the concrete footpath, and the level of the surface of the pit lid was more than 6mm in height, and therefore, by reference to identified relevant guides concerning accepted traffic engineering practice, it posed a recognised trip hazard. Those opinions, which accord with a common-sense analysis, will be referred to in greater detail in the liability analysis on the issue of breach of duty of care.
Dr Cooke gave evidence at the request of the defendants who required him for cross-examination on the content of his report. By leave, before cross-examination commenced, he gave some short additional evidence-in-chief to augment that report by reference to the evidence that he had observed to have been given by Ausgrid's employee Mr Casha, whose evidence was to the effect that the pit in question was assumed to have been inspected by Ausgrid personnel on 30 December 2015, without a further inspection having taken place in the ensuing 5 years. After acknowledging those additional matters of assumption, Dr Cooke saw no reason to alter the opinions he had expressed in his report: T188.48 - T189.7.
In answers to questions posed to him in cross-examination by counsel for the first defendant Council, Dr Cooke stated that:
1. he had assumed the photograph attached to his report and marked Annexure C showed the appearance of the pit and its lid which was assumed to have been taken at approximately the time of the plaintiff's fall: T189.36 - T189.50;
2. to his trained eye, at the time of his inspection, he could see a height discrepancy of up to 10mm between the (surface of) the lid and the surrounding concrete surface, and he was able to mark a point of reference which based that conclusion: Exhibit "C", p 203; T190.10 - T190.25;
3. he had measured the height difference between the top of the metal pit lid cover and the top of the supporting frame and concrete surround as being 8mm - 10mm: T197.46 - T198.16;
4. in addition to a height difference at the point assumed to be where the plaintiff had tripped, there was a height difference at the other end between the pit lid and the concrete surround: T198.48 - T199.11;
5. he had considered the content of the Council records concerning the plaintiff having reported the presence of a trip hazard at the site, but he did not see it as part of his role to further investigate the note which identified the lid as being sunken in order to clarify the meaning of that expression: T192.47 - T193.20. That evidence raised a question as to the need to consider the significance of the Council officer's description of the pit lid cover as not being properly located in place when it was inspected on 7 February 2017;
6. he inspected and assessed the pit as it appeared on site on the day of his inspection and measured the height difference between the top of the lid and the top of the frame, and stated his observations were consistent with those of Mr Casha: T193.31;
7. he had simply measured the height discrepancy and related the discrepancy to the body of professional evidence and literature known and available to him concerning trip hazards: T195.15 - T195.19;
8. he had formed the opinion the pit had sunk and considered that as being a factor relevant to constitute a tripping mechanism: T195.33 - T195.42;
9. when he stood on the metal pit lid cover at the time of his inspection, he had observed that the lid had moved underfoot when he walked on it in the direction the plaintiff had walked, and he indicated by demonstrating a vertical pivoting movement with his hands, that the metal pit lid cover moved "laterally-longitudinally" in his direction of travel, which I interpret to mean that there was a fulcrum located proximally that had caused a distal movement of the pit lid cover: T196.30 - T197.39.
[14]
Mr Colin Casha - Ausgrid employee
Mr Casha gave explanatory factual evidence concerning Ausgrid's pit lid inspection and maintenance records. He stated that the pit number in question, as referred to on page 86 of Exhibit "1", is identified in the records as being LE 50453: T140.18.
Whilst I am satisfied that Mr Casha gave his evidence truthfully to the best of his knowledge and recollection, I consider that his evidence was of limited assistance in resolving the liability issues in dispute.
Mr Casha is an electrical engineer who has been employed by Ausgrid in that capacity for 24 years. He commenced his employment in 1998. Since 2018, that is, after the plaintiff's fall, he has been a portfolio manager for Ausgrid's work projects. In that role he supervises eight engineering crews and he is in the team that issues job orders for electrical work to be carried out by Ausgrid field crews over a very wide area that includes the site where the plaintiff was injured.
During Mr Casha's work with Ausgrid, from about 2000 and until about 2014, he had a background in design and construction, including in relation to pit lids. In that regard, he confirmed that in respect of the concrete paved areas that surround pit lids, that area was required to be level with the surrounding surface, and if this was found not to be the case, Ausgrid would take steps to either arrange for the local Council to repair the area, or as has sometimes occurred in the past, Ausgrid's practice was to get its own contractors to carry out a repair as needed: T136.1 - T136.40.
Part of Mr Casha's role with Ausgrid involved him undertaking a consideration of whether to renew or replace items of aged infrastructure that had been inherited by Ausgrid, including pit lids of the kind involved in the plaintiff's accident. He was unable to shed meaningful light on the age of particular pit lids other than by looking at the apparent age of the galvanised coating on the steel surface. He considered that galvanising of the kind evident on the pit lid in question in this case might be expected to last some 30 to 40 years. The implication was that Ausgrid had inherited this particular asset from a previous entity or utility authority.
Mr Casha explained that since late 2008, Ausgrid's assets, and the information about those assets, became the subject of an inter-linked digital software management system called SAP, where multiple Ausgrid personnel have access to the system to make entries. The acronym SAP was not precisely defined in the evidence but it was explained in the following extract of his evidence:
"Q. Is the information within Ausgrid managed digitally somehow?
A. Yes, so a lot of the information we brought in a SAP system in late 2008.
HIS HONOUR
Q. What does the acronym SAP stand for?
A. I don't know. It's a German system and it is basically managers - it keeps a record of our assets and a record of what we do to the assets, whether it be repair, maintenance et cetera, and it also keeps financial information about those assets.
Q. And who has access to it?
A. A lot of people at Ausgrid. I have access to it.
HIS HONOUR
Q. By access, is that just viewing access or modification access?
A. For me it'll be both and all my project officers have both as well.
Q. So when you look at the final entry or final appearance of an entry in the records, does it give you the modification history or just the end result?
A. It should tell you the - there will be a separate system which will tell you what and when happened to it. For example, if we change switch gear it'll be in the project system. And then in terms of the ongoing maintenance, that'll be in the plant, PM system.
Q. So this is a hyperlink method?
A. Sort of. It's in between two systems in the one SAP piece of software.
O'NEILL: I was going to come to that later your Honour, but would your Honour like to see that part now while it's fresh in your Honour's mind?
HIS HONOUR: I just have one other question and you can clarify in result or ignore it as you wish.
Q. Is the person who makes the entry in the SAP system for the purpose of keeping a record the same person who has done the work that is the subject of the entry?
A. Not necessarily. It might go to a supervisor who might then enter and close off, so your notification, so no.
Q. Generally speaking, how contemporaneous is the making of a record to work?
A. What does that mean?
Q. What's the relationship in time between when the work is done and when it's described on the SAP system as having been done?
A. It varies. It generally happens, it could happen within a few days, depending what it is, it could happen within a few months. But generally just a couple of days."
[T133.41 - T134.42]
[15]
Document review - defendant's documents
The documentary evidence produced by the defendants as relied upon by the parties on the liability issues is identified and summarised in the following paragraphs.
[16]
Inner West Council documents
The Inner West Council's documentary evidence does not disclose whether the Council had a system for regular inspection of the footpath and its component parts in the area for determining whether any maintenance or repair was required.
There is no specific evidence to show that before the plaintiff's fall, the Council had been made aware of a problem of any kind at that location, including any problems requiring repair or maintenance. There is no specific evidence to indicate when, if at all, the Council had inspected the area before the plaintiff's fall. The topic appears not to have been the subject of discovery, subpoena, or interrogatories.
The records of the Inner West Council show that on 6 February 2017, following the plaintiff's earlier visit to her general practitioner, the plaintiff reported the fact of her fall to a Mr Kotrevski, who is identified as an officer of that Council. The plaintiff made that report by telephone. Mr Kotrevski created a note of the conversation. Subsequently, another Council officer, Mrs Leanne Treasure, modified that note: Exhibit "4", Tab 7, pp 79 - 80.
Following the plaintiff's report, a Council manager, Mr P Polieri, created a civil works plan for an inspection of the pit cover to take place. Although it appears that the initial plan was for an inspection to be carried out within 10 days of the report, the inspection in fact occurred on the day following the report by the plaintiff.
At 8.23am on 7 February 2017, another Council officer, Mr Giulio Russo inspected the location where the plaintiff had fallen and he made the following note:
"Investigated this is a Telstra pit lid not sitting properly on pit (Mr G Russo - 07/02/2017)This pit lid has been placed properly on pit completed 7/2/2017 (Mr G Russo - 07/02/2017)"
[Exhibit "4", p 79]
The short notation by Mr Russo as cited above raises some ambiguities. My interpretation of that note proceeds in the following sequence:
1. On 7 February 2017, 5 days after the plaintiff's fall, Mr Russo found the pit lid was not sitting properly on or in the pit;
2. After his inspection, Mr Russo, or perhaps someone working under his direction, took remedial action to ensure that the pit lid was properly placed over the pit;
3. Mr Russo's cited note was responsive to the plaintiff's complaint of having fallen at that location on 2 February 2017. The note was made after Mr Russo had inspected the pit lid;
4. Initially, according to Mr Russo's note, the pit lid was incorrectly assumed to have been a Telstra asset. This error may explain why in the original version of the plaintiff's statement of claim, the plaintiff's solicitor had sued Telstra before that aspect of the claim was later abandoned.
[17]
Ausgrid documents
Ausgrid tendered a series of documentary records: Exhibit "1", Tabs 8 - 10, pp 81 - 92. Those records are described in the paragraphs that now follow.
[18]
Ausgrid Maintenance Standard
The first Ausgrid document was identified to be an Ausgrid Maintenance Standard. It was dated 7 July 2016. It set out the inspection and action requirements for Ausgrid patrols when examining its assets comprising pits and lids: Exhibit "1", Tab 8, p 81. That standard identified the need for Ausgrid staff to give attention to the following matters when examining its pits and pit lids:
1. Building works or landscaping affecting, or potentially affecting, safety clearances and access to assets;
2. Examining infrastructure for excessive damage / degeneration / erosion;
3. Examining any warning signs for structural integrity;
4. Examining any warning signs to ensure correct fitting and location.
More specifically to pits and lids, that Ausgrid standard identified the need to:
1. Examine pits for obstructions to access;
2. Examine surrounds for signs of degradation, subsidence or altered ground level;
3. Examine pits for misalignment and impact damage;
4. Examine pit lids for corrosion.
In light of the suggestion in the evidence that there was a contemporaneous history of major building projects having been undertaken in the area, possibly involving vehicles traversing footpaths, the need for Ausgrid patrols to examine the surrounding area for signs of structural degradation, subsidence, altered ground level, mis-alignment or impact damage, was understandable.
In light of that evidence, the detail within Ausgrid's identified inspection standards calls into question the adequacy of Ausgrid's periodic assets inspection cycles because Ausgrid would not necessarily have staff on site to tend to or maintain the integrity of its assets during the currency of such nearby works.
[19]
Ausgrid Technical Maintenance Plan for underground cables
The second Ausgrid document (Exhibit "1", Tab 9, pp 82 - 84) related to the technical maintenance plan or system for underground cables. Specific to pit lids, the plan provided for 5 yearly visual inspections by Ausgrid patrols with a margin for latitude of plus or minus 6 months: Exhibit "1", Tab 9, p 83. These documents show the location of high voltage cables and related infrastructure, including pits and lids of the kind under present consideration.
[20]
Ausgrid Assets Management records - SAP
The third Ausgrid document (Exhibit "1", Tab 10, pp 85 - 92) comprised a series of 8 screen shot prints of the Ausgrid computerised SAP programme of assets management software system. The screen shots, which included evidence of the existence of some drop-down menus, had been created by Mr Casha when he viewed the SAP system on screen for the purpose of providing evidence for this case. Those screen shots contained the following entries of a factual nature:
1. Ausgrid required the pit lid in question to have been inspected by its patrols by 27 January 2016 and then by 29 June 2021, with an allowance in each instance for a 6 months' latitude for an acceptable variation in those dates: Exhibit "1", Tab 10, p 85;
2. The respective inspections scheduled for 27 January 2016 and 29 June 2021 each had allocated "Notification" numbers (1106136985 and 1108889007), and order numbers (1100201193 and 1100392457), but there is nothing on the document described as "Change Notifications: List of Notifications" to explain the numerals, symbols, and words used to describe the fields in the document for "Functional Location", "Mn.wk.ctr", "User Status", "Description", "Lights Aff", "CounDifFig", "Contact Em" or "Contact I": Exhibit "1", Tab 10, p 85. The fact that notification and order numbers were identified as referred to in parentheses above suggests that either an Ausgrid employee made those entries in retrospect in response to work done, or alternatively, those numbers may have been automatically and prospectively generated by the SAP system software. Those possibilities were not fully explored or explained in the evidence;
3. There is no record of the Ausgrid employee, or the designation of that employee, who was responsible for inspecting the pit lid by 27 January 2016 (plus or minus 6 months), whereas in contrast, the person who was required to have inspected the pit by 29 June 2021 was named as Mr Jeff Graham: Exhibit "1", Tab 10, p 85. This evidence suggests either that the person who was responsible for the inspection by 27 January 2016 failed to carry out the inspection, or alternatively, that person simply failed to annotate Ausgrid's records to identify himself or herself. Neither of those possibilities were further explored or reliably explained in the evidence;
4. In light of Mr Casha's evidence that will shortly be cited (at sub-paragraphs (2) to (5) of paragraph [79] below), the Ausgrid employees who either filled in the fields or left some fields blank on this form were not the employees who were charged with the task of carrying out the actual inspections scheduled for 27 January 2016 and 29 June 2021, plus or minus 6 months, in each instance;
5. In describing the screen shot comprising page 85 of Exhibit "1", Mr Casha stated that he made the following additional explanatory entry on the screen shot: "Note: These are the only two maintenance tasks in our SAP System. The top one was completed prior to 2017". It is plain that he made that note in the course of the fourth defendant's preparation for this case, based on assumptions, rather than on the basis of verifiable facts.
[21]
Ausgrid SAP record - p 86 of Exhibit "1"
Mr Casha stated that the print-out of the screen shot at page 86 of Exhibit "1" contained some default dates that should be seen as being prospective entries and not retrospective factual records of events that had actually occurred: T140.50 - T141.4.
[22]
Ausgrid SAP record - p 87 of Exhibit "1"
Mr Casha stated that apart from identifying the pit number in question, there was nothing of relevance recorded in the screen shot that was represented by page 87 of Exhibit "1". He said that there are many fields left blank in the SAP system as they are not used: T141.15 - T141.25.
[23]
Ausgrid SAP record - p 88 of Exhibit "1"
Mr Casha stated that there was nothing of relevance recorded in the screen shot represented by page 88 of Exhibit "1". The document contains some data which contains some fields that he could not understand or explain: T142.15 - T142.21.
[24]
Ausgrid SAP record - p 89 of Exhibit "1"
Mr Casha stated that he interpreted page 89 of Exhibit "1" as indicating that at 13:32:02 hours on 30 December 2015, some unnamed person, presumably someone on behalf of Ausgrid, had carried out and had completed an inspection of the pit. His opinion in that regard was expressed on the basis that the data field on the form had been completed, although the inspector who carried out that work had not been identified: T142.26 - T142.49.
[25]
Ausgrid SAP record - p 90 of Exhibit "1"
Mr Casha stated that he was "not too sure" what the data field described as a "Maintenance Plan", at page 90 of Exhibit "1", actually meant: T143.20 - T143.28.
[26]
Ausgrid SAP record - p 91 of Exhibit "1"
Mr Casha stated that there was nothing of relevance noted within page 91 of Exhibit "1": T144.45.
[27]
Ausgrid SAP record - p 92 of Exhibit "1"
Mr Casha was unable to explain a number of the acronyms and initialled references appearing at page 92 of Exhibit "1": T144.49 - T145.12.
[28]
Incomplete data fields
In addition to the factual records as noted and analysed above, it is apparent that the Ausgrid screen shots identified a number of incomplete data fields concerning the pit lid in question.
[29]
Ausgrid "Dial As You Dig" documents
Ausgrid tendered a series of search documents relating to works that were proposed and had most likely been carried out around its assets in the area of the site in question: "Dial Before You Dig" search documents located at Tab 14 of Exhibit "1". Mr Casha explained these documents as being searches carried out by contractors before carrying out works in the vicinity and relating to the location of underground high voltage electricity cables.
These searches were carried out over an extensive range of dates, namely 9 February 2016, 8 March 2016, 10 March 2016, 18 March 2016, 7 April 2016, 6 May 2016, 13 May 2016, 19 May 2016 (2), 25 May 2016, 16 June 2016, 23 June 2016, 24 June 2016, 18 July 2016, 8 August 2016, 10 August 2016, 15 August 2016, 16 August 2016, 18 August 2016, 23 August 2016, 12 October 2016, 1 November 2016, 4 November 2016, 11 November 2016, 14 November 2016, 22 November 2016, 8 December 2016, 9 December 2016, 14 December 2016, 3 January 2017 (2), 4 January 2017 (2), 12 January 2017, 24 January 2017, 15 January 2017, 31 January 2017 (2): T156.44 - T157.34.
It is plain from those dates that these search documents reveal a systemic awareness within Ausgrid that in the days leading up to the plaintiff's fall, extensive works were being contemplated, if not actually carried out, in the vicinity of its assets, or in the vicinity of the utility pit in question in these proceedings. That said, this did not mean that Ausgrid would have been aware of any interference with the integrity or the fitting of the pit lid cover.
In answers to questions asked of him in cross-examination on behalf of the plaintiff, Mr Casha relevantly stated:
1. In relation to page 85 of Exhibit "1, that was all that he was able to locate on the SAP system: T160.49;
2. He explained that employees who attend the Ausgrid sites did not have access to the SAP system: T161.15;
3. He believed that there was no record kept of Ausgrid employees who had attended at the site to do a visual inspection: T162.35 - T162.48;
4. He was unable to explain some functions within the SAP recordkeeping system: T164.4; T169.33; T170.19;
5. At the time of the 2015 inspection of the pit lid, Ausgrid's system for recording who had carried out inspections on particular sites did not exist, therefore those names are not ascertainable: T166.48. The system that preceded the SAP system was an Excel spreadsheet which did not contain that information: T167.9;
6. He could not confidently say whether an inspection of the pit lid had actually occurred on 30 December 2015: T170.40 - T170.43;
7. He confirmed that in relation to the photograph appearing at page 95 of Exhibit "1", there appeared to be a gap between the casing or the frame that housed the pit lid, and the surrounding concrete surface of the pavement: T175.32;
8. He did not expect the pit lid to have sunk to any measurable degree between 30 December 2015 and when the plaintiff fell in February 2017: T176.3.
[30]
Photographs tendered by Ausgrid
Ausgrid tendered a series of copy photographs: Exhibit "1", Tabs 11 to 13, pp 93 - 97. Two of those photographs were representative of the appearance of the pit and lid at around the time of the plaintiff's fall (pp 93 - 94), and the remainder (pp 95 - 97), were taken by Mr Casha in about July 2022 on his iPhone, as explained at paragraph [41] above, involving different angles and perspectives. As observed at paragraph [45] above, it is necessary to observe great caution in interpreting these photos when making findings on matters of fact in dispute.
[31]
Factual findings on relevant matters
In the paragraphs that now follow, I set out my findings on relevant factual matters concerning: (1) the interpretation of the Inner West Council records concerning the footpath and pit lid; (2) interpretation of Ausgrid's records concerning the footpath and pit lid; (3) the state of the pit lid at the time of the plaintiff's trip and fall; (4) the plaintiff's background; (5) her pre-injury state of health; (6) the particular circumstances of the injury; (7) her injuries; (8) the initial treatment she received; (9) her subsequent medical investigations, assessments and treatments; (10) her subsequent illness; (11) evaluation of competing medical and allied opinions; (12) her ongoing disabilities; (13) the resultant adverse effects on her employment; (14) the adverse domestic effects that have resulted from her injuries; (15) the steps she has taken to mitigate her damages; and (16), what would have been the plaintiff's most likely circumstances but for the injuries she sustained.
[32]
(1) Interpretation of Inner West Council records
The Inner West Council documents relating to the plaintiff's fall and the Council's actions thereafter are summarised at paragraphs [49] to [58] above.
As no Council officers were called to give evidence, and no other documents were tendered, no particular conclusions can be reliably drawn on whether the Council had a system of periodic inspection in respect of the safety and maintenance of the pit lid and its surrounds.
Therefore, no reasoned conclusions can be drawn as to whether any system for inspection and maintenance the Council might have had was adequate, or otherwise.
The only reasonable conclusions available to be drawn from the Council records that were created following the report of the plaintiff's fall are first, days later, on 7 February 2017, the area was inspected and in the opinion of Mr Russo, the pit lit was found to have been placed incorrectly on the pit, and secondly, Mr Russo, who made that observation, took appropriate responsive steps to ensure that the lid was properly placed over the pit.
I infer from that evidence that the lid was found to have been incorrectly seated and the subsequent evidence of completion of proper placement, that before Mr Russo's inspection, the pit lid somehow became dislodged from its properly seated position within its frame, but when Mr Russo's task was completed, it was left properly seated in its housing frame. This would necessarily mean that there would have been a height discrepancy between the lid surface and the surrounding top of the frame which was, on the evidence, most likely level with the surrounding concrete footpath.
However, in view of the fact that there was a 5 day period that had elapsed between the plaintiff's fall and Mr Russo's subsequent inspection, taken together with the fact that there were works planned to be carried out in the area in the days preceding the plaintiff's fall, as identified at paragraph [77] above, no reasonable inference arises as to a presumed continuance of a misplaced or misfitted lid until rectified on 7 February 2017. The interval of time involved indicates that a positive inference in that regard would involve impermissible speculation: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19, at 358; following Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, at 5.
[33]
(2) Ausgrid records
The Ausgrid documents relating to the pit lid where the plaintiff fell are summarised at paragraphs [59] to [80] above. Mr Casha's evidence on those documents and Ausgrid's systems is summarised at paragraphs [27] to [47] above.
It would be reasonable to infer that since Ausgrid's proactive SAP system had designated that an inspection should take place within 6 months of 30 December 2015, and since no data existed in Ausgrid's records as to a named person having carried out that scheduled inspection, that the planned inspection for within 6 months of that date did not take place until after the plaintiff's fall.
That said, it is also possible to infer that such an inspection did take place prior to the plaintiff's fall but the person undertaking the inspection had not made proper arrangements for entering data into the SAP system to record that an inspection had in fact taken place.
In choosing which of those two possible interpretations should be preferred as being more likely to be correct, I infer from the fact that there is a proactive system that prompts tasks and from the fact an order number had been allocated, as explained at sub-paragraph (2) of paragraph [65] above, that an inspection had most probably occurred as was planned, most probably by means of a visual inspection, as explained by Mr Casha: T137.15 - T137.25.
It is also reasonable to infer from the evidence of Mr Casha that first, the height differential between the pit lid surface and the surrounding pavement had not materially changed for some years before the plaintiff tripped and fell, and secondly, had the area been inspected by an Ausgrid patrol before the plaintiff's fall, the height differential ought to have been recognised. This would have raised the question of what if anything by way of precaution should have been done about that height difference from the perspective of pedestrian safety and the discharge of the duty of care owed by Ausgrid. That question will be taken up in the consideration of Issues 2 and 3.
[34]
(3) State of the pit lid at the time the plaintiff tripped and fell
In relation to the state of the component parts comprising the Ausgrid pit and its surrounds at the time when the plaintiff tripped and fell, I record the following findings:
1. The concrete footpath surrounding the pit was level;
2. The top part of the metal pit lid frame that housed the pit lid was flush and level with the concrete surrounds of the footpath;
3. The gap between the metal frame of the pit lid and the adjacent concrete paving of the footpath that surrounded the pit was small, and of itself was unlikely to constitute a trip hazard;
4. The pit lid was seated in its housing frame. If it were otherwise, such as when observed on 7 February 2017 by Mr Russo, when it was found to have been sitting improperly, the plaintiff would most likely have seen and noted that fact after she had tripped and fallen;
5. When the pit lid was seated in a proper position within the confines of its housing frame it was sunken, as was described by Dr Cooke, with an 8mm - 10mm height differential between the pit lid surface and the top of the frame;
6. The sunken position of the pit lid was unlikely to be a defect that had evolved over time. It was more likely to be an inherent longstanding feature that had been present for many years as a function of the method of construction of the structure as a whole;
7. There is no reliable evidence to suggest that at the time the plaintiff traversed the pit lid, it had moved underfoot in the pivoted manner that was observed and described by Dr Cooke when he inspected it in 2020 for the purpose of preparing his opinion to be used in these proceedings;
8. There is no basis within the evidence to suggest that the plaintiff had simply slipped on the metal surface of the pit lid. I find the suggested mechanism of a slip to be improbable;
9. When the plaintiff walked towards the pit lid on her way to board the waiting bus it was about 11am daylight saving time, or about 12 noon Eastern Standard time. In infer from such timing that it was improbable there would have been any shadows cast from the raised portion of the pit frame towards the lid itself so as to suggest, to the view of an approaching pedestrian, that there was a height difference within the structure;
10. There was no warning comprising yellow strips or other brightly coloured painted edges around the concrete or the frame that housed the pit lid which would have served to alert or warn pedestrians to the fact that there was a height difference within the structure and therefore a trip hazard in that location;
11. As the plaintiff approached the pit lid she did not see any indication of a height difference as she walked towards and crossed over the pit lid;
12. It is not known as to which part of the plaintiff's flat-heeled shoes had made contact with the raised portion of the pit lid frame which caused her to trip. It is immaterial as to whether it was either her heel or the front part of her shoe.
[35]
(4) Plaintiff's background prior to the fall
The plaintiff is presently aged 59 years. She had left school aged 15 years. After leaving school, she worked as an apprentice hairdresser for about 4 years. She married at age 19 years and she divorced at age 38 years. Her daughter was born in 1982. Her son was born in 1986.
The plaintiff has had a steady and stable employment history in the retail sector. She has worked as a shop assistant in a department store, a handbag store, a jewellery store, a souvenir store, a card shop, and in a pharmacy. At the time of her injury, she was living alone in mortgaged accommodation and was self-supporting. At the time of her accident she was on her way to attend a job interview with an employment agency for a retail managerial position in a dress shop. Notwithstanding her injuries, ultimately she was successful in securing that position but only for a limited time. This is a matter to which I shall return in the consideration of the claim for damages for past economic loss.
[36]
(5) Plaintiff's previous health
It is relevant to review the plaintiff's pre-injury medical history. The summary which follows is extracted from the compendious copy of her comprehensive medical records, which commenced in 1988: Exhibit "4", pp 1 - 252.
In 1988, the plaintiff had successful remedial bilateral cosmetic breast augmentation surgery with the insertion of silicone implants on account of a condition described in the evidence as pectus escavatum, a structural deformity of the anterior chest wall. Thereafter she had regular breast and ultrasound examinations to check on the integrity of those implants: T51. In 2010 the plaintiff had abdominal surgery for a hysterectomy.
In February 2013, the plaintiff was diagnosed as having generalised anxiety. This was a longstanding condition which she managed in consultation with her family doctor who prescribed anxiolytic medications. This enabled her to function and to work notwithstanding her anxiety issues.
In May 2013 the plaintiff was diagnosed as having an ovarian cyst. She then had oophorectomy surgery to remove her ovaries. In November 2013 she was noted to have bowel adhesions. Those were possibly as a result of the earlier abdominal surgeries. Those adhesions later became increasingly painful for her.
In 2014, the plaintiff began treatment for elevated lipids, and osteopenia, a skeletal condition involving a reduction in bone density. In that year she began taking prescribed medications to manage those conditions. In September 2016, the plaintiff experienced gastrointestinal problems. She underwent a colonoscopy and an upper gastrointestinal tract endoscopy to investigate those problems. As a consequence of those investigations she was diagnosed with diverticular disease, a diagnosis which was revised after her accident to reveal adhesions, the symptoms of which abated after appendectomy surgery.
Before her trip and fall, the plaintiff was under regular dental surveillance by her dentist, Dr Andrew See, whom she saw 10 times for dental maintenance and associated treatment between 6 October 2015 and 6 September 2016. His pre-injury management of the plaintiff's dentition is well described in detail in his report: Exhibit "C", pp 25 - 31.
With the exception of the abdominal pain, none of those pre-existing conditions seem to have had any significant or adverse impact on the plaintiff's pre-injury work history or on her ability to enjoy the amenity of her life.
[37]
(6) Circumstances of injury
My findings now follow on the particular circumstances of the plaintiff's injury, first, as to the events occurring in the immediate lead-up to her injury, and secondly, as to the most probable sequence of events involved in the injury.
[38]
Events immediately preceding injury
The plaintiff was proceeding on foot towards a bus stop on Parramatta Road when, from across the road, she saw the bus she was intending to catch. By means of eye contact she had made with the bus driver, and the driver waving to her, she understood the driver to have indicated for her to proceed to the bus stop where he would wait for her to board the bus.
Having acknowledged that communication, the plaintiff waited for the traffic lights to change colour in her favour. She then crossed Bland Street, she successfully negotiated the different levels of the roadside kerb and gutter, and walked towards where the bus was waiting for her. She gave a very broad rough estimate of that position to be some 10, 20 or 30 feet from the intersection where she had crossed Parramatta Road. Those variations would be consistent with the plaintiff walking at the time she made progressive observations.
In final submissions Ausgrid asserted there was some controversy over whether the plaintiff was running or walking quickly at the time she tripped, and that her attention had been diverted to the bus, and that she did not want to be impolite and make the bus wait. In my view, there was no "controversy". In my view, the "controversy" was the submission itself, which remains unproven. I find that the plaintiff was walking quickly, but not running at the time she tripped and fell.
The plaintiff said, and I accept, that in those events she had walked quickly towards the bus, that is, faster than was usual for her (T112.38), but she did not run. The plaintiff denied the suggestion that immediately before she had tripped she had been running: T76.29; T77.11; T77.44. No eyewitness evidence was called to contradict her denial, which I accept.
In reaching the conclusion that the plaintiff was not running at the time she tripped, I have not overlooked the content of the notes taken by the plaintiff's general practitioner, Dr Driver, at a consultation on 4 February 2017, where he made the note "running for bus".
In my view, those notes were an interpretative aide memoir made by her doctor and it was not a transcript. Without specific explanatory evidence from the author of those notes, where they did not form part of a liability investigation, they are not in a form which could reasonably be taken to constitute a relevant admission by the plaintiff that she was running at the time of her injury: Mason v Demasi [2009] NSWCA 227, at [2].
[39]
Sequence of events leading to injury
The plaintiff stated that whilst walking she tripped and fell in a split second: T72.47. At that time she was not running: T76.29; T77.11. She fell forward onto her face, her chest, her abdomen, and her right knee. She was holding a handbag at the time which probably meant she was unable to fully use her hands to cushion the impact of her fall.
The photograph of the site of the plaintiff's fall as copied at paragraph [7] above has been marked with a cross. The plaintiff explained that her solicitor had placed the cross on that photograph in the course of a discussion with her on how and where she had tripped. I infer that this marking was agreed to by the plaintiff and was intended at that time to indicate approximately where she had tripped: T72.49 - T74.6.
The plaintiff acknowledged that she could see "what was in front of [her] foot" when she placed her foot on the metal checker-plate surface of the utility pit cover: T70.10 - T70.12. At that time, she was walking at a quick momentum but was not running. At the time she was wearing closed-in flat-heled shoes. She also agreed with the general proposition that she was aware of the existence of the phenomena of utility pit covers embedded in footpaths in the general area and she also agreed with the general proposition that she knew it was important to make sure she could see where she was placing her foot when walking on a footpath: T70.27 - T70.30.
[40]
(7) Injuries
When the plaintiff fell, she sustained injuries to her chin, to a number of her teeth, and to her jaw through what I infer to be transmitted forces. The fall was a shocking experience for her. It was subsequently discovered that in the fall she had suffered split fingernails, multiple contusions grazes and abrasions, and bilateral ruptures of her indwelling breast implants. Notwithstanding those injuries, the full severity of which she did not appreciate at the time, she boarded the bus in order to go to her scheduled job interview.
[41]
(8) Initial treatment
Immediately following her fall, the plaintiff was assisted by the bus driver and by passengers on the bus. She was given tissues and water. She later left the bus and went to a pharmacy where she obtained dressings for her fingers and wounds before going to the scheduled interview, albeit in a shocked state.
Two days later, the plaintiff saw her general practitioner in relation to the injuries she had sustained in the fall. In accordance with her doctor's suggestion, she later contacted the first defendant Council to report her injury. The Council's record of the report she made was that there was a metal utility pit cover in the footpath that had sunk and the lip edge was a trip hazard and this was a concern: Exhibit "C", p 79. When that evidence was explored, she did not recall the actual words she used in making that report (T70.37 - T70.50; T72.33), however, she was adamant she was not running when she tripped.
[42]
(9) Medical investigations, assessments and reviews
The oral evidence and the tendered medical records show that over the course of time, as a result of her injuries, the plaintiff sought out a variety of assistance and medical treatment from a variety of sources. Between 4 February 2017 and 8 May 2018, the plaintiff attended her general practitioner on some 27 occasions: Exhibit "4", pp 63 - 72. It is not necessary to summarise the dates and the content of all of those consultations.
The chronology of the significant matters of a medical nature to emerge from the tendered medical evidence is as follows:
1. On 4 February 2017, the plaintiff attended the practice of her general practitioner, and saw Dr Brian Driver, who, as recorded at Exhibit "4", page 63, made the following record summarising his understanding of that consultation:
"Saturday February 4 2017 14:54:30
Dr Brian Driver
Visit type:
Surgery Consultation
running for bus , slipped. 10.45 am last Thursday 02/02/207
bruising 3 cm right medial aspect of the right knee.
bruise abrasion lateral aspect 1.5 x 2 cm . then left lower abdomen 3 x 1.5 cm bruise.
mouth upper lip bruised, ? graze left central upper tooth . tender upper cheek on examination (sic) of left side of mouth. Mild
bruising left side of chin. bandage on the right index finger.
heat, panadol 2 qid, peroide and betadine.
right knee no patellae tapp , external bruising tenderness.
Reason for contact:
Fall";
1. On 5 May 2018, the plaintiff underwent an MRI scan of her breast implants which demonstrated bilateral intracapsular ruptures, with the extent of the collapse being greater on the right side: Exhibit "C", p 19;
2. On 14 May 2018, Dr Roger Haddad, a plastic and reconstruction surgeon, examined the plaintiff for abdominal symptoms and breast implants that had been in situ for about 30 years, but which had been ruptured in the accident. He advised removal of the implants within the following 6 months, noting that implants commonly rupture after 10 - 15 years. His report implied the possibility that the ruptures may have preceded the fall: Exhibit "C", pp 20 - 21. His statement to that effect involved speculation that requires evaluation in terms of the causation issues. The plaintiff's evidence tended to rebut that potential mechanism in this case by reference to her pre-accident annual breast examinations and pre-injury ultrasounds at which no abnormality had been detected: T51.19; T52.27 - T52.31;
3. On 30 May 2018, the plaintiff consulted Dr Ellis Choy, a plastic and cosmetic surgeon regarding her complaint of discomfort in both breasts, requesting that her breast implants be removed. He advised bilateral explantation and capsulectomy, with mastopexy to optimise the aesthetic result: Exhibit "C", p 22;
4. On 26 July 2018, the plaintiff was re-examined by Dr Choy. He noted she was extremely distressed and anxious, including reporting extreme discomfort in both breasts, low self-esteem, and loss of confidence, and profound dissatisfaction with the appearance of her breasts, and an associated psychological reaction. On 5 June 2020, he described having performed bilateral breast explantation and concurrent mastopexy surgery as he had recommended, in order to optimise the plaintiff's aesthetic outcome following the effects of her injury: Exhibit "C", pp 23 - 24;
5. On 21 January 2019, Dr See, the plaintiff's dentist since 2015, replaced the crown on the plaintiff's tooth 12, as it had become unstable: Exhibit "D", p 1;
6. On 9 May 2019, Dr See extracted the plaintiff's tooth 22 as it was loose and painful to bite upon, and was considered to be unrestorable: Exhibit "D", p 1;
7. On 12 June 2019, the plaintiff's general practitioner prepared a health summary relating to the plaintiff. He attached her clinical notes for the period between 1988 to 10 June 2019: Exhibit "C", pp 74 - 75;
8. On 20 June 2019, Dr See wrote to the plaintiff to outline a detailed dental treatment plan following the extraction of her tooth 22, setting out the alternatives: a cast removable partial denture plate which would place the surrounding teeth at risk of gum disease and decay; a bridge ($6479); implants ($8695): Exhibit "D", pp 2 - 6;
9. On 9 August 2019, the plaintiff underwent psychological testing which led to a diagnosis of Major Depression and anxiety which has reportedly caused her extreme difficulty in concentrating, sleeping, managing her day-to-day stresses, and which has also led her to have issues with her memory: Exhibit "C", pp 71 - 72;
10. On 18 March 2020, the plaintiff underwent a CT scan of her left temporo-mandibular joint which was reported as showing bilateral TMJ osteoarthritis, mild on the right, and severe on the left, with the presence of a loose body on the left: Exhibit "C", p 95 - 96;
11. On 27 March 2020 and on 9 April 2020, at the request of Dr See, the plaintiff was examined by Dr Lydia Lim, an oral and maxillo-facial surgeon. She reviewed the CT scan of the TMJ pathology and noted there was reduced joint space and condylar head flattening, with a loose body identified, with associated jaw clicking discomfort, and grinding. Dr Lim proposed a conservative treatment plan to reduce joint and muscle inflammation, NSAIDs, heat packs, and jaw physiotherapy, and the provision of an occlusal splint, with possible left TMJ arthroscopy and arthrocentesis procedures after COVID-19 restrictions are lifted: Exhibit "C", pp 91 - 92; p 94;
12. On 8 May 2020, Dr See prepared a very detailed report of his pre-accident dental treatment of the plaintiff between 6 October 2015 and 6 September 2016, and the post-accident treatment he provided to the plaintiff between 2 June 2017 and 4 May 2020. He described the plaintiff's reported self-consciousness and loss of confidence in facing customers due to her missing front tooth prior to its replacement: Exhibit "C", pp 25 - 32;
13. On 13 May 2020, the plaintiff underwent an MRI scan of both of her temporo-mandibular joints which revealed moderately advanced degeneration of the left TMJ and an associated globally degenerated and attenuated articular disc. On the right side, mild osteoarthritis was noted with a better preserved condylar translation compared to that seen on the left side: Exhibit "C", p 93;
14. On 30 May 2020, Dr See wrote a letter stating that prior to the accident the plaintiff had no prior issues with her teeth or her gums: Exhibit "D", p 1;
15. On 4 June 2020, the plaintiff underwent x-rays of both knees to investigate her complaint of pain in her right knee. No abnormality was detected: Exhibit "C", p 33;
16. On 20 June 2020, Dr See wrote a detailed report describing his post-accident dental treatment of the plaintiff comprising replacement of the crown on tooth 12, treatment of her injury-related loose teeth and swollen gums, the extraction of tooth 22, and the replacement of 6 front teeth with implant and bridgework at a total cost of $15,174: Exhibit "D", pp 2 - 6;
17. On 10 November 2020, the plaintiff commenced osteopathic treatment with Ms Ainslie Windle for post-accident neck and thoracic pain, right shoulder pain and TMJ pain, and headaches. It was noted that her symptoms were aggravated by lifting her arms at work and standing for long hours. Stress and anxiety were noted, which increased jaw clenching and TMJ stress: Exhibit "C", pp 34 - 40;
18. On 13 September 2021, at the request of her solicitors, the plaintiff was examined by Dr Andrew Howe, a dental surgeon. His report of that examination as dated 15 September 2021: Exhibit "C", pp 52 - 69;
19. On 25 October 2021, at the request of her solicitor, the plaintiff was examined by Dr Mohammed Assem, a general practitioner and rehabilitation specialist. He noted the plaintiff had been depressed and had suicidal ideation, and had been admitted to a psychiatric unit on account of those problems. He noted her physical problems to be neck pain and discomfort, and that the plaintiff avoided lifting items weighing more than 10kgs. He also noted the plaintiff's complaints of right shoulder restriction, right knee clicking, and jaw problems. He also noted that her son assisted her with the heavier housework. He reviewed the plaintiff's imaging scans. He suggested treatment by way of analgesia and physiotherapy to manage the plaintiff's physical complaints, including a knee strengthening programme, the provision of a knee brace, and an exercise programme: Exhibit "C", pp 41 - 45;
20. On 5 November 2021, at the request of her solicitor, the plaintiff was examined by Dr Richa Rastogi, a consultant psychiatrist. She took a history of the plaintiff's psychological distress and post-accident depression and anxiety, and having seen a psychologist for her injury-related depression and anxiety against her history of post-injury remedial breast injury. Dr Rastogi noted the plaintiff's complaints of loss of confidence, social withdrawal, amotivation, anhedonia, frustration, fatigue, and physical discomfort. Dr Rastogi considered the plaintiff manifested symptoms of anxiety and depression characterised by poor stress coping, catastrophic thoughts, emotional dysregulation and fears, with problematic pain affecting her emotional vulnerability which causes problems with adaptation. She related these problems to the effects of the accident and recommended a range of treatments involving counselling and medication: Exhibit "C", pp 46 - 51;
21. On 11 April 2022, at the request of the solicitors for the first and fourth defendants, the plaintiff was examined by Dr Richard Sackelariou, a plastic surgeon. His report of that examination is dated 12 May 2022: Exhibit "1", Tab 1, pp 1 - 8. Dr Sackelariou considered the plaintiff had a very pleasing result from the surgery for removal of her implants, the capsulectomies and the bilateral mastopexies, with well-healed scarring. Given the severity of the plaintiff's fall, and after making a comparison of the plaintiff's 12 November 2014 and 2 May 2018 breast ultrasounds, he considered it reasonable to be attributable to her fall in February 2017. He considered that the plaintiff would have been fit to return to work on normal duties after 28 days following the breast explantation and mastopexy procedures;
22. On 21 April 2022, at the request of the solicitors for the first and fourth defendants, the plaintiff was examined by Dr Brian Parsonage, a consultant psychiatrist. The examination was conducted by Zoom. His report of that examination is dated 6 June 2022: Exhibit "1", Tab 2, pp 9 - 42. Dr Parsonage reviewed the plaintiff's history, the opinions of Dr Rastogi, Dr Assam, the treating psychologist's records, the plaintiff's medical records relating to treatment of her cancer, the general practitioner's records containing details of the plaintiff's pre-injury history of taking the anti-depressant and anti-anxiety medications between 5 July 2003 and 3 November 2016. He noted the plaintiff's history that she has always been a worrier and had suffered from anxiety but she had not suffered from depression prior to the subject fall. Dr Parsonage considered the plaintiff's fall had caused her to suffer an adjustment disorder with depressed mood, and a temporary exacerbation of her long-term generalised anxiety disorder for about 3 months. He considered the plaintiff is no longer suffering stress related to her fall but instead her stress relating to living with her mother and due to her recent diagnosis with breast cancer. He considered the plaintiff's generalised anxiety disorder will fluctuate in severity in the future according to the stressors she is experiencing. Those opinions require critical evaluation;
23. On 6 June 2022, at the request of the solicitors for the first and fourth defendants, the plaintiff was examined by Dr Sandra Short, a dentist. She prepared a report of the same date: Exhibit "1", Tab 3, pp 43- 51. Dr Short carried out a comprehensive dental examination of the plaintiff. She accepted that the plaintiff's tooth numbered 22 could have fractured at the time of her fall due to its weakened state following root canal treatment some 10 years earlier. She accepted that the extraction and replacement of that tooth with an implant was reasonable. She took issue with Dr See's description of having treated the plaintiff's tooth 11 in 2017 for a fracture repair, noting that an x-ray of that tooth, possibly taken in 2016, showed a large area of decay at the distal margin of the crown that had been placed on the tooth. A comparative evaluation of the reports of Dr See and Dr Short will need to be undertaken at a later point in these reasons;
24. On 10 June 2022, at the joint request of the solicitors for the plaintiff and for the first and fourth defendants, the plaintiff's treating oncologist, Dr Annabel Goodwin prepared a report on the plaintiff's past history and treatment for breast cancer, and her prognosis concerning the plaintiff's probable life expectancy: Exhibit "1", Tab 4, pp 52 - 56. Dr Goodwin identified the plaintiff's breast cancer, which was diagnosed on 25 February 2022, with lymph node involvement, as being treatable with neo-adjuvant therapy to reduce the size of it before undergoing surgery for removal of that cancer. She described the plaintiff as having had four cycles of chemotherapy between 15 March 2022 and 10 May 2022 in the context of a planned ongoing 12-week cycle followed by surgery. Whilst the plaintiff's prognosis will be more accurately determined by the results of yet to be performed histopathology, Dr Goodwin's present prediction for 5-year survival is estimated in the range 90 per cent to 97 per cent, and 10-year survival is estimated at 75 per cent to 93 per cent. Those estimates will need to be evaluated in considering the factor of future adverse vicissitudes in a damages assessment;
25. On 20 June 2022, at the request of the solicitor for the first defendant, the plaintiff was examined by Dr Chris Harrington, an orthopaedic surgeon. His report of that examination was dated 23 June 2022: Exhibit "1", Tab 5, pp 57 - 63. Dr Harrington noted the plaintiff's current orthopaedic complaints to involve restricted side to side neck movements, which are differentiated from her TMJ problems, a painful and intermittently swollen right knee with an associated grating sensation with certain movements, and trouble with her left foot, possibly due to plantar fasciitis. He also noted cervical and lumbar spondylosis. He considered those musculoskeletal complaints, and her neck and back problems to be reasonable, and stabilised. He considered those orthopaedic complaints to be directly related to the fall in question. He did not think an incapacity for work arose from those problems. His opinion at Exhibit "1", p 63, concluded as follows:
"She suffered soft tissue injuries to her neck, back, right hip, right knee and left foot. She is left with pain and asymmetric loss of movement at the neck due to cervical spondylosis. She has some discomfort in her back although she maintains a pretty good range of movement. Her foot injury was bruised and she now has a stiff subtalar joint. She also has painful crepitation in her right knee due to the impact injury.
The prognosis for her musculoskeletal injuries is good. Her general prognosis is probably determined by the outcome of her breast cancer and chemotherapy treatment. It's probably going to take a year to recover from this, during which time I would hope that her range of shoulder movement improves. Even with a good result and life-saving treatment, she may only be fit for work two days a week in retail.";
1. On 28 June 2022, at the request of the solicitors for the first and fourth defendants, the plaintiff was examined at the Vocational Capacity Centre by Dr Brian Zeman, a rehabilitation medicine specialist. His report of that examination is dated 4 July 2022: Exhibit "1", Tab 6, pp 64 - 78. Dr Zeman's examination had been booked for an earlier date but it had to be delayed and postponed on account of the plaintiff's breast cancer diagnosis. Dr Zeman noted that following the plaintiff's surgery for implant explantation the plaintiff had difficulty lifting her arms. He also noted that the plaintiff felt she had to reduce her working hours from 38 hours to 23 hours per week. He noted her complaints of her fall-related pains to be located across the top of her shoulders, the sides of her neck, her left jaw, and her lower back. These pains have remained constant most of the time since her fall. She experienced exacerbation of her shoulder pain with activities involving lifting and bending. In essence, Dr Zeman's opinions were to the effect that Dr Assem's diagnosis of the plaintiff's neck and shoulder pains as being soft tissue injuries were not accident-related as they were "not listed in her ongoing disabilities" in the statement of particulars that had been provided to him, also taking into account his view that there were no objective clinical signs of significant ongoing pathology in the neck, shoulders or upper limbs. These opinions stand to be evaluated in light of the plaintiff's evidence and the other medical opinions.
[43]
(10) Illness since the subject fall
On 7 September 2019, the plaintiff had the unfortunate and unsettling experience of being physically manhandled during a robbery at her work. She was grabbed by the right arm and shoulders and experienced pain in those areas and in her abdomen and mid-thoracic region, for a time, and the incident had distressed her and she experienced additional anxiety: T92; Exhibit "C", p 36. I accept that the effects of that assault were of a temporary nature.
On 23 February 2022 the plaintiff was diagnosed with breast cancer. She has been receiving chemotherapy for that condition, and thus far, the treatment has had a good outcome, as was explained by Dr Goodwin and summarised at sub-paragraph (25) of paragraph [122] above. This indicates that the plaintiff has a near-normal expected life span. That evidence will be considered in relation to the assessment of the plaintiff's damages.
[44]
(11) Evaluation of medical opinions
Although no medical or dental witnesses were called to give oral evidence, conflicting aspects of the respective reports tendered from the practitioners within those disciplines nevertheless require critical evaluation in order to grapple with the areas of conflict within their reports, including where the reports reveal limitations which may undermine or place limits on the reliability of those materials: Binetter v Binetter [2022] NSWCA 169, at [84]; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66].
[45]
Conflict in the dental opinions
When the plaintiff fell on her face she injured her teeth. They hurt and consequently she became apprehensive about brushing or touching them: T48.31. The acute phase of her dental treatment for that injury commenced on 2 June 2017. She seems to have put up with her accident-related dental problems until January 2019, when Dr See undertook treatment to replace the unstable crown on tooth 12, and in May 2019, when Dr See extracted tooth 22 which was loose and painful to bite upon and was considered to be unrestorable.
Dr See's reports of May and June 2020 concerning his dental treatment of the plaintiff were comprehensive and not challenged by cross-examination: Exhibit "C", pp 25 - 32; Exhibit "D", pp 2 - 6. In essence, he related the plaintiff's need for dental treatment to the effects of her fall.
Dr Howe's unchallenged comprehensive 13 September 2021 dental report, which I accept, also related the plaintiff's dental problems and her temporomandibular problems to her fall. In doing so, he identified the plausible mechanism whereby an impact of the kind suffered by the plaintiff could have fractured the root of her tooth 12. Dr Howe commented upon and did not criticise Dr See's interpretation of the plaintiff having fractured tooth 12: Exhibit "C", pp 52 - 69.
In contrast to those unchallenged opinions, on 6 June 2022, the defendant's dental expert, Dr Sandra Short, took issue with the attributability to the fall of the plaintiff's need for treatment of tooth 12, arguing this was due to underlying decay: Exhibit "1", Tab 3, pp 43 - 51.
The point of difference between Dr Short on the one hand, and Dr See and Dr Howe on the other, is Dr Short's opinion identifying pre-existing decay in tooth 12, which was thought to be a disentitling factor. In my view, an analysis based on that element to seek to exclude a causation finding is misconceived as the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18].
Notwithstanding the requirements of this Court's Standard Orders for Hearings of such claims in this Court, which were in this case issued on 23 February 2022, and which identified a need for the parties to arrange conclaves between opposing experts on matters of expert opinion in dispute, a conclave of the dentists was not arranged.
[46]
Controversy as to the cause of the rupture of breast implants
The opinion of Dr Roger Haddad to the effect that "it was very possible" that the plaintiff's breast implant ruptures had occurred as spontaneous ruptures arose because he noted that it was "fairly common" for implants to rupture after 10 - 15 years: Exhibit "C", p 20. In my view that opinion involved unwarranted speculation and did not give due weight to the traumatic effect of the plaintiff's fall. In that regard I prefer the more reasoned opinions, of Dr Sackelariou and Dr Choy.
Dr Haddad noted that the plaintiff's concern was due to the impact and she also had a concern over localised pain and discomfort in her breasts. Dr Haddad did not analyse the association between the fall and those symptoms. In my view, based on the plaintiff's complaints, the association was more than just merely co-incidental. The balance of probabilities indicates it was the impact of the fall that caused the breast implants to rupture which necessitated the subsequent remedial surgery. If this issue was the subject of a genuine dispute on the expert's evidence, the affected parties should have arranged a conclave between the opposing experts.
[47]
Controversy as to the cause for abdominal injury
The plaintiff had abdominal symptoms before her fall. Those symptoms gradually increased after her fall. The plaintiff suspected this might have been due to the rupture of her implants, however, there is no reliable basis in the evidence for concluding the plaintiff's abdominal symptoms due to adhesions and the need for surgery were in any way causally related to her fall. They were more likely to have been due to her previous abdominal surgeries. In any event, those symptoms were substantially alleviated when she underwent an appendectomy at which time the appendix was removed after it was found to be adherent to her bowel.
[48]
Controversy as to the plaintiff's physical complaints
The preponderance of the evidence indicates that the plaintiff's temporomandibular joint symptoms were precipitated by the fall when she impacted the pavement with her chin and face. Whatever the plaintiff's underlying jaw pathology might have been beforehand, any such pathology was not necessarily bound to render the plaintiff's TMJs symptomatic. I find that those symptoms would most probably not have arisen but for the force and trauma of her fall.
The plaintiff's neck pains, shoulder restrictions and difficulty lifting her arms have been documented by Dr Assem and Ms Windle without challenge. Furthermore, Dr Harrington also analysed the plaintiff's neck, TMJ, knee and musculoskeletal complaints to be directly related to the fall.
The parties did not arrange a conclave to try and identify the basis for the differing opinions. Again, in conformity with authorities already identified, I must therefore do the best I can on the evidence, starting with the proposition that none of the plaintiff's subjective complaints of disability have been identified in the evidence as being inherently improbable.
In my assessment, the critical views expressed by Dr Zeman have been inadequately reasoned in that they were based only on objective signs, which I infer he reached without due regard to the significance of the chronological evolution of the plaintiff's subjective complaints.
In light of those circumstances, and taking into account Dr Zeman's focus on the proposition that the plaintiff's soft tissue complaints "were not listed in her ongoing disabilities" (despite being set out in medical evidence he had reviewed) indicates he has pursued a misdirected analysis. I therefore do not accept Dr Zeman's opinions which argue for a rejection of a causal relationship between the plaintiff's physical complaints and the subject fall. I find to the contrary of his opinions in that regard and prefer the opinions of Dr Assem, Dr Harrington and Ms Windle.
[49]
Differing psychiatric opinions
The preponderance of the medical evidence is that the plaintiff has suffered depression and an increased level of anxiety since her fall. This occurred against a pre-existing tendency to anxiety. This was contemporaneously documented in the notes of her general practitioner, her treating psychologist, and the other practitioners who have treated her, as is chronicled in sub-paragraphs (1) to (27) of paragraph [122] above.
Following her fall the plaintiff experienced difficulties with sleep and with concentration, she was embarrassed at her altered appearance, she lost confidence in dealing with customers in her work, she experienced frustration and suicidal ideation, and her pre-existing predisposition to worry and anxiety has been exacerbated. She has developed depression and an adjustment disorder.
Dr Rastogi undertook a detailed review of those complaints and related them to the accident in a causal way, as summarised at sub-paragraph (21) of paragraph [122] above.
In my opinion, Dr Parsonage's contrary view to the effect that the plaintiff's psychiatric problems, including her adjustment disorder and depressed mood, involved a 3-month exacerbation of her generalised anxiety disorder, where she no longer suffers stress from the accident, represents a superficial and artificial analysis which should not be accepted.
The logic of Dr Parsonage's analysis was that the plaintiff's ongoing stress relates to the plaintiff having moved to live with her mother and on account of her recent breast cancer diagnosis. In my view that analysis is oversimplistic and does not give due weight to the ongoing psychological and physical effects of the fall which dramatically affected her mental health in an adverse way: T55.25. She moved to live with her mother for injury-related financial reasons which was an accident-related stressor. The breast cancer diagnosis was simply a supervening vicissitude that emerged post-injury and which did not break the chain of causation. In my assessment, neither of those factors operate to cancel out the effect of the plaintiff's accident-related depression and adjustment disorder, and the exacerbation of her pre-existing anxiety.
For those reasons, I prefer the historical records of a diagnostic nature as noted by the plaintiff's treating practitioners and the more reasoned analysis of Dr Rastogi to the more limited and artificially constrained opinions of Dr Parsonage.
[50]
(12) Disabilities that remain
I have found the plaintiff to be a credible witness. Therefore, in combination with her oral evidence, I propose to treat the medical histories as recorded by the assessing practitioners as set out in the unchallenged content of the medical records and reports that have been tendered as evidence of her post-injury disabilities: Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369, at [75]; Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995 (NSW).
I find that the plaintiff's ongoing fall-related physical disabilities comprise surgical scarring following her remedial breast surgery and mastopexy, her temporo-mandibular joint problems including pain and clicking during use, her headaches, her neck and shoulder discomfort, her difficulty lifting weights more than 10kgs, her right knee discomfort and clicking on certain movements, her difficulty standing for prolonged periods, her back and left foot problems, and her reduced mobility and walking, which causes her to experience back pain, as described by Dr Harrington, Dr Assem, Dr Lim, Dr Choy and Dr Sackelariou. After the fall, for a time the plaintiff was apprehensive about cleaning her teeth because they were causing her pain. She also experienced difficulty in lifting her arms and this affected her ability to carry out some aspects of her personal care. I have accepted her evidence on all of those matters.
I find the plaintiff's ongoing fall-related psychological problems to be as described by her treating practitioners and Dr Rastogi. The plaintiff felt that from a psychological perspective, she quickly went "downhill" after her fall. Her mental health deteriorated dramatically and she needed to medicate, which caused her additional problems. She was crying a lot and needed to be referred for psychological and psychiatric help. The plaintiff's problems comprise an exacerbation of her pre-existing generalised anxiety disorder, depression, an episode of suicidal ideation requiring in-patient treatment, loss of confidence, reduced motivation, anhedonia, emotional dysregulation, sleep disturbance, impaired wellbeing, and an adjustment disorder. These problems made her emotionally vulnerable to other adverse events. She needs psychological treatment for those problems. I have also accepted her evidence on those matters.
[51]
(13) Effects on plaintiff's employment
At the time she was injured the plaintiff was on her way to an interview for employment in an assistant managerial position in a retail dress shop that was a retail concession within a large department store. Although the plaintiff obtained the job she was seeking, the economic benefits of that position were relatively short-lived.
Previously, the plaintiff's employment was in a pharmacy as a shop assistant. She held that job for 8 years. She ceased that employment in November 2016 with the plan of opening her own business. That plan did not eventuate. She then worked a number of fill-in positions.
On 1 March 2017, the plaintiff was successful in obtaining the position she had applied for on the day of the accident. On 14 September 2018 she was also successful in advancing in that employment to take on the role of store manager for that retail concession. She took on that higher role only two months after she had surgery to remove her ruptured breast implants in June 2018: T116.25. In hindsight she considers she should not have taken that job but the factors which determined her decision to take it were, first, it was a natural progression for her to take that job that was otherwise within her ability, and secondly, she needed the extra money which went with that higher position.
By 15 July 2019 the plaintiff found she was not coping with the managerial role because her health had not improved and in the ensuing 6 to 8 months it worsened. She had the option of either resigning or stepping down from that role to take a lesser paid casual position in the store. In the circumstances, she took the latter mitigatory option.
In the plaintiff's role as assistant manager she had to unpack stock and move things around which involved significant lifting activity, in addition to attending to her retail customers. At the time she was medically restricted from lifting anything over 10kgs on account of her injuries. The operation on her breasts in June 2018 resulted in significant pain and discomfort and she could not lift her arms. It took her some 3 to 6 months to "feel half normal" following that surgery: T52.10.
At the time the plaintiff stepped down to her lesser role as a casual employee, she was not coping with the managerial role because of severe abdominal symptoms which she had experienced before the fall but which continued afterwards in a "heightened" form by July 2019: T101.7. Previously, between 21 March 2017 and July 2019, she had been working full time: T103.17.
[52]
(14) Effects on plaintiff's domestic capabilities
Before the plaintiff's fall on 2 February 2017, she was self-sufficient and was living in her own apartment where she was able to carry out all of her domestic activities without assistance.
The plaintiff makes no claim for the value of the past domestic assistance that has been provided to her by her son following her fall. The first defendant objected to evidence being called on the details of such assistance as it had not been particularised: T59.9. That evidence was allowed on the basis that it formed part of the plaintiff's history as to her disabilities and it was also relevant to an evaluation of the plaintiff's claim for future domestic assistance which had been particularised.
The plaintiff's son Evan de Roma started to provide the plaintiff and her mother with domestic assistance from when she moved into her mother's home in September 2019.
Mr de Roma used to visit the premises three to four times per week for about four to five hours at a time. Plainly, he was not providing domestic assistance for all of those 12 to 30 hours per week: T60.2. Some of that time involved family time. When he came, he had lists of tasks waiting for him. These visits seemed to have reduced to about two per week, and he would spend some three to four hours per time, or between 6 to 8 hours per week attending to listed tasks: T60.49 - T61.16. The tasks he performed included vacuuming, heavier items of housework (T61.16), moving suitcases and seasonal moving of clothing, turning mattresses, making beds and other tasks as assigned to him, such as carrying the groceries up from the garage: T104.33 - T105.14.
Mr de Roma expanded on the plaintiff's description of the tasks he had been carrying out on his visits. In addition to making the beds and vacuuming, and carrying groceries and lifting heavy bottles of water, he would bring in the washing from outside, change light bulbs, clean the bathroom, and move furniture: T119 - T123.
Plainly, the benefit of such assistance was evenly divided between the plaintiff and her mother, which meant that the past domestic assistance provided by Mr de Roma did not meet the statutory quantification threshold of 6 hours per week for 6 months as provided by s 15B of the CL Act.
[53]
(15) Mitigation
Neither of the defendants submitted that the plaintiff had in any respect unreasonably failed to take steps aimed at mitigating her damages.
[54]
(16) Plaintiff's most likely circumstances but for the fall
As the plaintiff claims damages for future economic loss it becomes necessary to record findings as to what her most likely circumstances would have been but for the effects of her fall: s 13 of the CL Act.
In my view, absent the exacerbating effects of the fall, the plaintiff's pre-injury history of a generalised anxiety disorder most likely would have continued to some degree, but it would most likely have been well managed and treated by her treating general practitioner as had been the case historically. In those circumstances she would most probably have continued to exercise her earning capacity in the retail sector, as she was doing, most likely in managerial positions for which she was plainly suited.
In those circumstances, she would have been subject to the ordinary range of the potential adverse vicissitudes of life, and would have been able, subject to those vicissitudes, including possible intercurrent illnesses, to continue to work until at least the normal retirement age of 67 years, if not further beyond that age.
I now turn to the consideration of the issues identified at paragraph [8] above.
[55]
Issue 1 - Ausgrid's criticism of plaintiff's pleaded case
As a preliminary matter, Ausgrid's written submissions raised a criticism of the plaintiff's further amended statement of claim to argue that, fatally, it failed to specifically plead the requisite elements required by the CL Act, citing Hunter and New England Local Health District v McKenna; Hunter and New England Local District Health Service v Simon [2014] HCA 44.
The substance of Ausgrid's criticism of the plaintiff's pleading was first, that it "fails to identify the precise risk of harm", thus justifiably and aptly invoking what was criticised in the dissenting judgment in the Court of Appeal in the case of McKenna as an outdated and inadequate style of pleading: McKenna v Hunter and New England Local Health District [2013] NSWCA 476, at [199]-[200].
In my view, whilst there was some force behind that complaint, in this particular case, the dictates of justice between the parties suggests that the appropriate time to raise that criticism was at an interlocutory stage, or at the outset of the hearing, and not at the conclusion of the case where the parties had conducted themselves on the basis that there was a pleaded case: s 58(2) of the Civil Procedure Act 2005 (NSW).
The substance of Ausgrid's second complaint about the plaintiff's pleading, as I apprehend it, was that the manner in which the case was pleaded, with a common set of particulars of negligence alleged as against both remaining defendants, this operated to obscure the task of correctly identifying the relevant risk of harm and therefore the scope of the duty of care owed by the respective defendants, and as against Ausgrid in particular: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [59].
Whilst there is also some force behind that complaint, I must have due regard to the way in which the case was fought by the parties, where this point was not raised at the outset, and where Ausgrid has taken a position and responded to the plaintiff's case by gathering and tendering documents, calling a senior employee as a witness, and cross-examining the plaintiff's expert witness: s 58(2) of the CP Act; Leotta v Public Transport Commission of NSW (1976) 9 ALR 437, at 446.
It is generally accepted that ordinarily, pleadings should define the issues, and in cases where negligence is alleged, the particulars should mark out the areas of dispute, but if the evidence goes beyond the particulars (without objection) the particulars should be amended. However, if that does not occur, this will not necessarily preclude entry of a verdict upon the facts that have emerged: Dare v Pulham (1982) 148 CLR 658, at 664; [1982] HCA 70; Water Board v Moustakas (1988) 180 CLR 491, at p 497; [1988] HCA 12.
[56]
Issue 2 - Relevant risk of harm
It is accepted that the preliminary consideration for an application of s 5B(1) of the CL Act to the facts of this case when determining whether negligence has been established, necessitates identification of the relevant risk of harm at the appropriate degree of generality.
The reason that the identification of the risk of harm is important in cases such as this is because it frames the way for an understanding of what each defendant ought to have done in terms of taking precautions to avoid the "not insignificant" risk of harm from eventuating, adapting what was said about pleadings in Dare v Pulham, at p 664, with the more specific statutory requirements of s 5B(1) of the CL Act.
The identification of the risk of harm involves enquiring into the mechanism or circumstances that gave rise to the potential for the harm which bases the plaintiff's claim for damages in respect of the injury at the appropriate level of generality, where there is no universally correct formulation of the risk to suit all cases: Tapp v Australian Bushmen's Campcraft & Rodeo Association Limited [2022] HCA 11, at [106]; Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60], [62]; Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90, at [98]; Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320, at [118].
The plaintiff's submitted formulation of the relevant risk of harm was that a person in her situation, namely a pedestrian, would trip as a result of having their foot clipped by either the metal frame of the pit lid, or by the concrete that surrounded that structure: T214.15 - T214.24; T218.33.
The first defendant Council submitted that the relevant risk of harm may be defined as the risk of tripping over an improperly positioned pit lid: T240.11. The first defendant did not accept that it should be seen to be the risk of tripping over a lid that was located at a lower level than its frame: T240.45.
On behalf of the fourth defendant, Ausgrid, the identification of the risk of harm was approached tangentially, as referred to in the consideration of Issue 1 above. In that context, Ausgrid's submissions proceeded on the basis of a recognition of a trip hazard being "a raised edge of the footpath adjacent to a metal lid that was not sitting properly on the pit."
[57]
Issue 3 - Duty of care, scope and content
There is no dispute that both the Council and Ausgrid were relevant occupiers of the portion of the footpath surface where the plaintiff's injury occurred. The duty owed by occupiers pre-supposes that a reasonable person in the position of the plaintiff would take reasonable care for their own safety when walking on the public footpath.
As occupiers of the particular portion of the footpath, the defendants owed members of the public a duty to take reasonable care with regard to the maintenance and repair of defects on the surface of the footpath where such defects posed a foreseeable risk of injury that could have been avoided by the exercise of reasonable care: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, at p 488; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, at [13], [18]; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [45].
In the consideration of the scope and content of the duty of care owed, it is of some significance to observe that Ausgrid inherited the pit and its lid in the location where it was situated within the structure of the footpath surface. The significance is, as Ausgrid's submission pointed out, that there was nothing about the structure of the pit and its lid which specifically required repair. There was no evidence the structure was in a state of disrepair at any relevant time.
In my view, in this context, it is also important to recognise that the difference in height between the pit lid surface and the frame in which that lid was seated, where the frame sat proud of the surface level of the lid, was of longstanding origin. It was not a circumstance that was created by Ausgrid. That said, in my view, Ausgrid ought to have been aware of that difference in surface heights from earlier inspections of its asset, if such inspections had been carried out properly.
The same conclusion should apply to the Council as occupier of that general area of the footpath, assuming there had been a prior inspection carried out by the Council. However, that latter assumption has not been proven in this case.
In my view, if Ausgrid or the Council had properly inspected the site, the height differential between the lid surface and the top of the frame within the footpath surface would have been readily observable to someone tasked to consider safety implications. This would have raised the question of what if anything should be done about that height difference in the discharge of the duty of care owed to the users of the footpath.
[58]
Issue 4 - Breach of duty of care
The question of breach of duty of care as it relates to each defendant must be determined by reference to elements within s 5B and s 5C of the CL Act. The task is to ascertain whether the evidence, as framed by the particulars of negligence alleged, satisfactorily engages the elements within those statutory provisions.
[59]
Particulars of negligence
In making her claim of negligence against each of the defendants, the plaintiff relied upon the following particulars of negligence as against each:
1. Failure to exercise reasonable care.
2. Placing the plaintiff in a position of peril.
3. Failure to properly and routinely inspect the footpath at the accident site.
4. Failure to keep the accident site in a reasonable state of repair.
5. Failure to ensure that the footpath at the accident site had an even height and sat flush.
6. Failure to repair the footpath at the accident site.
7. Failure to erect permanent fencing or other barricade around the raised edge of footpath at the accident site.
8. Failure to paint a warning as to the raised edge of footpath at the accident site.
Of those particulars, in my view, particular (a) is too wide and generally formulaic to have any specific factual meaning, particular (b) lacks specificity in that it does not identify the peril alleged, whereas particulars (c), (d), (e), (f), (g) and (h) are capable of factually engaging with an assumed duty of care.
[60]
The duty of the plaintiff
Any analysis of whether the occupiers of the area where the plaintiff fell had breached their duty of care pre-supposes that the plaintiff acted with self-care in mind, and in a manner that would be expected of a reasonable person in her circumstances. This proposition will be taken up in the consideration of Issue 6 concerning alleged contributory negligence.
[61]
The duty of the defendants
As both defendants were occupiers of the area of the footpath which comprised the pit lid and the frame in which it was housed, the exercise of the duty to take reasonable care required of both defendants was that they each made appropriate periodic inspections, and that they took appropriate steps to ensure the area was maintained in a reasonable state of repair, including ensuring the surface was even and flush with the surrounds, or if achieving flushness with the surrounding area was not possible, then the duty extended to providing an appropriate means of warning pedestrians that the site may be a trip hazard, thereby alerting them to the need to exercise particular caution when walking there.
The Council and Ausgrid had coinciding duties of care in only a limited sense because the pit lid formed part of the walking surface of the footpath. In that sense, both the Council and Ausgrid ought to have had the safety of that surface in its contemplation with regard to assessing and responding to the risk of harm posed to pedestrians.
The evidence does not establish that the pit lid, or its housing frame, or the surrounding concrete, was in a state of disrepair that required any form of remedial repair. In my view, the fact that the housing frame was flush with the surrounding concrete indicates the structure was not in a state of disrepair.
Furthermore, the fact that the pit lid, when inspected by Mr Russo five days after the plaintiff's fall, could be repositioned to sit properly in its frame with the surface of the lid still being in a sunken position below the level of concrete footpath surface, indicates that the sunken level of the metal pit lid was not due to a state of disrepair or subsidence, but was instead, a feature of its design and construction.
On that analysis, the plaintiff's case alleging a failure of maintenance and repair, and related non-barricading or non-warning of the risk, must be seen to have its true focus on the comparative non-flush or uneven nature of the surface at the point where the pit lid and its frame was in close juxtaposition to the surrounding concrete footpath.
On the basis of the foregoing analysis apart from the limited common duty identified at paragraph [210] above, the respective duties of care owed by each defendant were not identical.
[62]
Legislative provisions: s 5B and s 5C of the CL Act
Section 5B of the CL Act provides:
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless -
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
Section 5C of the CL Act provides:
5C Other principles
In proceedings relating to liability for negligence -
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
[63]
Consideration of the claim against the Council
In my opinion, for the reasons that follow, on the evidence adduced, the plaintiff has been unable to sustain her claim against the first defendant Council.
The evidentiary flaw in the plaintiff's case against the Council is that there is no answer to the essential question of what if anything the Council either knew or ought to have known of the existence of a trip hazard at the location where the plaintiff fell.
To establish a claim of negligence all elements of s 5B(1) must be proven. It is not sufficient to show the risk of tripping was foreseeable (s 5B(1)(a) of the CL Act), and "not insignificant" (s 5B(1)(b) of the CL Act), thereby requiring the taking of precautions such as providing a warning to pedestrians such as by applying paint to highlight a height differential in the respective surfaces: s 5B(1)(c) of the CL Act.
In my view, in the plaintiff's case against the Council, an essential prerequisite for making a negligence finding has not been established in that the Council's state of knowledge of the height differential in question, whether actual or imputed, has not been the subject of evidence, either as to actual knowledge on the Council's part or knowledge that should be imputed to the Council by reason of the circumstances. A claim of negligence cannot be sustained in the absence of that evidence: s 5B(1)(a) of the CL Act. The plaintiff's case against the Council must therefore fail.
[64]
Consideration of the claim against Ausgrid
In my view, for the reasons that follow, the plaintiff's claim of negligence by the fourth defendant, Ausgrid, has been satisfactorily demonstrated when that claim is tested by the application of the 10 identifiable template considerations required by s 5B and s 5C of the CL Act.
[65]
Foreseeability
First, the risk of harm from Ausgrid's perspective, namely the risk of injury from tripping, was foreseeable, as is evident from Ausgrid's document entitled Ausgrid Maintenance Standard, as identified at paragraphs [60] to [62] above and the related SAP records: s 5B(1)(a) of the CL Act, where the focus of that Maintenance Standard involved consideration of safety from multiple perspectives.
[66]
Significance
Secondly, the risk of a person tripping whilst walking over an uneven component within the walking surface of a footpath must necessarily be seen as being a risk of harm that is "not insignificant": s 5B(1)(b) of the CL Act. This risk was plainly within the contemplation of Ausgrid as is evident from its Maintenance Standard.
[67]
Precautions
Thirdly, in my view a reasonable person in the position of the occupier, whether it be the Council or Ausgrid (in view of their overlapping interest in the site) would have taken the precaution of warning pedestrians by painting or applying lines on the raised surface in an obviously bright colour in order to draw attention to the trip hazard so posed: s 5B(1)(c) of the CL Act.
[68]
Probability of occurrence
Fourthly, the probability of the risk of a person becoming injured due to tripping at the site in question was variable and at times heightened according to pedestrian usage at different times of the day and the week. During times of peak usage such as when pedestrian traffic would be more crowded, for example, when walking amongst others, or in groups, towards a bus stop, the ability of mobile pedestrians to see a trip hazard ahead could easily become obscured by the density of pedestrian traffic. Therefore, an occupier burdened with the task of having to discharge a duty of care relating to the pedestrian safety would be required to make due allowance for such variable circumstances: s 5B(2)(a) of the CL Act.
[69]
Likely seriousness
Fifthly, if the suggested precaution of providing visible warning to pedestrians was not taken by Ausgrid, pedestrians could sustain varyingly serious injury, ranging from minor bruising or grazes to a more seriously disabling head or spinal injury: s 5B(2)(b) of the CL Act.
[70]
Burden of precautions
Sixthly, the burden of taking precautions against the identified risk of harm appears to be relatively small for an organisation such as Ausgrid which has many thousands of such assets embedded in footpaths, where it has employees and programs tasked with periodically inspecting and maintaining those assets according to an identifiable safety standard, and where Ausgrid has access to employees and contractors who are employed to perform maintenance tasks. In those circumstances it would be a relatively slight burden to equip such persons with paint pots and brushes or spray cans of coloured paint to facilitate making purposeful markings on footpaths, as is commonly seen in markings on footpaths. Similarly, the application of commonly seen wear-resistant strips, bituminous or other kinds of adhesive tape with yellow colouring embedded within it to attract the attention of pedestrians and warn them of the existence of the presence of a trip hazard: s 5B(2)(c) of the CL Act.
Measures of that kind should be seen as being reasonable, relatively inexpensive, and not burdensome, especially when compared with more extreme measures such as possibly replacing pit lids with a thicker construction to ensure flushness with the surrounds or covering pit lids with a layer of bitumen to achieve the same objective.
[71]
Social utility
Seventhly, the social utility of providing the public with a readily accessible electrical distribution network with strategically placed inspection and working pits is of high importance and value. However, those considerations do not justify neglecting the safety of pedestrians when traversing the areas of footpaths where such pits are placed. There is no social utility in permitting the continued un-remediated existence of trip hazards that expose pedestrians to injury on account of the social need to distribute electricity: s 5B(2)(d) of the CL Act. Ausgrid recognises this, as is evidenced by the safety focus of its Maintenance Standard.
[72]
Similar risks
Eighthly, the burden of painting or applying coloured warning strips or lines of paint around a foreseeable trip hazard associated with infrastructure embedded in a public footpath should not be seen as being a novel concept. Such measures are commonly seen in city and suburban streets in such situations, including around uneven surfaces, steps, guttering and works sites: s 5C(a) of the CL Act.
[73]
Alternative course
Ninthly, the precautions suggested in this case are seen commonly on footpaths and in connection with roadworks undertaken by public utilities. In that regard, as was explained by Dr Cooke, and on a common-sense analysis, a height discrepancy of 6mm or more should be seen as a trip hazard that merited a warning be given to pedestrians in the manner contemplated by particular (h) of the plaintiff's pleaded particulars of negligence, especially where maintenance and inspection staff ought to have identified and acted on a trip hazard of the kind identified in this case. Such precautions are not unique when considering the need to appropriately deal with trip hazards. These do not involve considerations of hindsight, but rather, they arise as a feature of the prudent and reasonable exercise of foresight: s 5C(b) of the CL Act.
[74]
Subsequent actions
Tenthly, in this case there is no need to consider the significance of any actions taken by Ausgrid that occurred after the plaintiff's injury as no evidence was directed to that question: s 5C(c) of the CL Act.
[75]
Conclusion as to negligence
On the foregoing analysis involving the requirements to be considered on an application of the CL Act, I find that the plaintiff's claim of negligence against Ausgrid has been satisfactorily established.
[76]
Issue 5 - Causation
To establish that her injuries were caused by negligence as alleged, the plaintiff must satisfy the requirements of s 5D of the CL Act: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32].
[77]
Legislation: s 5D of the CL Act
Section 5D of the CL Act provides:
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements -
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent -
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
[78]
Consideration and conclusions as to causation
As the plaintiff has not succeeded in establishing that the Council was negligent, a causation analysis as against the first defendant does not arise for further consideration. The causation analysis which now follows therefore relates to the plaintiff's case against Ausgrid.
On the question of factual causation, I find that if the plaintiff had been warned of the existence of the trip hazard by the application of paint or some similar warning having the effect of drawing attention to a height differential within the walking surface of the footpath surface, she would most probably have seen and heeded that warning, and avoided stepping on or over any area of unevenness, and she would have taken special care not to trip. I do not accept Ausgrid's contrary submission to the effect that the plaintiff would most likely not have seen or heeded such a warning if it had been present and visible at the scene.
As the absence of a precautionary warning along the lines suggested was due to Ausgrid's negligent omission, and because such negligence was a necessary condition for the plaintiff's injury, I find that the plaintiff would not have tripped, fallen, and sustained injury: s 5D(1)(a) and s 5D(3)(a) of the CL Act; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32].
On the remaining question of the scope of liability, in light of Ausgrid's commercial activity as a public utility entity, I consider that it is only appropriate that its liability be extended to the circumstances of the plaintiff's fall because it had a system in place for the detection of maintenance and safety issues concerning its assets and I have found that the system was not followed: s 5D(1)(b) of the CL Act. There are no exceptional or exclusionary circumstances shown in the evidence, or as a matter of policy: s 5D(2) and (4) of the CL Act.
[79]
Issue 6 - Obvious risk
Ausgrid claims the plaintiff's injuries were incurred because of the materialisation of an obvious risk. Ausgrid carries the burden of establishing that defence: s 5E of the CL Act.
[80]
Legislation: s 5F, s 5G and s 5H of the CL Act
Section 5F of the CL Act defines obvious risk as follows:
5F Meaning of "obvious risk"
(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
There are statutory limitations on the availability of a defence of obvious risk: s 5G and s 5H of the CL Act.
Section 5G of the CL Act provides:
5G Injured persons presumed to be aware of obvious risks
(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
Section 5H of the CL Act provides:
5H No proactive duty to warn of obvious risk
(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
(2) This section does not apply if -
(a) the plaintiff has requested advice or information about the risk from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff of the risk, or
(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
[81]
Submissions as to obvious risk
Ausgrid's obvious risk defence was based on the proposition that the pit lid was "an ordinary pit lid sitting on an ordinary footpath", that did not require either a barricade or any painting around the pit lid to warn pedestrians of the existence of a height differential in the walking surface of the footpath that was available to pedestrians: T252.35 - T253.17.
Ausgrid also submitted that the plaintiff's case should fail because there was nothing about the way in which the pit lid appeared which would have constituted a hidden or concealed trap upon which unsuspecting pedestrians could trip whilst traversing the uneven surfaces within footpaths. It was further submitted that such footpaths are encountered on an everyday basis as one walks around the urban environment: T261.50 - T262.4.
Those submissions are questionable, as will be explained in the consideration which now follows.
In support of those submissions, Ausgrid cited a number of decisions involving a defence of obvious risk where those cases were decided upon the basis of differing facts: T261.1 - T261.46. The differing facts which based those decisions emphasises the difficulty of taking such a general approach to the question of obvious risk.
Correctly, the plaintiff's reply to Ausgrid's submissions citing those cases where the facts were found to have justified the defence of obvious risk, was to the effect that those cases do not assist where the factual circumstances were materially different in each case: T271.30.
For example, in developing its argument, Ausgrid cited my earlier decision in Selby v Bankstown City Council [2013] NSWDC 84, at paragraphs [39]-[43]; [49]; [57]-[58]: T260.7 - T267.40. In my view, the material facts in that footpath case, where the plaintiff failed on the obvious risk issue, are distinguishable from the present case. In that case the unsuccessful plaintiff knew that there were areas of paving that were "bad in parts" in the area where she was walking, which in effect meant the area was something of an obstacle course. Therefore, in that case, the plaintiff could not claim the benefit of the exclusionary provision that disapplied the obvious risk defence: s 5G(1) of the CL Act.
The plaintiff submitted, correctly in my view, that on a factual basis, the question of whether an obvious risk existed was dependent upon the perspective from which one looked at the pit lid. This was in the sense that a close inspection at ground level would reveal a non-flush height differential of 10mm as seen by Dr Cooke.
[82]
Consideration of the obvious risk defence
The starting point for the analysis of whether or not the plaintiff's injury occurred due to the materialisation of an obvious risk is to objectively determine what should have been apparent to an ordinary reasonable person in the position of the plaintiff acting reasonably when walking in the vicinity of the pit and its lid on an approach to the bus stop: s 5F(1) of the CL Act.
It should be assumed that pedestrians should take precautions in the nature of self-care against obvious risks even in circumstances where there is a low probability of injury from tripping s 5F(3) of the CL Act.
The analysis should not be from the perspective of the trained investigatory eye of a professional observer with knowledge of the fact of the plaintiff's fall, such as Dr Cooke's perspective, or that of an Ausgrid maintenance patrol employee whose job it was to assess matters of risk and safety. An analysis along those lines would be misdirected.
Instead, the analysis must proceed on the understanding that such an ordinary reasonable person must be taken as knowing that obvious risks may not be on a prominent, conspicuous or physical display: s 5F(4) of the CL Act.
In this case, it should be taken to be common knowledge that for pedestrians, the existence of an uneven walking surface involving significant height differences within it, could constitute an obvious risk of injury from tripping: s 5F(2) of the CL Act. That said, I do not accept Ausgrid's submission that this particular pit lid was "an ordinary pit lid sitting on an ordinary footpath". Instead, the pit lid had an extraordinary height difference of up to 10mm between it and its surrounding frame and the surrounding concrete footpath surface.
In the circumstances, I consider that the ordinary reasonable person in the position of the plaintiff in this case could easily have had their attention divided between several concurrent activities whilst walking on the footpath as the plaintiff did.
The first such activity would have been to keep a lookout as to where he or she was placing feet when walking towards the waiting bus. The plaintiff did just that. She saw the pit ahead of her but from her perspective she just did not expect that it would trip her: T67.6. She was not good at estimating distances, but she saw it from a distance of 10, 20 or 30 feet: T64.39 - T64.46. She saw no height difference in the walking surface ahead of her as she approached, even though she would have been aware of the pit lid within the footpath surface. On her approach, reasonably in my view, she saw no obstacles or trip hazards in the path ahead as she approached the area where she fell.
[83]
Conclusion as to obvious risk
On the basis of the foregoing analysis I find that Ausgrid has failed to establish its entitlement to the liability sheltering effect of its claimed defence of obvious risk: s 5F, s 5G and s 5H of the CL Act. That conclusion leads to a consideration of Ausgrid's claim of a defence of alleged contributory negligence on the part of the plaintiff.
[84]
Issue 7 - Alleged contributory negligence
As I have found the first defendant Council does not have any liability to the plaintiff for her injuries, the onus of establishing the claim that the plaintiff was contributorily negligent as alleged rests on the fourth defendant, Ausgrid: s 5E of the CL Act.
[85]
Submissions
Ausgrid's contributory negligence submissions are based on a series of propositions, which are summarised as follows.
In my view, Ausgrid's first contributory negligence proposition was speculative and contentious and contrary to my findings. It asserted the plaintiff may have been running. This is where the plaintiff had only conceded that she was walking more quickly than her usual walking pace but not running. That evidence was not contradicted by other evidence. It was not inherently improbable. I have accepted that evidence.
Ausgrid's second contributory negligence proposition was that the plaintiff's attention was diverted towards the bus she was wanting to board, and that she was not wanting to be impolite by making the passengers on the bus wait for her as she made her way to the bus. In my view that proposition overstates the effect of the circumstances, as I have found at paragraph [267] above. In my assessment the plaintiff was intermittently dividing her attention between looking where she was going and glancing at the bus. This did not amount to a state of continued diverted attention, which was the thrust of Ausgrid's submission.
Ausgrid's third contributory negligence proposition was that the plaintiff was carrying objects in her hands. In my view, the fact that she was carrying things, such as a handbag, has no causative bearing on the allegation of contributory negligence. There is no credible evidence to suggest that her attention was distracted by what she was carrying in her hands. Ausgrid cannot satisfy the mandatory requirements of s 5B(1) of the CL Act in that regard.
Ausgrid's fourth contributory negligence proposition was that her attention was so diverted that she would not have noticed markings around the pit, or would not even have noticed a fence in her way as she proceeded towards the bus. That proposition is flawed not only on the basis of an assumed but overstated assertion of diverted attention as explained at paragraphs [267] and [276] above, but also because the suggestion that she would not have noticed any warning markings was not pursued to the point that would justify that submission.
The cross-examiner's question on that topic was not the subject of a sufficiently reliable verbal response and that matter was not the subject of follow-up questions, as is apparent from the following extract of the evidence, where the cross-examination moved on to a different topic:
"Q. A painted line on the ground would not have been something that you would have noticed?
A. (No verbal reply)
Q. A fence, unless it was significantly high would not have been something that you would notice and ordinarily not something that you would expect to have--
A. No.
Q. --on a footpath?
A. Yeah.
Q. In addition to the GP's note that records that the fast walk was a run, you then went and saw Dr See, I think you saw Dr See for the first time after the accident in June 2017, does that sound right?
A. That's correct."
[T112.1 - T112.15]
[86]
Legislation: s 5B, s 5C, s 5R and s 5S of the CL Act
To sustain a finding of contributory negligence the defendants must also satisfy the requirements of s 5B, s 5C, s 5R and s 5S of the CL Act. Section 5R of the CL Act requires the application of s 5B and s 5C of that Act. Section 5R and s 5S provide as follows:
5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose-
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
Section 5S:
5S Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.
[87]
Relevant principles
Ausgrid's contributory negligence defence was founded and focussed on the uncontroversial proposition that the plaintiff, as a pedestrian, was required to exercise reasonable care for her own safety: Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29, at [5]-[6], [122], [163], [247], citing Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6, at [21]; Wollongong City Council v Williams [2021] NSWCA 140, at [8].
Uncontroversially, and unquestionably applicable to this case, s 5R(2)(a) of the CL Act picks up the common law test for assessing the standard of care relevant to contributory negligence, namely, the standard of self-care expected of a reasonable person in the circumstances in which the plaintiff found herself: Commissioner for Railways v Ruprecht (1979) 142 CLR 563, at 751-573. This standard was explained as the prospective expectation that a person should take as much care for themselves as they expect others to take for them: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [220].
That standard of care was more recently restated to be a question to be determined objectively by asking whether the plaintiff had taken the degree of care for her own safety that an ordinary reasonable person would have taken: Lloyd v Thornbury [2019] NSWCA 154, at [92]-[94], following Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139, at [54], [94].
The background to a consideration of s 5R of the CL Act is whether, according to the mandatory preconditions imposed by s 5B(1) of the CL Act, the plaintiff took the precautions that an ordinary reasonable person would have taken against the risk of injury: Gordon v Truong; Truong v Gordon [2014] NSWCA 97, at [14]-[15].
In the event that a finding of contributory negligence is to be made, there must be an apportionment according to what is just and equitable in the circumstances. This requires a comparison between the respective degrees of departure from the standard expected of a reasonable person in the circumstances and the relative importance of the actions or inactions of the parties in causing the damage incurred. This exercise requires an examination of the whole of the conduct of each negligent party in relation to the circumstances of the injury to determine the relative causative potency of their respective acts of negligence: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, at 494; [1985] HCA 34, at [10].
[88]
Particulars of contributory negligence
Ausgrid relied upon the following particulars of contributory negligence:
1. Failure to keep a proper lookout.
2. Failure to perceive and avoid an obvious risk.
3. Failure to take appropriate care for her own safety.
4. Failure to secure a proper foothold.
5. Failure to watch where she was walking.
6. Failure to act reasonably in the circumstances.
7. Failure to give due care and attention to her environment.
[89]
Consideration and conclusion as to contributory negligence
The consideration of Ausgrid's claim of contributory negligence requires an examination of the pleaded particulars of contributory negligence, followed by a reprised review of the facts relevant to that claim, and the identification of the material omissions which would base a Podrebersek analysis.
As to the particulars of contributory negligence identified at paragraph [290] above, in my view, particulars (a) to (d) and particular (f) are general and formulaic, and as such, they are not particularly informative for the specific consideration required of a contributory negligence defence.
The allegation that the plaintiff failed to watch where she was walking (particular (e) above), and the allegation of a failure to give due care and attention to the environment (particular (g) above), are relevant to the circumstances of this case in determining whether Ausgrid has established its contributory negligence defence.
As to the facts relevant to the consideration of contributory negligence, it is appropriate that I reprise a number of findings, as follows.
The first is that the plaintiff was not running at the time she tripped and fell. Secondly, the quick or faster than usual pace at which she was walking was nevertheless still a walking pace which of itself did not intrinsically suggest that she had placed herself in a situation of harm. Thirdly, the suggestion that the plaintiff was preoccupied with the need to avoid being impolite to the passengers waiting on the bus involves ill-founded speculation as the argued diversion of gaze within the impugned conduct was a continued diversion and it unwarrantedly assumes that the plaintiff's faster pace of walking was somehow inherently blameworthy such as to amount to a breach of her duty of self-care. Fourthly, the analogy of the plaintiff having successfully negotiated the gutter shortly beforehand is a problematic and false analogy as the terrain involved different considerations of height difference. Sixthly, the fact that she was carrying things in her hands is both unremarkable and irrelevant, absent any evidence that carrying such things had distracted her attention.
Those factual observations lead to a consideration of whether the plaintiff was truly inattentive to the circumstances to an extent that justifies a contributory negligence finding.
[90]
Issue 8 - Assessment of damages
My assessment of the plaintiff's damages follows the preliminary consideration of the plaintiff's most likely remaining life span.
[91]
Plaintiff's probable life span
The plaintiff has been undergoing and is yet to complete chemotherapy treatment for breast cancer, a life-threatening illness which was diagnosed on 23 February 2022.
Accordingly, the parties considered it prudent to jointly obtain expert evidence as to her likely remaining life span. To that end, they obtained evidence in the form of a joint expert report dated 10 June 2022 commissioned from Dr Annabel Goodwin, the plaintiff's treating oncologist, as has already been referred to at sub-paragraph (26) of paragraph [122] above.
In that report, Dr Goodwin expressed the opinion that the plaintiff's 5-year statistical survival prediction is between 90 and 97 per cent, with her statistical 10-year survival prediction being between 75 and 93 per cent.
On the basis of that evidence, I consider it more probable than not the plaintiff's remaining life span is more than 10 years, and sufficiently similar to a normal life expectancy such that her damages should not be discounted by more than a slightly higher than conventional discount rate of 20 per cent for potential adverse vicissitudes: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, at pp 642 - 643; [1990] HCA 20.
I now turn to the assessment of the particular heads of damage that are claimed.
[92]
Non-economic loss
On behalf of the plaintiff, it was submitted that her damages for non-economic loss should be assessed pursuant to s 16 of the CL Act at 35 per cent of an extreme case. In contrast, the defendants submitted that the plaintiff's non-economic loss should be assessed at 20 per cent of a most extreme case.
The required assessment task, which involves the application of a statutory artifice, is an invidious but necessary evaluative exercise in which the plaintiff's injured circumstances and the impairments which followed her injuries must be ascribed a percentage for her injury-caused impairment and a loss of the enjoyment and the amenity of her life when compared to the statutory standard of "a most extreme case".
The factors that I consider to be relevant to that assessment comprise the plaintiff's pre-injury level of functioning, as described at paragraphs [171] to [173] above, the nature of her injuries, her medical treatment, her remaining disabilities, and the effects that those matters have had on her life (as described at paragraphs [151] to [169] above), including the circumstance of her recent supervening diagnosis of breast cancer, for which she is presently receiving treatment.
Of particular importance is the plaintiff's post-injury changed psychological status. Her pre-injury generalised anxiety disorder, which was being well managed before her injury, has been overtaken by a much more disabling depression and adjustment disorder, and her previous anxiety levels have materially changed. She could ill-afford those changes to her situation, and those changes, along with her injury-related physical problems have materially and significantly altered the amenity and enjoyment of her life.
In my view, the supervening event of the plaintiff's breast cancer, which in reality is a crystalised adverse contingency, should only have a limited reducing impact on the assessment of damages for non-economic loss. This is because it arose in February 2022, some 5 years after her injury, where in that time she has been significantly and adversely affected by her identified disabilities, the effects of which still continue.
It is recognised that contingencies can be positive or negative in their impact. Absent compelling evidence to the contrary, an intervening or supervening event, in this case breast cancer, does not necessarily break the chain of causation of loss. Accordingly, except in circumstances where there is satisfactory scope in the evidence to discern a starkly defined significant differential effect on longevity, a supervening injury or illness does not necessarily reduce the damages that call for assessment due to the earlier compensable event, other than by way of a contingency to be taken into account; Faulkner v Keffalinos (1971) 45 ALJR 80, at p 85; Baker v Willoughby [1970] AC 467; [1969] UKHL 8; DMN Mining Pty Ltd v Barwick [2004] NSWCA 137, at [40]-[41].
[93]
Past economic loss
The plaintiff's claim for past economic loss comprises two components. The first involves the initial closed period when the plaintiff was unable to work after her injury. The parties are agreed that this particular component of economic loss should be assessed in the amount of $7200 net.
The second component of the plaintiff's claim for past economic loss extends to a further amount of $81,500 comprising a claimed weekly loss of $500 per week net over 163 weeks. That second period of loss is based on the premise that by July 2019, the plaintiff felt compelled as a result of her disabilities to step down to a lesser paid role to work as a casual employee rather than continuing to work as a full-time store manager. The claim is that this loss continued until the diagnosis of her breast cancer on 23 February 2022, when she stopped work whilst she pursued appropriate treatment.
The defendants did not accept the validity of that second component of the plaintiff's claim for past economic loss. That claim is examined in the paragraphs that now follow.
I accept that the plaintiff's physical and psychological disabilities as recorded at paragraphs [151] to [153] above have had a significant limiting and adverse effect on her ability to maintain her income and her earning capacity in her full-time managerial role, and as a result, the plaintiff's earning capacity was impaired from the time she relinquished that position.
I also accept that by July 2019, it was plain the plaintiff was not coping with her full-time work with the result that she had to step down to a part-time role. This was in circumstances where her physical limitations were limiting her ability to fully carry out the physical demands of her role, which was also causing some staff friction at her work.
Whilst these events were coincidental with the re-arrival of a former store manager at the plaintiff's workplace who wished to return to her former role, the plaintiff's action of stepping down, which in my assessment, was a reasonable mitigatory response to her disabilities at the time. This has led to her incurring a continuing loss of income from the end of July 2019.
However, at present, that additional period of loss must be seen to be limited to the period between July 2019 and 23 February 2022, which was when the plaintiff received her diagnosis of breast cancer and commenced treatment for that condition. That treatment has been debilitating and it has interrupted her ability to work. Therefore, her claim for loss of earning capacity remains suspended at that time whilst she completes her chemotherapy for that cancer.
[94]
Past loss of employer funded superannuation
On behalf of the plaintiff, it was submitted, correctly, that an allowance should be made for damages to compensate her for the loss of past employer funded superannuation benefits that would have ordinarily accrued on her probable past earnings if she had remained uninjured. In accordance with convention, this should be assessed at 11 per cent of the award of damages for past economic loss of $47,200, which yields the amount of $5192. I therefore assess the plaintiff's damages for past loss of employer funded superannuation benefits in the sum of $5192.
[95]
Future economic loss
On behalf of the plaintiff, it was submitted that her damages for future economic loss should be assessed in the sum of $197,050. That submission had two components.
The first element of that claim was based on a submitted projection of $500 per week net on the 5 per cent tables over the likely remaining years of her working life, namely a further 8 years (x 345.6), less 15 per cent for potential adverse vicissitudes. The plaintiff submitted that an additional component of a buffer amount of $50,000 should be added on account of an assumed need for the plaintiff to take an early retirement as a result of her injuries. There was only meagre evidence for that latter proposition. In contrast, the defendants submitted that there should be no award of damages for future economic loss.
In my opinion, for the reasons that follow, neither of those submissions should be accepted
In my opinion, Ausgrid's future economic loss submission fails to pay due regard to the impact of the plaintiff's accident-related and work-limiting disabilities as summarised at paragraphs [151] to [169] above. I consider those disabilities not only continue to impede the plaintiff in the exercise of her earning capacity, but they are also most likely to be productive of economic loss once the plaintiff completes her presently ongoing chemotherapy treatment for her breast cancer which was diagnosed in February 2022.
In my opinion the plaintiff's future economic loss submissions insufficiently reflect the continuing degree of uncertainty as to what the plaintiff's state of health might be from a fitness to work perspective after she finishes her chemotherapy treatment, and those submissions insufficiently apply a discount for the potentially adverse vicissitude that she might be further limited in her earning capacity by the residual effects of her breast cancer treatment, where such potentially work-limiting effects have not been the subject of a comprehensively focussed evidentiary medical analysis.
Furthermore, the plaintiff's submissions do not adequately reflect the as yet uncertain date on which she might have recovered sufficiently from her chemotherapy and related hair loss to enable her to confidently resume work in retail, even in the lesser role she had when she left work to commence her treatment. Therefore, the starting point for the recommencement of the claim for future economic loss remains unknown.
[96]
Future loss of employer funded superannuation
On behalf of the plaintiff, it was submitted that damages for the loss of future employer funded superannuation benefits should be assessed at 12 per cent of the amount awarded as damages for future economic loss: 12 per cent of $80,000, namely $9600. I therefore assess the plaintiff's damages for future superannuation loss in the sum of $9600.
[97]
Future out-of-pocket treatment expenses
On behalf of the plaintiff, it was submitted that a buffer allowance should be made for future treatment expenses in the amount of $15,000. In contrast the defendants submitted that a buffer amount of $3000 should be allowed. Both of those sums seem arbitrary.
In my view, the plaintiff's ongoing accident-related disabilities of a physical and psychological nature as summarised at paragraphs [151] to [153] above, indicate that the plaintiff will continue to require significant and regular ongoing accident-related treatment and assistance in the form of general practitioner and specialist consultations, including psychological support, and an allowance should be made for the cost of prescribed medications. To reflect the uncertainty of the cost of those treatments I assess a discounted general buffer sum of $6000 for that lifetime cost. I therefore assess the plaintiff's damages for future treatment of out-of-pocket expenses in the sum of $6000.
[98]
Future domestic assistance
On behalf of the plaintiff it was submitted that there should be a combined buffer award of $50,000 for the value of both past and future domestic assistance. A difficulty which precludes an acceptance of that submission is that no claim for past gratuitously provided domestic assistance has been particularised and the defendants therefore justifiably object to any such allowance being made.
However, it is plain that the plaintiff's accident-related physical restrictions identified at paragraph [152] above, as also explained by her son, justify the making of a general allowance for future domestic assistance.
At present the plaintiff's son provides domestic assistance to the plaintiff and the plaintiff's mother. That gratuitous assistance cannot be presumed to continue indefinitely as her son has his own life to lead. In my view, it is therefore appropriate to make a modest buffer allowance referrable only to the plaintiff's needs on an intermittent commercial basis that will commence on an uncertain date when her son's assistance is likely to cease. I therefore assess the plaintiff's damages for future domestic assistance in the discounted buffer sum of $10,000.
[99]
Past out-of-pocket expenses
After some debate, ultimately the parties reached a series of conditional agreements on out-of-pocket expenses: Exhibit "J". The overall agreement was mathematical in the sense of an agreed total of $49,246.62. That amount comprised separate sub-totals for the following items:
1. $10,049 in respect of the plaintiff's dental treatment in the event of a finding that the plaintiff's injuries to teeth numbered 12 and 22 were causally related to the accident. Alternatively, in the event of a finding that only tooth numbered 22 was found to have been causally affected in the accident, the agreed cost of treatment was identified to be $5,024.50;
2. $24,324 in respect of breast surgery and ancillary expenses in the event of a finding that the plaintiff's breast injuries and subsequent removal of her breast implants were causally related to the accident;
3. $12,596.24 in respect of abdominal and gastroenterological issues in the event of a finding that the plaintiff's stomach, appendix and other gastroenterological issues were causally related to the accident;
4. $336.95 in respect of temporo-mandibular joint physiotherapy in the event of a finding that the plaintiff's jaw and temporo-mandibular joint problems were causally related to the accident;
5. $429.65 in respect of general practitioner consultations in the event of a finding that the plaintiff's claimed attendance on her general practitioner were causally related to the accident;
6. $1,510.78 in respect of psychological treatment in the event of a finding that the plaintiff's psychological treatment was causally related to the accident.
Those conditional agreements required causality findings, which now follow.
[100]
Dental expenses
The plaintiff fell on her face injuring her jaw and her teeth. Her initial observations of those injuries suggested her teeth were damaged. She sought dental attention for those injuries. As explained at paragraphs [127] to [136] above, I have accepted the opinions of Dr See and Dr Howe in relation to those dental injuries and their cost consequences in preference to the contrary opinions of Dr Short. I therefore assess the plaintiff's out-of-pocket expenses for dental treatment in the amount of $10,049.
[101]
Breast surgery
When the plaintiff fell, she did so forcefully hitting her chest on the pavement. Her breasts absorbed the shock of that sudden impact. Subsequent ultrasound examination of her breasts revealed bilateral silicone implant rupture had occurred which necessitated surgery for implant removal and related mastopexy, as explained by Dr Choy. I accept his unchallenged evidence in that regard.
In reaching that conclusion I have not overlooked the opinion of Dr Haddad which suggested the plaintiff's breast implant ruptures were possibly due to spontaneous degradation of those implants over time because of the length of time they had been in situ. I conclude that Dr Haddad's opinion in that regard involved unsupported speculation that did not meet the standard of reasoning for acceptance of expert testimony: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87]. I have therefore discounted that opinion and I have instead preferred the more contemporaneously-reasoned evidence of the treating surgeon, Dr Choy, based on the plaintiff's complaints to him at the time.
[102]
Abdominal and gastroenterological issues
As recorded at paragraph [139] of these reasons, I have found that the plaintiff's abdominal surgery for the gastrointestinal issues concerning her appendicectomy and the release of bowel adhesions was not causally related to her fall. Therefore her claim for the cost of that surgery in the amount of $12,596.24 should be disallowed.
[103]
Temporo-mandibular joint physiotherapy
The plaintiff claims out-of-pocket expenses of $336.95 for temporo-mandibular joint physiotherapy. In conformity with my findings at paragraphs [129] and [140] above, to the effect that her need for such treatment was fall-related, that claimed sum should be allowed.
[104]
General practitioner consultations
The plaintiff claims $429.65 for general practitioner consultations. Having regard to the chronology of those consultations in Exhibit "4", and the subject matter of those consultations, I find that this component of her claim should be allowed.
[105]
Psychological treatment
The plaintiff claims $1510.78 for psychological treatment by Ms Picciau, a clinical psychologist. Her notes of those consultations are comprehensive and serve as justification for that claim, which I allow.
[106]
Summary of findings on out-of-pocket expenses
In summary, I accept that the plaintiff has incurred the following out-of-pocket expenses due to the effects of her fall:
(a) Dental treatment $10,049
(b) Breast surgery $24,324
(c) Abdominal surgery $Nil
(d) TMJ physiotherapy $336.95
(e) General practitioner $429.65
(f) Psychologist $1,510.78
Total $36,650.38
[107]
I therefore assess the plaintiff's past out-of-pocket expenses in the amount of $36,650.38.
[108]
Summary of damages assessment
My assessment of the plaintiff's damages is summarised as follows:
(a) Non-economic loss $159,500
(b) Past economic loss $47,200
(c) Past loss of employer funded superannuation $5,192
(d) Future economic loss $80,000
(e) Future loss of employer funded superannuation $9,600
(f) Future out-of-pocket expenses $6,000
(g) Future domestic assistance $10,000
(h) Past out-of-pocket expenses $36,650.38
Total $354,142.38
[109]
Disposition
The plaintiff has established her claim in negligence against the fourth defendant but not the first defendant. The fourth defendant has established its contributory negligence defence which has been assessed at 20 per cent. The plaintiff's damages assessed at $354,142.38 must therefore be reduced by 20 per cent to $283,314.
[110]
Costs
As the plaintiff has succeeded in obtaining a judgment in her favour against the fourth defendant, she should have an order that the fourth defendant should pay her costs of the proceedings against that defendant. The first defendant's costs in respect of the plaintiff's unsuccessful claim against it should be paid by the plaintiff. Those costs should be on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.
[111]
Orders
I make the following orders:
1. Verdict and judgment for the first defendant on the plaintiff's claim against that defendant;
2. The plaintiff is to pay the first defendant's costs on the ordinary basis unless a party can show an entitlement to costs on some other basis;
3. Verdict for the plaintiff against the fourth defendant in the assessed amount of $354,142.38;
4. After applying the contributory negligence finding of 20 per cent, judgment for the plaintiff against the fourth defendant in the amount of $283,314;
5. The fourth defendant is to pay the plaintiff's costs of the proceedings against that defendant on the ordinary basis unless a party can show an entitlement to costs on some other basis;
6. The exhibits may be returned;
7. Liberty to apply on 7 days' notice if further or other orders are required.
[112]
Amendments
10 October 2022 - Image at paragraph [7] inserted
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: 10 October 2022
At the conclusion of the cross-examination of Dr Cooke as was undertaken on behalf of the first defendant Council, counsel reserved the right to further cross-examine him on receipt of further photographic material: T200.15. Ultimately, that proposed course was not further pursued.
In answers to questions posed to Dr Cooke in cross-examination by counsel for Ausgrid, Dr Cooke stated that:
1. in relation to an identified 6mm height differential, there should not be a dip, deviation or ridge of more than 5mm in terms of concreting specifications, which he referenced in Appendix D to his report: T201.22;
2. according to research, a 6mm difference in height should be seen to be the cut-off-point for deciding whether or not something is a recognised trip hazard: T201.42. He also identified the terms of some other more extreme research to the effect that a deviation of 1mm is sufficient for some pedestrians to trip: T202.3;
3. the raised portions on the metal checker-plate surface of the pit lid cover were estimated to be of the order of 2mm - 3mm in height: T203.22. Plainly, that was not intended to represent a precise measurement;
4. in his opinion, the WorkCover documentary guide linked to the Occupational Health and Safety Act 2000 (as it was then) also has general application to external surfaces as to cut-off points for identifying trip hazards in guiding traffic engineering practice: T205.20 - T206.15;
5. in his opinion, the photograph at page 96 of Exhibit "1" was misleading in its appearance because, on his inspection of the site, there appeared to be almost no misalignment between the concrete edge of the pit, whereas this particular photograph appears to show a slight difference: T207.4 - T207.18. That evidence emphasises the need for the exercise of caution in the interpretation of photographic evidence when making findings on disputed matters of fact;
6. the raised portions on the surface of the checker-plate lid were intended to minimise the slip hazard that would otherwise have been created by the presence of a flat steel surface. The extent to which this might be so seems to have been dependent upon the profile of a particular shoe sole: T208.20 - T208.30.
The above extract of Mr Casha's evidence, and his evidence generally, leads me to conclude that on factual matters in dispute concerning the products of inspection and maintenance carried out on the pit lid which is the subject of this case, the entries in the data within the SAP record system as tendered, provides only limited guidance to determining factual matters in dispute.
I have reached that view because it is not clear as to who had made some critical data entries recorded in Ausgrid's SAP system. Nor was it clear as to how contemporaneous and therefore factually accurate or reliable those entries are. This casts some doubt on the reliability of those records as a basis for determining matters of disputed fact, especially where the documents tendered do not necessarily capture all the relevant data because not all of the available dropdown menus within the SAP system were printed by Mr Casha.
Mr Casha had no personal knowledge of the requirements for the height or tolerance levels for paving around pit lids. He said that for such information he would have to refer to documents. In that regard, referring to the relevant document (Exhibit "1", Tab 5, p 81), he described the visual inspection process, which seemed somewhat subjective, as follows:
"…
A. So this is a document that the field crews utilise to do the inspection of the pit, and there's some actions there. And it's a visual inspection, and points 5, 6, 7 and 8 are the main ones when they do the visual inspection. So they see if the pit's obstructed, for example if someone's built over the top of it. They look at the pit surrounds, is it degraded, is there subsidence, or is the ground level. And they look for misalignment or impact damage. That means someone's driven over it. They also look for corrosion. In this case it was a steel cover, so they'd see the extent of any corrosion. So provided that's all okay, in the system they probably would have signed it off and said it's satisfactory. So in terms of the different tolerances, there's nothing mentioned in that."
[T137.15 - T137.25]
Mr Casha stated that on his understanding of Ausgrid's systems, the person carrying out a particular inspection of Ausgrid assets would sign off on that inspection based on a visual judgment made as to whether there was apparent compliance with the relevant Ausgrid maintenance standard: T137.31.
Mr Casha differentiated between the separate Ausgrid tasks of inspection and maintenance:T138.45. He said that in respect of this particular pit lid, the Ausgrid records show that inspections are carried out every 5 years, and that one was carried out on 27 January 2016 (T139.15; T162.15 - T163.13), but this was not followed up by any maintenance or repair work on the pit lid at that site: T138.41 - T138.50. He confirmed that Ausgrid's SAP system did not record the name of the particular person who carried out the inspection in 2016, unlike the record of the 2021 inspection: T139.10.
Mr Casha stated that an empty data field appearing within the screen shot documents (including any dropdown box menu accessed by the placement of a cursor by the operator) indicated that there was no corresponding document for the particular activity described in that field: T145.22 - T146.1.
Mr Casha explained that the Ausgrid records copied in Exhibit "1" were incomplete, as some parts of the SAP system have not been the subject of a print-out, for example, to follow through and identify the name of the person who had closed off the inspection job in 2016: T139.34 - T139.41.
Mr Casha described the whole SAP system as a notification record. He could not elaborate upon questions such as work orders other than to identify the SAP system as a means of booking a field crew, but this did not mean that field crew would "book to that order number": T146.10 - T146.42.
Mr Casha could not recall precisely when in July 2022 he had inspected the pit and pit lid in question in order to take photographs with his iPhone for the purpose of preparing for this case: T172.44 - T173.15; T150.47. He confirmed that the pit in question was as shown in the photographs appearing in Exhibit "1", Tab 11 and following: T147.2.
Mr Casha looked at the appearance of the pit lid and differentiated between the phenomena of the processes of corrosion and rust, describing the pit lid as being rust affected because the "galvanising had gone on it." (T148.17 - T148.28), and he said that this was not a structural problem: T148.42.
Mr Casha explained that his objective in taking the photograph represented at Exhibit "1", Tab 13, page 95, was to show that it was difficult to gauge the height differential between the actual lid and the frame upon which it is seated (T149.1 - T149.14), with the frame being level with the concrete surround and there being a difference between that level and the level of the checker-plate lid, which he subjectively described as being "a slight difference": T149.31 - T149.50.
Mr Casha explained that his purpose in obtaining the photographs of the pit lid taken in July 2022 (which are copied at pp 95 - 97 of Exhibit "1"), was to see if there was any hazard present: T151.19 - T151.27. He said that he took the photographs appearing at page 91 of Exhibit "1" to try and capture an image showing the difference in height between the lid and the frame of the pit: T153.6 - T153.13. That material was of limited persuasive value in view of the timing when it was obtained.
In any event, the photographic evidence must be viewed with considerable caution on the question of whether the height difference was a trip hazard on account of the well understood limitations on making fact findings based on the interpretation of photographs: Blacktown City Council v Hocking [2008] NSWCA 144, at [7]-[10], [167]-[170]; Angel v Hawkesbury Council [2008] NSWCA 130, at [69]-[72]; Warren v Gittoes [2009] NSWCA 24, at [2]-[3]; Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85, at [8], [20]-[29]; Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326, at [66]; Goode v Angland [2017] NSWCA 311, at [89]-[96].
Mr Casha's measurement of the identified height difference appears to have been variable, in that he said it was no more than 10 millimetres, and that an allowance should be made for 3 millimetres for the height of the walking surface of the checker-plate elements that were raised: T150.24 - T150.44. In that context, I did not understand those estimates to have been proffered as precise measurements.
Mr Casha perceived the pit lid frame and the surrounding concrete to be flush on visual inspection (T152.7 - T152.23), and said that the frame was seen to sit proud of the lid itself by about 10 millimetres: T152.35 - T152.46. He confirmed that no work had been done at that pit site since his visit in July 2022: T152. 33.
At 8.24am on 7 February 2017, Mrs Leanne Treasure, whose Council job description was that of a DWIS secretary, signed off on the completion of the Council's remedial action following the plaintiff's report. She made the following notation:
"This pit lid has been placed properly on pit completed 7 February 2017 (Mr G Russo - 7/2/2017) (Mrs L Treasure - 7/2/2017)"
[Exhibit "4", pp 79 - 80]
It remains ambiguous as to whether that note was meant to record that when Mr Russo inspected the lid it had already been placed properly on the pit or whether Mr Russo had found it to have been placed in situ incorrectly, following which he took the remedial step of properly placing the lid on the pit.
I infer from the evidence of Mr Casha, that the task of moving and then correctly positioning the pit lid cover required the insertion of specialised implements or keys in order to lift the lid as Mr Casha had described in his evidence: T147.48. The apertures for the insertion of those lifting implements are evident in the photograph copied at paragraph [7] above, and in the photographs taken by Mr Casha.
The Council's documentary record concluded with some incomplete data fields which made reference to "User ANONYMOUS 2013": Exhibit "1", p 80. That entry remained unexplained as the first defendant did not call any witnesses to give evidence, and there was no agreement between the parties on that matter.
The person or persons who made the two inspection entries referred to above were not called to give evidence.
Mr Casha stated that in relation to the form and the content on page 85 of Exhibit "1", if an Ausgrid inspector had found or had perceived a maintenance or repair problem to exist in the course of a visual inspection of the pit lid, he would have expected the SAP system to be the subject of a related notation for follow up for maintenance and repair. In stating that view, he acknowledged this was on the basis of an assumed opinion formed by the inspector to that effect: T144.18 - T144.34.
The plaintiff said, and I accept, that she was looking where she was going as she was walking (T65.46) and was conscious that the bus was waiting for her. The plaintiff agreed that she had started to walk "a little bit quicker" (but not running) because she did not want the people on the bus to have to wait for her: T109.36 - T109.50. She described her movement as being a fast walk: T110.3.
In those events she saw the pit cover some distance ahead of her on the footpath in the direction she was walking. There was nothing about the pit lid or its surrounds that would or ought to have attracted her attention at that time because from that distance, there were no readily apparent features which would have alerted her and put her on notice of the need to keep it under closer and more constant observation as she approached the bus stop. She said she looked at the footpath to where she was going and was not expecting the trip: T67.3.
I infer from the cited evidence of the plaintiff, and from the fact that her view of the path ahead, from eye level whilst walking, that it would have been difficult for her to discern any height differential between the pit lid surface and the surrounding frame and pavement. I consider that to have been so even when taking in the observations of her surroundings whilst she was making her way to the bus stop.
Neither party explored the question of whether there was any significant volume or density of other pedestrian traffic walking ahead of, or around the plaintiff, or whether there were any other distracting events or activity in a nearby location that might have obscured a more detailed or close inspection by the plaintiff of the pit lid and its surrounding structure as she walked towards and over that structure.
The plaintiff had not observed the pit cover to be "not properly in position". She could not recall precisely where she had placed her foot when she was walking over the pit cover. She had not observed the metal cover to be sloping downwards towards the direction in which she was walking and, there was no reliable evidence to suggest it was in that state. She was wearing flat non-healed closed-in shoes at the time: T110.21 - T110.27. In those circumstances she was concentrating on getting to the bus and she did not recognise the existence of a trip hazard comprising a height differential between the level of the pit lid and the surrounding frame and footpath: T111.5.
The clinical notes of the plaintiff's treating general practitioner for the period 13 June 2019 to 23 June 2020 were also tendered as a separate exhibit: Exhibit "C", pp 74 - 90. A significant part of those notes relate to the plaintiff's post-injury mental health issues concerning her experience of depression, anxiety, sleep disturbance, pain, impaired wellbeing, and impaired confidence and self-esteem. The records identified a series of 16 attendances on Ms Romina Picciau for psychological treatment of those problems.
In those circumstances, I must do the best I can to sort out the basis for the differences between the respective dental opinions in order to determine which opinions offer the more reliable guidance.
In approaching that task I consider that I should place determinative weight on the opinion of the treating dentist, Dr See, whose diagnosis and treatment was not relevantly called into question by Dr Howe. I therefore conclude that the preponderance of the dental evidence comprising the reports of Dr See and Dr Howe should be preferred to the contrary opinions of Dr Short.
I find that it was the fall in question which caused injury to the plaintiff's tooth 12 which then led to the need for the expensive treatment of that tooth and the other teeth identified by Dr See as requiring treatment. His contemporaneous observations must be given due weight: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32].
The plaintiff was under regular dental surveillance for tooth decay before her injury. In those circumstances, I find that it was the injury which made the difference to the prognosis of her teeth. But for that injury, and the fracture of the root of tooth 12, it was possible but unlikely that she would have needed her tooth 12 crown replaced, or the other treatment identified by Dr See.
At the time the plaintiff stepped down to work reduced hours, this coincided with some tension in the workplace because the previous manager whom she had replaced had returned to the store and this led to an uncomfortable situation: T106.18. This was at a time when the plaintiff felt unwell and she stepped down into the lesser role at work: T101.27.
On 19 September 2019, as a result of her reduced income and her decline in health, the plaintiff rented out her own apartment to manage her mortgage payments and moved into shared accommodation with her mother in her mother's apartment: T101.46 - T102.18.
The plaintiff continued in her reduced part-time casual role until 23 February 2022. She ceased work on that day in order to commence treatment for her breast cancer which had then been diagnosed. Her position currently remains open to her but she has not yet resumed her work pending the continuation of the cycles of her treatment which involves chemotherapy: T57.35 - T57.44. As a result she is receiving Centrelink benefits. In 2021 the plaintiff started receiving a carer's pension for assisting her mother with preparing her evening meals: T101.37 - T101.50. Those payments should not be seen to be mitigatory of her economic loss claim on account of their identifiable narrow focus. She is hoping to return to her part-time job after her recovery from her cancer treatment: T58.5.
The quantification of the plaintiff's claim for economic loss will be based on the economic documentation that has been tendered.
Returning to Ausgrid's complaint over the identification of the relevant risk of harm, in my view, the force of that complaint on that issue is in this case tempered somewhat, if not diluted by the current understanding that ultimately it is the role of the Court to review the evidence and identify the relevant risk of harm to an appropriate degree of generality that is not too precise: Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320, at [118]; Tapp v Australian Bushmen's Campcraft & Rodeo Association Limited [2022] HCA 11, at [106].
Ausgrid's submission as to the pleadings was that the starting point for the consideration of the plaintiff's case has been fatally obscured by the failure to clearly articulate the case sought to be made. In making that submission by reference to the identification of the risk of harm, the following further submissions were made:
"5.1 A proper pleading of risk of harm has been a feature of common law cases even prior to the introduction of the CLA. As explained by Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65, at 72B-D.-
"A court required to determine whether what the defendant did was wrong may approach the matter in terms not of generality but of particularity. The court is required to identify what is the thing which the defendants should or should not have done and to examine, in terms of reasonableness, the acceptability of it. Such an approach does not, of course, provided a "slot-machine test", that is, a test of the application of which without more a decision flows; the test of reasons involves a value judgment. "
5.2 Put simply a court is required to identify, with precision as distinct from generally, the thing that the defendant should or should not have done and to examine, in terms of reasonableness, the acceptability of it: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
5.3 It is first necessary to identify the relevant risk of harm so that each component of s 5B of the CLA may be determined by reference to it: Bunnings Group Ltd v Giudice [2018] Aust Torts Reports 82-402; [2018] NSWCA 144 at [38].
5.4 The only clue that the pleading gives as to risk of harm is at [4]. There it is pleaded that the "trip hazard" (as defined) presented a risk of harm to pedestrians.
5.5 The trip hazard appears to be defined in FASOC [3] as:
"a raised edge of the footpath adjacent to a metal lid that was not sitting properly on the pit.""
In my view, the submission suggesting identification of the risk of harm with precision, as was propounded, as distinct from generally, is not in conformity with the approach taken by the High Court in Tapp, at [106], as cited at paragraph [181] above, where generality was preferred over precision.
For the above reasons, I consider the time has passed for Ausgrid's complaint about the plaintiff's pleadings to be seen as a deciding point for the disposition of this case.
In my assessment, without obscuring the true scope of potential injury, the risk of harm may be conveniently identified as being injury that might occur from tripping whilst walking on an uneven surface of a footpath where the footpath surface comprised varied surface levels and textures, such as concrete and steel plate, where the levels of the walking surface were not all at an even level.
In my opinion in such circumstances, the duty on the occupier, being cognisant of the existence of that height differential, was to take reasonable common-sense precautionary steps to warn pedestrians of the risk of harm from tripping posed by that height differential.
That formulation of the scope and content of the duty of the defendants as occupiers engages with the particulars of negligence (g) and (h) as pleaded by the plaintiff. That formulation arises because of the existence of a measurable surface height difference of 6mm to 10mm between surface levels.
That said, particular (g) invoked the concept of fencing the pit for safety reasons. In my view, fencing or barricading around the pit would have been an impracticable measure to implement in the middle of a footpath and it could have given rise to other safety issues. This emphasises the relevance of taking the measure of applying a painted warning as envisaged by particular (h).
Ausgrid contends that the question of scope of duty, principally (if not exclusively), is to be resolved by reference to whether it breached its duty by failing to ensure the level of the pit lid sat flush with the pit frame (despite the very design of the structure allowing for there to be a height differential to stop the lid from sliding out of place). In my view, that formulation should not be accepted for two principal reasons.
First, there is no evidence of an intended slide prevention feature within the design of the pit lid as has been assumed by the above statement in parentheses. The under-surface configuration and appearance of the pit lid and the design mechanism by which it mechanically engaged with the frame to hold it in place was not the subject of specific evidence. Therefore, speculation on that matter is an impermissible analysis: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19, at 358; following Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, at 5.
Secondly, the cited contention by Ausgrid ignores the substance of the particulars of negligence (g) and (h) that raise allegations of a relevant failure to warn. This is particularly significant where Ausgrid's submissions (at paragraph 3.8), implicitly recognise but dismiss that element of the plaintiff's case that relies on the absence of a painted warning on the ground.
It is against that background that I now turn to the consideration of whether the plaintiff has established a relevant breach of duty of care as against the defendants, either together, or individually.
In that regard, as a preliminary consideration, it must be recognised that the Council, whilst being the occupier of the footpath, was not responsible for the location, positioning, design or manner of construction of the pit lid and its supporting metal frame.
The Council's duty must therefore be seen to have been dependent upon what it must be taken to have known about the condition of that structure. In my assessment, the state of the evidence does not illuminate that question as the Council's programme of inspection, if any, and the results of any such inspections, remain unknown because of that evidentiary hiatus.
In contrast to the position of the Council, Ausgrid's duty was based on an entirely different set of circumstances.
First, Ausgrid had a system of inspection and maintenance in place as explained in the evidence of Mr Casha, and identified at paragraphs [59] to [75] above, where the content of Exhibit "1", Tabs 8 - 10, pp 81 - 92, was examined.
Secondly, it had, according to Mr Casha, carried out at least one if not more pre-accident inspections of the pit, its lid and the surrounds, and on those occasions it would have been readily apparent to trained members of Ausgrid inspection patrols that there was a height differential between the metal surface of the pit lid and its surrounding housing frame which sat proud of the pit lid surface by some 8mm to 10mm. The actions or inactions of Ausgrid personnel must be viewed against those background circumstances.
Thirdly, as explained by Mr Casha, and as summarised at paragraph [30] above, if an Ausgrid employee tasked with inspection duties had determined on a visual inspection that one of its assets was in need of repair, its practice was to enlist one of its own contractors, or the Council, to carry out remedial works: T136.38 - T136.40.
This was a very different consideration compared to the observation that a reasonable person in the position of the plaintiff would make from eye level whilst walking on the footpath, where the latter circumstance did not involve carrying out an inspection of each segmented joint within the concrete surface of the footpath: T220.1 - T220.24.
The plaintiff further submitted that Ausgrid's submission which drew upon the absence of a claims history relating to Ausgrid's 10,000 similar pits had no bearing on the obvious risk defence in this case as there was no evidence of the age or state of those other 10,000 pits: T271.32. I accept that submission as apt in this case.
The second such activity would have been whilst walking, continuing to make at least periodic glancing observations of the waiting bus to determine whether he or she should maintain a faster than usual walking pace. The plaintiff did so. In those circumstances, I do not accept Ausgrid's conflated submission to the effect that she had her attention diverted to the bus out of polite concern not to keep the passengers on the bus waiting. The effect of that submission was that she would have maintained a continued diverted attention towards the bus. That is not how I read her evidence. She already knew from her earlier exchanged signals with the bus driver that he was going to wait for her so that, contrary to Ausgrid's submission, she would not have had a reason for maintaining a diverted attention towards the bus.
In the course of the plaintiff observing the path ahead whilst walking and looking to where she was placing her feet, intermittently glancing towards the bus, she could not have simultaneously maintained close attention to both of those visual tasks. That would have been the same for an ordinary reasonable person in her position at the time.
In those circumstances, absent any warnings drawing attention to a height differential within the available walking surfaces ahead, and absent any shadows that might have potentially been cast from differing heights (because it was midday at Eastern Standard Time), I find that the risk of tripping over the raised edge within the pit lid / footpath structures would not have been obvious to an ordinary reasonable person in the position of the plaintiff at the time as that person walked quickly towards the waiting bus.
The plaintiff said, and I accept, that she was in the circumstances unaware of the height difference, which if known, would have been a recognisable trip hazard. Consequently, I find that on the balance of probabilities she was not aware of the risk of tripping at the time she tripped, or during the lead up to the time she encountered that height difference before she tripped and fell: s 5G(1) of the CL Act.
In light of those findings, I find that there is no statutory disapplication of Ausgrid's duty of care owed to the plaintiff. A suitable warning should have been provided as to the existence of a trip hazard as particularised by the plaintiff: s 5H(1) of the CL Act.
As evidence of the plaintiff's contributory negligence, Ausgrid sought to illustrate its contributory negligence arguments by citing, in contrast, that the plaintiff was able to successfully navigate a height differential when she took a step over a nearby gutter that was located at a point just a few steps before she crossed the street. That comparison was problematic because it was based on a false analogy involving height differences.
Ausgrid ultimately submitted that it was the plaintiff's asserted inattention which was the sole contributing factor to the plaintiff's fall. On that basis it was submitted that the plaintiff should be held 100 per cent responsible for the consequences of her fall on an application of s 5S of the CL Act.
Those submissions will be examined in light of the applicable legislation, the related principles relating to contributory negligence, and the filed particulars of contributory negligence.
The starting point of that consideration is to record the observation that a momentary or fleeting inattention in the course of events does not necessarily lead to a conclusion that such inattention amounts to proof of contributory negligence. Something more is required.
As the plaintiff was not running and was just walking at a faster than her usual pace, that of itself does not sustain a conclusion that she failed to observe the need for requisite self-care when walking on an apparently level footpath.
The plaintiff conceded that she had noticed the presence and location of the pit ahead of her as she continued her approach to the bus stop. She was obviously concerned to reach and board the bus without delay. She had looked to where she was placing her feet but she did not notice the height discrepancy as she walked towards and over the pit lid to the point where she tripped. I have found that discrepancy to be a trip hazard. It was not obvious to her at the time.
On my assessment of the plaintiff's evidence as a whole on this topic, she most probably momentarily glanced away from the view of the footpath and its surrounds which were ahead as she continued to walk towards the bus instead of maintaining a more constant or a more frequently checked view of the component parts of the footpath surface on which she was walking.
In those circumstances, I find that an element of a lack of due self-care occurred on the plaintiff's part because as she approached the pit lid there was a need for her to consider whether the pit lid and its structure was a safe thing to walk upon as it may not have been a uniform area of uninterrupted pavement.
I find that in those circumstances, the plaintiff failed to observe the height discrepancy of the pit lid and its surrounding frame as it came into closer view at a time when she ought to have done so. Consequently, I find that she failed to take a required avoidant course, which resulted in her tripping on a trip hazard: s 5B and s 5D of the CL Act.
In those circumstances, although the plaintiff was in a general sense keeping a proper lookout, in that particular respect she failed to keep a proper lookout at the time she traversed the pit lid and its surrounding frame whilst she momentarily looked towards her destination which was further away. At that time, because she looked away she remained unaware of the existence of the trip hazard because it was not observable to her as being an obvious risk. In those events, I find that she was contributorily negligent: s 5B, s 5C and s 5R of the CL Act.
I also find that but for that inattention the plaintiff failed to take an avoidant course and this was a contributing cause to her injury: s 5D(1)(a) of the CL Act.
In those circumstances, an application of the cited Podrebersek test requires a relative comparison of the respective departures by the parties from the expected standards of care.
In my assessment, Ausgrid's negligence permitted the continued existence of a static danger in the form of a trip hazard that whilst not obvious, was nevertheless ever-present, and liable to cause unwary or unsuspecting pedestrians to trip.
In comparison, the plaintiff's own negligence was no more than a momentary instance of inattention whilst purposefully walking on a footpath designated for that purpose without having noticed any obstacles or trip hazards. Her omission was that she did not continue to look at the footpath and its components at the split-second time that she encountered the height difference in the components of the pit lid structure which caused her to trip and fall. This occurred at a moment when she should have been looking at the pit lid as a matter of self-safety.
In those circumstances, I consider that in terms of degrees of responsibility for the plaintiff's trip and fall, on account of the static nature of the circumstances Ausgrid had allowed to continue, Ausgrid's failure to take the precaution of providing an effective warning, was the more seriously causative departure from the expected standard of care. Therefore, the major share of the responsibility for the plaintiff's injury should lay with Ausgrid and the lesser share should lay with the plaintiff. The plaintiff was not in the situation of negotiating an obstacle course that required her to remain on a higher level of alert for dangers as she walked along the footpath towards a bus stop. Her failure to take the precaution of looking more closely at the pit lid was more momentary or fleeting.
In my assessment, the causative potency of the respective departures from the expected standards of care requires the just and equitable apportionment for the harm suffered by the plaintiff in her fall is 80 per cent apportioned to Ausgrid and 20 per cent apportioned to the plaintiff. I so find.
Taking into account the plaintiff's disabilities, earlier summarised, including a heightened level of psychological disability that goes well beyond her pre-existing well managed condition of a generalised anxiety disorder, and her ongoing physical symptoms, I consider that the appropriate assessment of damages for non-economic loss is 30 per cent of a most extreme case. This is the statutory equivalent of $159,500. I therefore assess the plaintiff's damages for non-economic loss in the amount of $159,500.
The period between the end of July 2019 and 23 February 2022 is, in rounded terms, the equivalent of 132 weeks. At the submitted rate of loss of $500 per week net, this amounts to $66,000. The combined total of those amounts is $73,200. The evidentiary basis for the claim of a loss of $500 per week is found in the economic loss documents tendered as part of Exhibits "C" and "D".
In my assessment it would be artificial and therefore excessive to award the total claimed sum of $73,200 as compensation for past economic loss because the plaintiff was, by July 2019, already experiencing some difficulty managing her full-time role and that difficulty was in part multifactorial, including her unrelated abdominal symptoms.
That said, I do not accept Ausgrid's past economic loss submissions, which are based only on the need for mitigatory breast surgery and the proposition that the plaintiff's other problems had resolved entirely without an ongoing impact on economic loss. The plaintiff's other post-fall difficulties, as found at paragraphs [151] to [162] above, take the plaintiff's economic loss claim well beyond that limited proposition advanced on behalf of the defendants.
In my view, in this case a discounted buffer amount would be the most appropriate method of compensating for economic loss in the period between July 2019 and February 2022. I assess that buffer in the amount of $40,000, to which the agreed sum of $7200 must be added. I therefore assess the plaintiff's damages for past economic loss in the combined amount of $47,200.
In those circumstances, I consider the most appropriate means by which to compensate the plaintiff for her fall-related, and difficult to assess future loss of earning capacity, is to award damages in the form of a discounted buffer sum: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72].
The buffer should not only reflect those identified uncertainties but also the possibility that the effects of the chemotherapy may have the result of an even further and unrelated reduction in her earning capacity. In those circumstances, I consider a buffer amount of $80,000 to be appropriate compensation. I therefore assess the plaintiff's damages for future economic loss in the buffer sum of $80,000.