Devic v AMP Capital Investors Limited [2022] NSWDC 371 | Case summary

Devic v AMP Capital Investors Limited [2022] NSWDC 371 | Case summary | Zoe

[3]

The Plaintiff's Evidence about her Fall

The essential facts of the case are not controversial. The defendant was not in a position to challenge the plaintiff's version of the occurrence of the accident itself, as no known person witnessed the plaintiff's fall. CCTV footage was tendered and viewed, but at the moment of the plaintiff's fall, the view was entirely obscured. The defendant did not challenge the plaintiff's account of the mechanism of her fall.
The plaintiff gave evidence that she had last attended the premises about eight months prior to the incident on 17 December 2019. It was not her usual shopping centre, and she had not often attended it. It is her case that when returning to the carpark to her car with her three children, one of whom was in a pram, she stepped onto what she believed was a crossing level with the footpath, but as the crossing fell away at the sides, she encountered an unexpected height difference which caused her to misstep and fall. She said that she decided to leave the shopping centre, and at T29.34 -44: - "So I've just made my order and I started walking out of the Casula Mall shopping centre towards the crossing and as I parked the car just where the crossing was the right-hand side was taped off and on the left-hand side, I noticed there was a "slippery when wet" sign. So, I was walking with the pram and my two children and walking towards the crossing, there was obviously another customer walking to Casula Mall shopping centre so obviously I veered to the left to let her pass by and I made my way towards the crossing. Once I made it to the crossing that's when I, I tripped or I kind of mis-stepped, from then I tried to get myself up once I put pressure on my left ankle I went down and that was when I fell to the ground with my knee first, elbow and then that's when the pain clicked."
At that point in time the plaintiff had a young child of about 11 months in a pram and her two other young children next to her. She said that she was looking straight ahead, and that "it looked even, like you could just walk straight across it".
Later in evidence she said (at T67.8): "I was walking towards the crossing. Once I entered the crossing and once I stepped with my left leg I noticed that my foot was in the air and once I dropped, I noticed the height difference. Once my foot landed my ankle rolled to the left."
There was other evidence that the plaintiff had used the walkway on previous occasions, that it was a relatively bright day and that about 10 minutes earlier, the plaintiff had traversed the same walkway in the opposite direction. In cross-examination she agreed that as she walked it was plainly obvious that the walkway fell away on either side. She agreed that it was the practice of her lifetime not to just look straight ahead, but also to look at the ground in case there was something you wanted to avoid.
Later that day, the plaintiff returned to the shopping centre to make a report to a security guard. She told him that she had come into the shopping centre with her three kids, "that I did what I needed to do, came out, made my way towards the crossing and mis-stepped and fell, the pain fell as well [sic], made my way to the car and advised him that I went home to call my husband home from work so that I can come back to the centre to make the statement." She said that she showed the security guard where she was injured - her grazed knee, her grazed elbow, and her swollen ankle. She showed him the exact path that she had walked towards the crossing. The security guard took photographs which are contained in exhibit 1. The incident report, which is consistent with the plaintiff's account, is also part of exhibit 1.

[6]

Occupier's Liability

This case concerns the obligations of an occupier to a lawful entrant onto its premises. It is admitted that the defendant was the occupier of the subject premises and that the plaintiff was a lawful entrant onto them. The defendant concedes that it owed the plaintiff a duty of care as a lawful entrant onto premises that it occupied and that the scope and the content of that duty of care comprised of a duty to take reasonable care to prevent foreseeable risk of injury to such entrants. I accept that this concession fairly states the law as set out in Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, adopting the comments of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662-663. I observe that in Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 at 292, Hayne J said: The occupier of land has power to control who enters and remains on the land and has power to control the state or condition of the land. It is these powers of control which establish the relationship between occupier and entrant "which of itself suffices to give rise to a duty…to take reasonable care to avoid a foreseeable risk of injury".
Furthermore, I adopt the formulation as set out by McColl JA in Schultz v McCormack [2015] NSWCA 330 at 73-74: As occupiers, the respondents owed the appellant, as an entrant to their home, a duty to take reasonable care to avoid a foreseeable risk of injury to her, on the premise that she was exercising reasonable care for her own safety. The duty included the obligation to take precautions a reasonable person in the circumstances would have taken by way of response to the risk [that a person may slip on tiles on the porch or the stairs]. The scope of the duty occupiers owe to entrants has been identified in numerous cases which reflect the latter premise, that is to say, the obligation of the entrant to take reasonable care for his or her own safety. Thus, it is emphasised that the occupier's obligation is one of reasonable care, not to make the premises as safe as "reasonable care and skill on the part of anyone can make them". It is not an insurer of entrants. What constitutes the exercise of reasonable care depends on the circumstances of each case. [footnotes omitted]
As Leeming JA observed in Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103 at 11: In assessing what reasonableness requires in response to a particular risk of harm, the reasonable person in the occupier position is entitled to take into account "with due allowance for human nature (that) a person he permits to be on his premises will use reasonable care and safety".
In Swain v Waverley Municipal Council (2005) 220 CLR 517, Gleeson CJ said at [5]: The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbour's keepers, but they are not their neighbour's insurers.
In Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512, Callinan J (with whom Gaudron, McHugh and Gummow JJ agreed) said at [355]: I would conclude that there was no failure [of the authority to exercise reasonable care] because the footpath was not, despite what the expert witness was allowed to say, unsafe…There was no concealment of a difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.
This matter falls to be determined pursuant to the provisions of the Civil Liability Act 2002 ("the Act").
In a civil proceeding, the court must find the case of the party proved if it is satisfied that the case has been proved on the balance of probabilities: section 140 of the Evidence Act 1995. The Dictionary of the Evidence Act defines "case of a party" as the facts in issue in respect of which the party bears the legal burden of proof.
It was agreed by the parties that the risk of harm in the present case is that of a customer, in the position of the plaintiff, stepping onto the crossing would misstep due to the presence of the height variation and suffer injury as a result. As the parties are agreed, I adopt their formulation.
The plaintiff's cause of action in negligence identifies nine particulars of breach of duty of care. They are expressed at a high level of generality, and (c), (d), (e), (g), and (i) appear to be the material alleged breaches. In any event, the following were pleaded: 1. failing to take reasonable care for the plaintiff's safety; 2. failing to ensure that the pedestrian areas within the premises were reasonably safe; 3. having in place a crossing which contained an unexpected variation in height; 4. failing to have undertaken any, or any adequate risk assessment of the variation in height of the said crossing; 5. failing to install bollards, fencing or some other barrier to prevent customers, such as the plaintiff, from walking onto the area of the crossing that was not level with the walkway; 6. failing to install bollards, fencing or some other barrier to prevent customers, such as the plaintiff, from walking onto the area of the crossing containing the variation of height; 7. failing to properly identify the variation in the height of the crossing; 8. failing to prevent customers, such as the plaintiff, from walking on the crossing which contained a variation in height; and 9. directing customers, such as the plaintiff, towards the area of the crossing containing the variation in height.

[7]

Breach of Duty: Sections 5B and 5C of the Act

When determining whether or not there has been a breach of duty, a court must have regard to those factors set out in sections 5B and 5C of the Act. They are as follows: 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. 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.
I will approach each subsection in turn, after a consideration of the evidence led by the parties on this issue. The evidence consists of two expert reports and a bundle of photographs showing the walkway and its surrounds. Neither of the experts were called for cross-examination, and no objection was taken to the expertise of either of them. It is regrettable that the experts did not produce a joint report which may have been of assistance, but no order to that effect was made. I make no criticism is made of the lawyers, who were at all times operating under significant Covid-19 restrictions.

[8]

Report of Mr Denis Cauduro

Mr Denis Cauduro of Cauduro Worksafe Pty Limited prepared a report for the plaintiff on breach of duty dated 22 February 2021. Mr Cauduro has a Masters degree in Ergonomics, Health and Safety which he attained in 2016. Since 2015 the company's work has consisted of interviewing clients to establish causation of incidents, conducting engineering and safety assessments of materials including floor surfaces, stairs and carpark layouts, conducting assessments of safety procedures and requirements under health and safety legislation, building standards, Australian Standards for stairways and walkways and preparing reports including ergonomic and safety assessments.
In preparing this report, Mr Cauduro says that he relied on his observations and measurements of the area and was informed by his experience over the last 35 years as a project manager, safety advisor and supervisor of building and construction sites. He says that his expertise includes hazard identification and risk assessment and that as a qualified ergonomist and safety professional, he has specialised knowledge in the field of safe stair construction and the ergonomic biomechanics of human movement of persons using stairs.
Mr Cauduro interviewed Ms Devic on 11 December 2020, on which day he inspected the site of the incident with her and her legal representatives. He took photographs and measurements of the area. In his executive summary, Mr Cauduro expresses the opinion that the plaintiff suffered a trip/misstep and fall on a single step within the defendant's shopping centre which was visually indistinct. He says that the step was highlighted, but the pavement area has other identical markings which made the visual aspect confusing to pedestrians. In his opinion, the defendant failed in its duty of care to provide safe access and egress on the area in which members of the public were permitted to walk.
The plaintiff told Mr Cauduro that she attended the Mall with her three young children. She was exiting the premises through the food court area, which then leads to an external walkway and pedestrian crossing into the car park. As the plaintiff was walking back to her car, she approached the pedestrian crossing, Suddenly, she tripped and fell off a single step at the side of the pedestrian crossing which did not highlight the difference in level. Annotations to photographs 1 and 2 in Mr Cauduro's report say that there was no highlight in the difference in levels at the sides of the pedestrian crossing, compared with the centre of the pedestrian crossing. As a result of the plaintiff walking off the step edge, she lost her balance and fell onto the concrete. She immediately felt pain in her ankle but was able to make her way back to her car. The following day she went to a general practitioner for medical treatment.
Mr Cauduro was advised that there were no warning signs deployed at or near the step and that no temporary barriers had been deployed by the defendant to prevent or discourage pedestrians from walking in that area.
Based on Mr Cauduro's measurements, the step is between 0 and 120 mm and the pedestrian crossing falls away 6 degrees and slopes for 600 mm on each side. An annotation to photograph 3 states that there is no visual highlight of a difference in the level at the site of the pedestrian crossing compared to the centre of the pedestrian crossing.
The plaintiff informed Mr Cauduro that she did not notice the step, as there were many painted yellow lines, and the step was not highlighted. Further, she told him that the step did not appear obvious to her.
In Mr Cauduro's opinion, even very minor deviations in an otherwise regular pedestrian surface can create tripping or misstepping hazards. In support of that statement, he relies on an extract from a guide published by WorkCover NSW, re-released in 2003, which states that a low obstacle in a pedestrian's path and the pedestrian's inability or failure to see it will cause a tripping accident. This extract, however, refers to leaving materials in aisles or corridors, which is not relevant in this case.
Mr Cauduro says that the plaintiff suffered a trip and fall as a result of a misstep off the edge of a single step. He states that the plaintiff did not notice this step as a single step because it was not distinguished in any way from the other painted yellow lines on the concrete surface. To make the step less of a hazard to pedestrians, it ought to have been highlighted with a contrasting colour to reveal its form, presence, location, and shape within its surrounding environment. In his opinion, the step should have been highlighted in a different colour to the other yellow lines in the area.
As to perceptual ergonomics (the way in which we perceive, attend to, and respond to stimuli in the environment), Mr Cauduro says that whilst walking upon the concrete area, the plaintiff would likely have had the perception that the surface would have been reasonably flat and free from obstructions, as the concrete appeared visually flat, and where some yellow lines were placed there was no step onto the concrete surface. He says that the potential misstep and fall hazard was not marked or otherwise highlighted, and neither was the plaintiff directed away from the area.
As to cognitive ergonomics (the interaction between the knowledge or information we have in a given situation and the decisions or choices we make, sometimes unconsciously about the appropriate behaviour responses to produce that situation), whilst the plaintiff was familiar with the shopping centre where the incident happened, she had not parked in the area in which she would usually park and she was not aware of and did not notice the specific section of the single step that was in her path of travel in the moments preceding the incident. In Mr Cauduro's opinion, it is reasonable to accept that the step was not adequately delineated to highlight the change in level. This could have caused the plaintiff's "support base components to be impeded", and as a result of the motion of walking and her centre of gravity being in motion, her centre of gravity could quite quickly move out of the area of the support base, causing a rotational fall onto the concrete surface.
Mr Cauduro observes that the concrete area was an access and egress way between the carpark and the shopping centre, and that the defendant had a duty to ensure that all access and egress was safe for patrons. Further, he says that the defendant had ample time to carry out appropriate, competently performed risk assessments which would have identified that the single step, which was sloped, was a potential trip hazard, particularly at a pedestrian crossing. He considers it to be obvious that components of the built environment accessible to pedestrians should be kept reasonably free of such potential obstacles to safe pedestrian access such as changes in level which are visually indistinct and unprotected by effective barriers. In his experience, the cost of making the area significantly safer - very quickly and at a minimal cost (i.e., no more than $250) - was by the installation of a metal barrier to prevent persons from walking within the area of the step. An annotation to photograph 4 indicates where barriers could have been positioned, and which would have prevented a pedestrian from stepping off the walkway onto the sloped surface.
Mr Cauduro observes that the defendant installed yellow lines to highlight the change in level as a control measure to the hazard. However, the defendant installed additional lines (as demonstrated in photographs 1 to 4 in his report), which he says do not highlight a step hazard. In his opinion, this makes the visual appearance of the concrete area confusing, as pedestrians would approach and walk across the pedestrian crossing, and if they are not directly in the centre of the pedestrian crossing at the left or right there is a sudden change in level of approximately 1 mm to 120 mm. In his view the step would not have appeared obvious in normal conditions to a person, given the great number of yellow lines in the area generally.
In Mr Cauduro's opinion, the plaintiff's loss of balance and fall following her misstep on the visually indistinct step is the primary or proximal cause of the physical injuries she sustained. Amongst the antecedent or distal causes, he places most emphasis on the failure of the defendant to have implemented systems for the identification of risk, and its failure to control potential hazards to safe pedestrian movement, especially upon the pavement step area. In his opinion, it should have been foreseeable to the defendant that a person walking on the designated pathway/step area would misstep unless appropriate preventative measures were effectively implemented.
I note annexure 1 to Mr Cauduro's report - "how to identify slipping and tripping hazards" - and annexure 2 - "the risk of tripping/misstep in consoling on uneven floor surfaces". I note too that although the defendant objected to parts of Mr Cauduro's report which referred to Work, Health & Safety legislation, and those portions were not read, there remained some minor references which were not objected to. In the circumstances of the hearing of this matter, and in particular the Covid restrictions, I have ignored the remaining references.
I distil the essence of Mr Caudro's report to be that the highlighting of the pavement from which the plaintiff fell to be inadequate, and that the area could have been "fenced off" with bollards very inexpensively, thus obviating any risk.

[9]

Report of Dr John Cooke

The defendant tendered a report of Dr John Cooke, consultant architect prepared a report dated 9 April 2021.
Dr Cooke's areas of expertise include architectural practice, building design and urban design, the interpretation of building regulations and Australian Standards and the evaluation of slip resistance of pedestrian services. He has a Bachelor of Architecture, a Master of Science (Building), a Bachelor of Laws, and a Doctor of Philosophy. Dr Cooke's qualifications include membership of and representing the Royal Australian Institute of Architects on the Standards Australia Subcommittee "Slip Resistance". As an architect in practice, he has designed pedestrian surfaces in residential and commercial premises. He has lectured and tutored in architectural design, architectural practice and building construction over a period of 20 years at the School of Architecture at the University of New South Wales.
Dr Cooke was instructed that on Tuesday 17 December 2019, at about 12:45 pm, the plaintiff was leaving Casula Mall from the food court entrance. At the time she was with her three children. As the plaintiff was walking towards the crossing, she apparently mis-stepped on the kerb crossing as a result of encountering an "unexpected variation in the height" in the crossing and suffered injuries.
Dr Cooke inspected the incident location on 18 March 2021 and took photographs and measurements. He also reviewed the CCTV footage and observed that at the instant at which the plaintiff is alleged to have lost her footing the image was obscured by a sign board. He notes that the photograph on page 5 of Mr Cauduro's report (photograph 3), shows the position at which the plaintiff is alleged to have lost her footing. The CCTV footage demonstrates that the plaintiff continued to walk towards the car park pushing the pram and holding a child by the hand.
Dr Cooke states that the photograph shows that the external shopfronts and entrances of the shopping centre are surrounded by a walkway adjacent to the carpark. The outer edge of the walkway is bounded by a kerb of "conventional design and dimension" which he measures as 150 mm high and 150 mm wide. The walkway adjacent shopfront to the right in the photograph is 2675 mm wide (being wider at the entrance to the food court).
Dr Cooke notes that buildings and parts of buildings must be "accessible" as required by Table D3.1 of the National Construction Code (NCC) which includes the Building Code of Australia (BCA) cl D3.1 (which is found in appendix B to his report). Accessible car parking spaces must be provided in accordance with table D3.5 (cl D3.5). He notes that "continuous accessible path of travel" is defined in the BCA as "an uninterrupted path of travel to, into or within a building providing access to all accessible facilities." "Accessible" means "having features to enable use by people with a disability". Clause D3.2(a) says that "an accessway must be provided to the building required to be accessible - (iii) from any required accessible car parking space in the allotment." Further, "accessway means a continuous accessible path of travel as defined in AS 1428.1 to, into or within a building".
Dr Cooke observes that car spaces for people with disabilities are provided opposite the food court entrance. Accordingly, the accessible path provisions in AS 1428.1 (Design for access and mobility Part One: General requirements for access - New building work) are applicable to the pedestrian surfaces between the car spaces for people with disabilities and the food court entrance. For the purposes of his report, he refers to AS 1428.1 - 2009, but he notes that earlier editions are not relevantly different. The photographs demonstrate a marked pedestrian crossing leading to and from the car spaces for people with disabilities and the walkway outside the food court entrance. Dr Cooke notes that the pedestrian route must be "accessible". This requires a kerb ramp at the junction of the pedestrian crossing and the kerb. Three types of kerb ramp are permitted: an "inserted kerb ramp", an "attached kerb ramp" or an "in line kerb ramp": see Appendix C to his report.
In Dr Cooke's opinion an in-line kerb ramp would not have been suitable at the incident location as the walkway is not narrow. The options were therefore either an inserted kerb ramp or an attached kerb ramp. The type of kerb ramp provided at the incident location is an attached kerb ramp. Its design is not precisely in accordance with Figure 24B of AS 1428.1 2009. However, in Dr Cooke's view it does not depart from the provisions of Figure 24B in relevant respects. An inserted kerb ramp is a kerb ramp that is inserted into the footpath adjacent to the kerb. A kerb ramp of that type has been constructed to the west of the incident location (see photograph 2 in Appendix A) Dr Cooke's view, the inserted kerb ramp at that location is suitable because the walkway is wider at that location than at its narrowest point near the food court entrance and it is in an area where pedestrian traffic would be at a lower volume than is the case directly outside the food court entrance, (based on his observations). Dr Cooke says that the disadvantage of an inserted kerb ramp is that side wings of this ramp pose a potential hazard to pedestrian cross traffic who do not notice the ramp and therefore do not adjust their gait to accommodate lowered pedestrian surfaces. For this reason, in his opinion, an attached kerb ramp is more suitable at the incident location than an inserted kerb ramp.
The attached kerb ramp is attached to the face of the kerb, with the result that the side wings of the ramp are located on the roadway surface adjacent to the kerb at both sides of the ramp. The specifications for an attached kerb ramp are in cl 10.7.2 of AS 1428.1-2009. The ramp must have a minimum width of 1000 mm, a maximum rise of 190 mm, a length not greater than 1520 mm, a maximum gradient of 1 in 8 (about 7.2 degrees) and side wings at 45° to the ramp proper.
The subject ramp is an attached ramp. Its width of 1500 mm exceeds the required minimum of 1000 mm. The ramp has a maximum gradient of 5.2° (less than the permitted maximum of one in eight, or about 7.2°). The shallow gradient of the ramp results in ramp length of 1900 mm, which is more than the permitted maximum of 1520 mm if the ramp is located on a "vehicular way". However, the part of the road on which the ramp is located is marked with painted yellow lines to indicate that it is not an area for vehicles. The length of the ramp, in Dr Cooke's opinion, has no bearing on causation although the shallow gradient (less than the permitted maximum of 1 in 8) results in a lower step than would otherwise exist at the side of the ramp where the plaintiff is alleged to have lost her footing. The rise is less than the permitted maximum of 190 mm. The subject attached ramp complies with AS 1428.1-2009 in material respects. However, the side wings are not at 45° to the ramp proper, with the result that the maximum gradient of 11° to the left of the ramp and 13° to the right of the ramp (from the point of view of the pedestrian such as the plaintiff, approaching the kerb ramp from the food court entrance) is steeper than 1 in 8 (about 7.2°). However, in Dr Cooke's opinion, this departure from the provisions of AS 1428.12009 cl 10.7.2 could have had no bearing on causation, as the surface of the side wing at the point where the plaintiff is alleged not to have seen the step down from kerb surface is less than 1 in 8, as shown in Mr Cauduro's photograph 3 and described in the caption.
In Dr Cooke's opinion, the subject crossing did not pose a hazard or a foreseeable risk to pedestrians taking reasonable care for their safety who would observe the sloping surface of the wings of the attached kerb ramp. Although the wings are narrower than permitted by AS 1428.1-2009, if the side wings had been wider and in compliance with AS 1428.1-2009, a small step would still have existed at the point where the plaintiff is alleged to have lost her footing because of not noticing the step. It follows, in his view, that the height variation of the subject crossing was an obvious risk. An attached kerb ramp entails a variation in height at the junction of the wings of the ramp and the face of the kerb to which the ramp is attached. Further, the risk of a pedestrian failing to observe the details of the surface of the kerb ramp is minimised in this instance by the visual cue of the bright yellow markings on the kerb surface. It follows, in Dr Cooke's opinion, that the defendant ought not to have taken any additional precautions to prevent the alleged incident; i.e., the markings already provided were enough.
As to the particulars of negligence, Dr Cooke comments as follows. As to (a) and (b), he says that the attached kerb at the instant location is in accordance with AS 1428.1 - 2009 in material respects, with the exception that the side wings are not at 45° to the ramp proper. However, at the point at which the plaintiff is alleged to have lost her footing, the gradient of 6° is less than the maximum of about 7.2° permitted by AS 1428.1-2009. Thus, the kerb ramp did not pose a risk to the plaintiff's safety.
As to (c) and (i), in Dr Cooke's view an attached kerb ramp is permitted by AS 1428.1-2009 and is preferable to an inserted kerb ramp. In his opinion, a pedestrian paying a reasonable level of attention to the proposed path of travel, would observe the change of levels that occur at the sides of an attached ramp. The alleged unexpected variation in height would therefore not pose a risk to a pedestrian paying a reasonable level of attention. A pedestrian who observed the surface of the ramp wings would be able to either avoid stepping onto the wings or avoid a loss of footing when stepping onto the ranks.
As to (e) (f) and (h), Dr Cooke says that a barrier of some type would prevent a pedestrian such as the plaintiff from stepping on the wings of the kerb ramp. This would eliminate the potential risk of a loss of footing when stepping onto the wings in the expectation that there was no change of levels. As he has discussed, an attached kerb ramp has side wings which results in a change of levels at the side of the ramp proper, as with the side wings of an inserted kerb ramp. Both types of ramps were permitted. In all the circumstances, he does not agree that bollards, fencing or some other barrier to prevent customers walking onto the side wings of the kerb ramp were necessary.
As to (g), Dr Cooke notes that there is no requirement in AS 1428.1-2009 to identify the variation in height that is inherent in an attached or inserted kerb ramp. The variations in height would be apparent to a pedestrian paying a reasonable level of attention to the proposed path of travel. The yellow marking of the kerb surface tended to draw attention to the kerb surface. A pedestrian responding to that visual cue would be able to see the variations in height at the junction between the kerb, ramp and the kerb face when seen in three dimensions.
In response to Mr Cauduro's report, Dr Cooke notes the following. A kerb ramp is required by the BCA at the junction between the pedestrian crossing and the kerb in accordance with AS 1428.1. The instant type of kerb ramp is an attached kerb ramp, which is one of the three types of kerb ramp described in AS 1428.1. In Dr Cooke's opinion, it was the most suitable of the three permitted types of kerb ramp outside the food court entrance. There is no requirement in AS 1428.1-2009 for the highlighting of any part of the kerb ramp. However, the top of the kerb was painted yellow in this instance. In Dr Cooke's opinion, this was an adequate visual cue to draw the attention of pedestrians down to kerb level. Further, in his view the change in levels at the location at which the plaintiff is alleged to have lost her footing is obvious when seen in three dimensions. Another visual cue is the curvature of the yellow painted pedestrian crossing marking, where the marking occurs on the sloping wing of the kerb ramp on which the plaintiff is alleged to have lost her footing. He does not agree that the concrete would have "visually appeared flat" to a pedestrian looking at the kerb before stepping onto the crossing area. Dr Cooke also does not agree that there is any confusion between the visual cue provided by the yellow marking of the kerb surface and other line marking in the vicinity. He observes that Mr Cauduro does not discuss the applicable provisions in the BCA and AS 1428.1.
In Dr Cooke's opinion, at the point where the plaintiff is alleged to have lost her footing, the design of the attached kerb ramp was compliant in relevant respects with the provisions in AS 1428.1-2009. He notes that there is no requirement for any highlighting of surfaces within or adjacent to a kerb ramp. In his opinion, the change of levels is obvious at the sides of the ramp and the visual cue provided by the yellow painted kerb draws attention to the pedestrian surface at the location where the plaintiff is alleged to have lost her footing. It follows therefore that Dr Cooke does not agree with the preventative actions as proposed by Mr Cauduro.
The essence of Dr Cooke's opinion is that the attached kerb ramp is largely and relevantly compliant with AS 1428.1-2009, and that the gradient at the point of incident was less than allowed for and favoured the plaintiff. I accept this evidence. Dr Cooke observes that AS 1428.1-2009 does not mandate highlighting, which I accept. The point of departure between Dr Cooke and Mr Cauduro is that Dr Cooke believes that the highlighting provided an adequate visual cue, and that bollards or fencing were unnecessary.

[10]

Mr Cauduro in Reply

Mr Cauduro replied to Dr's Cooke's report on 17 May 2021. Mr Cauduro agrees with Dr Cooke that the height variation was an obvious risk. He says therefore that the defendant should have identified the risk and controlled the risk, and he points to clauses of "WHS Regulation 2011", which has not been referred to in evidence. He says that photograph 1 of his report highlights that the defendant has painted the kerb and pedestrian crossing in yellow as a visual cue. However, he states that as the pedestrian crossing and kerb are all painted yellow, the step is visually indistinct to a person walking from the mall entrance towards the car park. He says that measures ought to have been taken to paint the pedestrian crossing in a different colour such as white, or bollards or small barricades should have been placed at the end of the crossing, which would have prevented the trip and fall at the wing of the attached ramp.
Mr Cauduro agrees with Dr Cooke that the attached kerb ramp is permitted by AS 1428.1-2009, but he says there is still a risk of a trip and fall because the great number of yellow lines makes the variation in height visually indistinct. He observes that Dr Cooke has agreed that a barrier would eliminate the risk of a trip and fall at the wings of the pedestrian crossing and thus on the balance of probabilities, it is ought to have been foreseeable to the defendant that the visually indistinct step was a risk, the elimination of which would have cost no more than $250 for a barrier.
Thus, there does not appear to be any dispute that attached kerb ramp was permitted by AS 1428.1-2009. The difference between the two experts appears to be that Mr Cauduro believes that there were too many yellow painted lines in the environs.
As to Dr Cooke's statement that he does not agree that the concrete would have visually appeared flat to a pedestrian looking at the kerb before stepping onto the crossing area, Mr Cauduro refers to photograph 1 in both his original and reply reports to suggest that when a person is walking, they do not look directly down but rather they look ahead. In his opinion the photographs highlight that the step down at the wings of the ramp was visually indistinct for person walking in the direction from the entrance of the mall towards the pedestrian crossing.

[11]

Photographs

Various photographs of the surrounds of the incident site were tendered as exhibit 2. They include 8 photographs taken by Mr Cauduro on 11 December 2020, a photograph taken by the plaintiff on 17 December 2017 (on which she made a mark "X" indicating where she mis-stepped) and 3 photographs taken by her in February 2020, 4 photographs taken by Dr John Cooke for the purpose of preparing his report, an undated Google image street view of the site, a Google image of the street view of the site captured in November 2018, and an enlarged Google image captured in November 2018. The latter two have little if any relevance, as the lines on the crosswalk were then painted white. It is clear that sometime between the date of those images and the date of the incident, the lines of the crosswalk were painted yellow, probably in about September 2019. I observe that at the time of the plaintiff's misstep, to her right, and to the right of the crosswalk, was an area that was taped off with temporary bollards. It is not known for what reason that the tape and bollards were present.
Of those photographs taken by the plaintiff herself, the painting of the lines and the crosswalk and the guttering approaching the crosswalk is in reasonable condition. Furthermore, the photographs show that first horizontal yellow line of the crosswalk is sloped at the edges.
In my opinion, whilst I acknowledge the two-dimensional pictorial character of the photographs, nothing about them depicts any particular danger. Indeed, in my view each photograph depicts a kerb from which a pedestrian taking reasonable care for her own safety would know that there is a step to the ground, and at the point at which the plaintiff says that she mis-stepped, that the surface of the road was slightly sloped. In other words, in my view a person travelling to the crosswalk from the mall, taking reasonable care for her own safety, would not have assumed that the first part of the ramp was flat, as the yellow lines clearly indicated a slope at the edges. I do not accept that there was too much yellow painted in and around the cross walk. In my view the yellow markings (as distinct from no markings), which relevantly appear at the entire edge of the kerb leading up to the walkway from both directions, indicate that care ought to be taken by a pedestrian when approaching the kerb near to the walkway generally, and at the attached ramp in particular.
I do not accept Mr Cauduro's contention that his photograph number 1 demonstrates "that the step down at the wings of the ramp is visually indistinct for a person walking in the direction from the entrance of the mall towards the pedestrian crossing". In my opinion, looking at that photograph and doing the best I can, the step down is in fact visually distinct, first because of the presence of the yellow lines at the kerb, and second because of the curve of the first yellow line onto which a pedestrian would step.

[12]

The Plaintiff's Submissions on Liability

Ms Campbell submitted that there was no direct evidence that the defendant was aware of the risk posed by the 'height variation". However, she says that given that the defendant was the occupier it must be taken to have had an opportunity of inspecting the premises. She points to the repainting of the lines in the year prior to the incident as an "expectation that the defendant would have undertaken a risk assessment or inspection of the works". That there was a risk of harm is no doubt true, but the defendant's response was to paint the lines in yellow to alert pedestrians. I observe that it cannot be said that the defendant performed no risk assessments at the date of the incident. Clearly visible in contemporaneous photographs are a temporary bollard and rope preventing pedestrians from moving about to the right of where the plaintiff fell, and to the rear is a sign that says "slippery when wet". It is not known on the evidence in this case what risk the former was meant to prevent. It can be inferred that the pavement to the rear of where the plaintiff fell was slippery, and the sign put up in response to that risk. It is evident that at or about the time of the incident, the defendant had taken measures to control those perceived risks of harm, by making an assessment.
Further, Ms Campbell submitted that both experts stated the risk was obvious. Mr Cauduro says that the defendant ought to have identified and controlled the risk as it was visually indistinct because the kerb and the crossing were painted the same colour. She submitted that the risk of harm was not insignificant given that the approach to the crosswalk was a means of access to a carpark. There was not merely a variation in height but a sloped surface onto which a pedestrian would step, which created a risk of a person's foot rolling to one side. She submitted that in the circumstances, a reasonable person in the position of the defendant would have:- 1. undertaken a risk assessment, particularly given the area had not long been painted and the paint was the same colour as the kerb; 2. undertaken a risk assessment regarding the presence of the taped off area, to ascertain if the taped off area impacted the path taken by customers to the car park, via the crossing; 3. placed a permanent, or temporary barrier at the point of the height variation as suggested by both experts. Such a barrier would have directed customers away from the risk. This was a suggestion of Mr Cauduro. In fact, Dr Cooke thought it unnecessary but agreed that it would have prevented the incident; 4. properly identified the height variation by painting the crossing in a different colour to that of the kerb, as it had previously been painted; 5. made the full width of the crossing level with the walkway, or alternatively, reduced the width of the painted crossing so that it did not extend to the edges of the crossing that contained the height variation; and 6. placed signs or notices advising of the height variation.
Ms Campbell submitted that a reasonable person in the position of the defendant would have taken precautions to improve the visual cue of the presence of the height variation or installed a barrier to prevent a customer stepping onto the area containing the height variation. She said that having regard to the nature and location of the crossing, there was a real risk the harm would occur if care were not taken. The burden of taking precautions by erecting a barrier was not burdensome on the defendant as the cost was approximately $250. As to social utility, the defendant had a commercial interest in providing access to the shopping centre, including parents with small children, and that social utility did not outweigh the risk of harm. In her submission, the defendant breached its duty of care and was negligent by failing to take reasonable steps to provide a safe means of access to and egress from the shopping centre.
As to the expert evidence, Ms Campbell noted that Dr Cooke based his opinions primarily on the fact that as the ramp substantially complied with the Australian Standards, there was no obligation to do more. In her submission, this opinion ought not to be accepted for several reasons including:- 1. compliance or otherwise with the standard is not determinative of any issue at general law or under the Act: Coles Supermarkets Australia Pty Limited v Bridge [2018] NSWCA 183 at 9 per Leeming and Payne JJA. I accept this to be true, but it may impact the findings necessary to be made pursuant to 5B of the Act. Mr McCarthy, for example, says that the structure was legal and designed for the dual purpose of allowing both pedestrians and vehicles to use it in circumstances where the road was at a lower level than the kerb; 2. the defendant's duty did not start and finish at the crossing. The duty extended to the entirety of the premises including the walkway from the shopping centre to the point where customers left the premises including the car park; 3. Dr Cooke did not adequately address the perception issue created by painting both the kerb and the crossing the same colour, or the confusion created by using the same colour. Both issues were raised and addressed by Mr Cauduro; and 4. Dr Cooke did not address the fact that most of the crossing not only appeared flat but was in fact flat and continued level with the walkway from the shopping centre exit.
Ms Campbell submitted that Dr Cooke relied on the fact that the Australian Standard does not require any highlighting on any part of the kerb ramp and noted that the kerb was painted yellow. He relied on the painted kerb as being the visual cue but did not address the matters of customer perception raised by Mr Cauduro, except to say that it was obvious when seen in three dimensions. As it is unclear where Dr Cooke was when he came to that conclusion, in Ms Campbell's submission that conclusion should be rejected. Further, Dr Cooke did not identify where a person would be in order for the curvature to provide a visual cue, is another reason that conclusion should be rejected. Ms Campbell observes that some of the photographs, particularly those taken by the security officer of the defendant on the day of the incident, show how difficult it is to see such a curvature. Given that Dr Cooke has failed to address all relevant issues, in Ms Campbell's submission the opinion of Mr Cauduro should be preferred.
Ms Campbell observed that as the defendant's own expert stated that the change in the levels of the sides of the ramp were obvious, it must also have been obvious to an occupier with the power and control over the state and condition of the premises. That there were no previous incidents (which was conceded), she submitted, does not assist the defendant, given the walkway had only been in its present state for a number of months. She says that the defendant's duty is that of taking reasonable precautions against foreseeable risks rather than reacting upon actual knowledge of risk. There is no evidence, she says, to support the proposition that the risk was so low that there was no requirement to take measures. She observes that Dr Cooke agreed that bollards, barriers, and fencing would have prevented the plaintiff stepping down onto the wing of the walkway. Ms Campbell says that bollards and barriers are not warnings, but rather are precautions which prevent a person walking on a particular area. Furthermore, Ms Campbell submitted that the painting of the walkway in the same colour as the kerb concealed the difference in height which was not plain to be seen.
In Ms Campbell's submission, the circumstances of this case are such that the danger was not readily perceived by the plaintiff and there was an insufficient visual cue to pedestrians of the change in height because the painting of the kerb in the area containing the height variation effectively concealed the danger. Further, she submitted that the defendant had redirected customers away from the centre of the walkway towards the height variation itself.
Ms Campbell observed that the fact that Dr Cooke disagreed that the walkway would have visually appeared flat is inconsistent with the evidence of the plaintiff and the fact that the majority of the walkway was flat. She says that the perception of the plaintiff was correct. Further, she submitted that Dr Cook's evidence is incomplete in that although he stated there was no requirement for any highlighting, he did not address the effect of such highlighting on a pedestrian's perception. Mr Cauduro did address this issue, and, in her submission, he should be accepted on this point.
Ms Campbell points out the well-known proposition that care must be taken when relying on photographic evidence: Goode v Angland [2017] NSWCA 311, Angel v Hawkesbury City Council [2008] NSWCA 130. In Herne Investments (NSW) Pty Limited v Don Watson Pty Limited [2016] NSWCA 72, Sackville AJA, with whom Ward JA and Garling J agreed, said: The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.
Ms Campbell observed that close examination of the photographs tendered in evidence only serves to reinforce that caution, as in some photographs the curvature of the crossing can be seen but in others it is barely perceptible. In this case, she submits that the photographs and the CCTV footage may be used by the court to assist in resolving disputed factual issues. However, care must be taken, particularly given the quality of the CCTV footage and the fact that all the photographs were taken after the accident by different people from different and unknown angles so that it is difficult to identify, which if any of them, correctly captured the perspective of the plaintiff as she was walking towards the crossing on the day. Therefore, in her submission, neither the photographs nor the CCTV footage should be used to trump the evidence of the plaintiff regarding what she saw, i.e., "it just looked even, like you could just walk straight across it".
I observe that in this case Exhibit 2 (the bundle of photographs) was tendered by the plaintiff without objection and neither of the experts were called for cross-examination. In particular, the photograph taken by the plaintiff on 17 December 2019 (which she marked with an "x") was taken almost contemporaneously. Likewise, the photographs taken by the defendant's security person contained in Exhibit 1 were taken almost contemporaneously. No objection or adverse suggestion was made at trial about the quality of any of the photographs taken after the incident.
Whilst I acknowledge that care must be taken, at trial the parties relied upon the photographs to advance their respective cases, and I propose to use them in resolving the issues that require determination in this matter.

[13]

The Defendant's Submissions on Liability

Mr McCarthy submitted that aside from the opinion of Mr Cauduro, there is no other evidence to establish that the risk of harm was foreseeable on a prospective basis as required by s5B(1)(a) of the Act. He said that there was no evidence that there had ever been any other incident of a similar kind or that there had been complaints about the walkway. I observe that no documents were produced in response to the plaintiff's Notice to Produce calling for such documents. Mr McCarthy observed that there is no evidence that the defendant knew or ought to have known about the risk of harm. He conceded that the walkway was in a position where it encountered significant use but said there was no evidence viewed prospectively of any known risk. The absence of any evidence that the defendant was on notice of the alleged risk posed by the walkway is a relevant factor for the court, in his submission, when it considers what reasonable steps the defendant ought to have taken and as to why it would have identified a need to do so in the absence of any prior issues with the walkway.
Mr McCarthy submitted that section 5B(1)(c) of the Act is only engaged if the plaintiff's submissions win favour as to the elements of section 5B(1)(a) and (b). He said that the slopes on the sides of the walkway were plainly observable to a person taking reasonable care for their own safety. In circumstances where there is no evidence of other similar incidents, it was not reasonable for the defendant to take the precautions pleaded in the Statement of Claim.
As to section 5B(2)(a) Mr McCarthy submitted that there is no evidence at all in this case as to the probability of the harm occurring if the pleaded precautions were not taken. That section requires consideration of the probability that the harm would occur if care was not taken. Pursuant to section 5B(2)(b) "the likely seriousness of the harm" must be taken into consideration. He says that it is difficult to evaluate in this case, but the fact that severe injury may result if precautions were not taken by the defendant is not determinative of breach of duty. As to section 5B(2)(c), the defendant does not submit that any significant burden was involved in avoiding the pleaded risk, but rather the defendant submits that the risk was so low that there was no requirement to take the measures. As to section 5C of the Act, Mr McCarthy observes that Dr Cooke has identified that the walkway was a legal structure commonly in use. He submitted that the precautions pleaded by the plaintiff amount to no more than a retrospective statement that something could have been done in a different way in these circumstances.
Mr McCarthy noted that there was evidence in this case that the plaintiff had used the walkway before, and indeed had traversed it just 10 minutes before she fell upon it. The sloping nature of the walkway could not credibly be described, he submitted, as a hidden trap. By her own admission the plaintiff was not watching the ground in front of her, and she must be taken to have known of the sloping nature of the walkway. He submitted that the sole cause of the accident was her inattentiveness. At the plaintiff looked down, the slope was obvious even without the painted lines that emphasized the presence of the slope through their obvious deformation. The fact that the walkway was not flat would have been obvious to a reasonable person taking care for her own safety, and consequently the plaintiff has failed to make out, on her onus, the component parts of sections 5B and 5C of the Act.
As to the expert evidence, Mr McCarthy says that there is much to be said for the observations of Meagher JA and Emmett AJA in Hawkesbury Sports Council v Martin [2019] NSWCA 76 at [32], when their Honours said: Whilst matters of visual perception and vision science may be the subject of specialised knowledge,… It is also the case that human experience and common sense permits laypersons, without the benefit of such "specialised knowledge," to express views based on their own experience and observations as to what someone in the position of the respondent was likely to have seen, assuming that she was looking in the direction in which he was walking.
In other words, Mr McCarthy submits that the court can and should apply common sense and judicial knowledge in its determination of this matter.
Insofar as there is a contest between the opinions of Mr Cauduro and Dr Cooke, Mr McCarthy submitted that the strength of the opinion of Mr Cauduro was much undermined by his reliance upon lengthy tracts of irrelevant and non-applicable workplace legislation and regulations which were not admitted by the court. For example, Mr Cauduro was of no assistance when he provided an opinion relevant only to "stairways".
Mr McCarthy submitted that notwithstanding that the case centred on the appropriateness or otherwise of the design of the walkway itself, Mr Cauduro did not engage at all with whether the walkway complied with the relevant Australian Standard. He conceded that such compliance might not always be determinative of the issue of liability, but compliance or otherwise will always play a helpful role in assisting the court in determining the issue of breach of duty. At page 9 of Dr Cooke's report, he explained that the walkway in question was an attached kerb ramp and explained why the other types of ramps were not practical for the purpose required. He went to some length to explain why the walkway in question relevantly complied with AS 1428.1-2009. Dr Cooke conceded that there was some minor noncompliance which was not relevant from a causative perspective, because the plaintiff's accident did not occur at the position of the non-compliance or because of it. At page 11, Dr Cooke expressed the opinion that the design of the walkway was such that pedestrians taking adequate care for their own safety would observe the sloping surface of the "wings" of the attached kerb ramp. At page 15, Dr Cooke expressed his disagreement with the proposition that the walkway would have "visually appeared to be flat" to a pedestrian looking at the kerb and he said that the visual cues were adequate. Importantly, Dr Cooke also expressed the opinion that there was no requirement for any highlighting of surfaces within or adjacent to the kerb ramp.
In Mr McCarthy's submission, to the extent that it is necessary for the court to prefer one expert over the other, the fact that Dr Cooke engaged with the defendant's compliance with the relevant Australian Standard, rather than distracting himself with irrelevant standards and legislation (which although not admitted into evidence must have bled into Mr Cauduro's opinion) is a sufficient basis to prefer Dr Cooke's opinion.

[24]

(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.

As to (c), in the circumstances of this case, it does not arise.
In my opinion, a reasonable person in the defendant's position did what was necessary in the circumstances. It painted the strip of pavement adjacent to the walkway in yellow, which ought to have alerted the plaintiff that there was a variation in height of the kerb approaching the walkway which was (obviously) raised. In so doing, it drew attention to the change in level between the pedestrian walkway and the pavement outside the mall. It was a sufficient visual cue to pedestrians. There was no concealment of the difference in height. The incident took place in daylight and was plain to be seen. In my view it was an ordinary hazard that a person walking from the mall into the carpark would be expected to encounter and could be expected to watch out for. It is trite to say that the occupier's duty was to exercise reasonable care to make their premises safe for entrants exercising reasonable care for their own safety: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330. In my view, the risk of a person who was exercising reasonable care for her own safety misstepping was low, so that it cannot be said that a reasonable person in the defendant's position would have taken the precautions pleaded. That the defendant "might" have taken those steps which "might" have avoided the accident is not significant: see section 5C(2) of the Act: Council of the City of Sydney v Bishop [2019] NSWCA 157 at [30] per Macfarlan JA.
It follows that in my view, the defendant was not negligent as alleged by the plaintiff, and her case should fail. The particulars of negligence are not made out. Furthermore, to paraphrase Gleeson CJ in Jones v Bartlett (2000) 205 CLR 166 at [23], there is no such thing as absolute safety. The fact that (in hindsight) something could have been made safer by doing something different, does not indicate that the failure to do so was dangerous, or I might add, that some person was negligent.

[25]

Obvious Risk

In its defence, the defendant pleads section 5F - 5H of the Act, which relevantly provide: - 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. 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. 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.
The risk of harm in this case is that of a customer, in the position of the plaintiff, stepping onto a crossing who would misstep due to the presence of the height variation and suffer an injury as a result. As to whether the risk was obvious, I must determine whether or not it would have been obvious to a reasonable person in the position of the plaintiff: Jaber v Rockdale Council: [2008] NSWCA 98 at [28]. Ms Campbell submitted that the test takes into account the circumstances of the plaintiff, i.e., her knowledge and experience of the relevant area and its conditions and her age and experience. She says that given that the plaintiff had three young children with her, that a truck had stopped, and that she was crossing the road having previously made an assessment of the crossing and did not see the height variation, it should be found that the risk was not obvious to a person in the position of the plaintiff.
I observe that Mr McCarthy submitted that the court would be satisfied that what he described as the clearly delineated and visually apparent height differential on the walkway was an obvious risk pursuant to section 5F of the Act, which includes the concept of the reasonable person, i.e., it is an objective test. He submitted that in every relevant photograph, the elevation of the walkway and the fact that it slopes down is obvious. In other words, it is obvious when viewed from every available angle. He noted that even the plaintiff agreed that it was obvious or would have been had she been looking where she was walking. He submitted that obvious risks include things that are patent or a matter of common knowledge, and that the walkway fits both categories. Thus, section 5F obviates the duty to warn. In his submission bollards, fencing and the like are forms of warning. Ms Campbell submitted that the erection of such barriers are not warnings contemplated by the section.
Taking into account the photographs of the crossing and the slope, which in my view demonstrate the elevation, and which in my opinion was a sufficient visual cue, I am satisfied that the risk would have been clearly apparent when approaching the walkway and was therefore obvious to a notional person in the position of plaintiff.
The effect of that finding is that the defendant had no duty to warn the plaintiff of that (obvious) risk. Notwithstanding, in my opinion, the erection of a barrier such as a bollard or fencing is not a warning but concerns the construction of the walkway surrounds. I have already found that the defendant had no duty to erect any barrier. Neither did it have any duty to warn the plaintiff of the slope, in the conventional sense. As I have found that the defendant did not breach its duty, the question of whether or not the bollards and fencing are warnings does not arise for determination.

[26]

Contributory Negligence

The defendant also pleads contributory negligence. Section 5R of the Act provides: - 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
I acknowledge that the question of whether a person has been guilty of contributory negligence is to be determined objectively, i.e. whether a plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take and that the principles applicable in determining whether a person has been negligent, which include those in section 5B of the Act, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury. Accordingly, the existence and the extent of a plaintiff's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk: Lloyd v Thornbury [2019] NSWCA 154 per Gleeson JA, with whom Meagher and White JJA agreed.
The plaintiff was cross-examined by Mr McCarthy as to whether or not she could have approached the crosswalk from a different section of the pavement. It was also suggested that she ought to have looked down, to which she replied that when you are walking across a crossing you look ahead. He suggested that she was distracted by her three children, which she denied. Her evidence was that she was looking straight ahead (T30.2), saw the crossing looked even (T30.6), saw that a truck had stopped (T187.41) and before crossing made sure that her children were close to her (T181.8).
Ms Campbell submitted that a reasonable person in the position of the plaintiff took all precautions necessary against the risk of harm.
In circumstances where I have found that the defendant did not breach its duty of care to the plaintiff, I make no finding as to contributory negligence. I note only that the defendant submitted that if I were to have found it negligent in the circumstances, a deduction of 50% for contributory negligence would have been appropriate.

[27]

Causation: Sections 5D and 5E of the Act

Section 5D(1) of the Act is a statutory restatement of the "but for" test of causation: Strong v Woolworths Ltd [2012] HCA 5 at 18. The determination of factual causation requires the plaintiff to prove that she would not have suffered the particular harm but for the defendant's negligence.
The relevant sections of the Act provide: 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. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Ms Campbell submitted that the negligence of the defendant was a necessary condition of the harm. Had the defendant taken reasonable steps to either prevent the plaintiff stepping onto the part of the crossing with the height variation, or provided sufficient visual cues, the plaintiff would not have been injured. Further given the circumstances of the defendant as occupier of premises for commercial gain, it is appropriate for the scope of the liability to extend to the harm caused. She further submitted that but for the negligence of the defendant, the plaintiff would not have suffered an injury to her back (to which see below).
As to causation, Mr McCarthy submitted that causation would be established if the court was to find that it was of itself negligent to simply have in place the legal conforming structure. He says that it is speculative to conclude that a risk assessment of a commonly used form of walkway would have led the defendant to take the precautions alleged and that they may not have made any difference to the path that the plaintiff took in any event. Therefore, he submitted that the plaintiff has not established that the alleged negligence was a necessary condition of the occurrence of harm.
I am not satisfied that but for an alleged failure to have a risk assessment or different coloured highlighting on the pavements the plaintiff would not have suffered harm. The parties seemed to agree that erecting barriers would have prevented harm, and so section 5D(1) would have been on that basis satisfied. Notwithstanding that comment, I am not satisfied that in all the circumstances that there was a breach of duty amounting to negligence, either for a failure to conduct a risk assessment, or a failure to highlight the pavement on a different colour or for a failure to erect a barrier, so that the question of causation under section 5D(1) does not arise.
It follows that in my opinion, the plaintiff has not made out her case in negligence, which must necessarily fail.

[28]

Damages

In the event that I am wrong on the question of liability, I turn to what I would have otherwise assessed as the plaintiff's damages.
It is trite law to say that if a plaintiff can prove that harm has been caused by a tortfeasor, that plaintiff is entitled to damages reflecting his or her reasonable, as opposed to optimal needs. In this case, there are disputes about causation of harm and the plaintiff's reasonable needs assuming causation is made out.
As to the whether or not the plaintiff has suffered the harm she alleges as a result of the incident, I note below the plaintiff's evidence as to her injuries and disabilities. The plaintiff said that she injured her left ankle, left knee, left elbow and left wrist and that she was limping after her fall. She stated that that she developed lower back pain in February 2020, but she said that the most serious injury was to her ankle. The timing and cause of the plaintiff's lower back pain was in dispute at the hearing. Clinical notes, referred to below, suggest that she did in fact hurt her lower back at the time of the incident or that it was incidental to her limping. In my opinion, the plaintiff has proved on the balance of probabilities that her lower back pain is causally related to the incident. I accept Dr Giblin's diagnosis that it was a secondary or compensatory soft tissue injury consequent upon the index incident. I note however that the MRI, which I will allow as a reasonable out-of-pocket expense in the circumstances, shows no abnormality. In my view, the medical evidence demonstrates soft tissue injury to the left ankle and back. Whilst I accept that the plaintiff has had and will continue to have some minor disabilities, the clinical notes lead me to conclude that the plaintiff's injuries have much improved. Indeed, in my opinion, with further conservative treatment she is likely to significantly improve without much remaining disability.
As to the plaintiff's reasonable needs, I note that in Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649, the High Court considered the method of assessment of damages in a motor vehicle case involving a plaintiff who was rendered quadriplegic. In that case Barwick CJ said, at 661, that "the question is not what are the ideal requirements, but what are the reasonable requirements of the plaintiff", and at 662 that "the sum to be awarded in compensation is not calculable by any mathematical process. At best it is and must remain a matter of judgment". In arriving at judgment on those issues, a court "must hearken to all of the evidence including the opinions of medical practitioners but, having done so, to come to its own conclusion on the question, not being bound to any opinion, however expert or apparently expert any witness expressing it may be": see Moran v Nominal Defendant [2008] NSWSC 804, where the principles are briefly collected by Hislop J at [38].
These are the principles which must be applied when determining the plaintiff's likely award of damages.
I observe that the plaintiff was born on 9 September 1986 and will soon be 36 years of age. At the date of the incident in 2019, she was 33 years of age.

[33]

Dr John Davis

Dr John Davis, occupational physician, assessed the plaintiff and reported on 25 November 2020. He reported again on 5 July 2021.
In his first report, Dr Davis noted that the plaintiff was taking Panamax as necessary. She reported crossing a roadway at a marked pedestrian crossing where there was a footpath with gutter and raised area at the beginning of the crossing which sloped down on both sides. She stepped onto the edge of the raised area and fell heavily onto her left side. On standing and weight bearing, she suffered severe pain in her left ankle and again fell to the ground suffering direct trauma to her left knee and elbow. She saw her general practitioner Dr Salwa Kirkukli who referred her for x-rays and was told to take over the counter medication and attend physiotherapy. Other treatment has been with a chiropractor. The plaintiff was unemployed at the time of the incident and was at home looking after her young children.
The plaintiff complained of variable pain in her back, radiation into both buttocks, numbness extending from the left knee to her ankle, limited standing and sitting tolerance and reduced ambulatory tolerance to 60 minutes, an inability to run or jump, aggravation with bending, twisting and lifting, aggravation with the care of her children with activities such as bathing, lifting and dressing, difficulty when attempting heavy work such as mopping, changing linen, carrying washing, folding clothes and scrubbing, aggravation when putting the children into and removing them from a child seat in the car, restriction of her sporting activities and reduction of desired levels of sexual activity.
On examination of the lumbar spine, Dr Davis found there was no evidence of antalgic gait and weight-bearing was symmetrically distributed. There was tenderness from L4-S1, although more significantly at the lower level and there was asymmetry of movement with greater range in the right-side flexion. Reflexes were present and symmetrical and there were no abnormal sensory findings. There was a full range of movement of the left knee with no evidence of instability. With respect to the left ankle there was no swelling or deformity. However, there was tenderness anteriorly over the ankle joint and a virtual lack of dorsiflexion of the left ankle whilst plantar flexion was 30°. There was no wasting in her lower limbs and no abnormal sensory findings.
Dr Davis diagnosed a mechanical trauma to the lumbar spine and a capsular injury to the left ankle consistent with the stated mechanism of trauma. Her continuing disabilities related to repetitive or sustained bending, repetitive twisting, heavy lifting, working in confined areas, prolonged periods of standing or sitting and ambulation. In Dr Davis's opinion, the plaintiff would be capable of returning to her pre-injury duties as a state administration coordinator at Priceline with the restrictions of avoiding lifting anything over 5 kg and having posture breaks every half hour. She should not bend and lift heavy files. He believed that the plaintiff would be somewhat disadvantaged on the open labour market. He believes the prognosis is for an ongoing moderate degree of restriction in her functional capacity, although he believed that it would be preferable to view radiological investigations of her lumbar spine prior to a specific prognosis.
Although Dr Davis says that he is unable to comment regarding future management, he says that the plaintiff should continue over-the-counter medications as necessary, that she should be referred for a gym program to increase core stability and that during any period of exacerbation she should be provided with access to physical therapies. In Dr Davis's opinion, the plaintiff had achieved maximal medical improvement.
In Dr Davis's second report, after reviewing the report of Dr Mitchell (to which see below), he notes that at the time of Dr Mitchell's report six months after his assessment, the plaintiff complained only of ongoing symptoms in her lower back and ankle. He notes that his examination recordings and those of Dr Mitchell vary, and that Dr Mitchell recorded the absence of dysmetria in her lumbar spine and no clinical signs. In his opinion, this may represent findings "on the day" or an improvement in physical signs present. He observed that the plaintiff told Dr Mitchell that she carried out her normal share of domestic duties, but she did not describe whether these duties resulted in aggravation of her symptoms, particularly the chronic strain injury to her lumbar spine. Overall, based on Dr Mitchell's report, it appears to Dr Davis that there has been some improvement in the plaintiff's presentation since his assessment.

[34]

Dr Peter Giblin

Dr Peter Giblin, orthopaedic surgeon, reported on 24 November 2020. He assessed the plaintiff on that day.
The plaintiff told Dr Giblin that at about lunchtime on 17 December 2019, she came out of the shopping centre and was on a crossing which had a curved shape to it. As she approached the gutter, she put her foot into a dip in the road which caused her to roll her left ankle and she fell partially down, restraining herself by hanging onto the pram. She then stood up onto her left ankle and this time fell to the ground landing on her left knee, left elbow and wrist in that order. She got herself up and made her way to her car which was nearby, and she drove herself home and called her husband. Later that day she reported the injury and fill out an incident report. The next day she saw her general practitioner. The onset of back pain occurred a few days after the injury because of her limping. Treatment so far had been about 30 sessions of physiotherapy and 10 sessions with a chiropractor. Her current treatment was chiropractor once every two weeks, physiotherapy once a month and over-the-counter analgesics when necessary. At the time of the incident she was not working, but she was looking for an office administration type job. She was not working at the date of the assessment.
The plaintiff's chief complaint was ongoing pain, stiffness and burning sensation with clicking in her left ankle. She could not run or jump, negotiate sloping and uneven surfaces or wear high heels. Her low back ache was described as a bruised aching feeling radiating from her hips down to both her buttocks. She could walk for about half an hour most days but has to watch the ground in front of her. She could stand for 20 minutes, sit for half an hour and at night the pain would not disturb her sleep. Her sex life was slightly restricted. Before the accident she was doing all the housework and shopping independently but following the accident she became reliant on gratuitous support from her husband. At the time of assessment, the split was 80/20 (in her favour), and she was still reliant on some help from him.
On examination the plaintiff could bend over and almost touch her toes. Lateral flexion was to the knee on either side and extension of her lumbar spine was half normal. Passive range of motion of hips, knees, ankles and subtalar joints was normal on each side. There was focal tenderness with clicking of the peroneal tendons at the left ankle but not on the right side. Motor strength of the major muscle groups around the foot and ankle was normal.
Dr Giblin's opinion, based on the plaintiff's history and examination, she has a provisional diagnosis of an ongoing primary soft tissue injury to her left ankle, reasonably causally related to the injury sustained on 17 December 2019. She has a secondary or compensatory soft tissue injury to her lower back consequent upon the incident. As to prognosis, her condition was stable and not unreasonable, but he believed that her symptoms were likely to persist in terms of exacerbations and remissions and would be associated with permanent physical limitations and possibly long-term degenerative change. In his opinion she was a reasonable candidate for an MRI of her lumbar spine which would provide greater diagnostic accuracy. At that point in time, Dr Giblin assessed her as being permanently unfit to use her left lower extremity for repetitious impact activities, repetitive stair and ladder climbing, working at heights or impact activities. She was fit for a sedentary work environment but avoiding the abovementioned physical restrictions. He was of the view that the plaintiff's ongoing treatment will be symptomatically based, conservative in nature and directed by her family doctor and associated health workers from time to time. He believed that the cost of treatment would be similar to those incurred over the last six months and required for a further 12 months. Over-the-counter medication costs would be in the order of a further $100. In addition, she would require some degree of permanent physical support in terms of her heavy domestic responsibilities which might increase depending upon the outcome of the progression of her injury.

[36]

Spinal & Sports Care

The notes of Spinal & Sports Care were tendered by the plaintiff. She was first seen on 12 February 2020 when she described falling at a shopping centre on 17 December 2019. She complained of lower back, left knee and left ankle pain. It was noted that she saw a physiotherapist over Christmas on two occasions, but no work was done on her the back. The worst pain was in the lower back, although her ankle felt stiff and tight. She was having difficulty playing with her children and picking them up. She was waking at night when moving in her sleep due to the pain and walking with a limp. Her pain was noted to have improved.
On 14 February 2020 the consultation notes record that the lower back was improved and was not as stiff, but there was no change in the ankle. The plaintiff could now walk without pain, but long walking caused a limp. On 17 February 2020 the plaintiff reported that the movement in her ankle had improved since her last treatment and was not as stiff. Her lower back was good for two days, but she woke up that morning with some pain and stiffness. She limped only after standing for long periods. On 24 February 2020 the plaintiff reported that her condition continued to improve. Her ankle felt more mobile. Her lower back was only sore in the morning when first waking and took two hours to settle. There was no limping.
On 30 March 2020 the plaintiff reported not much change. She felt her ankle and lower back when cleaning and moving around a lot. Her ankle was painful but felt a lot stronger. She was wearing joggers for long periods and was starting to get pins and needles in her left foot. Her lower back was sore in the mornings and after sitting for long periods.
On 6 April 2020 the plaintiff reported feeling better. Her ankle was not as sore or stiff. Her lower back was improving and felt much better after doing exercises. On 20 April 2020 the plaintiff reported that walking was much better and that she was not getting feelings of numbness in her foot anymore. She had some mid back pain the Wednesday before, but that lasted only for the day. Her lower back was sore in prolonged positions or during periods of inactivity.
On 4 May 2020 the plaintiff reported that she had started walking for 30 to 40 minutes each night but had to stop after three days because her ankle was very sore afterwards. She believed that she had pushed herself too much. On 18 May 2020 the plaintiff reported that her ankle felt good with tape on, when it had no pain. Her lower back was sore when she woke up that morning but otherwise was going alright.
On 1 June 2020 plaintiff reported that she had been really good. She was wearing supported shoes and had not had any pain in her lower back or ankle. She had only minor discomfort following a walk. On 22 June 2020, the plaintiff continued to improve, and she was not struggling with her lower back at all.
On 24 July 2020, because of a tooth infection, the plaintiff rested completely for two weeks.
On 3 August 2020 the plaintiff reported feeling better and had been doing more exercise and not feeling as stiff. Her ankle was quite good. On 24 August 2020 the plaintiff reported that her ankle was sore only with sudden movements but otherwise had been fine. She felt her lower back pain when picking up heavy things.
On 4 September 2020 the plaintiff reported that her lower back had been quite sore and that there was tension rising up into her shoulder region. She felt that her ankle had improved but her back pain had worsened.
On 11 September 2020 the plaintiff reported that she felt much better after her last treatment and only had some tightness in the last few days. On 18 September 2020 the plaintiff reported wearing heels for the first time that weekend when her ankle "niggled" a little. She had a low back ache on Monday, but it settled. She had a spasm on Wednesday. On 21 September 2020 the plaintiff reported that her lower back was stiff in the morning, but she was not in as much pain when bending forward. Her ankle had settled and was clicking when wearing heels, but overall, she was feeling better.
On 1 October 2020 the plaintiff reported that her lower back had flared up again two days after her last visit. She believed it flared up when doing a lot more at home. On 9 October 2020, the plaintiff reported that her lower back felt much better after her last treatment and she noticed it only yesterday despite having a busy weekend. On 12 October 2020 the plaintiff reported that she had a busy weekend, that her ankle wasn't sore, but it felt like it did not have strength. When she rested it felt better. On 23 October 2020 the plaintiff reported that she did a big day of gardening and "pulled up quite well". Her lower back still niggled, but overall had improved quite a lot.
On 6 November 2020 the plaintiff reported pulling up well. On 13 November 2020 the plaintiff reported that her lower back continued to improve but was still "up and down". Walking was fine. Being in prolonged positions made her feel a bit sore. On 20 November 2020, the plaintiff reported being a little sore in her lower back after the last treatment, but it settled well, and she had not had knee pain tightness all week. She noticed discomfort when she stood for long periods of time, like when washing dishes or bathing the children.
On 4 December 2020 the plaintiff reported hardly noticing any pain since the last treatment and was only noticing it when in bent over positions. On 11 December 2020, the plaintiff reported that she was sore after having medical tests done, but that the pain had settled. She had started walking 40 to 45 minutes per day and was tolerating it quite well. On 18 December 2020 the plaintiff reported feeling quite good in her lower back.
On 12 January 2021 the plaintiff reported that for two weeks over Christmas her lower back was a little sore from doing a lot at home as her husband was sick. However, when he recovered, she was able to start exercising again and had pulled up quite well. She was no longer sore to bend and was sore only when holding a position for a long period of time. On 15 January 2021 the plaintiff reported that her ankle was okay. On 12 February 2021 the plaintiff reported that her lower back had been pretty good and that she only had a day of discomfort after attending a wedding. On 15 February 2021 the plaintiff reported that she was going really well but that when she was on her feet all day, she noted that her ankle was swelling but which eased off.
On 5 March 2021, the plaintiff commenced Pilates. On 19 March 2021, the plaintiff reported that she was feeling very good after Pilates class, but that her lower back had been aching since sitting all day at a course the week before. On 26 March 2021 the plaintiff reported that after sitting on a train for two hours, the right side of her lower back began to tighten up and feel sore.
On 1 April 2021 plaintiff reported that she had started working one day per week as a waitress for 6.5 hours. Her ankle was fine, but the next day she felt tight in the ankle and had to rest the next day. She was still getting pins and needles starting in the calf and into the feet.
On 7 May 2021, the plaintiff reported that she had only one day of back discomfort after a big day of housecleaning. On 13 May 2021 the plaintiff reported that she had worked two days in a row for the first time. On the Monday she did not have swelling, but she had pain, and so she rested. On the Tuesday she was feeling a lot better. When walking she feels some instability. Her pins and needles were coming and going.

[38]

Dr Robin Mitchell

A report of Dr Robin Mitchell, occupational physician, dated 6 April 2021 was tendered by the defendant.
Dr Mitchell examined the plaintiff on 25 March 2021. He believed that she provided her history in a straightforward and reasonable manner. The plaintiff said that she developed pain in her left leg, ankle and back on 17 December 2019 after she tripped on an uneven surface whilst walking along a pedestrian crossing. She landed on her left side. She felt immediate left ankle pain and was unable to rise immediately, but eventually made her way to her car and later reported the incident. The next day she attended her general practitioner who referred her for physiotherapy and investigations. Those investigations indicated no underlying abnormality. She commenced physiotherapy for her left ankle, knee and back on 18 December 2019 and explained that her back pain developed a few days after the initial injury, which she attributed to her uneven gait. At the time of the incident, the plaintiff was fully occupied with home duties. Initial treatment was conservative with various medications, physiotherapy and chiropractic treatment. She no longer requires any analgesic medication.
Ms Devic completed year 12 at high school and then a Diploma in Business Administration. She has mainly worked in office environments. Her last job was as the state coordinator for Priceline in 2015.
The plaintiff reported that she continues to have pain in the lower back on each side with radiation into the proximal buttock, but not any further down either leg. The back pain symptoms vary in level, usually based on the level of activity undertaken at the time. She continued to have pain in the left ankle, particularly the anterior aspect. She no longer has knee pain. Any particularly arduous activity would make the back and ankle symptoms more severe, such as moving furniture. She is fully independent with respect to her personal activities of daily living. She told Dr Mitchell that she carried out her normal share of the domestic activities within the home that she shares with her husband three children. Her symptoms have been stable for more than six months.
The plaintiff said that she could sit for up to 6 hours a day, stand for up to 6 hours per day, walk between 30 and 40 minutes at a time (which she undertakes three times a week) and up to 2 hours if she walks at a slower pace, lift up to 20 kg and drive for up to 2 hours. Following the injury the plaintiff avoided strenuous activity for a period of one year, but subsequently progressively returned to her previously undertaken activities at a reduced degree.
Ms Devic's responses during the physical examination were noted to be consistent and appropriate. Cervical, thoracic and lumbar spine movement was normal. Straight leg raising was normal. Shoulder and arm movements were normal. The right leg was clinically normal. The left leg was clinically normal apart from a mild reduction of normal dorsal flexion at the left ankle.
In Dr Mitchell's opinion, the diagnosis is soft tissue pain in the left ankle following a sprain injury and back pain which was soft tissue nature, in the absence of any clinical evidence of any underlying injuries and no radiological studies having been performed. The plaintiff's prognosis in the absence of any discernible significant injury should be good. In his view, the plaintiff has a current capacity for suitable work that would avoid any aggravation of the reported symptoms and provided that certain precautions were available, she ought to be able to manage such work on a full-time basis. The plaintiff should manage all physical activities below chest height and close to the body trunk, particularly if repeated or sustained in nature to avoid aggravating her symptoms. Prolonged walking, particularly over even or sloping ground surfaces should be avoided.
In Dr Mitchell's opinion there appears to be a direct temporal relationship between the reported ankle symptoms and the subject fall, with the back symptoms developing some time after the event and attributed by her to her altered gait. She is not unfit for work of the nature she carried out before she started raising her family. The conservative treatment she has received is reasonable in the circumstances. No further treatment of any nature is indicated or required. She has not received any domestic assistance or personal care in relation to the injuries sustained in the subject incident. Dr Mitchell notes that the reports of Dr Davis and Dr Giblin contain a similar history and physical findings to those reported to him.

[40]

The Defendant's Medical Case

As to the plaintiff's physical symptoms, the defendant says that at its highest, as a result of the accident the plaintiff suffered a sprained ankle.
Mr McCarthy says that the assessment of all the claimed heads of damage will be influenced by the finding of the court as to the cause of and the nature and extent of the plaintiff's back condition. This is because much of the loss claimed in this case is said to be related to her lumbar spine condition. He observed that the report of Dr Abraham does not refer to the back condition at all, that the MRI report notes no pathology, and that Dr Davis diagnosed the plaintiff is suffering from mechanical trauma to the lumbar spine. Mr McCarthy notes that Dr Davis took no history as to when the onset of the back pain was alleged to have commenced. As to the report of Dr Giblin who diagnosed the plaintiff with a secondary or compensatory soft tissue injury to her lower back consequent upon the index accident, it was based on history provided by the plaintiff that the onset of back pain occurred a few days after the injury because of her limping. Finally, there is the report of Dr Mitchell who diagnosed the plaintiff as suffering from a soft tissue back injury based upon the plaintiff telling him that the back pain developed a few days after the initial injury, which she attributed to her on evening gait.
Mr McCarthy submitted that it follows that at its highest, the plaintiff suffered a soft tissue injury to her lower back with no pathology. However, he says that the plaintiff's case cannot be taken at its highest because the histories relied upon by all the doctors are false. At trial, Mr McCarthy says that the plaintiff said that her back pain developed in February 2020. She did not disagree that she may be given a different history to Dr Giblin, and she confirmed that she told him that her back pain occurred after a few days following the fall. She said she also might have told Dr Mitchell that her back pain had developed a few days after the fall.
Mr McCarthy observed that the notes of the plaintiff's regular general practitioner demonstrated that she had visited that practice on five occasions between the date of the accident and 27 November 2020 (being the date when the notes conclude). On no occasion did she complain of a problem with her back. Eventually she told her general practitioner that she had a problem with her back in July 2021, which Mr McCarthy says is consistent with an individual who did not hold much concern for the condition of her back. So much was confirmed by the plaintiff at T105.27 when she stated that her back was never really a major issue. The first recorded entry with respect to her back injury was at the Sports and Spinal Centre on 13 February 2020, although I note that a slightly earlier mention is contained in the Hoxton Park Physiotherapy and Chiropractic Centre on 29 January 2020.
As to the ankle injury, the defendant accepts that the plaintiff rolled her left ankle on the day of the accident and sprained it. Mr McCarthy observes that the radiology demonstrates that there is no pathology of any kind. The report of Dr Abraham contains no diagnosis, Dr Davis diagnosed a capsular injury to the left ankle and Dr Giblin provided a provisional diagnosis of ongoing primary soft tissue injury to her left ankle. Dr Mitchell diagnosed a sprain injury. It follows therefore, in Mr McCarthy's submission, that there is no medical evidence in this case to explain why a sprained ankle sustained in December 2019 remains symptomatic. He noted that the plaintiff agreed that by May 2020 she could walk for 30, 40, or even 60 minutes per night. He also submitted that a continuing ankle sprain is inconsistent with the plaintiff's decision to obtain a job as a waitress at a club which requires her to be on her feet for long periods serving customers by carrying food to their tables on platters. It is also inconsistent, in his submission, with some of the more unguarded comments that the plaintiff made to her physiotherapist/chiropractor including "a big day of gardening" (on 23 October 2020).
I am satisfied that the plaintiff suffered a soft tissue injury to both her ankle and back. That the plaintiff did not immediately complain of back pain, in my view, is not inconsistent with her suffering the injury at the time or consequent upon the incident. I accept that it caused her to be disabled for several months and find that it has gradually improved. I find it on the balance of probabilities that it will ultimately resolve with continued conservative treatment.

[41]

Non-economic loss

What then is the extent of Ms Devic's non-economic loss? An award of non-economic loss is an evaluative judgment: see Clifton & Ors v Lewis [2012] NSWCA 229 per Beazley JA at 33. Section 16 of the Act speaks of the court determining "a most extreme case". The interpretation of those words in the decisions of Dell v Dalton (1991) 23 NSWLR 528 and Southgate v Waterford (1990) 21 NSWLR 427 (considering the like provision of section 79 of the Motor Accidents Act 1988) is therefore relevant. More recently, the Court of Appeal considered those words in Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25.
In Southgate, the Court of Appeal held that the amount to be recovered as damages for non-economic loss is not to be calculated in accordance with common law principles up to the statutory maximum, but suggested the following three-stage process by which it would be appropriate for a trial judge to approach the question of apportionment of non-economic loss: (1) consider and make findings on the elements in the evidence which are relevant to non-economic loss, being those relevant to an award of general damages; (2) conceive a (not the) most extreme case (which the court noted would certainly include quadriplegia); and (3) award damages between nil and the statutory maximum in the ratio which the judge determines, keeping in mind that the maximum is retained for "a most extreme case".
In Zhang, Basten JA said that the purpose for which the assessment of severity is to be made is to identify the effect of the injuries suffered by a particular plaintiff.
In Coleman v Barrett [2004] NSWCA 27, Gzell J said at 63: Non-economic loss is defined in the Civil Liability Act 2002, s 3 as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Section 16(3) is like the Motor Accidents Act 1988, s 79A. It requires a judge, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, to determine the severity of the non-economic loss as a proportion of the non-economic loss of a most extreme case. It has been said that the task under such legislation involves reaching a point where further reasoning is impossible and it is necessary to make a determination which is insusceptible to entirely logical exposition (Southgate v Waterford (1990) 21 NSWLR 427 at 442) and that the assessment of general damages is an evaluative process in respect of which minds may reasonably differ (Woolworths Ltd v Lawlor [2004] NSWCA 209 at [14]). Nonetheless, the statute requires a comparison to be made of the non-economic loss suffered by a plaintiff against the non-economic loss in a most extreme case. The statute does not require the comparison to be made against the most extreme case imaginable. In Kurrie v Azouri (1998) 28 MVR 406 at 413, Sheppard AJA said: "The expression a most extreme case' requires some discussion. It enables one to provide oneself with a yardstick as to what the legislature had in mind. A court considering the question will need to contemplate what in practical terms is embraced by a most extreme case'. Immediately one considers such a case, one thinks of cases of quadriplegia, perhaps some serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning. No doubt there are others." See also Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [5] and generally Hall v State of New South Wales [2014] NSWCA 154 per Leeming JA.
I note that as of 1 October 2021, the statutory maximum for non-economic loss under the Act is $693,500.
Mr McCarthy contended that the plaintiff did not reach the 15% threshold pursuant to section 16 of the Act, and so was not entitled to an award of damages pursuant to that section. Indeed, he submitted that I could not be satisfied that the plaintiff sustained any injury of substance as a result of the incident. Ms Campbell on the other hand submitted that given the young age of the plaintiff and her requirement to manage her disabilities long-term, I would find that the plaintiff was entitled to 28% to 29% of a most extreme case, which would yield damages in the amount of $96,000 to $123,500. Mr McCarthy submitted that if the court found that the back injury was causally related to the accident the combination of the ankle sprain in the back strain would reasonably be assessed at about 18% of the most extreme case or $17,500.
In the present case, accepting for the purpose of assessing damages only, that the plaintiff suffered the injuries set out in the photographs, that she had a difficult first 6 months managing her injuries and is left with soft tissue injuries to her left ankle and lower back which will require intermittent conservative treatment by a physiotherapist or chiropractor for a period, I allow 25% of a most extreme case, or $45,000.

[43]

Future out-of-pocket expenses

At the date of the hearing, the plaintiff was continuing to receive physiotherapy on a six-weekly basis. Both Dr Giblin and Dr Davis recommended future treatment. As Dr Mitchell accepts that the plaintiff continues to have some ongoing symptoms, in my opinion some continuing management will be needed.
The plaintiff's Schedule of Damages claims $10,000 in future treatment. However, Ms Campbell submitted that taking into account that the plaintiff has incurred approximately $4000 in treatment expenses in the 18 months since the incident, and that she is still receiving active treatment, $10,000 is insufficient and the claim is made for $15,000 for future out-of-pocket expenses.
Mr McCarthy submitted that no medical evidence was tendered to prove any real need for any future treatment to the ankle (or back). The various prescriptions are contained in the reports of Dr Davis, Dr Giblin and Dr Mitchell. Dr Mitchell believed that no future treatment of any nature was indicated or required, which in Mr McCarthy's submission is the clearest evidence on the subject, and that the allowance for future out of pocket expenses should therefore be nil.
In my opinion, taking into account the paucity of evidence on this topic, I am prepared to allow the cost of physiotherapy at $70 per session (see page 81 of Exhibit 1) on a six-weekly basis for five years (when I expect the soft tissue injuries to have stabilised or resolved): $70 x 8.67 = $607/12 = $50.59 x 231.5 = $11,711. There is no evidence as to the cost or frequency of any other treatment.
Gratuitous care in the past
The plaintiff gave evidence that she needed personal care assistance for the first two months for 30 to 40 minutes a day which reduced to 20 minutes per day after two months for the next five months. Additionally, she said she required assistance with the housework, cooking and shopping which was provided by her husband and mother from the time of the accident to mid-February 2020 at about two hours per day and then from February to mid July 2020 at about one hour a day. Following that time, the plaintiff said the care provided by her husband reduced to 1 to 2 hours per week and which continues.
Ms Campbell submitted that while the plaintiff manages most of her household duties, she does so by pacing herself and taking regular breaks. She says that this was confirmed by Dr Mitchell when he noted that the plaintiff avoided strenuous activities for a period of one year but subsequently progressively returned to the previous undertaken activities but to a reduced degree. He says that the plaintiff has not received any domestic assistance or personal care in relation to the injuries, but Ms Campbell says this is inconsistent with this comment that the plaintiff avoided strenuous activities for a period of a year and with other evidence in the case and ought not to be accepted.
The plaintiff's husband gave evidence that he took about 3 ½ weeks off following the plaintiff's accident, during which time he undertook housework and care for the children, spending 3 to 4 hours per day cleaning and cooking and an hour each morning helping the plaintiff get up, dress and shower. When he returned to work, for the next month and a half, he said he spent a couple of hours each night cooking, cleaning and shopping and about 20 minutes to 30 minutes per day helping the plaintiff shower. For the next five months he said he continued to provide assistance for a couple of hours a night. Thereafter, the plaintiff's husband continued to assist the plaintiff by shopping and doing the dishes each night.
The plaintiff's mother, Mara Kodor, gave evidence that she provided assistance to her daughter following the accident which included 2 to 3 hours a night for three nights a week for the first two months along with gardening every two weeks. For the following 5 months, she continued to provide care at the rate of two hours for two nights a week and she continued to help with the gardening on a monthly basis which took 2 to 3 hours. From July 2020 she continued to provide the plaintiff with assistance with washing, gardening and care for the children. Such care, it is conceded, fell below the threshold. However, following the plaintiff's commencement at work, the plaintiff's mother increased the care she provided by providing assistance on the Mondays after the plaintiff worked the previous weekend.
The plaintiff formulates her claim as follows: First two months - 4 weeks x 35.5 hrs per week x $32 = $4544 4 weeks x 23.5 hrs per week x $32 = $3008 Plus 1 hour gardening for 8 weeks x $32 = $256 Next five months - 22 weeks x 18 hrs x $32 = $12672 Plus .5 hrs gardening per week for 22 weeks x $32 = $352
Mr McCarthy submitted that any claim for past domestic assistance or gratuitous attendant care services must be determined in accordance with section 15 of the Act. That section reads as follows: 15 Damages for gratuitous attendant care services: general (1) In this section - attendant care services means any of the following - (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services - (i) that have been or are to be provided by another person to a claimant, and (ii) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that - (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided) - (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. (4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed - (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for - (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award - that quarter, or (ii) in respect of the whole or any part of any other quarter - the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4)(a) or (b), as the case requires. (6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.
Mr McCarthy observes that pursuant to section 15(2)(a) and (b) no damages can be awarded unless there is or was a reasonable need for the services and the need has arisen or arose solely because of the injury to which the damages relate. He says that the word "need" in section 15 must logically refer to a medical need which is clear from the wording of s15(2)(b), and which links the need to the "injury to which the damages relate." Pursuant to s15(3) of the Act no damages can be awarded for gratuitous attendant care unless the thresholds at (a) and (b) are met.
In this case, Mr McCarthy says that there was some lay evidence given as to the services performed on behalf of the plaintiff who was caring for her three young children. He says that if that evidence is taken in isolation, it would mathematically establish that the claim at some point exceeded the statutory threshold. However, he submitted that there is no medical evidence in the case of any kind to support the claim that her medical prescription exceeded the threshold. Because the "need" must be a medical need, the lay oral evidence on the subject cannot be determinative of the right to damages in the absence of co-relating medical opinion.
Furthermore, Mr McCarthy submitted that the plaintiff's claim for damages for domestic services fails for another reason. The operation of section 15(2)(b) mandates that the need must have "a reason or arose solely because of the injury to which the damages relate". If the court determines that the plaintiff's alleged back injury does not relate to the accident, the inability to separate out any specific ankle related need for care means that no damages can be awarded.
In my opinion, the plaintiff has not satisfied the threshold as set out in section 15 of the Act. No medical practitioner, let alone a rehabilitation specialist or an occupational therapist, makes any prescription for care and assistance. I accept that the plaintiff required some care and assistance following the incident. I accept too that her husband and mother assisted her. I do not doubt that they assisted her because they loved and supported her, and out of concern for her three young children. As Mr McCarthy rightly points out, the plaintiff's need must be a medical need.
Contemporaneous notes of Spinal & Sports Care indicate that within 2 months, the plaintiff's back had improved and that she could walk without pain. By the end of March 2020, her ankle was reported to be a lot stronger, and she could "feel" her lower back and ankle when cleaning and moving around a lot. By the beginning of April 2020, her ankle and back were improving, and by 20 April 2020, her walking was much better, and her lower back pain was sore during periods of prolonged positions or inactivity.
Taking into account the medical evidence before me, and the notes of the plaintiff's physiotherapist and chiropractor, in my opinion the plaintiff has not proved on the balance of probabilities the matters in s 15(2) or (3) of the Act, and I allow nothing under this head of damage.

[44]

Future Care

Dr Giblin stated that the plaintiff would need some degree of permanent physical support in terms of her heavy domestic responsibilities which may increase depending on the progression of her injury. Since the incident, Ms Campbell submitted that the plaintiff has received domestic assistance and that such assistance continues. She said that the plaintiff was doing particularly well at the time she decided to return to work, and that after work her need for assistance increased due to the aggravation of her symptoms. The plaintiff gave evidence that she continues to need help with heavy washing, that her husband also helps with making the beds, and that she has problems with maintenance of the yard (which I do not accept). Further having returned to work, she needs assistance on Mondays whilst she recovers. She gave evidence that her mother spends about two hours cleaning on Mondays and about four hours looking after the children. The plaintiff said that she did not want to rely on her mother and would prefer to have a cleaner. The plaintiff's mother gave evidence that following the plaintiff's return to work, she helped her daughter on Mondays after she finished work, either at the plaintiff's house for the day or by bringing the children to her home for that day so that her daughter could recuperate.
It was suggested in cross-examination that the plaintiff's mother would continue to provide care. Ms Campbell submitted that the plaintiff's mother has other significant commitments, and it would be unfair for the plaintiff to rely on her mother and that she would prefer to have a (paid) cleaner. The plaintiff gave evidence that two hours per week would be sufficient when taking into account the gardening, although Ms Campbell submitted that three hours is more realistic to meet the plaintiff's needs. A claim is therefore made for three hours per week at $54 per hour until retirement (multiplier 845), being $136,890, by which time the plaintiff would be able to self-pace again without the aggravation of work. The commercial cost of routine cleaning is in evidence at page 58 of Exhibit 1, that is, $54 per hour.
Mr McCarthy submitted that similar problems arise with future domestic assistance as do past domestic assistance. He submitted that there is no evidence at all to support a future "medical need" for domestic assistance of any kind. The only specific evidence on the subject came from Dr Mitchell who stated that there was no medical indication that there should be any requirement for future domestic assistance and that the plaintiff has the capacity to manage all aspects with normal care and self-pacing. He was not cross-examined.
It was submitted that the evidence disclosed that the plaintiff has never in the past paid any person to perform household activity on her behalf. She said that if she had available funds, she would pay a cleaner. Mr McCarthy submitted that there was a sense of unreality about this statement, and the plaintiff accepted in evidence that it could be the case that in the future, gardening and cleaning duties might be performed by family members and friends for no remuneration. Ultimately, the plaintiff accepted the proposition that it is likely that her family would continue helping her around the house because they loved her. Due to a combination of these reasons, Mr McCarthy says there should be no award for future gratuitous or commercial domestic assistance.
The plaintiff's claim is for the cost of a cleaner. Taking into account the entirety of the evidence, I am not satisfied that the plaintiff has a reasonable need for a cleaner to be paid at commercial rates. I have found that the plaintiff's physical condition has significantly improved and will likely resolve. Contemporaneous notes suggest that the plaintiff can garden, clean her home and take care of her children although I accept that she must modify her methods from time to time, and pace herself accordingly. Thus, in my view she has no need for a commercial cleaner. I accept that she has received the gratuitous assistance of her mother on occasion, but in my view the evidence does not establish any need. Neither does it satisfy s 15(3) of the Act. I allow nothing under this head of damage.

[45]

Sullivan v Gordon

The plaintiff claims damages pursuant to s 15B as follows. Although the plaintiff has been receiving assistance with the care of her children since the incident, such assistance did not exceed the threshold of s 15. When the plaintiff returned to work, she required further assistance from her mother each Monday. In accordance with the evidence given by the plaintiff's mother, the childcare provided by the plaintiff's mother exceeded the six hour per week threshold. Had the plaintiff not stopped worked during the lockdown, it is likely that the childcare provided by her mother would have exceeded the six-month threshold, but lockdown intervened. The plaintiff's youngest child was born on 30 January 2019 and in January 2024 the child will be five years of age and will start school. The claim is made for childcare, for three hours per week at the (agreed) rate of $32 per hour being for two years and three months = $11,232.
Section 15B of the Act provides:- 15B Damages for loss of capacity to provide domestic services (1) Definitions In this section - assisted care, in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously) - (a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements), (b) if the dependant is a minor (but without limiting paragraph (a)) - any care that is provided to the dependant by a person other than the claimant where - (i) the person is a parent of the dependant (whether derived through paragraph (a)(i) or (ii) of the definition of dependants in this subsection, adoption or otherwise), and (ii) the care includes the provision of accommodation to the dependant. dependants, in relation to a claimant, means - (a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises - (i) the person to whom the claimant is legally married (including a husband or wife of the claimant), (ii) a de facto partner of the claimant, Note - "De facto partner" is defined in section 21C of the Interpretation Act 1987. (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise), (iv) any other person who is a member of the claimant's household, and (b) any unborn child of the claimant (whether derived through paragraph (a)(i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time. gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid. (2) When damages may be awarded. Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that - (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1) - the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants - (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. Note - Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant's dependants. (3) If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2)(c)(ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may - (a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2)(c)(i), disregard the week if assisted care was (or will be) provided during that week, and (b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2)(c)(ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period, but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total. (4) Determination of amount of damages. The amount of damages that may be awarded for any loss of the claimant's capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved. (5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, a court - (a) may only award damages for that loss in accordance with the provisions of this section, and (b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity. (6) Circumstances when damages may not be awarded. The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant's capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity. (7) A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant's loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity. (8) If a claimant is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, damages may not be awarded to the claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants while the claimant is a participant in the Scheme if (and to the extent that) - (a) the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and (b) the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant's dependants. (9) Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that) - (a) the loss resulted from an injury caused by a motor accident (within the meaning of the Motor Accidents Compensation Act 1999), and (b) an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act. (10) Damages may not be awarded if they can be recovered as damages for attendant care services. Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that) - (a) the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and (b) the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant's dependants being provided with the domestic services that the claimant has lost the capacity to provide. (11) Determining value of gratuitous domestic services. In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account - (a) the extent of the claimant's capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and (b) the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and (c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.
Mr McCarthy observed that there is no claim for past Sullivan v Gordon damages.
As to the future, Mr McCarthy submitted that there is no medical evidence at all to support such a claim. Even putting aside this hurdle, he says that the claim is difficult to factually conceptualise as it is based upon the premise that on the day after a weekend when the plaintiff works two shifts as a waitress, she then requires a rest and cannot look after her children. The plaintiff's mother looks after the children on Mondays, and damages are said to arise on this basis.
Mr McCarthy tested this claim at T1654- T168. It emerged that up until the time of trial, the plaintiff had only worked one double shift that caused her to be particularly tired on a Monday. She agreed with the question from the court that if she did not work on a weekend, she would not require childcare on the Monday. She emphasised that her need to rest was linked to a combination of soreness to her ankle and lower back. A similar claim for damages was pressed pursuant to section 15 of the Act. In my opinion, that the plaintiff may work two shifts per weekend (when that has occurred only once) does not give rise to a reasonable need as claimed. Further, there is no medical evidence supporting such a claim. I allow nothing under this head of damage.

[46]

Past Economic Loss

The plaintiff was born, raised and educated in Australia and completed the High School Certificate. Exhibit 1 contains documents which demonstrate that the plaintiff has obtained several TAFE certificates in Business and Administration. She has extensive experience in administration and retail. At the time of the incident, she was taking a break from work to be with her three small children.
Ms Campbell submitted that Dr Giblin, Dr Davis and Dr Mitchell agree that the plaintiff's capacity for work is affected by her injuries caused by the incident. She apparently planned to return to work in or about June 2020 for two days a week- Thursday and Friday, the days her older two children were already in care. The plaintiff was prepared to work in anything from retail to administration. It was also her intention to return to full-time work when her youngest child commenced school. Had the plaintiff not been injured, it is alleged that she was likely to return to work as planned in about June 2020. A claim is made for the loss of two days work, eight hours per day for 39 weeks at $30 per hour being $18,720. The rate of $30 per hour is said to be reasonable, given the plaintiff's pre-accident experience in administrative work and her earnings as a waitress of between $27.40 per hour for ordinary time, and up to $38.36 for Sunday work (see Exhibit 1 page 270).
Ms Campbell submitted that the plaintiff did not return to work until March 2021, and by that time the plaintiff was aware of what movements aggravated her injuries. She returned to work, in part, for financial reasons. She obtained work as a waitress working with her cousin. Some of the duties aggravated her injuries causing pain to her ankle and lower back. She was able to manage her symptoms during each shift by modifying her duties, taking regular breaks, and relying on others when necessary. Ms Campbell observes that the plaintiff was fortunate to have a sympathetic employer. She had a break between shifts when possible and tried to work Fridays and Sundays so that she could rest in between. On Mondays she relied on her mother to assist with the children so that she could recover from the aggravation of her symptoms following work. Ms Campbell submitted that the physiotherapist clinical notes corroborate the plaintiff's evidence that her injuries were aggravated following the commencement of work. On 1 April 2021 having worked one shift, the plaintiff had to rest the next day and she was continuing to have pins and needles from the top of her calf. When the plaintiff worked two days in a row for the first time, she did not have swelling but needed to rest.
Ms Campbell noted that the problems the plaintiff had at work due to her injuries were corroborated by her supervisor Liliana Laslovaric, who gave unchallenged evidence that the plaintiff was permitted to take short breaks depending on her pain level and when she could see that the plaintiff was in pain, her duties were changed. She also gave evidence that she and others provided assistance to the plaintiff when she was struggling, and that further shifts were available to the plaintiff, but she had declined them due to not being able to walk from pain. Ms Campbell submitted that as it is not possible to calculate the loss of extra shifts, a buffer of $1000 would be reasonable given that the plaintiff earns about $220 on average per shift. No claim is made for any loss during the lockdown and the total claim for past economic loss is $19,720.
Mr McCarthy submitted that the court could not safely accept any of the medical opinions, because all three opinions were contaminated by the erroneous premise that the plaintiff's back injury was caused by the accident. The possible exception to this, he says, is a comment of Dr Giblin who said that the plaintiff was "permanently unfit to use her left lower extremity for repetitive impact activities, repetitive stair or ladder climbing, working at heights or impact activities". Mr McCarthy says it is very difficult to know how Dr Giblin came to that view, given that he was only able to make a provisional diagnosis with respect to a suspected soft tissue injury to her ankle. I have already found that the plaintiff sustained a back injury due to the incident.
Mr McCarthy observes that the claim is made on the basis that the plaintiff would have returned work in June 2020. When the plaintiff's claim was tested, it emerged that she had made no credible efforts to obtain office work (for which she is trained) since the accident. The most that she had done was to have a "look on Seek". She made no real attempt to deploy her proven skills in sedentary office roles, and she approached her cousin for work as a waitress. The plaintiff agreed that this was a "very unusual career choice" given her claim of disability.
Mr McCarthy says that to the minor extent that the plaintiff claims to have lost additional shifts as a waitress, this was mostly caused by the Covid 19 pandemic lockdown. If there was any loss of income at all attributable to her physical condition, he submitted that it is impossible to separate out the effects of her back condition and her ankle condition. As such, he submits that there is no safe basis on which to award any damages for past economic loss.
I accept that the plaintiff intended to look for part time or casual work in about June 2020, Contemporaneous notes of her physiotherapist and chiropractor indicate that her injuries were then largely resolved or were much improved. Nothing prevented her from applying for employment in the field for which she had training and experience. This period coincides with Covid 19 restrictions, and she took employment with her cousin, which she was able to manage. I am not able to conclude, on the balance of probabilities, that there was any financial loss in the past attributable to her injuries and disabilities caused by the incident. I allow nothing under this head of damage.

[47]

Future Economic Loss

Ms Campbell submitted that the unchallenged evidence of the plaintiff's supervisor corroborates the plaintiff's ongoing restricted work capacity. Whilst it was suggested in cross-examination that the plaintiff should have sought suitable work, she submitted that the plaintiff should not be criticized for working, particularly given the difficulty suffered by many in the current financial circumstances. Further the plaintiff needs a flexible and understanding employer which she found in her cousin as her supervisor.
It was also suggested to the plaintiff that she could return to administrative work. Ms Campbell says that this may be the case in the future, but that it would not be without difficulties. The plaintiff attended a one-day course in March 2021 and found that sitting all day aggravated her low back causing it to ache (exhibit 1 page 204). The plaintiff also gave evidence that she would have difficulty sitting and a need to stand when she has pins and needles. The fact is, Ms Campbell submitted, that the plaintiff has an ongoing restricted work capacity which is supported by all the medical evidence, including the defendant's expert Dr Mitchell. A claim is made for future economic loss at the rate of $100 per week until retirement (845) x .85 adverse vicissitudes over favourable = -$71,825.
Section 13 of the Act provides: 13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
Mr McCarthy submitted that section 13 of the Act prohibits an award of damages being made unless the claimant first "satisfies the court that the assumptions about future earning capacity or other events on which the award is based accord with the claimant's most likely future circumstances, but for the injury". He submitted that in this case, the plaintiff has not formulated any assumptions. Unless this is attended to, he submitted that the court cannot award damages for future economic loss. Furthermore, he submitted that: 1. the nature of the plaintiff's alleged injuries is such that, on the balance of probabilities, they will not lead to a loss of earnings or loss of earning capacity, given that such an earning capacity will be deployed in an office environment. As such, even if she does have some ongoing impairment, it will not be productive of any financial loss; 2. even if the court was to find that the combined physical allegations that the plaintiff makes could be productive of financial loss, it cannot be satisfied that such financial loss resulted from the injury to the ankle alone, as opposed to a loss contributed to buy her back injury; and 3. the plaintiff's immediate future earning capacity was, in any event, significantly compromised by her need to parent her three very young children.
In my opinion, taking into account that the plaintiff has yet to make any attempt to obtain employment for which she is trained, she has failed to satisfy me of the assumptions about future earning capacity or other events on which an award can be based, and which accord with her most likely future circumstances but for the injury. In my view, on the available evidence, she has failed to discharge her onus on the balance of probabilities. Whilst I accept that she may have some minor physical limitations, I am unable to determine if it will be productive of any economic loss in the future. I therefore allow nothing under this head of damage.
Had the plaintiff been successful, I would have assessed the plaintiff's damages as follows: Non- economic loss: $ 45,000.00 Past out-of-pocket expenses: $ 4014.15 Future out-of-pocket expenses: $ 11,711.00 Past gratuitous care: $ 0 Future gratuitous care: $ 0 Sullivan v Gordon $ 0 Past Economic Loss $ 0 Future Economic Loss $ 0 TOTAL: $ $60,725.15

Devic v AMP Capital Investors Limited

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Judgment (49 paragraphs)

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Legislation Cited (2)

Cases Cited (31)

Cited By (1)