Garzo v Liverpool/Campbelltown Christian School Limited & Anor

The School 6William Carey Christian School was located at Prestons in the south-west of Sydney. The school had been in existence since the 1980s and provided education for students from kindergarten through to year 12. Children attending the school were aged between about 5 years and 18 years old. 7At the time of Mrs Garzo's accident, there were about 1400 students at the school. For about 15 years prior to her accident, the number of students had been in excess of 1200. 8The main entrance to the school was from Bumbera Street, Preston, along a road into the school grounds. On either side of the main entrance were carparks the surface of which were asphalt. The roadways within the school were also covered in asphalt. 9The evidence about the general usage of the school entrance and carpark area was that in the morning of a school day, students who were delivered to school would be dropped off from vehicles which were in one or other of those two carparks. Before the student body arrived, members of staff would use the carpark to temporarily stop their cars whilst collecting mail from the main reception office, and then proceed along the internal roads to the staff carpark. Parents and other visitors would also commonly use the carpark if they visited during the day, and also to collect their children in the afternoon after school. 10The pedestrian crossing in question travelled across the roadway which led from the northern carpark near to the main entrance to the staff carpark. The pedestrian crossing was the most convenient route for people walking from within the school grounds, and particularly the main front office, to the northern carpark. 11All of the carparks and roadways in the school grounds, as well as some of the pathways, were uncovered and were open to the weather and the elements. 12It was clear from the evidence that during the school week these areas were very busy, with students, staff, parents and visitors using them throughout the day.

The Pedestrian Crossing 13The pedestrian crossing upon which Mrs Garzo fell was first painted in mid 2005 at a time when the northern carpark was reconstructed and upgraded. 14The roadway across which the pedestrian crossing travelled was a kerbed and guttered road with a reasonably smooth asphalt covering. It was a road of sufficient width for two lanes of traffic, one in each direction. 15The pedestrian crossing consisted of five horizontal white painted strips bordered by two vertical lines along the extremities of each of those strips. The dimensions of the crossing were: (a) Length of crossing from kerb to kerb 5.8 metres

(b) Length of crossing from side to side 1.9 metres

(c) Width of each painted strip 450mm

(d) Width of asphalt surface between each painted strip 550mm

16It was in all respects an entirely unremarkable pedestrian crossing. It was of a kind that is commonly seen throughout Sydney. It was of dimensions regularly seen in pedestrian crossings. 17The pedestrian crossing was painted by Mr Turner, the proprietor and principal employee of the second defendant, Turner Building Services. Mr Turner first painted the crossing in 2005 using a white paint called Rocol Easyline Paint, which he obtained from the maintenance store shed at the school. 18The paint had been in use for many years at the school, since at least 1992, not only for pedestrian crossings, but also for line and directional markings on roadways, markings delineating carparks and line markings for netball and basketball courts in the school. 19The paint was a proprietary product which Mr Turner obtained, on the school's account, from a hardware company called Blackwoods Industries at Smithfield. 20In July 2007, Mr Turner again painted the pedestrian crossing. He did this by placing the can of paint into an applicator machine, and then painting lines which represented the outside boundaries of each of the horizontal white strips. Once he had done this he then disengaged the can from the applicator and, by hand, sprayed the crossing between the lines which he had marked out. 21In July 2007, he sprayed all of the crossing at the one time. Mr Turner accepted that although he attempted to get an even surface when he used the paint by hand, he could not guarantee that he thereby achieved a precisely even coat of paint. 22In particular, he agreed that when he was repainting the crossing in 2007, because he did not remove all of the paint that had been there from 2005, and the paint had worn unevenly, it was entirely possible that the paint applied by him in 2007 would not have resulted in a precisely even surface. 23There is an issue of fact which is in dispute between the parties about whether there was any additional painting carried out on the crossing after July 2007 and prior to Mrs Garzo's fall in November 2007. I discuss and resolve that dispute later in this judgment.

The Accident 24On the evening of 27 November 2007, Mrs Garzo attended with her husband, Mr Francesco Garzo, and their four children at a piano recital concert at the school. Her daughter, Mary, who was at that stage about five and a half years old, was involved in a piano recital. During the course of the recital which lasted about 2 hours, there had been some drizzling rain. 25After the recital concluded, Mrs Garzo, with her husband and all four children who were then aged between ten years and three and a half years, were walking back to their car, which was parked in the northern of the two carparks near the main entrance. 26The youngest child, Stephen, was in a pram which was being pushed by Mr Garzo. The other children were near Mr Garzo. 27Mrs Garzo, who was wearing wedged shoes that had a flat bottom with a raise at the heel of about 2cm to 3cm, walked across the pedestrian crossing. It was during a period of daylight saving, and accordingly it was still daylight. Although there had been drizzling rain during the concert, it was not actually raining at the time Mrs Garzo walked across the pedestrian crossing. 28She describes her fall in this way (Ex A, para 42): "42. As I was crossing the crossing from the school end of the crossing towards the carpark end of the crossing my feet slipped from underneath me and I fell forward heavily. I had almost crossed the entire crossing and was about to reach the point where I would need to step up onto the gutter when the slip occurred. 43. I was walking carefully. I was keeping a good look out. I was walking at a normal pace. I was not carrying anything. My handbag was on the pram being pushed by my husband. 44. Everything happened very quickly. My feet just suddenly lost traction and went out from underneath me. My foot slipped behind me as I was preparing to take my next step with my other foot. I lost balance and fell. 45. At the point where my feet slipped they were on the last of the painted sections of the crossing before the gutter. It was very slippery. I did not have any opportunity to regain my balance before I fell." 29Mr Garzo, who was walking behind his wife, but along the roadway and not on the pedestrian crossing, said this (Ex H, p 17): "My wife had almost finished crossing the crossing. She was walking on the white strips of the crossing and all of a sudden her feet slipped backwards from underneath her. She fell heavily and her face smashed against the gutter that was nearby at the end of the crossing." 30In cross-examination, Mr Garzo agreed that he could not recall whether one or both of his wife's feet were on the painted part of the crossing, nor could he recall which foot slipped, or which was the leading foot at the time. He did say that when he had a look at the crossing after his wife's fall, he saw that the crossing was wet. 31Mrs Garzo's evidence made it clear that she did not observe the state of the crossing at or before the time she fell. 32However, one issue that needs to be teased out from Mr Garzo's evidence is the degree to which the crossing was wet. 33The meteorological evidence tendered by Turner Building Services (Ex 12) suggested that little or no rain had been measured as having fallen at nearby measurement stations during 27 November 2007. The nearest meteorological observations were taken at a location about 5kms in a direct line to the north west of the school. The observations recorded that in the 24 hours up to 9am on 27 November 2007, 10.4mm of rainfall was recorded. In the next 24 hours, up to 9am on 28 November 2007, which would include the time of Mrs Garzo's fall, 1mm of rain was recorded as having fallen. 34These readings, which I am satisfied would be likely to reflect the conditions at the school, corroborate to some extent the evidence of Mrs Garzo about the amount of rain. These readings suggest that in the relevant period the rain was only light and only a small amount had fallen. 35The evidence from Mrs Garzo was that there had been some rain during the school concert, but that it was not raining at the time Mrs Garzo fell. Mrs Garzo said that it had been drizzling during the recital. In cross-examination she agreed that there had been "... a very, very little amount of rain " during that day. 36Whilst I accept Mr Garzo's description of the crossing surface as wet, I am satisfied that the extent or degree of wetness was very low. The crossing was wet or damp from earlier drizzle, which I find must have been quite light having regard to Mrs Garzo's evidence that there had only been a small amount of rain, and having regard to the meteorological recordings. 37My finding is consistent with the absence, in the contemporaneous records (Ex 4) of the school which note the complaint of Mr Garzo that the wrong paint had been used on the crossing, of any mention or description of the crossing being wet, at all, let alone to a significant degree. 38To make the findings plain, at the time of Mrs Garzo's fall: (a) it was not raining or drizzling; (b) the crossing was slightly wet or damp from previous quite light drizzle; and (c) there was no free water, or loose water, lying on the crossing.

The Pleaded Claim and Defences 39In her amended statement of claim, filed on 13 August 2009, Mrs Garzo said that the school and Turner Building Services each owed her a duty of care, which they breached. 40She set out her allegations of breach of duty by the school in this way (I have omitted those that are otiose): "8. ... c. Providing a pedestrian crossing which was extremely slippery particularly when wet; d. Failing to ensure that the pedestrian crossing was surfaced with non slip paint or other material; e. Failing to warn or adequately warn the plaintiff that the said pedestrian crossing was extremely slippery particularly when wet. f. Painting or allowing to be painted one particular section of the crossing in with paint which was not anti-slip and which had no anti-slip properties. g. Allowing to be present on one section of the painted crossing an area which had good slip resistance for pedestrians which area was immediately adjacent and partly covered by another area which was extremely slippery. h. Failing to warn or adequately warn the Plaintiff that when traversing the said crossing part of one particular stripe thereof was particularly slippery when compared to the area immediately adjacent thereto. i. Failing to ensure that the while painted crossing was only touched up with suitable paint." 41She also made these allegations of breach of duty against Turner Building Services: "12. ... b. Failure to seek or obtain advice or recommendations concerning the appropriate spray paint for use on pedestrian crossings. c. Failing to use an appropriate type of paint for the surface of pedestrian crossings. d. Failing to provide maintenance services with all due care, skill and diligence in a safe and proper manner. e. Failing to ensure that the school premises, including the pedestrian crossing, was safe for persons to use. ..." 42I note that in addition to these particulars, Mrs Garzo repeated against Turner Building Services all of the allegations made against the school. 43I also note that she made an additional allegation in subparagraph 12(f) that Turner Building Services had failed " ... to take any or any adequate or reasonable steps to prevent injury ". Expressed in this way, I do not regard this as anything other than a statement of a breach of duty. It is not a particular of something which was or was not done, or else ought to have been done. It has no role to play as a particular of a breach of duty. 44The school admitted that it owed a duty to Mrs Garzo but denied that it had been in breach of that duty. It put in issue the various allegations of breach in the amended statement of claim. 45The school also, by reference to various of the provisions of the Civil Liability Act 2002, pleaded: (a) that the relevant risk of harm was not foreseeable, was insignificant and not one against which precautions needed to be taken: s 5B(1); (b) that the probability of any harm occurring was so low that a reasonable person would not have taken precautions: s 5B(2); (c) that there was no relevant causal link of the kind required by s 5D. 46Finally, the school pleaded that Mrs Garzo had failed to take reasonable care for her own well being and was guilty of contributory negligence. 47Turner Building Services admitted that it was under a duty of care to Mrs Garzo, but denied that it was in breach of that duty. It put in issue the various allegations of breach. 48In addition, it relied on a number of the provisions of the Civil Liability Act in these terms: (a) Mrs Garzo's contributory negligence was of the order of 100 percent with the result that her claim would be defeated: s 5S; (b) the cause of Mrs Garzo's fall was the materialisation of an obvious risk and accordingly no duty of care was owed: s 5H; and (c) the cause of Mrs Garzo's fall was the materialisation of an inherent risk and accordingly no duty of care was owed: s 5I. 49In their final submissions, each of the defendants essentially maintained their pleaded defences, except that both of the defendants abandoned the following claims: (a) that the risk of the fall was an obvious one (s 5H of the Civil Liability Act ); (b) that the risk of the fall was the materialisation of an inherent risk (s 5I of the Civil Liability Act ); and (c) that there had been any contributory negligence on the part of Mrs Garzo (s 5R of the Civil Liability Act ).

Duty of Care 50As a duty of care has been conceded on the pleadings, it is only necessary to state briefly the nature and content of that duty. 51The school, as an occupier, owed Mrs Garzo a duty to take such care as was reasonable in the circumstances. What is reasonable will vary with the circumstances of Mrs Garzo's entry upon the premises: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487-488 per Mason, Wilson, Deane and Dawson JJ; Stojan (No. 9) Pty Ltd v Kenway [2009] NSWCA 364 at [89] per McColl JA, Ipp and Basten JJA agreeing. 52The duty of an occupier is not to make the premises as safe as "reasonable care and skill on the part of anyone can make them": Jones v Bartlett (2000) 205 CLR 166 at [92] per McHugh J; Wilkinson v Law Courts Limited [2001] NSWCA 196 at [21] per Heydon JA (with whom Meagher JA and Rolfe AJA agreed). 53The maintenance contractor owed what can be described as a conventional duty, namely, to take such care as was reasonable in the circumstances, by its act or omission, to avoid causing harm to Mrs Garzo.

Breach of Duty 54An analysis of the legal requirements for a plaintiff to establish the breach of a duty of care must, in NSW, commence with the Civil Liability Act . It is important to remember that the Civil Liability Act was not intended to be a complete code, but rather that it is a piece of legislation which exists in the context of the tort of negligence and the common law of negligence which has developed over time: RTA v Refrigerated Roadways [2009] NSWCA 263 at [173] per Campbell JA (McColl JA agreeing). 55The relevant provisions of the Civil Liability Act are sections 5B and 5C. Although they appear beneath the heading "Duty of Care", they are clearly directed to questions of breach of duty: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [13]. 56They are in the following form: " 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." 57There are a number of separate steps which a plaintiff must take to establish a breach of duty under the Civil Liability Act . The statute requires that at trial the judge must be satisfied that each of the elements in s 5B(1) are made out before a finding of a breach of duty can be made: Refrigerated Roadways at [442]-[444] per Sackville AJA. 58Little assistance in undertaking the essential analysis about breach of duty can be obtained from the pleadings. On this subject, the amended statement of claim pleads, in a manner which would be conventional for claims brought before the introduction of the Civil Liability Act but not in an appropriate manner for claims which postdate the Act, various "breaches of duty". 59But in a claim in negligence to which the Civil Liability Act applies, it is necessary that the pleading identifies and articulates the material facts upon which the plaintiff relies to establish each of the elements required by s 5B(1). 60As a starting point, a proper pleading of a claim requires the plaintiff to identify, and articulate clearly the "risk of harm" in respect of which, it is alleged, the defendant was obliged to take precautions. This puts a Court in a position to determine the defendant's knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the defendant's response, or lack of response, to that risk, thereby avoiding the type of error discussed by Gummow J in RTA v Dederer (2007) 234 CLR 330 at [59]-[61]. 61A proper pleading will also need to plead whether it is part of the plaintiff's case that the defendant had actual knowledge of the risk of harm, and that the risk was thereby foreseeable (s 5B(1)(a)), or whether the plaintiff only contends that the defendant ought to have known of the risk of harm. Particulars of such a pleading would then ordinarily be provided. A defendant would then be in a position to fully plead to such allegation. 62Authorities suggest that there may be cases where, at least arguably, s 5B may not apply: see Drinkwater v Howarth [2006] NSWCA 222 at [11]-[13]; Refrigerated Roadways at [173]. It is unnecessary for me to express any view in this case as to a resolution of the apparent tension between these remarks and the judgment of the High Court of Australia in Adeels Palace at [27], because this case is one to which s 5B clearly applies, as all the parties accepted.

Identifying the Relevant Risk of Harm 63A central concept and one with which the analysis commences is the identification of "a risk of harm" against which the plaintiff, here Mrs Garzo, alleges a defendant would be negligent for failing to take precautions. Harm in this expression includes personal injury. Gummow J, in Dederer at [59]-[61] clearly demonstrates that it is only through the correct identification of the risk of harm that an assessment of the reasonable response can be made. 64As a real and practical matter, where a Court is considering any of the essential steps in s 5B(1), it must do so against the identified risk of harm. It is a matter of common experience in common law claims, that in any given set of factual circumstances, there are a number of risks of harm which can be identified. Unless the risk of harm being relied upon is clearly identified then it will not be possible to identify what steps ought reasonably to have been taken by a defendant to address the risk. Nor will it be possible for a Court to determine what the application of reasonable care required. 65In addressing this issue, Ms Norton, senior counsel for Mrs Garzo, submitted that the risk of harm was "... the risk of a person, such as the plaintiff, slipping on the painted surface and suffering personal injury ..." (T345.25ff). 66That definition of the risk in this case assumes, without saying so explicitly, so it seems to me, that the crossing is in the state it was at the time of Mrs Garzo's fall. It may be expressed more correctly in this way: "The risk of a person, such as the plaintiff, when using the particular pedestrian crossing by walking normally, in its then condition, slipping on the painted surface and suffering personal injury."

Section 5B(1)(a) - Actual or Constructive Knowledge 67The first element that a plaintiff must establish is that the risk of harm was foreseeable to the defendants. Foreseeability is described in the Civil Liability Act differently from the traditional common law description of something which "... is not far fetched or fanciful ". 68For a risk of harm to be one that is foreseeable in accordance with the statute, a plaintiff must establish either actual knowledge in the defendant of the risk of harm, or else constructive knowledge, ie, that the defendant ought to have known of the risk of harm. 69Ms Norton argued Mrs Garzo's case on the basis that the risk of harm was foreseeable, in terms required by s 5B(1)(a), because each of the defendants ought to have known of it. She did not contend that they had actual knowledge of it. 70The establishment, by a plaintiff, of constructive knowledge in the defendant of the risk of harm necessarily depends upon all of the facts, matters and circumstances which were known to it or else ought to have been known to it. In addition to the particular facts and circumstances of this case, other matters which may impact upon the drawing of an inference as to knowledge may include such things as the common knowledge and experience of others in similar positions to the defendants, public notoriety of a particular risk of harm, publications containing academic exposition of risk which might be expected to be read by people in the position of the defendant, and as well, the obviousness or likelihood of an event happening when applying common sense. It is important to emphasise however that knowledge, whether actual or constructive, must be judged as at the date of the alleged negligence and not at a later date; that is, without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences. 71One good example of the need to avoid the use of hindsight in the present case is the knowledge of the test results obtained by the various experts at various times. It is clear beyond argument that at no time prior to Mrs Garzo's fall did the defendants have access to any test results about the state of the crossing. It would be wrong to take into account those results when considering whether either of the defendants ought to have known of the relevant risk of harm. 72With these remarks in mind, it is appropriate to examine the evidence about the crossing to see if the defendants ought to have known of the risk of harm. 73The expert engineers, Mr Neil Adams and Mr Warwick Kiernan, agreed when giving concurrent oral evidence that it would not have been visually obvious to a reasonable person walking normally in the relevant circumstances at the time of Mrs Garzo's fall, that the crossing would be potentially hazardous. 74The experts were asked a similar question with respect to observations from the perspective of the occupiers, namely the school staff, or else the maintenance staff. Mr Adams found it difficult to answer that question saying: "Well it is difficult to say. I think when the crossing is new certainly, and that possibility would diminish if the surface wore over time. So the further away you get out from the time of painting, the less likely it would be that someone at the School would identify that this was a surface that should be modified." 75Mr Kiernan had a firmer view. He said: "Well, when I went to the site and looked at the crossing I think you could safely say it was unremarkable. Very typical. And I wouldn't expect any reasonable person to have expected a problem with that crossing." 76Given the relative terms in which Mr Adams expressed his view, and because there had been an elapse of five months or so from when the crossing was painted to the day of Mrs Garzo's fall, I do not detect in his evidence the expression of any reason why, or else any physical feature of the crossing which would justify a conclusion different from that of Mr Kiernan. I accept Mr Kiernan's evidence on this issue. 77The photographs which were tendered in evidence do not suggest anything untoward about the appearance of the crossing such as would take it out of the ordinary for a pedestrian crossing of a kind seen throughout the metropolitan area of Sydney. 78The school had in place a system by which accidents involving students, staff and visitors to the premises were reported. Ms Allchin, whose duties at the school included occupational, health and safety matters, gave evidence. It was she who, having heard of the accident, commenced an investigation to determine the state of the crossing. 79Ms Allchin said that since 2002, which was the inception of the school's current occupational health and safety system, there was no record of any other accident on the pedestrian crossing having happened prior to Mrs Garzo's fall. Similarly, there was no other record of any other accident on other surfaces in the school grounds upon which Easyline Paint had been used. 80She agreed in cross-examination that the system which was in place made provision for a record to be taken of any report of any incident at the school which concerned either an injury, or else an incident which may have involved an injury. She was confident that had such an event occurred, she would have found out about it. She said that she had personally observed people walking in the rain across the pedestrian crossing, that she had never observed anyone slipping, and that whilst she herself had walked across the crossing on a number of occasions, she could not recall any incident in which she had slipped on the pedestrian crossing. 81She agreed in cross-examination by senior counsel for Mrs Garzo that the reporting system and any investigations which she undertook were unlikely to have revealed any incidents where people lost their balance in the school grounds but were able to recover their balance and not injure themselves. 82Both in her evidence in chief and in cross-examination, Ms Allchin described a typical school day, which involved quite extensive usage of the pedestrian crossing by parents and children who were both arriving at the school in the morning and leaving the school in the afternoon, and also by staff and visitors using the crossing throughout the day. 83Mr Daniel Brooking, a security guard who was employed at the school from about the start of 2007 and onwards, gave evidence. 84He corroborated the evidence of Ms Allchin that significant numbers of parents, children, staff and visitors used the crossing during the course of the school day. 85Mr Brooking gave evidence that there were 49 car parking spaces in the areas of the carparks generally adjacent to the pedestrian crossing, about which description has previously been given. He gave evidence that in an afternoon the carparks would regularly fill and empty again so that in his estimation there would be about 100 cars in the northern part of the carpark during the course of an afternoon. 86He said that in the whole of the time he had been working at the school, he had not witnessed an adult fall on the crossing. He said that he himself had walked across the pedestrian crossing on many times in both wet and dry conditions. He said he had never noticed anything of concern whatsoever about the pedestrian crossing. 87He said that he may have noticed some children falling on the crossing, but these falls had not been reported because the children had not suffered any injury. 88Mr Turner, who was the director and principal of Turner Building Services, the maintenance contractor, commenced working at the school in either 1995 or 1996. From the time of his commencement he performed general maintenance and handyman duties and has continued in that role ever since. 89He said that throughout that time he had used Rocol Easyline Paint at the school. He said that on average each year about 40 cans of the paint were used throughout the school grounds. He said that the paint was used in carparks and on roadways, netball and basketball courts. 90He said that throughout the time that he had been using the paint there had been no incidents and no problems with the paint in terms of anyone slipping on the paint and injuring themselves. He said that he had personally walked over the pedestrian crossing regularly, 3 or 4 times a week, and had never experienced any problem with it including when he had walked on it whilst it was wet. He said that no incident had been drawn to his attention with respect to the paint on the pedestrian crossing at any time prior to being notified of Mrs Garzo's fall. 91Mr Turner participated in an inspection of the crossing within a few days after the report to the school of Mrs Garzo's fall. I recount the details of that examination later in this judgment. It is appropriate at this point, however, to note that I do not draw from the contemporaneous notes of this inspection any inference that within the painted strips, or else by reason of the juxtaposition of the asphalt of the painted strips, the crossing was slippery at the time of Mrs Garzo's fall. In short, there is nothing in this inspection which suggests that an observation of the crossing would have by itself and without more, revealed anything untoward about it. 92The entirety of the evidence which I have just reviewed points convincingly to the following findings: (a) The pedestrian crossing was of a typical kind regularly seen throughout the metropolitan area of Sydney, and had no unusual features; (b) There was nothing visible on the pedestrian crossing that suggested it may have be particularly slippery; (c) There was nothing visually obvious to a reasonable person walking normally across the pedestrian crossing that it would be potentially hazardous, in the sense that they might slip and fall; (d) There was nothing about the pedestrian crossing which would have alerted either the school staff or the maintenance contractor to the existence of a potential hazard; (e) There were no reported accidents on the crossing or on other areas of the school grounds where Easyline Paint had been used; and. (f) Neither the school staff who gave evidence, nor Mr Turner, the principal of the maintenance contractor, had any difficulty when using the crossing in all forms of weather. 93I accept that a mere calculation of the number of people who pass over this crossing in any given period of time is not of itself determinative of the issue of whether a risk of harm exists or is likely to fall in, nor can it be determinative of whether a defendant ought to have known of the risk of harm. However, it is one factor to which regard may be had: Kempsey Shire Council v Baguley [2010] NSWCA 284 at [32] per Sackville AJA (Campbell JA and Handley AJA agreeing). 94In this case, that factor has particular significance. The numbers of people using the crossing each day was quite high. The range of ages of those people varied from very young children of about 5 years old, through to adults. There is likely to have been a considerable variation in the gross motor skills of those using the crossing. There would have been a considerable variety of gaits and footwear. 95Because the crossing was an outside one, it was exposed to the full range of weather conditions, which means that it was likely that pedestrians would use the crossing during rainstorms, and whilst there was free water on the crossing. The complex mix of circumstances existed since the crossing was originally painted in 2005 and then immediately after it was repainted in 2007. 96Thus, whether the paint on the crossing was newly applied or else had worn down, and whether the conditions were wet or dry, no one had slipped on the crossing and injured themselves. 97Senior counsel for the plaintiff did not identify any specific factors which pre-existed Mrs Garzo's fall, from which an inference could be drawn that the defendants ought to have known of the risk of harm. 98I have concluded that, within the terms of s 5B(1)(a), the risk of harm identified in this case was not a risk of which the school or the maintenance contractor ought to have known. Accordingly, the risk was not foreseeable and neither the school nor the maintenance contractor can be negligent.

Section 5B(1)(b) - "Not Insignificant" 99Notwithstanding my conclusion in respect of s 5B(1)(a), it is appropriate that I consider the other matters referred to in s 5B(1). 100The second step in the analysis required by s 5B is to determine whether the alleged risk of harm was "... not insignificant". This must be judged from the perspective of a person in the defendant's position, and in prospect not retrospect. 101The phrase derives from the final report of the Review of the Law of Negligence ("the Ipp Report"), which was published in September 2002. 102The Ipp Report, at para 7.15, described the recommended change from the common law phrase "... not far-fetched or fanciful" to the statutory test "... not insignificant" in the following way: "The panel favours the phrase 'not insignificant'. The effect of this change would be that a person could be held liable for a failure to take precautions against a risk only if the risk was 'not insignificant'. The phrase 'not insignificant' is intended to indicate a risk that is of a higher probability than is indicated by the phrase 'not far fetched and fanciful', but not so high as might be indicated by a phrase such as 'a substantial risk'. The choice of double negative is deliberate. We do not intend the phrase to be a synonym for 'significant'. 'Significant' is apt to indicate a higher degree of probability than we intend." 103Decisions of the Court of Appeal have considered this phrase but it has not yet been the subject of any comprehensive detailed analysis: See Waverley Council v Ferreira [2005] NSWCA 418 at [69] Ipp JA (Spigelman CJ and Tobias JA agreeing); Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 at [92]ff per Beazley JA; Rhodes v Lake Macquarie City Council [2010] NSWCA 235 at [42] per Hodgson JA (Macfarlan JA and Handley AJA agreeing); Shaw v Thomas [2010] NSWCA 169 Macfarlan JA (Beazley and Tobias JJA agreeing). 104I have in a previous decision after a review of a number of sources gathered together what seems to me to be the appropriate approach in interpreting the phrase "not insignificant". In Benic v State of New South Wales [2010] NSWSC 1039 at [101], I said: "101 I will now attempt to draw together this variety of sources to state what approach, in my opinion, is the appropriate one to interpreting the phrase "not insignificant": (a) The assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play; (b) The phrase is of a higher order than the common law test, and this was intended to limit liability being imposed too easily; (c) The phrase 'not insignificant' is intended to refer to the probability of the occurrence of the risk; (d) In the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may, but does not necessarily reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning; (e) Whether a risk is 'not insignificant' must be judged from the defendant's perspective and must be judged on a broader base than a mere reductionist mathematical formula." 105I adhere to that approach and will apply it in this case. 106Mrs Garzo submitted that the risk of harm was not insignificant, because large numbers of pedestrians of varying mobility were accustomed to using the crossing, at the direction or encouragement of the school, with the result that the risk of slipping would not be insignificant, particularly if the crossing, or a portion of it, was wet or slippery. 107I do not accept this submission. 108The fact that no-one, having regard to the extensive usage of the crossing, had previously fallen is not determinative. It is but one factor. As I have earlier said, what is important is that the crossing had been used in a range of weather conditions, and by a range of people of various ages from kindergarten age, ie, 5 years old, through to adult age. 109The second matter is that pedestrian crossings of this kind are features commonly encountered in the course of daily life. Members of the public, including Mrs Garzo and other people who would use this crossing, are well used to walking over pedestrian crossings with painted strips. Even if one part of the crossing was marginally more slippery than another, there is no reason to think that a pedestrian walking at a normal pace could not or would not adjust their gait to cope with that sort of difference. 110There was no obvious defect in the crossing in November 2007 at the time of Mrs Garzo's fall. It had been repainted relatively recently (July 2007), and had weathered over time reasonably evenly and as one might expect it to have done. 111There had been no unusual external events, storms, road repairs, spillages of oil in the area of the crossing or the like, which meant that one might expect the crossing to be particularly dangerous. 112The probability that the harm would occur was very low. If harm occurred, given that one is talking about pedestrians walking on the ground and that the risk was of them falling to the ground, the likely seriousness of the harm was in general terms low. 113I accept that it is always possible that serious harm can occur in any accident when a person falls to the road. The history of cases before this Court is replete, both in criminal and civil cases, with examples of people falling to the ground and striking their head and sustaining serious brain injury, or in some cases dying. However, the mere possibility that there might be serious harm is not sufficient without more to fulfil the requirement of identification of the harm as being not insignificant. 114In the circumstances of a person slipping whilst walking over a pedestrian crossing, even in wet weather, I am not satisfied that the likely seriousness of the harm was high. In fact, I think it is far more likely that people would suffer minor injuries, if any at all. 115In short, I am not satisfied that the risk of harm in this case was one that can be described as "not insignificant". It did not reach that level or order of magnitude.

Section 5B(1)(c) - Reasonable Precautions 116Notwithstanding my conclusions in respect of s 5B(1)(a) and (b), it is appropriate that I consider the remaining matter referred to in s 5B. 117Section 5B(1)(c) requires an analysis of the conduct of a reasonable person, in all the circumstances of the case, when faced with the relevant risk of harm. This element, particularly when reference is had to s 5B(2) of the Civil Liability Act , closely reflects the common law: Refrigerated Roadways at [177] per Campbell JA. 118Any consideration of this element requires attention to the provisions of s 5B(2). However, as the terms of the legislation make plain, s 5B(2) is not an exhaustive list of factors which a court is required to take into account in deciding if s 5B(1)(c) is made out: Refrigerated Roadways at [173] per Campbell JA, at [445] per Sackville AJA; Erwin v Iveco Trucks Australia (2010) 267 ALR 752 at [81] per Sackville AJA (Basten and Campbell JJA agreeing). 119Originally, Mrs Garzo claimed in her pleadings that each of the defendants fell short, in many different ways, of the conduct expected of a reasonable person. However, after the conclusion of evidence, and in the course of final submissions, Mrs Garzo's claim became more refined. 120In substance, Mrs Garzo submitted that, in all the circumstances, including the fact that the pedestrian crossing was exposed to wet weather, when faced with the risk of a person like herself slipping on its painted surface and suffering personal injury, the school and Turner Building Services should have taken the following precautions: (a) Ensured that the painted surfaces of the pedestrian crossing were sufficiently uniform, so that a pedestrian would not be surprised by a more slippery part; and (b) Ensured that the painted areas of the pedestrian crossing had a slip resistance of at least the "recommended standard", by at least, investigating the availability of, and using, a different type of paint. 121She submitted that the defendants, in failing to take these precautions, fell short of the conduct of a reasonable person and were therefore negligent. It is necessary to consider each of these precautions in turn.

Precaution (a) - Uniformity of Slip Resistance 122Two issues of fact fall to be considered under this subject. The first is whether the entire surface of the painted strips was applied at the same time, or whether a small area called by the experts "the area of interest" had been repainted shortly before Mrs Garzo's fall. 123The second issue of fact is whether differential areas of wear on the painted strips, as exemplified by the testing results, were of such a kind that they were responsible for the fall and should have been remedied. 124The first disputed question of fact was about the state of the painted surface of the pedestrian crossing at the time of Mrs Garzo's fall. 125In her statement (Ex A, paragraph 129), Mrs Garzo recounted that on the day after her fall, when she returned to the school, she observed that: "... the area where I slipped had brighter fresher looking paint than the rest of the paint on the pedestrian crossing. The paint in this area had not yet sunken in to the asphalt and formed a smooth surface above it. This area was very slippery ...". 126In evidence, Mrs Garzo identified an area, depicted within a circle in Ex C, an enlarged photo of the pedestrian crossing, as the area where her foot slipped. In the photo, it can be plainly seen that there is an area of white paint which is apparently brighter than the other painted areas. This was consistent with the description given in Mrs Garzo's statement. At T24.43ff she gave evidence consistent with those observations. 127The date when the photograph Ex C was taken is unclear, but it was at a point in time well after Mrs Garzo's fall. 128In cross-examination, Mrs Garzo gave evidence that on a date after her fall, which, although unsure, she believed to be 11 December 2007, she took photos of the crossing on a mobile phone. Upon further cross-examination, she resiled from this evidence, saying that she had not personally taken the photos, but that her husband had done so. She agreed that she did not go to the school at all on 11 December 2007. I do not accept that Mrs Garzo took any photographs of the crossing on 11 December 2007. 129Mr Garzo, in his statement (Ex H, paragraph 77) said that he observed the state of the pedestrian crossing on the day after his wife's fall. He said that at that time: "I noticed an area that was brighter and appeared to be newer than the rest of the paint used on the crossing ... This brightened area was even slipperier than the other painted areas of the crossing. This brighter painted area seemed slipperier because it was flat over the asphalt rather than sunken in to the asphalt like the other areas of painting on the crossing." 130In evidence, Mr Garzo said that he had taken two photographs of the pedestrian crossing on the mobile phone which he had been using "... around the time of the accident ", although subsequently the mobile phone was used by his son. The date or time when his son commenced to use the phone was not identified in evidence. The two photographs were tendered and became Ex J1 and Ex J2. 131An inspection of those photographs shows that there is a small area of freshly painted white paint on the north western corner of the final painted strip before the northern kerb of the crossing. The photographs represent a close-up view of the area which Mrs Garzo identified with a circle on Ex C as the area where she fell. The photographs are also consistent with the descriptions given by Mrs Garzo in Ex A, and Mr Garzo in Ex H, and in their evidence which I have summarised above. 132Mr Adams, an expert engineer retained by Mrs Garzo's solicitors, described the surface which he saw on 29 January 2009 in these terms in his report of 14 February 2009 (Ex F): "I observed that, whereas each of the other strips comprised paint that incorporated a gritty, non-slip additive, the brighter section at the north western corner of the most northerly strip was relatively smooth." 133The clear sense of this evidence, as presented on behalf of Mrs Garzo, was as follows: (a) At the time of her fall, Mrs Garzo slipped on the area of brightly coloured paint depicted in Ex C, Ex J1 and Ex J2; (b) The area was brightly coloured because, at the time of her fall, it was freshly painted, was at a level higher than the other painted areas, was more smooth, and was therefore more slippery than the other painted areas; and (c) Both Mr and Mrs Garzo had observed the area of brightly coloured paint on the day after she fell, and the area was visible in the two photographs taken within a short time, probably 11 December 2007, after her fall. 134However, this account of the state of the pedestrian crossing, as other evidence clearly demonstrates, is wholly inaccurate and quite unable to be accepted. I reject this account of the state of the pedestrian crossing given by Mr and Mrs Garzo. The reasons for this follow. 135Mr Garzo, when pressed in cross-examination, agreed that, contrary to his earlier evidence, it could be correct to say that the photographs were taken on or about 10 March 2008, which was some three and a half or four months after Mrs Garzo's fall, rather than in December 2007, namely a few weeks after her fall. 136Senior counsel for Mrs Garzo tendered two expert reports, both of which cast light upon this issue. The first, Ex F, which was the expert report of Mr Adams, contained this statement on p 5: "Mrs Garzo advised me that she took photographs of that brighter area on her mobile phone on 10 March 2008 (see photographic annexure). I did not identify any other areas on the crossing where similarly brighter paint was present". 137Clearly, at a time much closer to when the photographs were taken, Mrs Garzo gave an account quite at odds with the photographs being taken in December 2007. 138Whilst I have held that Mrs Garzo did not take photographs of the crossing in December 2007, it is entirely feasible that she or her husband did so on 10 March 2008. 139Mr Adams first inspected the pedestrian crossing on 29 January 2009. 140The "photographic annexure" to which reference was made (see paragraph 136 above) appears at p 17 of the report of Mr Adams, Ex F. Except for the fact that one photograph is reproduced in an upside down view, the two photographs are identical to Ex J1 and Ex J2. 141Senior counsel for Mrs Garzo also tendered the expert report of Kinetic Engineers dated 12 March 2008, which became Ex D. Mr Paul Stephenson, the author of this report, recorded that he visited the school on 6 March 2008 to inspect the pedestrian crossing. Whilst there he was provided with the leftover paint from when the pedestrian crossing had been painted in July 2007. He records that he completed a series of tests on various parts of the crossing. He then says at para 3.1.6: "The writer utilised some of the remaining paint in the 'Easyline' spray can to reapply some paint to a small section of the crossing." 142The report then includes, as photograph 3.1.6, a photo of the newly painted area. A careful comparison of this photograph with Ex J1 and Ex J2 satisfies me that they are photographs of one and the same area. 143The contents of para 3.1.6 of the Kinetic Engineering report which was tendered as part of the Mrs Garzo's case were corroborated by the unchallenged evidence of Ms Leanne Allchin, who was called to give evidence for the school, that in about March 2008 she gave Mr Stephenson the paint and noted that he had painted a test patch on one section of the crossing (T198.4ff). 144As well, Daniel Brooking, who was a security guard at the premises, gave evidence that in March 2008 an engineer visited the school. I am in no doubt that he was referring to the visit by Mr Stephenson. He gave evidence, which I accept, that after Mr Stephenson left the school, he observed that a small section of one of the white painted strips on the crossing had been freshly painted. He was not challenged on this evidence. 145Mr Turner, who had spray painted the pedestrian crossing in July 2007, was shown Ex J1 and Ex J2. He denied that he had painted the brighter area shown in the photographs. He denied undertaking any further painting on the crossing after July 2007. He denied that the area of brighter painting was in existence at the time of Mrs Garzo's fall. He also gave evidence that he became aware of, and observed the brighter patch after a visit to the school of a gentleman who did some testing on the crossing in the earlier part of 2008. He was not cross-examined to suggest that this evidence was wrong. 146The result of this review of the evidence on this disputed question of fact is that I am well satisfied that, at the time of Mrs Garzo's fall, the pedestrian crossing had not been the subject of any repainting at all after July 2007, and that the area of brighter paint shown in Ex J1 and Ex J2 was first painted in March 2008, after Mrs Garzo's fall. I am also well satisfied that the photographs Ex J1 and Ex J2 were taken on or about 10 March 2008, shortly after Mr Stephenson's visit on 6 March 2008. They do not represent the state of the pedestrian crossing at the time of Mrs Garzo's fall. 147I find that, at the time of Mrs Garzo's fall, the pedestrian crossing had last been painted in July 2007, but had been subject to wear as a consequence of the passage of both vehicular and foot traffic, and also the effects of weathering in the six months or so after painting and before the fall. There was no fresh paint on the pedestrian crossing at that time. There was no significant lack of uniformity on the north western corner of the final painted strip. 148As a result of this finding, in respect of the first part of this issue, there is no basis for a finding that there were any precautions which the defendants ought reasonably to have taken. 149The second question to be determined as part of this issue was whether there were differential surfaces on the crossing caused by either the method of painting in July 2007, or else differential wear patterns. 150It was submitted that I should infer from the description given by Mr Turner of the method of applying the paint in July 2007, and the variation in the results obtained when the crossing was subjected to testing, that there was an inadequate uniformity of slip resistance of the painted strips of the crossing. 151Mr Turner gave evidence that his intention when applying the paint was to achieve a level and even surface. He accepted that he could not guarantee that the result was even. However, he said that when he had finished the surface looked fairly even. This evidence does not permit me to find, and I do not find that there was in fact unevenness at the end of the application of the paint. If there were any differences these were minor and not visually detectable. 152There was some evidence given by Mr Turner (T287.35-T288.11) that the centre part of the crossing was more worn than other parts of the crossing, because the pattern of typical traffic usage was over the centre of the crossing. There was no evidence which suggested that any one part of one of the strips looked more worn than another adjacent part. There was no evidence that there had been detected any differential slip resistance on the painted strips by those using the crossing. 153The possibility that some parts of the crossing may not have had a uniform slip resistance was not related by any evidence to that part of the crossing where the plaintiff said that she fell. The differential results obtained on testing may equally, so it seems to me, reflect as much the exigencies of the testing and measuring process as an actual lack of uniformity on the surface. After all, a number of swings of the pendulum are used, at any given location (typically five swings) in order to obtain a reasonably accurate result. 154But importantly, given that the plaintiff did not identify the size and location of these areas of potential lack of uniformity, in fact, it cannot be said that a failure to take an identified precaution was unreasonable. 155The remarks of Gleeson CJ in Ghantous v Hawkesbury City Council (2001) 206 CLR 512 at [6] and [7] are relevant here. His Honour said: "6. In England, the common law rule which the applicants in both matters seek to challenge was abolished by statute in 1961. ... Even so, when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land. 7. In Littler v Liverpool Corporation , Cumming-Bruce J said: 'Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green'." 156As Callinan J said in Ghantous at [355]: " ... the world is not a level playing field" . In short, a plaintiff is not entitled, when walking in an outdoor environment, to a level surface, with uniformity of finish and slip resistance. 157Nor is a defendant to be expected, acting reasonably, to provide a level surface with a uniform finish and uniform slip resistance, for an outdoor pedestrian crossing. 158There was no failure on this account by the defendants to act reasonably.

Precaution (b) - Slip Resistance of the Paint 159A significant part of the hearing, including most of the expert evidence given concurrently, was devoted to the question of whether, at the time of Mrs Garzo's fall, the painted areas of the pedestrian crossing had a slip resistance of at least the "recommended standard". 160It is therefore necessary, in determining whether the defendants fell short of what a reasonable person would have done in the circumstances, to set out the evidence and my findings in respect of the following issues: (a) The nature and properties of Easyline paint; (b) What the lay evidence reveals as to the slip resistance of the pedestrian crossing at the time of Mrs Garzo's fall; and (c) What the expert evidence reveals as to the slip resistance of the pedestrian crossing at the time of Mrs Garzo's fall, as well as the availability of more slip-resistant paints.

I. Easyline Paint 161The paint used for the pedestrian crossing was Rocol Easyline Paint. As I have indicated earlier, it was used throughout the school for lines painted on the asphalt roadways and carparks, and on hard-surfaced sporting courts. 162The paint was in use from the time Turner Building Services commenced as the maintenance contractor at the school in 1995, and has continued to be used ever since. The paint comes in different colours. Generally, white is used on the roadways and for the carparks, yellow for the netball and basketball courts and occasionally red and green paint was used. 163Mr Paul Stephenson, of Kinetic Engineers Pty Limited, included these comments about the paint in his report (Ex D): "2.1.5 The line marking paint provided to the writer was called 'Easyline' manufactured by Rocol Site Safety Systems UK ... 2.1.6 We were advised by Leanne Allchin (OH&S Representative, William Carey Christian School) that she contacted the number on the Easyline product ... post the incident under study. Apparently, she was informed that the 'Easyline' product was suitable for a pedestrian crossing like the application under study. 2.1.7 Further, we note on the front of the product there was a graphical representation of a pedestrian crossing." 164Although the contents of paragraph 2.1.6 would constitute hearsay evidence, and would ordinarily be excluded by application of the hearsay rule: see s 59 of the Evidence Act 1995, in this matter, those statements were admissible and were admitted. 165There were three reasons why the statements in paragraph 2.1.6 were admissible. They were: (a) because the material was admitted as part of the report of Mr Stephenson, and was relevant to the conclusions which he expressed in that respect: s 60, Evidence Act ; (b) because the representations as set out by Mr Stephenson in his report were those of Ms Allchin, who was available to be called, and was called, as a witness in the proceedings (which were civil in nature): s 64(3), Evidence Act ; and (c) it was tendered by senior counsel for Mrs Garzo, and no objection was taken to its admission by the other parties. 166It is convenient at this point to note that, although Ms Allchin was called to give evidence, she was not challenged about the accuracy or otherwise of the hearsay statement recorded in para 2.1.6 of Ex D. It is appropriate that I accept that statement as evidence of the fact of what occurred. 167As well, photograph 3.1.7 in the report of Kinetic Engineering depicted a pictogram on the side of the Easyline spray paint can, which conveyed the message that one hour after application the paint was dry to walk on. This fact was confirmed by Mr Stephenson after he applied the paint. Although a can of Easyline paint was shown to one of the witnesses during the course of the hearing, it was not tendered and did not become part of the evidence. There are however a number of photographs of the can in the report of Kinetic Engineering. 168Mr Kiernan, an expert who had been retained by Turner Building Services, made the following comments about the paint in his first report dated 7 September 2009 (Ex 10A): "46. The paint Technical Data Sheet provided (included as appendix B), records the paint used was 'Rocol Easyline Ultimate Paint'. Areas of application included carparks, which indicate it is recommended for a bitumen/asphalt surface ... The slip resistance quality of the paint has not been specified. The paint did not contain any non-slip additives, but based on the test carried out by Mr Adams, its slip-resistance characteristics were adequate for safe normal pace walking." 169The Technical Data Sheet for the Easyline paint (which was attached to Mr Kiernan's report) describes the paint as part of a "permanent line marking system - general marking" and gives this description: "Rocol Easyline paint is formulated with a high concentration of pigment and resins to provide a high opacity, durable, semi-gloss finish. Rocol Easyline aerosol paint is used in conjunction with a four wheel applicator for line marking in both interior and exterior applications." 170The Technical Data Sheet describes the areas of application as including carparks, playgrounds, factories and warehouses. It describes the features of the paint as being: "... durable traffic grade paint, touch dry in 10 minutes, high opacity line marking paint ...". It further notes that the paint would be dry for light traffic in 40 minutes. 171None of the reports of the expert engineers who gave evidence, written individually, made any comment about the appropriateness or inappropriateness of the paint. Importantly, none of those reports expressed any opinion that the paint was an inappropriate one for use on the pedestrian crossing. The joint report of the experts (Ex E) did not suggest that the paint was an inappropriate one to have been used on the pedestrian crossing. 172Both experts who gave evidence in concurrent session, Mr Kiernan and Mr Adams, agreed in the course of their oral concurrent evidence that they knew of no Australian Standard which related directly to the question of whether this Easyline paint, or any other line marking paint used on roads, was an appropriate one. Their joint report and their joint evidence dealt with an Australian Standard which related to slip resistance, but not a standard which proscribed one or more types or components of paint, for pedestrian crossings. 173Both experts agreed that at the relevant time there was in existence a variety of different types of paint which would have differing slip resistant qualities when applied to surfaces. As well they both agreed that it was possible to procure additives that could increase the slip resistant qualities of paints if mixed with the paint prior to application. 174At one point in the evidence of Mr Adams, the expert engineer called by Mrs Garzo, it appeared that he was in possession of some different and perhaps more extensive technical information about the Easyline paint used for the crossing, than Mr Kiernan. 175At T302, he referred to the fact that he had looked at material data sheets for the product that he understood was used, which suggested that there were differing characteristics to that shown on the Technical Data Sheet to which I have earlier made reference, and which was part of the evidence. 176The material data sheets which Mr Adams examined were not annexed to his reports, nor were they produced and tendered in evidence. A careful examination of the evidence of Mr Adams on this topic suggests that he was not certain that the material data sheets he looked at in fact related to the Easyline paint used, as opposed to another brand or type of line marking paint. 177Mr Adams gave the following evidence during the concurrent evidence session (at T302.6): " Witness - Adams: ... Looking at the specifications, material data sheets for the product that I understand was used, it suggests that the paint doesn't harden through for at least four hours and shouldn't be subjected to traffic by vehicles for 24 hours ... ... His Honour : Can I then direct your attention just on this subject to attachment 8 to Mr Kiernan's first report of 7 September 2009, which is a single sheet headed Rocol Technical Data. Is that what you were referring to as the technical specifications? Witness - Adams : No, there are more extensive, extensive information than that. His Honour : The reason I ask is because if one looks on this document under technical data, it says 'touch dry in 10 minutes, light traffic in 40 minutes', which is very different by some orders of magnitude from the time you gave me, and I just wondered if you would like to make a comment about that? Witness - Adams: I agree that it is different. I guess it's a matter of whether the specifications I looked at apply to the particular paint more than these do." 178Given the absence from the tendered evidence of the material to which Mr Adams referred, I would draw the conclusion that the material data sheets that he in fact looked at were not for the Easyline paint product, but were for another and different line marking paint. 179On the evidence before me I am satisfied that the most accurate description of the nature and qualities of the paint is that contained in attachment 8 to Mr Kiernan's first report (Ex 10A) and headed "Rocol Technical Data", the features of which I have already described. 180In summary, the evidence satisfies me of the following with respect to the Easyline paint: (a) It was a proprietary product marketed as suitable for, and was extensively used in the school for, line marking on roadways; (b) It was one of a number of proprietary paints, of a variety of differing slip resistance qualities, which were available for use in painting pedestrian crossings; (c) The Easyline paint can had on it a diagram which represented a pedestrian crossing, thereby suggesting that it was appropriate for use in painting pedestrian crossings; (d) The Technical Data Sheet issued by the manufacturer suggested that it was appropriate for use in carparks, for line marking and on surfaces over which traffic would pass. This suggestion would include line marking for the purposes of a pedestrian crossing; (e) There are no Australian Standards which prescribed what type or quality of paint was suitable for use on a pedestrian crossing. There are no Australian Standards which suggest that paint of this type or quality was inappropriate for use on pedestrian crossings; (f) None of the experts who looked at the paint and the pedestrian crossing, including the two who provided a joint expert report and who were called to give evidence, expressed a view that the paint was inappropriate for use on a pedestrian crossing 181There was no evidence which suggested that this paint was unsuitable or inappropriate as a paint to be used for pedestrian crossings. At best, the evidence upon which Mrs Garzo relied was that, having regard to some extrapolations made by Mr Adams, at the time of its first application (or perhaps on a view of the evidence at the time of Mrs Garzo's fall), the likelihood was that the paint would provide a surface which had less slip resistance than the Australian Standard required. I will return to this evidence in due course. *

II. Lay Observations of the Painted Surface after the Fall 182Mr Garzo gave this evidence about his observations of the pedestrian crossing on the day of his wife's accident (T176-177): "Q: What do you say you observed immediately after your wife's fall on the pedestrian crossing? A. From memory, I ran my foot over where she slipped and I saw it was slippery, to my knowledge, not that I am an expert ... Q. But do you tell his Honour that you actually tested the surface of the pedestrian crossing, zebra crossing? A. I ran over my foot over it to see why she slipped, yes. ... Q. Well, did you look at it. A. It was wet. I did look at it. Yes. Q. It was wet? A. (Witness nodded). Q. Is that the only observation you made of the pedestrian crossing. A. I looked at the crossing where I - where I saw she slipped. I ran my foot over it. And to my knowledge, and from what I felt, it felt slippery." 183Mr Garzo did not, in his evidence above this examination, attribute any particular significance either to the paint that was used on the crossing, or to the degree of wetness of the crossing. Rather, as I understood the evidence, he was seeking to describe the condition of the crossing at the time: ie, slippery, thus explaining why his wife had slipped. 184It was submitted to me that I would not accept Mr Garzo's evidence. It was put that it was inherently unlikely that, in the immediate aftermath of his wife's fall, having regard to her injuries, and the need to look after her and also the four children, Mr Garzo would have undertaken the sort of examination and testing that he says he did. 185Whilst I accept the logic of that argument and its attractiveness, I am not prepared to disbelieve Mr Garzo on this issue. The sort of examination he undertook was simple, it could be done very quickly, and having regard to the fact that his wife had fallen, it was a natural thing to do to satisfy one's ordinary curiosity. 186But I am satisfied that it was only a brief and superficial examination by a person who was not an expert on the issue of what was the extent of the slipperiness nor what caused the crossing to be slippery. He did not give any evidence about the nature of his footwear at the time of the examination. It was not an examination of an expert as Mr Garzo, himself, acknowledged. It is not a sound basis for the drawing of any expert conclusion. 187On 30 November 2007, the school recorded in Accident Report No. 164, (Ex 4), the following: "Bethany's report indicated Mrs Garzo fell on 27/11/07 around 6pm in the front carpark area ... ... Mr Garzo indicated to the school (via Rebecca Patterson) that he believed the paint used on the crossing was incorrect. He believed it was the cause of the fall. Both reports were given to Leanne Allchin at 9am 30/11/07. Leanne spoke with Trevor Turner re paint used for this area. Trevor advised it was 'line marking paint'. He also advised he still had the paint. Leanne advised Trevor not to discard the paint. The crossing was last painted in the July 2007 staff development week. ... ." 188That Accident Report was then completed with an entry for 3 December 2007, which included the following: "Mr Garzo came to school. He left a statement re incident. He showed Jeannette Clay the location of the fall. He again restated the crossing was like glass and that we had used the wrong paint. Leanne hosed the crossing. Leanne, Ben Wilkie and Trevor Turner walked over the area in an attempt to determine if the painted crossing was more slippery than the roadway. It was considered it may be slightly more slippery, but definitely not like glass." 189In her evidence, Ms Allchin gave some further descriptions about the hosing exercise in which she engaged on 3 December 2007. She said that on that day she, Trevor Turner the maintenance contractor, and Ben Wilkie the school's gardener, all walked across the crossing at various speeds and at various places on the crossing. Whilst she was wearing a "lady's heel type of shoe", Trevor was likely to have been wearing work boots and Ben either had work boots or jogger type shoes. She said that their walking speeds varied and that they walked backwards and forwards a number of times. She did not always cross in the centre of the crossing, but crossed on different parts of the crossing. She agreed that she had formed the opinion recorded in the Accident Report. 190Mr Turner in cross-examination gave evidence that he had been present during this inspection, he had scuffed his feet on the white rectangular paint work, he had walked backwards and forwards across the crossing and he had observed it being hosed down. He then gave this evidence at T290.7: "Q. Now Leanne has made a note which said after the hosing and the walking backwards and forwards across the crossing it was considered, that is the crossing, may be slightly more slippery but not like glass. Do you recall the meeting where that was decided? A. That would have been my determination as well. Yes. Q. So your determination wasn't that you couldn't see any problem with it but rather that it was slightly more slippery? A. Yes." 191It is clear from the evidence of Mr Turner in re-examination that it was the comparison between the painted surface when wet and the painted surface when dry, which gave rise to his joining in the conclusion that the painted surface was "slightly more slippery". 192I accept this interpretation, which is rationally open on the evidence, particularly having regard to my earlier finding that at the time of this inspection there was no area of newly applied fresh paint. That fresh paint was not applied until March 2008. 193Mr Wilkie was not called to give evidence. No questions were put which addressed the availability or present whereabouts of Mr Wilkie. Mrs Garzo did not submit that any inference ought to be drawn arising from the failure of the school to call Mr Wilkie as a witness. Accordingly, I do not draw any adverse inference against the school from his absence. 194Having regard to the above, I do not find that the evidence from the various lay witnesses, as to the slipperiness of the pedestrian crossing at various times after Mrs Garzo's fall, assists in determining whether or not its slip resistance at the time of her fall its slip was of "recommended standard". The evidence reflects their subjective and non-expert opinions.

III. Expert Examination and Testing 195After Mrs Garzo's fall, the pedestrian crossing was examined on three separate occasions by experts: Mr Stephenson in March 2008, Mr Adams in January 2009, and Mr Kiernan in August 2009. 196On two of those occasions the crossing was subjected to expert testing to determine its characteristics in an attempt to understand the state the crossing was in at the time of Mrs Garzo's fall. 197The first of these occurred as a consequence of a claim being lodged by Mrs Garzo with the school and the school's insurers being notified. Mr Paul Stephenson of Kinetic Engineers Pty Ltd was instructed to attend at the scene of the pedestrian crossing and undertake some tests. 198On 6 March 2008, Mr Stephenson undertook wet testing of the painted pedestrian crossing surface in accordance with Australian Standard AS4633: 2004. He used a calibrated British pendulum tester with 4S rubber. 199The standard method of testing requires free water to be placed onto the surface which is to be tested. Mr Adams usually uses about 150 millilitres of water on the surface for five passes of the pendulum. The Australian Standard requires that for the surface to be tested it "... has to be saturated ...". 200Mr Stephenson took tests at five different locations and in different directions of the crossing as he found it, and before he applied any paint. Five pendulum readings were taken at each location. The wet test results averaged a BPN of 50 which in Mr Stephenson's opinion "... represents contribution of the floor to the risk of slipping when wet as 'low'" . 201In their concurrent evidence, Mr Adams and Mr Kiernan agreed that these tests, which Mr Stephenson conducted, were done in an acceptable manner and produced valid results of the condition of the pedestrian crossing at the time of testing in March 2008. 202As well as these tests, Mr Stephenson applied a small amount of new paint to part of the crossing and did some further testing of that repainted area. It will be necessary to consider the results of this additional testing, which he reported in para 3.1.8 of his report (Ex D). 203The second set of expert testing was carried out by Mr Adams who, for the purpose of this litigation, was retained by the solicitor for Mrs Garzo to carry out that testing. He attended on 29 January 2009 to do that testing. 204He tested the painted strips of the crossing by undertaking the prescribed wet testing, and made measurements of the coefficients of friction on those painted surfaces in wet conditions. He measured three areas on the painted strips, not including the freshly painted area where he understood Mrs Garzo had fallen. 205With respect to those three areas, he obtained an average BPN of 58 (which is the equivalent of a coefficient of friction of 0.64). He described this reading as well above (ie, more slip resistant) the category recommended for crossings in the Australian Standards. 206He did not take measurements of the crossing surface in dry conditions. However, he expressed this opinion: "I believe that the painted surfaces of the pedestrian crossing would be highly slip resistant when dry". 207On the surfaces subjected to wet testing, he said this in his report: "My test results indicate that when the textured sections of the paint surface are wet they should be categorized ... as likely to make a very low contribution to the risk of slipping ... It is unlikely that a person could experience a slip on that surface, even in wet conditions, unless they were wearing shoes with particularly slippery soles."

IV. Interpretation of the Investigation Results 208It is necessary at this point to note some technical descriptions relevant to these tests. The BPN is the British Pendulum Number which is the output value from the pendulum wet tester. 209The slip resistance of a surface is usually described in terms of the coefficient of friction. The coefficient of friction is defined in the Australian Standard AS/NZS4663: 2002 Section 4.1, as " The ratio of the tangential force required to move a body across a horizontal surface to the vertical loading posed on the surface by the body ". 210Both measurements are reported in the course of the expert evidence in this case but it is necessary to keep in mind that there is not a direct correlation between the two numbers. The coefficient of friction can be derived from the BPN by application of this formula: Coefficient of friction = 3 x BPN value (330 - BPN value)

211In order to understand the appropriate recommendations and standards, one needs to consult a reference guide to the Australian Standard known as HB197 "An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials". This provides a recommendation by way of guidance, but not a prescribed, obligatory minimum standard, for specific locations. Table 3 of that publication recommends that for locations described as external colonnades, walkways and pedestrian crossings, the pendulum result which is a minimum recommended level is constituted by a BPN of between 45 and 54. In qualitative terms, this is described as the floor surface making a low contribution to the risk of slipping when the floor surface is wet. 212By way of comparison, I note that a similar minimum recommendation is acceptable for swimming pool surrounds and communal shower rooms. There is only one other category for which the Guide recommends a more slip resistant surface, namely, the category of surfaces consisting of external ramps, swimming pool ramps and steps into water. For this category a BPN of greater than 54 is recommended. 213Another useful comparison is the recommended BPN for a shopping centre food court, a place notoriously associated with slipping accidents, particularly in the presence of spilt liquids. The Guide recommends that a BPN of 35 to 44 would be adequate and appropriate. In other words, a surface which is more slippery than that recommended for a pedestrian crossing is regarded as sufficiently safe to be appropriate for the food court of a shopping centre. 214The joint expert report of Mr Adams and Mr Kiernan, to which they both adhered in their oral evidence, recorded their agreement that: (a) the pedestrian crossing should have met the recommendation provided in Table 3 of the Guide, namely that the tests on the surface should have produced a BPN no lower than 45; (b) the test results of Mr Adams taken on the areas of paint on 29 January 2009, which did not include the small area of paint which had been applied by Mr Stevenson in March 2008, also provided a valid indication of the slip resistance performance of the painted surfaces of the pedestrian crossing in wet conditions. The average reading was a BPN of 58, as recorded in Table 1 of Ex F; (c) the testing method used meant that, when the reading was taken, there was free water on the surface of the crossing. When the crossing was dry the painted surface would be much more slip resistant; (d) the test results obtained by Mr Adams indicted that, when the painted surfaces of the pedestrian crossing were wet, they would properly be categorised as likely to make a very low contribution to the risk of slipping. It would be unlikely that a person could experience a slip on that surface, even in wet conditions, unless they were wearing shoes of particularly slippery soles (which Mrs Garzo was not); (e) the area of the pedestrian crossing, which was not painted on 6 March 2008, satisfied the recommendation of the Guide to slip resistance, both on 6 March 2008 when Mr Stevenson tested the crossing, and on 29 February 2009 when Mr Adams tested the crossing; (f) in normal pedestrian walking, peak friction demand, expressed as a coefficient of friction, will generally not exceed 0.35. Applying the formula for conversion contained in the expert reports, this would result in a BPN of a little less than 35. Accordingly, it can be observed that even where a surface has a BPN of a value of about 40, it will provide a surface capable of providing adequate slip resistance (in the wet) for normal pedestrian walking; (g) the gradient, or cross fall, in the general area where Mrs Garzo fell, was a slight upwards gradient, which having regard to the mechanics of her fall would mean that there would be a small degree of increase to the level of slip resistance; and (h) the recommendation as to the appropriate BPN level in the Guide contains a safety factor to allow for the fact that the footwear of pedestrians will be less slip-resistant than the test materials. 215The two experts gave their evidence concurrently. A good deal of further agreement emerged. Between the compilation of their joint report and the giving of concurrent evidence, the material contained in the report of Mr Stephenson was given to the experts. This meant that in their evidence the experts had the benefit of: (a) the test results which Mr Stephenson obtained on 6 March 2008; (b) some photographs of the state of the crossing at that time; and (c) the fact that, as I have found, he had been responsible for the area of fresh painting at a time after Mrs Garzo's fall. (This area was referred to in their report and joint evidence as the "area of interest".) 216The following matters of further agreement emerged from their concurrent evidence: (a) The test results of Mr Stephenson taken on the existing areas of paint on 6 March 2008, provided a valid indication of the slip resistance performance of the painted surfaces of the pedestrian crossing in wet conditions. The average reading was a BPN of 50. (b) It was not possible to precisely quantify the extent to which the surface of the crossing would have been less slip resistant at the time of Mrs Garzo's fall, when compared with either of the occasions when measurements were made. (c) Table 1 reproduced by Mr Stephenson at para 4.1.22 of his report was the relevant extract of the Guide. That table noted that for a possible coefficient of friction range of 0.35 to 0.46 (ie, a BPN of 35 to 45), the equivalent terminology would be non-slip, safe, or else safe for normal stride and pace with moderate attention. (d) There were a number of well recognized and accepted causes of a fall. Each of the causes had the result that there was a loss of friction between the pedestrian's shoe sole and the surface upon which they were walking. The factors or causes included: the inherent qualities of either or both of the shoe sole and the pedestrian surface; the presence of contaminants on either the shoe sole or surface such as dust, water, oil or vegetable matter and the like; aspects of the gait of the individual such as speed or rapid change of direction; and also, differences in frictional characterisations within the same surface. (e) No one or other of these factors was known to be more prevalent than another factor in causing a fall. The likelihood of a particular factor predominating as a cause depends upon the individual circumstances of a particular fall. (f) The shoes worn by Mrs Garzo were unlikely to have contributed significantly to her risk of slipping, although they may have reduced her prospect of recovering her balance following the initiation of a slip. 217There was disagreement between the experts as to the proper interpretation to be given to the results of one of the tests performed by Mr Stephenson and also as to the extent of slipperiness of the crossing at the time of Mrs Garzo's fall. 218It is necessary to turn to these areas of disagreement in order to resolve them.

V. An Area of Disagreement: Testing on Newly Applied Paint 219On 6 March 2008, at the conclusion of his testing, Mr Stephenson applied paint to the crossing. He waited for two hours after the application of the paint before he commenced his additional testing on that area. The Technical Data Sheet for Easyline Paint (which he used) indicated that the paint would be touch dry in ten minutes and dry for light traffic in 40 minutes. The paint can which he used indicated that the paint was dry to walk on after one hour. 220Having left the surface for two hours, Mr Stephenson conducted a wet test and obtained a BPN of 40. He expressed the view that he believed that: " ... the slip resistance may improve rapidly over a few days of wear and use with the surface abrasion from pedestrians crossing the road ". 221At the commencement of the joint concurrent evidence, Mr Adams expressed some doubt about this test. He said this (T302.9): "... I would think testing within only two hours is premature and creates the risk of the results not truly indicating the performance of the paint when it's new but after it's fully dry." 222He agreed that from what he knew about the paint he paused to question whether the reading: " would correctly reflect the slip resistance of that section of paint after it had properly dried ". 223Mr Adams went on to express the view that, because the test had been conducted prior to the paint being fully dry, he would expect that the BPN result would have been inflated (ie, more slip resistant) than would otherwise be the case because the paint might more easily be removed from the exposed surface and the slip test would be reflecting contact with the underlying aggregate. 224On the other hand, Mr Kiernan expressed the view that he would expect the paint to become less slippery (ie, more slip resistant) after the test had been conducted. This was consistent with the view expressed by Mr Stephenson. 225It is clear that the opinions expressed by Mr Adams when he gave his evidence on this topic were based upon material data sheets which he looked at, which were not produced in evidence, and which apparently suggested that the paint may not harden through for at least four hours and should not be driven on for 24 hours. I have considered this material earlier in this judgment at paragraphs 174 to 180. I have concluded that that material was not accurate or reliable to reflect the qualities of Easyline Pain, but rather that the Technical Data Sheet produced by Mr Kiernan with his report is the most accurate description of the nature and qualities of the paint that was used. That Technical Data Sheet suggests that the paint would be dry for light traffic in 40 minutes, and as I have indicated, dry for walking on in one hour. I see no reason to conclude that a test conducted after two hours would have resulted, as Mr Adams suggested, in the paint being removed so that the test results reflected the greater slip resistance of the underlying asphalt aggregate. 226I am satisfied that the test undertaken by Mr Stephenson, on the area of newly applied paint, was done after the paint was sufficiently dry for the test to be properly undertaken, and reflected accurately the BPN of a newly painted surface after it had adequately dried. 227It follows that I accept the opinions of Mr Kiernan and Mr Stephenson that one would expect that, from that time onwards, as the newly painted surface was subjected to wear and weathering, there would be an increase in its slip resistance. 228I note that Mr Adams agreed with the general proposition that as paint on a surface such as a pedestrian crossing was subjected to wear and weathering, one would expect the surface slip resistance to increase. The only difference between his view and that of the other experts was his erroneous view of the drying characteristics of Easyline Paint.

VI. Another Area of Disagreement: Extent of Slip Resistance of the Crossing in November 2007 229It is to be remembered that the crossing was not tested in November 2007, at the time of Mrs Garzo's fall, or within a short time after that. The nearest testing in point of time was that undertaken in March 2008. 230I have already recorded the agreement of the experts that it is not possible to quantify precisely the extent to which the surface of the crossing would have been less slip resistant at the time of Mrs Garzo's fall, than when either of the two sets of measurements were made. 231In the course of the joint evidence, the experts disagreed about the state of the crossing as at November 2007. 232At T313 Mr Adams said: "Looking in more detail at his results you would notice it's not just an average BPN of 50 that''s reported. It's a result ranging from a BPN of 45 up to 52 ... That suggests that the difference between a BPN of 45 and 52 is in the order of 13 to 20 percent, something like that. Its not a straight calculation 7 over 45 because they convert to a coefficient of friction ... So that range of results indicates a range of slip resistance that is significant in different locations on the crossing and the lowest of those if following the line of reasoning that suggests the pedestrian crossing would have been increasing in slip resistance over that four months between when Mr Stephenson's measurements were made and when the incident occurred, suggests that parts of the crossing at least produced, would have produced BPNs below 45 at the time of the incident." 233Mr Kiernan when asked about these results said this (T314): "I think we should say that one person going out and taking readings and another person goes out and takes readings the next day, they will differ ... It's the testing methodology and how you apply it and the water and the temperature, all those sorts of things. They seem to be reasonably consistent but I would not apply the 50 which is a 0.54 coefficient of friction and the 0.64. I wouldn't put them together and say that's the result of wear because the painting was seven months old when KE did the report and when Neil Adams went there it was 21 months after. Now I would expect that the wear would occur during the first 9 to 12 months ... ." 234Towards the end of the concurrent expert evidence Mr Adams, in answer to a question from senior counsel for Ms Garzo, said that he was content to make an estimation of what the BPN was likely to have been in November 2007 at the time of Mrs Garzo's fall. He said (T326): "Yes. I think it is reasonable to infer that the average on the crossing would have been something less than a BPN of 45." 235When challenged, Mr Adams said that in order to make this estimation he was relying upon the test to which I have just drawn attention, namely that done by Mr Stephenson on paint which he had applied two hours earlier on the day of his inspection. Mr Adams went on to say (T327): "Yes, and which I think is probably an overestimate [ie, a BPN of 40] because that test was done before the paint was fully hardened. So, allowing for when a surface is freshly painted but fully hardened, the BPN would be something less than 40. And the fact that the range of results some months after the incident went from 45 to 52, I think drawing lines through all the possible data points, leads to a probability that the most likely result is something less than 45. His Honour: At some points or on the whole crossing, an average of 45? Adams: An average of less than 45." 236Mr Kiernan was asked to respond to that evidence. He said this (T327): "Well, I think we have said it is very difficult for us to estimate the wear component and to place it in a graph of time, and I really can only just reiterate that we are talking about a coefficient of friction of 0.35 as being a normal walking pace friction demand, and all our readings are well above that and, therefore, I don't think it is reasonable to extrapolate it down to a value below normal walking friction." 237In summary, the competing positions seem to be these. 238For Mr Adams: (a) The test of Mr Stephenson on the freshly painted surface leads to a conclusion that, when the Easyline Paint was first applied in July 2007, because it had not properly hardened, the painted surface was likely to have a BPN of an average less than 40, which was the reading Mr Stephenson obtained; (b) The average BPNs on the two subsequent occasions were 50 in March 2008 and 58 in January 2009. When taken with the inferred value in July 2007 of something less than 40, this means that the crossing would more probably than not have reached an average BPN of less than 45 in November 2007; (c) Individual readings taken by Mr Stephenson range from 45 to 52 in March 2008. By January 2009, those individual readings were in the range of 56 to 61. But having regard both to the result of the test on the freshly painted surface undertaken by Mr Stephenson, and to the spread of results at both the lower and upper ends, it was reasonable to form the view that in November 2007 some parts of the crossing would have returned a reading of less than BPN 45 and therefore be below the suggested minimum recommend level; (d) Because either on average, or else with particular readings, the BPN was less than 45 in November 2007, at the time of Mrs Garzo's fall the painted areas of the crossing had a slip resistance less than the recommended standard and could have been made more safe by the application of a different paint. 239I note that Mr Adams did not go so far as to say that the painted surface, other than the so-called area of interest (which is no longer relevant), made any contribution to Mrs Garzo's fall. 240For Mr Kiernan: (a) The test of Mr Stephenson on the freshly painted surface which identified an average BPN of 40 as being a likely reading in July 2007 is a basis for a confident prediction that within a short time, by reason of the processes of wear and weathering, the average BPN of the crossing would have increased, particularly within the first six months; (b) Whether one considers the average BPN, or the individual readings, and even accepting that some of the individual numbers fell below a BPN of 45, none of them would approach a BPN of 34 to 45 (which is the equivalent of a coefficient of friction of 0.35), which is identified as the friction demand of a pedestrian walking in a typical manner; (c) The reason why there is a differential between the recommended minimum standard of BPN 45 and the typical pedestrian demand of BPN 35 is that, as with most recommended standards, a safety margin is provided which will take into account variables, including weather and footwear, existing on any given day and with any given pedestrian; (d) The painted surface did not make any contribution to the fall which occurred.

VII. Resolution of these Competing Positions 241It is clear that the minimum value of the recommended range is not the equivalent of the value which represents the ordinary pedestrian walking demand. A considerable margin for safety exists. 242It is also clear that attempting to calculate a precise value for the BPN in November 2007 is not possible. At best, attempts to estimate the range may be possible but precision is not. 243The basis for the opinion of Mr Adams is his interpretation of the results of Mr Stephenson on the newly painted area. That interpretation is based upon material about the qualities of the paint used which was not in evidence, and which I have already found does not reflect accurately the qualities of Easyline Paint. 244I accept that Mr Kiernan's interpretation of the test results of Mr Stephenson on the freshly painted surface is the correct one and that the BPN of 40 obtained by Mr Stephenson could reasonably be expected to increase within the short term. 245In any event, the crossing in November 2007 was at a BPN level which was well in excess of 35 (a coefficient of friction of 0.35) and therefore provided a surface which was adequate for the friction demand of a pedestrian, such as Mrs Garzo, walking normally. 246As well, the readings obtained on the various expert tests are readings taken in conditions more slippery than those which actually existed at the time of Mrs Garzo's fall. The tests were carried out on a surface covered with free water. At the time of her fall, the pedestrian crossing, as I have earlier found, was wet from light rain or drizzle but did not have free water on it. Accordingly, it was more slip resistant (less slippery) than it would have been under the conditions demanded by the test. 247I conclude this resolution by finding that, on the day of the fall, the painted strips on the crossing were not likely to be below the recommended BPN range. 248I note that in this analysis I have approached the assessment of the BPN values on the surface of the crossing by looking at the average BPN, accepting that in individual areas there may be readings marginally above or marginally below that average. Since there was no correlation between the evidence of where Mrs Garzo walked and then fell, with the areas where individual readings had been taken, it is simply not possible to take an individual value and impute it as having any causal link to Mrs Garzo's fall. As well, since individual readings occur for quite a small area of the painted strips, ie, the part immediately after the pendulum swing, it is unsafe to assume that a single result ought to be extrapolated so as to represent the state of the whole of the crossing. 249As well, Mr Adams' final opinion, namely that the BPN of the crossing was likely to be less than 45, without specifying the extent by which the likely BPN value would be less than 45, does not contradict Mr Kiernan's view that there nevertheless remains an entirely adequate margin of safety before the crossing became slippery, at BPN 35, for a pedestrian walking normally. 250Finally, I note that the qualitative word descriptions given in the Reference Guide to the Australian Standards, HB197, would suggest that terminologically this pedestrian crossing would have been described in November 2007 as non-slip, safe, or safe for normal stride and pace with moderate attention. 251This qualitative description is consistent with Mr Kiernan's view that the painted surface did not contribute to Mrs Garzo's fall. It is also consistent with the absence of any opinion from Mr Adams that the painted surface did make a contribution to Mrs Garzo's fall. 252It is appropriate then to summarise the position which has now been reached: (a) I reject the opinion of Mr Adams that at the time of Mrs Garzo's fall the painted strips were likely to be below a BPN of 45; (b) I am satisfied that at the time of Mrs Garzo's fall, the pedestrian crossing had a slip resistance which was within the range recommended by the Guide; (c) A fair description of the state of the painted strips on the crossing at the time of Mrs Garzo's fall, was a non-slip, or safe for normal stride and pace with moderate attention; (d) I am not satisfied that, in all the circumstances, a reasonable person in the position of either of the defendants would have, or else ought to have, taken any precautions against the risk of harm by using a more slip resistant paint than the Easyline paint which was used.

Causation 253Notwithstanding my conclusion that Mrs Garzo's claim fails in respect of each of the three components of s 5B(1), and that the defendants were therefore not negligent, it is appropriate that I consider whether Mrs Garzo has made out her claim in causation. 254Section 5D of the Civil Liability Act prescribes the relevant test for causation: Adeels Palace at [41], [44]. 255Section 5D says: " 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." 256None of the parties submitted to me that this case was an exceptional one to which the provisions of s 5D(2) applied. In those circumstances, and in the absence of any obvious features which I can identify which would enable that description to be given to this case, I will not consider that subsection any further. 257At this stage of the analysis, it is necessary, in accordance with the "chapeau" in s 5D, to identify the "particular harm" suffered by Mrs Garzo and to ask whether it was caused by the offending negligence (breach of duty). 258That exercise, in this case, is relatively straightforward. Mrs Garzo claimed that her physical injuries were the direct result of the defendants' negligence. 259In terms of factual causation (s 5D(1)(a)), Mrs Garzo needs to demonstrate that the breach of duty was a necessary condition of the occurrence of her physical injuries. 260This analysis is necessarily somewhat artificial having regard to my findings about reasonableness. However, if it was the fact that the crossing was very slippery, it is clear from the evidence of the experts that it is possible for the coefficient of friction, if inadequately low, to play a role in causing, or making a material contribution to, a fall. But those circumstances may not be sufficient to prove causation when considered with the other evidence in the matter. 261The expert evidence disclosed that the underlying reason for a person to slip and fall is that there is a loss of adequate friction between the pedestrian shoe and the surface being walked upon. There are a number of well accepted factors which can cause a fall. They include: (a) the inherent qualities of the soles of the shoes. A smooth leather sole will provide less slip resistance (be more slippery) than will a patoned rubber sole; (b) the inherent qualities of the surface being walked upon including differential frictional characteristics. A highly polished timber floor will be less slip resistant (more slippery) than a rough finished concrete floor. A wet surface will generally be more slippery than a dry one; (c) the presence of a contaminant either on one or more of the soles of the shoe or on the surface being walked upon may mean that there is less slip resistance than on an uncontaminated surface. Contaminants may include fruit or vegetable matter, water, oil or other liquids, or perhaps foreign items such as ball bearings and the like; (d) aspects of the gait of the particular individual, including walking (or perhaps running) speed, or perhaps a rapid changing of direction. An inadequate foot fall for whatever reason, and also what is perhaps a momentary loss of attention or a momentary distraction, can also be causes of a loss of footing; (e) as well, any one of these factors could occur in combination with another. Clearly, as walking is a dynamic process, that factorial interaction can be quite complex. 262In this case, the evidence of Mr and Mrs Garzo casts some, but not a great deal of, light upon the presence of any of the factors to which I have just made reference. Their evidence, and the evidence of the experts, satisfied me that: (a) Mrs Garzo was not running or hurrying as she crossed the crossing. Rather, she was apparently walking in an ordinary way; (b) The soles of her shoes were not particularly slippery. The experts agreed that her shoes were unlikely to have contributed significantly to her risk of slipping; (c) The crossing was wet from light drizzle, but there was no free water on the surface of the crossing; (d) There was nothing out of the ordinary about the painted strips. Here I summarise with this phrase, my discussions and findings of fact in paragraphs 92, 147 and 252 above with respect to the state of the crossing at the time of Mrs Garzo's fall. 263Except for the exceptional cases determined under s 5D(2), it is now well established that factual causation is to be determined by the "but for" test in all cases: Adeels Palace at [55]; Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [132] per Tobias JA (Beazley JA agreeing). 264Where there are multiple possible causes not all of which are negligent, a plaintiff must demonstrate that it is more probable than not, that but for the negligence of the defendant, the accident and injury would not have occurred: See Amaca Pty Limited v Ellis (2010) 240 CLR 111 at [10]-[13]; Zanner v Zanner [2010] NSWCA 343 at [2], [11] per Allsop P (Young JA agreeing). 265On the basis of the existing evidence and the findings which I have made, it is not possible to be satisfied that the state of the painted strips played any causative role, at all, in Mrs Garzo's fall. Factual causation has not been proved as s 5D of the Civil Liability Act requires. 266But even if I had been persuaded that the painted strips had a slip resistance which was less than the recommended level in the Guide, which is perhaps the high point of the evidence of Mr Adams, had I accepted it, this argument would not have been sufficient, without more, to establish causation. As the evidence shows, there would remain a margin for safety between the lower value of the recommended slip resistance and the typical friction demand of a pedestrian walking normally. 267The evidence was silent, other than by inference, about other factors which may have contributed to the fall. There was no evidence about the presence or absence of any possible contaminants on either the sole of Mrs Garzo's shoes or else the pedestrian crossing. There was no evidence about the presence or absence of any momentary distraction, for example, did one of the children call out for Mrs Garzo's attention or say something which caused Mrs Garzo to look away? Was there a noise which suggested a car was approaching? What was the state of Mrs Garzo' attention to what was happening? 268A plaintiff, in a case of multiple possible causes, bears the onus of demonstrating that but for the negligent act or omission of a defendant (or defendants) the particular harm would not have been caused. Whilst there may be cases where the negligent cause is obviously sufficient to satisfy the test of factual causation, where multiple possible causes are present, it will generally be necessary for a plaintiff to lead evidence which tends both to prove the negligent cause and to exclude the other possible causes as being likely to have had a causal effect. 269In this case, I am not satisfied that the evidence permitted me to draw a conclusion that any one or other cause, more probably than not, was sufficient to satisfy the test of factual causation in s 5D of the Civil Liability Act .

Damages 270It is also appropriate that I deal with the issues raised on damages, even though I have found that Mrs Garzo will not succeed on liability. 271In considering my assessment of damages, I will necessarily state my reasons for the finding in a somewhat truncated form.

Injuries 272Mrs Garzo sustained a number of dental injuries from her fall. Two teeth received traumatic injury. One, although treated endodontically, did not survive and required extraction on 5 August 2008. After extraction the tooth was replaced with a denture and now requires replacement with a crown. The other received traumatic injury but has not as yet required removal. 273She attended her dental surgeon, Dr P. Giusti, on the evening of the fall and on a number of occasions up to 5 August 2008. In a report of 2 October 2008, Dr Giusti said: "Tooth 21 suffered root fracture. Endodentis intervention ... proved unsuccessful so that tooth/root of the tooth required extraction. Tooth 22 remained intact but was extremely painful to palpation or percussion. ... ... Pre-accident employment Injuries sustained to client's teeth should not interfere with returning to work." 274It is apparent that Mrs Garzo may require future dental work. An implant and crown is appropriate to replace the partial denture which presently substitutes for Tooth 21. Root canal therapy may be required in the future for Tooth 22. An estimate for all of that work is in the order of $7,750. 275She also suffered injuries to her mouth by way of lacerations including an early infection of the lips. 276Mrs Garzo fell on her right elbow which suffered a comminuted fracture at the right radial head although displacement was minimal. The fracture was through the articular surface. 277She also had an injury to her right knee. 278On 10 December 2007, Mrs Garzo was operated upon at the Castlecrag Hospital. The operation was an open reduction and fixation of a five part intra-articular comminuted and depressed radial head fracture of her right arm. The fracture ultimately healed, although Mrs Garzo continues to have symptoms of ache and pain in the elbow, crepitus and residual stiffness. Her range of motion is restricted to between 30 degrees and 130 degrees. Her rotation is full. 279On 15 September 2010, Dr Greggory Burrow, a specialist orthopaedic surgeon, saw Mrs Garzo and prepared an up to date report. He included this description of her ongoing disabilities as a consequence of the fall: "Antoinette continues to complain of discomfort with the elbow grinding as well as stiffness. She requires help from her family with regards to activities of daily living including shopping, cleaning and household chores. At the time of the injury she was director in the family freight business, she principally was the office worker and manager while her husband drove trucks. As a result of the accident she could not perform office duties on a regular basis for several months, and because she also required significant help from her husband with regards to her family, the business eventually failed ... Antoinette is currently fit for normal office duties on a full time basis, but they have not restarted their freight company ... Additionally, the Garzos have four children aged 13, 10, 8 and 6. The youngest child has Autism and Retinal Dystrophy and requires 24 hour care. Caring for the youngest child during this period has been extremely difficult for Antoinette, particularly for 3 months after the elbow injury and she required significant assistance from her husband ...". 280Dr Burrow was of the view, in September 2010, that Mrs Garzo would develop arthritis and may require further operative and non-operative intervention. Ultimately, he suggested that if arthritis supervened to a significant extent that Mrs Garzo may require a total elbow replacement. 281In June 2009, Dr Roger Rowe examined Mrs Garzo on behalf of the solicitors for the second defendant. He agreed that Mrs Garzo's prognosis included that she would develop osteoarthritis in the right elbow as a direct result of the fracture. He agreed that she had been left with a restriction of movement of her elbow and: "Mrs Garzo has been left with a fixed flexion deformity of the right elbow which prevents her straightening the elbow fully. This is a reasonable consequence of a fracture and will be permanent. Similarly periodic discomfort in the region is reasonable. There was no obvious explanation for the pins and needles at the time of my assessment of her." 282Dr Rowe summarised his conclusion in this way: "Mrs Garzo fractured her right elbow and she is a right-handed woman. Thus she would be to some extent restricted in employment that requires use of the right hand. She would be capable of full-time clerical type work including the use of a computer keyboard, but because of the elbow she would most probably be slower than she would otherwise have been. Similarly, she may not be able to work constantly for as long a period at a time as she would have been able to prior to the fall. These restrictions will be permanent." 283In her evidence, Mrs Garzo reported that she has ongoing pain in her elbow for which she takes pain killing medication and requires massage from her husband from time to time. She reports that she has to be careful when she eats as she now wears a denture which has broken on three occasions since being fitted. 284She reports considerable difficulty in every day activities using her right arm and elbow. She finds it is weaker after the accident than it was before, and that when she does some gentle work with her right hand she finds it causes a jolting "electric" sensation. 285She also reported that she had trouble writing and using a keyboard. 286She reported that her life had been turned upside down by her injuries and in describing that she used the following examples: "95. Apart from the matters set out above my life has been turned upside down by my injuries including in the following ways: (a) I used to smile and not worry about things. I now constantly worry about how my teeth look. (b) I am unable to play with my children. In particular I used to enjoy playing social tennis with them. They ask me and I now have to say no. (c) I now have difficulty with all aspects of my household and home duties. (d) I now feel constantly stressed. (e) I now have trouble driving. The longer I drive the more my arm aches. I also have trouble turning the wheel particularly if I have to turn it quickly. Sometimes when I drive I bump my right elbow on the door and this causes me extreme pain. (f) Hanging laundry is now almost impossible for me to do. (g) I now have trouble with my shopping. I continue to shop but tend to have to do smaller shopping loads. When I do go shopping I now have to use my left arm to do the lifting. (h) Generally I now have to make use of my left arm for a lot more things. (i) I have difficulty with personal care such as shampooing my hair, cleaning behind my back and doing up my bra. For a period of several months after my accident I even had trouble with toileting as I am right handed." 287She also gave extensive evidence about the difficulty she had in caring for her youngest child Stephen, who was born on 20 March 2004.

Non-Economic Loss 288Mrs Garzo is presently 35 and will turn 36 shortly. In the ordinary course of events she has approximately 52 years of life expectancy. There is no reason to think that she will obtain any degree of improvement in her physical condition, with respect to her elbow and right arm over that time. She faces ongoing physical disability accompanied by significant pain which can be addressed only by regular intake of pain medication. 289In broad terms, prior to the accident, Mrs Garzo was in generally good health and enjoyed a full and satisfying relationship with her husband and children. 290I am required, in accordance with s 16 of the Civil Liability Act to assess a percentage of the most extreme case which represents the extent of the injuries and disabilities from which Mrs Garzo suffered and continues to suffer, and particularly keeping in mind the strong views of the experts that she will develop arthritis. 291I assess non-economic loss at 35 per cent of a worst case, which amounts to $175,500.

Economic Loss 292It is in this area that there is the greatest debate about Mrs Garzo's credibility and the findings which ought be made. 293In summary, for the reasons which appear below, I do not accept that Mrs Garzo was exercising her earning capacity prior to her accident in a way which resulted in a return and therefore a weekly loss of the kind which she claims. I do not accept that she is wholly without a residual earning capacity since the accident, except for an initial period immediately after the accident. 294In my view, the principal reason why Mrs Garzo does not presently exercise her residual earning capacity is because she prefers, and I make no criticism of this whatsoever, to care for Stephen, her son, to the maximum extent possible. 295At the time of her accident, it was Mrs Garzo's case that she was the proprietor of a business called Mastapod Pty Ltd, which she had purchased in February 2007. She was the sole shareholder and director of the company. It was her claim that the company owned one truck and two vans, and that she employed her husband to drive the truck and retained two other employees to drive the vans. 296The company's principal business was as a sub-contractor with Northline Freight. Occasionally, and irregularly, the company received jobs from other customers. It was Mrs Garzo's claim that prior to her accident she, with the exception of others driving the truck or vans, did all of the work to ensure the business was viable. Her claim was that the business was turning over about $6,000 a week (Ex A, para 26) and that she was earning about $1,800 per week. 297She gave this evidence in Ex A about the way in which she went about managing both her work and parental duties before the accident: "31. I basically worked a full-time day in this job. I was able to do so because I was working largely from home to spread my work out throughout the course of the day around my other commitments with my children. I for example might do a couple of hours work after the children went to bed, or perhaps do a couple of hours before they got up in the morning. Basically however during the normal business hours of the day I was on call and had to be available to deal with any problems that arose throughout the day. 32. I was basically able to restrict my role however to five days during the week. If driving had to be done on the weekend generally my husband would take care of that." 298She said in her statement (Ex A, para 33) that she was: " ... drawing a wage from the business of about $1800 a week". 299A quite different picture emerged from both the oral evidence given and documentary material tendered at trial. This picture caused me to reject largely the claim of Mrs Garzo with respect to her work patterns and earnings.

Documentary Exhibits 300Exhibit 2 was a bundle of bank statements for the Mastapod cheque account. It demonstrated, when taken in combination with Ex 11, these features: (a) Although she had retained an accountant to assist with the filing of some taxation related documents, neither the company, nor Mrs Garzo personally, had ever filed a tax return, remitted the appropriate income tax instalments on employees' wages to the Australian Taxation Office, nor had Mrs Garzo paid any sums by way of tax for herself. These failures were in the face of her evidence that income was sufficient to require those steps to be taken (T30.1-33.5); (b) Income said to be due to the company from the operation of two vans (out of the total of three vehicles) was not deposited into the company's bank account but was paid directly into Mrs Garzo's personal bank account which she held jointly with her husband, yet the expenses for the running of the vans continued to be deducted from the company's account (T42.20); (c) She drew a sum of cash from the company's bank account for personal expenses which was well in excess of the company's capacity to pay her at that level of income, whether by way of wages, or dividends, or both; (d) She operated, and allowed her husband to operate, the company's bank account as though it was a personal fund from which to pay personal, non-business related expenses such as school fees, drycleaning, alcohol and grocery bills, retail shopping bills, a Chinese restaurant bill, home rental expenses including gas, electricity and telephone (Ex 2) (T45.38, T48.28ff); (e) The debits to the company's bank accounts for personal expenses were in addition to weekly cash drawings of $1600 from the company's account (T45.41); (f) She concealed from the liquidator of the company, the income stream from Northline which was being deposited into the joint, personal bank account; (g) She, after the accident, registered a new business name, Mastapod Skip Bins, and obtained an appropriate ABN for it. She registered herself as the sole owner, but gave evidence that she had nothing to do with that business and that it was solely her husband's business. I thought this unconvincing. 301I cannot accept her evidence about these matters, unless it is corroborated independently of her and her husband's evidence. Some examples will suffice: (a) Her denials of the propositions put to her between T75.32 and T76.18 and her assertions that the business could afford her withdrawals were simply contrary to the fact, and obviously so; (b) She accepted that the contents of her affidavit, sworn in support of the transfer of the proceedings from the District Court to the Supreme Court, were clearly inaccurate, in that she exaggerated the period of time that the company had ceased operations, thereby increasing significantly her wage loss claim, and that she included an inaccurate statement of her duties with the company, Mastopod Pty Ltd; (c) She also accepted that she had not included all of the relevant documentation within that affidavit for her claim for economic loss. Her excuse that: " ... I wasn't thinking straight ... " is not one which I can accept. 302There are other parts of her evidence which I cannot accept. There is no point to be served by listing them. In final address (T406.49-407.1), senior counsel for Mrs Garzo conceded, rightly, that the evidence did not support an award of $1600 per week as the measure of Mrs Garzo's economic loss. 303But these further matters are also clear and emerge from the evidence: (a) In the eight month period leading up to the accident, Mastapod received about $2,558 per week from Northline; (b) In the eleven month period after the accident, Mastapod received approximately $4,138 per week from Northline; (c) Throughout the entirety of this period, the drawings made by Mrs Garzo from the company did not change. She drew $1600 per week in cash from the company account. In addition, she received the benefits of payments of private bills. As well, she retained the sums of money paid into the joint account on behalf of Mastapod. 304Senior counsel for Mrs Garzo, having, in the course of her final address, articulated, perhaps tentatively, a claim for $900 per week as the proper award for Mrs Garzo's lost earning capacity based on the average weekly earnings, finally put this submission with respect to Mrs Garzo's lost earning capacity (T407.30): "... the claim that would otherwise be about $1,200 [per week] because this business did seem to be able to earn between $4,500 and $5,000 a week, has to be tempered and all I can do is to leave it to his Honour's wisdom to temper it." 305She later said at T408.40: "So what we would suggest for future economic loss is that whatever figure that you think is appropriate for past economic loss, if you assume that she has lost about half of her earning capacity because of this, and work it out for the future." 306Both of the defendants contended that nothing more than a small lump sum in the order of $25,000 or so was appropriate. 307Up until Mastapod commenced trading about eight months before Mrs Garzo's fall, Mrs Garzo had not been employed for ten years in any remunerative employment. She had been engaged fulltime in raising her family of four children. 308The re-emergence into the working world which Mastapod represented involved, so it seems to me, Mrs Garzo working on a part-time basis. Her evidence essentially was that she did some work in the morning before the children were awake and some in the evening after they went to sleep. During the course of the day she was on call to attend to any problems of the business. Naturally, the amount of time that she spent with respect to the business was not the same on each of these days and varied between five minutes and two hours, depending upon the particular issues. 309It seems to me that it would be a generous allowance to say that Mrs Garzo was engaged in about 20 hours of work part-time each week on the business of Mastopod prior to her accident. Quite what the appropriate allowance for that is, is problematic because of the absence of any compelling evidence. Her husband, who was engaged fulltime, or largely fulltime, in the business of Mastapod, earned $500 per week. 310It may be that Mastapod was a profitable business and although she was only working part-time, Mrs Garzo nevertheless had a significant income. However, it is not possible to make such a finding. The evidence presented on behalf of Mrs Garzo in her case did not include any accounts of the business. It did not include a comprehensive note of all of the expenses of the business, including non-cash expenses such as depreciation and the like. It would be speculation to attempt to calculate whether the business was profitable and if so what that profit was. The only way to proceed is to attempt to value the part-time work that Mrs Garzo was doing. At an hourly rate which is 1/40 th of the average weekly earnings at the time of her accident, Mrs Garzo would have been earning $23.45 per hour as a gross figure. This totals $469 per week gross, which would be equal to about $410 per week net. I think this is a fair assessment of her pre-injury earning capacity. 311It was accepted by the defendants that for about three months after the accident, Mrs Garzo was completely incapacitated. This is not at all unfair. 312Thereafter, notwithstanding her own evidence, but having regard to the medical opinions, I think that Mrs Garzo has lost about 50 per cent of her earning capacity. Therefore, from about 1 March 2008, I assess her lost earning capacity at 50 per cent of what she was earning previously. This is a sum of $205 per week. 313I calculate Mrs Garzo's loss of earning capacity from the time of her fall until now as follows: (a) 28 November 2007 to 28 February 2008 (12 weeks at $410 per week) $4,920 (b) 1 March 2008 to 28 February 2011 (104 weeks at $205 per week) $21,320 (c) 1 March 2011 to 12 April 2011 (6 weeks at $205 per week) $1,230

Total $27,470 ________

314For the future, I accept the Mrs Garzo's submission that she should get about one half of her future earning capacity. There is no material to suggest that she was ever going to work full time. 315For the purposes of s 13(1) of the Civil Liability Act I assess her most likely circumstance, uninjured, to be that she would have continued to work to about the age of 60 on a part-time basis, of 20 hours per week, earning the average weekly earnings. 316I calculate Mrs Garzo's future lost earning capacity at $205 per week for 24 years by reference to the 5 per cent present value multiplier, at $151,249. However, this figure must be adjusted as required by s 13(2) to reflect the percentage possibility that events may have occurred but for the injury. I assess the percentage possibility at 85 per cent. This is consistent with the traditional view of a deduction of 15 per cent for the adverse vicissitudes of life. 317I allow $128,562 for future economic loss. 318The balance of her damages were largely uncontested or else not the subject of any precise evidence. Using the broad-brush approach, I would assess them in the following amounts: (a) Past out of pocket expenses $5,818 (b) Future out of pocket expenses $20,000 (c) Past gratuitous domestic assistance (consisting of 10 hours per week for 12 months, and 6 hours per week for a further 18 months) $21,710 (d) Future gratuitous domestic assistance (now less than 6 hours per week) nil

Total $47,528

319The largest single claim made by Mrs Garzo was a claim in accordance with s 15B of the Civil Liability Act for compensation by way of damages for loss of her capacity to provide domestic services with respect to her son Stephen. Although Mrs Garzo made a similar claim of one hour per week for the other children, I am not satisfied that the evidence supports such a claim. As a result, I will now consider only the claim in respect of Stephen. 320Section 15B(2) is in the following form: "15B Damages for loss of capacity to provide domestic services ... (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." 321The term "dependent" is defined in subsection (1) to include a child who is wholly or partly dependent on the claimant (Mrs Garzo) at the time of the alleged negligence. Stephen, Mrs Garzo's youngest son, clearly falls into this category. 322In accordance with s 15B(3), the Court is required to disregard such care as is provided which would amount to assisted care as that term is defined. However, this is only to be disregarded if that care does not exceed a four week period in total in the relevant six month period. Essentially, assisted care includes respite care, and care provided by a person other than a claimant, who is a parent of the dependant. 323The claim in respect of Stephen clearly is for long term ongoing care for a number of hours of the day. Section 15B(3) does not impact upon such a claim for care. 324One therefore has to assess how many hours per week Mrs Garzo was providing care for Stephen prior to the accident and how that has altered afterwards. One also has to assess the length of the period for which that care claim will be ongoing. 325At the time of the accident, Stephen was about three and a half years old, having been born on 20 March 2004. He is now seven years old. 326There was no evidence provided at all as to whether Stephen has an ordinary life expectancy or has a truncated life expectancy. The evidence suggests that by reason of his autism, and delayed development, he is not presently able to take any care for himself. I accept that he is not toilet trained, that he has limited language skills, he has a degenerative eye condition which will mean he will become totally blind in due course, and that he requires 24 hour a day supervision. 327The Court was not favoured with any evidence about what his likely development will be. For example, it is not known whether there will be some tasks that he will be able to undertake himself without assistance. It is not known over what period his eyesight will degenerate, or when it is he is likely to become blind. It is not known whether he will ever develop any adequate brain function which would allow him to exercise any of the activities of daily living. 328The submissions of the parties on this issue were a very long way apart. Senior counsel for Mrs Garzo claimed an entitlement with respect to Stephen of 28 hours a week for the balance of Mrs Garzo's life. This amounted to a period of about a further 53 years. The defendants' counsel submitted that such a regime was not appropriate and that the allowance should be for no more than 20 years. As well, the defendants' counsel submitted that that allowance ought be further deducted by way of vicissitudes for events which may or may not happen in Stephen's life. 329Notwithstanding the size of, and importance of this claim, it is fair to say that the Court received very little assistance on this particularly challenging issue, either in the evidence or in the submissions. 330Nevertheless, and making allowance for the extent of the evidence, I am required to make an assessment of this head of damage. 331First, in my opinion, such care and assistance as will be provided to Stephen will be done gratuitously either by Mrs Garzo, or her husband, or her mother, or his fellow siblings as they grow up. Accordingly, the value of any claim is to be determined in accordance with s 15, by reference to the average weekly earnings. 332Secondly, having regard to Stephen's condition on the autistic spectrum and his delayed development, the care that was to be provided would always be provided variously by Mrs Garzo, her husband, her mother and Stephen's own siblings. What is in issue in this assessment is compensation for the care which Mrs Garzo provided before her accident and which she can no longer provide. 333I note that Campbell JA has set out the legislative history behind the creation of s 15B in 2006, in his judgment in Amaca Pty Ltd v Novek [2009] NSWCA 50 at [26]-[28]. An allowance under this section, at least in respect of children, would incorporate: "... at least looking after and caring for [the] children when they themselves are incapable [of doing so] by reason of their age or physical or mental capacity" : See Liverpool City Council v Lasker [2010] NSWCA 52 at [58] per Whealy J, Beazley and Macfarlan JJA agreeing. 334I assess that the extent of Mrs Garzo's care for her son Stephen before the accident was no more than 50 per cent of his total care. In essence, she shared it with her husband. Since the accident, Mrs Garzo continues to provide care for her son Stephen. She is able to drive him to school as necessary. She is able to supervise him on a daily basis. Such supervision includes necessary nighttime supervision. In my assessment, she has lost a relatively small part of her capacity to care for Stephen by reason of the injuries in the accident. She is therefore entitled to be compensated for the additional gratuitous assistance that will be provided for Stephen to replace that which she used to provide. 335This is assessed at 2 hours per day, amounting to 14 hours per week. The appropriate hourly rate is $33 per hour. I would not allow the claim for the entirety of Mrs Garzo's life. 336Clearly, even if her accident had not occurred, Mrs Garzo would struggle once she turns 60 to care for her son who by that stage would be a little over 30 years of age. 337I think it fair to assess that the level of care that she would otherwise provide at that stage would diminish and that effectively she would be unable to provide any care from age 65 onwards. 338Accordingly the period for the future which I allow for care is a further 30 years. 339The rounded calculation of this is $380,000, which seems to me to be a fair and just sum for compensation for this head of claim. 340It is not appropriate to make further discount by way of vicissitudes from this figure. 341In summary, had I been called upon to award damages, I would have awarded the following amounts: (a) Non economic loss $175,500 (b) Past economic loss $27,470 (c) Future economic loss $128,562 (d) Other damages $47,528 (e) Claim for s 15B damages with respect to Stephen $380,000 Total $759,060

Cross-Claim between Defendants 342Each of the defendants cross-claimed against the other. The cross-claims were founded on s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. Because I have found that both of the defendants were not negligent, and that they were not responsible for Mrs Garzo's injuries and disabilities, the cross-claims will be dismissed. 343However, had I been called upon to adjudicate as between the defendants, the responsibility for the paint selection or the crossing, and its application and maintenance, I would have apportioned the responsibility in this way: (a) The first defendant, the school 35 per cent (b) The second defendant, T&J Turner 65 per cent

344In short, the reason that the maintenance contractor would be attributed a higher share of responsibility is that it is fair to regard it as the body with the appropriate specialised knowledge (as between the defendants) about what paint should be used and how it ought to have been applied. Given the history of the supply and use of the paint, the school continues to bear some responsibility.

Summary 345The plaintiff, Mrs Garzo, has not persuaded me that either of the defendants was negligent or in any way responsible for her injuries and disabilities. Her claim must be dismissed. 346Had she succeeded, I would have awarded her a verdict of $759,060. 347Had there been an award of damages, I would have allocated responsibility to the school of 35 per cent, and the maintenance contractor of 65 per cent.

Costs 348The ordinary rule is that costs follow the event. In order words, Mrs Garzo should pay the costs of the proceedings. I see no reason to vary from this practice. 349If any other order is sought, I will grant liberty to any party to make an application within seven days to my associate, provided that all other parties are notified of that application.

Orders (1) Judgment for the first and second defendants on the plaintiff's claim. (2) Plaintiff to pay the defendants' costs of the proceedings. (3) Judgment for each cross-defendant on each of the cross-claims. (4) Liberty to apply in respect of order (2) within seven days, by notification to my associate.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2011