Geoffrey Barker v A J Zanco Pty Limited t/as Krack Solutions [2023] NSWDC 43 | Case summary

INCIDENT

I found the Plaintiff to be a frank and honest witness. He was prepared to concede when he did not have a clear recollection of things and he readily made admissions against self-interest in the case. He presented as a focused and honest witness doing the best he could to give the most accurate answers available to him to the questions asked whilst making a conscious effort not to overstate his evidence of matters which would obviously advance his case.
The Plaintiff described his ambulation at the time of his injury as "awkward and difficult" because he had for some time suffered right foot drop. During cross-examination he conceded that because of his foot drop he took more care when walking.
By his evidentiary statement (Exhibit A): [26] I was walking along the footpath beside Kogarah Railway Station on the eastern side of Station Street. It was about 11am. [27] At a point immediately outside Kogarah Railway Station, before the steps leading up to the shops above the Railway Station, I tripped with my right foot (passage rejected). [I] fell on a raised saw cut which had been dislodged and was protruding above the level of the surrounding concrete path. (passage rejected) I did not notice the raised saw cut portion of the footpath before my fall. [28] After the injury I was lying on the ground. [29] While I was lying on the ground, I first noticed that the raised saw cut was protruding above the level of the surrounding pavement, jutting up above the surrounding footpath. (passage rejected) [30] I had not noticed this prior to my fall. [31] (passage rejected) [32] The projecting end of the saw cut was at the southern (proximate) end. [33] My estimate is that the raised cut out was projecting about 3-4 inches above the surrounding path.
During cross-examination the Plaintiff gave the following evidence (T 52. 27 - 48): "Q. So there's no particular reason why you wouldn't have been able to see it as you approached it, if you're being reasonably careful and walking slowly. A. Yeah, if. Q. So you weren't being careful? A. Well, evidently not because I'd walked straight into it. Q. Well, just looking at that for a second, three to four inches sticking up out of the ground is about half the size of a standard gutter in a suburban street, isn't it? A. Yeah. Q. Three to four inches. A. Yeah, the - the - what people are saying about this slab, it's - it's a very big piece. Q. Yes, so it was about half the size of a gutter. A. Yeah. Q. And it was in the middle of the footpath on a sunny day. Don't you think you would've seen it if you were being careful? A. Well, I didn't, evidently, or I wouldn't have walked into it. "
Whilst prepared to make many frank concessions against interest in his evidence, he gave the following answers denying the defence proposition that he had not tripped on the Slab (T 55. 40 - 50): "Q. I suggest to you, Mr Barker, that you did not fall over because you tripped over a piece of concrete sticking up above the surrounding pavement. What do you say to that? A. I think you're wrong. Q. All right. A. I fell when I hit it. Q. And I suggest to you that at the time that you suffered your accident, there was no concrete sticking up above‑‑ A. There definitely was."
The surrounding location included stairs to Kogarah Railway Station, a car park and shops. It was a busy footpath location. The photographs show the surrounding concrete pathway to have been in good condition.
The Plaintiff experienced immediate pain in his left hip and left knee but particularly in his left hip. The medical evidence establishes that he suffered a fracture of the greater trochanter at his left hip. Two women described by him as young Asian ladies, he understood to have witnessed his fall but he did not get their contact details. He was on the ground for about one minute before they assisted him to his feet. That evidence describes the extent of his opportunity to observe the protrusion of the level of the Slab from the surrounding concrete path. He was focused on his injury. The ladies helped him up to the Assistant Station Masters office at Kogarah Railway Station. His wife later arrived with his daughter. They assisted him and drove him home. He remained mostly in bed and after two days, on 22 December 2017, he was admitted to St George Hospital through the Emergency Department.
When he was shown the Exhibit 1 photographs of the Slab taken in October 2017, at about the time of the completion of the work, the Plaintiff readily conceded that he could not see any concrete jutting out. I understand from the evidence of Mr. Burn, expert witness engineer, called on behalf of the Plaintiff and from the Plaintiff's evidence during cross-examination (T. 51. 31 - 46) that the Plaintiff had walked through that general location one or two days earlier when he did not notice "any concrete sticking up above the surrounding pavement".
In the above extract from his cross-examination, the Plaintiff was willing to concede the suggestion that he was not being careful at the time of the trip when he answered this was "evident" because he had walked straight into the protruding edge which his foot hit causing him to fall. It is important to bear in mind that his self-criticism must be weighed with the whole of the evidence. He made that concession on the basis of his belief that the Slab edge protruded by 3-4 inches (7.62-10.16cm) because of what he saw when lying on the ground for about one minute after his fall. There is no evidence of observation of the actual protrusion at the time of his trip. His view cannot have been toward the raised edge. His view can only have been along the top of the Slab.
During cross-examination the Plaintiff was not otherwise challenged as to the description of the mechanism of his trip. His evidence was that it caused him to fall forward, his body impacting upon the Slab and that whilst laying on the ground he looked and noticed that it was protruding upward from the surrounding pavement, where his right foot had hit it. From before the incident he suffered right sided foot drop.
As I have said, there was no evidence of any person having tested the stability of and capacity for movement of the Slab in its position in the Station Street pavement, between the completion of the works in October and the incident. Indeed, there is no evidence of any person having performed that test prior to replacement of the larger concrete section of the footpath in which the Slab was situated, late in 2022.
The Plaintiff was at the time of injury a person aware of his ambulatory difficulty and his vulnerability to tripping and falling. Prior to his injury he did not use a walking stick or a walking frame. I listened carefully to and understood his frank evidence particularly at T 48 - T 52 and most specifically his awareness that he is a person who walked awkwardly and with difficulty. He was aware of his having to high step with his right leg because of his foot drop. He was a person of the habit of walking generally with reasonable care.
That the Plaintiff did in fact trip was conceded by the Defendant during closing oral submissions. On the whole of the evidence, including the Plaintiff's description of falling to the pavement, the trip occurred at the location of the leading edge of the Slab to his approach. I am satisfied on the balance of probabilities that his right foot did trip when it came into contact with, or as he put it "hit" the edge of the Slab.
The evidence of Mr. Burn explains mechanisms, particularly the result of water entering around the unsealed perimeters of the Slab, by which the underlay materials may have eroded in order for it to become unstable. Whereas Mr. Burn was of the opinion that a temporary restoration following completion of the work required the gap between the Slab and the surrounding pavement to be sealed, the principal officer of the Defendant, Mr. Zanco, said that was not the practise of the Defendant and that he had never seen a seal "used by anyone else from concrete to concrete in the industry" for a temporary reinstatement (T 114. 40 - 45). Mr. Zanco had no knowledge of how the work had been performed, other than his reliance on his staff having performed it properly. He and Mr. Burn gave evidence that the underlay had to be properly compacted and of the appropriate materials in order to form a base for the reinstatement of the footpath surface. Their common evidence was that if the saw cut Slab was to be reinstated; then, it would have to be laid on properly compacted underlay. Mr. Zanco describes the Defendant's system as including the use of a fine particled recycled building material, called "crushed dust". Mr. Burn agreed that was an appropriate product to use for compaction of the underlay. Mr. Zanco agreed that there was a risk that water ingress could wash away underlay. He said that crushed dust was preferred because sand would wash away more readily. Mr. Zanco described the packing for the purpose of reinstating a concrete slab as (T 108. 21 - 49): "Q. I'll just stop you there. You talk about packing it and then you referred to sand, is it sand you put into to pack the‑‑ A. Yes, we put sand in or crushed dust. It depends on the environment what‑‑ Q. Sorry, what's crushed dust? A. Crushed dust is crushed, recycled building materials. The carriers prefer us to use that because there's less sinkage with it. Sand can easily be washed away. So, crushes dust is the preferred fill when you're going around bits and pieces. Q. Now, I interrupted you. You were talking about packing with‑‑ A. Yeah, so if we get to a stage where the concrete is a little bit higher than the ground level around it, we then whack it down. Sometimes they‑‑ Q. Sorry, whack it? A. Whack it. Sometimes we were sort of tap it down. Like you see paving guys will do when they're getting the pavers perfectly level, or you will use hammers or put a bit of wood down and then hit the wood to get it nice and level with the ground that's there. Q. Now you're referring there to replacing saw cut concrete‑‑ A. That's the - yeah. Q. ‑‑on the surface, are there any other ways that you can reinstate‑‑ A. If - most common if the concrete comes up and breaks into pieces and we can't use that, we will then fill the ground with crushed dust, sand or, you know, in soil. And then about 50 mil from the top we'll use [cold] mix as a temporary restoration."
Mr. Burn, in his report to 2 February 2023 (Exhibit D) explained why he did not prefer that method of reinstating the large concrete Slab, in the following terms: "As the concrete poured directly onto the compacted base course materials, and as it is impossible to have a perfectly flat and smooth surface on completion of compaction due to the nature of the material compacted, the underside of the fresh concrete when poured moulds to the shape of the top surface of the compacted base course. Simply removing a piece of saw cut concrete from the pavement prior to the excavation then back filling the excavation and replacing the removed piece of saw cut concrete back in the hole it came from does not reinstate the concrete pavement in a stable manner because: • there is no gap seal around the edge of the repositioned concrete to prevent water ingress leading to weakening of the replaced fill material • the underside of the concrete piece, having been moulded to the original compacted base material when the original concrete pour was undertaken, will not correspond to the shape of the fill it is put on. This leaves air gaps, high and low spots where the water can penetrate causing weakening base material leading to failure under the replaced piece of concrete even if there is rocking of the piece due to sitting on high points • there is not structural integrity between the sections of the footpath pavement under the saw cut to prevent movement of the replaced piece of concrete when pedestrians and motor vehicles pass over the replaced concrete piece. Depending on how the concrete piece sits on the material under the movement can result in trip steps … "
To my understanding, the common ground between the evidence of Mr. Burn and of Mr. Zanco is that the Slab would be subject to movement and instability in the event that it was not adequately bedded to the underlay. That water could ingress between the Slab and the surrounding footpath and could erode the underlay. That there was nothing employed by Mr. Zanco's normal method of work to provide a structural integrity between a replaced saw cut Slab and the surrounding footpath. In Mr. Burn's opinion the preferred methods, after completing the compaction process, were to remove the Slab and pour cold mix bitumen of a thickness of 50-60mm to be level with the surrounding pavement; or if reinstating a saw cut slab, then to use starter bars drilled and epoxied into the surrounding original pavement and pour new concrete to replace the edge of the removed piece.
Mr. Zanco could provide no evidence of the method of compaction or underlay used. He relied on his workers to have done the correct job. During cross-examination Mr. Zanco identified the workers who performed the work and said that their contact details were available to him. In the absence of those workers having been called to give evidence, the Plaintiff puts that any inference concerning workmanship performed by the Defendant, which inference would be favourable to the Plaintiff for which there was ground in the evidence might be more confidently drawn. The Court should assume that the evidence of those workman would not have assisted the defence: Jones v Dunkel (1959) 101 CLR 298. Indeed, Mr. Zanco's evidence was that he did enquire of the workers in 2021 and they were only able to answer that they had gone about the work properly, as far as they could recall: T 115. 15.
Mr. Zanco agreed that the Defendant should have notified Council but it failed to do so. He explained that had Council been notified of completion of the work, he would have expected Council to inspect the Slab probably about one week later, and that Council would have returned to the Defendant with a price to permanently reinstate the area. In his assessment, the normal course was that temporary reinstatement of the footpath, as occurred here, would probably be expected to remain for a period of 5-12 months before the permanent restoration was made: T 110. 33 - 49.
Mr. Zanco said that his brother had passed by the site during the carrying out of the work: T 117. 45 - T 118. 9. I did not understand that to mean that the reinstatement of the Slab coincided with the date of finish of the work which involved telecommunications cables under the pavement and within the conduit, but any time difference is not defined or explained in the evidence. Other than that, he said that probably no one inspected the Slab to make sure it was safe and that an inspection would normally involve checking whether or not the Slab was "wobbly". My understanding of his evidence strongly infers, and I find as a fact, that obviously the Council would have on inspection, had it occurred one week after finishing of the works, inspected to see if the Slab was wobbly. He gave the following evidence (T 118. 25): "Q. Did anyone check whether it was wobbly? A. No. I believe no‑one checked it was wobbly; not when it happened; not two months after - after someone tripped on it; or two weeks later when it was perfectly level. And no‑one checked it then either."
Mr. Zanco conceded that the Defendant had no system for inspection after the work had finished: T 118. 35.
Mr. Zanco also conceded (T 119. 15): "Q. I suggest to you that in this case there was no structural integrity between the piece of concrete which had been replaced and the section of the footpath around it? A. That's correct."
In the absence of any direct evidence of protrusion of the Slab at the moment of the Plaintiff's trip and bearing in mind that the evidence does support the proposition that if the work were not performed to the standards expected by either Mr. Zanco or Mr. Burn, the Slab could become unstable; and in the absence of reliable evidence establishing that the work was carried out properly; I prefer the Plaintiff's frank and honest testimony over the evidence of photographs taken before and after the event. For those reasons I am satisfied that the Slab was unstable as shown by its movement to obviously protrude as seen by the Plaintiff after he had fallen on it.
During cross-examination Mr. Burn explained application of the applicable Australian Standard which allowed for not more than 5mm protrusion as being satisfactory in assessment of the potential for trip in the subject location as follows (T 77. 45 - T 78. 16): "Q. So over a half metre stretch of pavement, there shouldn't be more than a five millimetre deviation vertically, as it were. A. Yes. Q. Sorry, I just didn't understand that and I'm grateful for the explanation. You say a few pages earlier - back on page 179 - I'm sorry, just pardon me for a moment - this is one-third of the way down, "Instruction from [the Plaintiff] is the end of the concrete saw cut was sticking up about two and a half inches", and then you go on to say, "This is significantly higher than the typical mid step ground clearance of one centimetre" and "any surface protrusion greater than ten millimetres or one centimetre would be a recognised trip hazard". Are you saying there that, although ideally there should be no deviation over that stretch of pavement greater than five millimetres - going by the guide to traffic engineering - that it, realistically, doesn't become a trip hazard until it's more than one centimetre? A. In most cases, with people who are fit and healthy, up to one centimetre or ten millimetres height shouldn't cause a trip hazard. More than that does. When it gets - people get older, they don't necessarily lift their feet as - as high off the ground as they do when they're younger, so a lower height differential can cause a trip. Therefore, the guide to traffic engineering guidelines takes that into factor by recommending five millimetres instead of ten."
There was no contrary opinion. Mr. Zanco agreed that a protrusion of the Slab at the busy location of the Station Street, Kogarah footpath would likely present a trip hazard to pedestrians.
Obviously, footpaths cannot be expected to be as smooth as the surface of billiard tables. That is not the legal test involved here. The question is whether on the whole of the evidence I am persuaded on the balance of probabilities and applying s 5B CLA that the state of the Slab presented a trip hazard in breach of duty of care of the Defendant. Whether by reference to the content of a putative duty, or a consideration of breach, s 5B CLA assumes that what has been identified is a "risk of harm" against which a reasonable person would have taken identifiable precautions. Further, s 5D CLA requires a finding that a negligent failure to take precautions "caused particular harm", in the sense that it was a "necessary condition of the occurrence of the harm". The Plaintiff always bears the onus of proving, on the balance of probabilities, facts relevant to the issue of causation: s 5E CLA.
Some causes of injury are simply left unexplained. If I may humbly apply the approach of Dixon CJ in Jones v Dunkel (1959) 101 CLR 298 at 304, no doubt the conclusion is reasonably open that given the before and after photographic evidence in Exhibit 1 it is inviting to infer that the slab was basically in place. But Mr. Burn made the expert observation that the photographs were not sufficient for him to determine whether the Slab was flush with the surrounding pavement. I adopt that observation: Yarrabee Coal Co Pty Ltd and Anor v Lujans [2009] NSWCA 85 at [20] per Beazley JA (as her Honour then was) (Allsop P as his Honour then was, Giles JA agreeing) adopting Blacktown City Council v Hocking [2008] NSWCA 144 at [167] per Jiles JA.
He said that the Exhibit 1 photographs are not a basis upon which he can assess that the Slab was stable and did not move. When it was suggested to Mr. Burn that it was very unlikely that there could have been movement of the Slab between the dates of the photographs and for it to have restored itself at a level that remained flush with the surrounding concrete, he answered: "if something caused them to move out of alignment, something else can move - cause them to move back into alignment.": T 96. 5. In cross-examination Mr. Burn's opinion was that the Slab, not properly secured in position by appropriate restoration technique, "would be capable of being displaced, more probably through mechanical interference than just through subsidence." - this is supportive of the Plaintiff falling upon it and observing it to have moved because Mr. Burn continued "to project that far above the adjacent pavement at the end, that would be the most likely scenario, in my opinion.": T 98. 10 - 16.
Whilst in this case the Plaintiff's evidence of trip being the mechanism of his fall is ultimately not contested, the question is whether the evidence identifies that the leading edge of the Slab presented a risk of harm within the meaning of s 5B CLA and more precisely whether the fact that the Plaintiff did trip on it, when considered with the whole of the evidence, proves on the balance of probabilities that the Slab was raised at its leading edge such as to present a not insignificant risk of harm: Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 at [7] - [9]; Springfield v Duncombe [2017] NSWCA 137 per Basten JA at [8] - [12]; Adamson J at [64].
In closing submissions in reply, the Defendant explained that it did not contest that the risk if found, was foreseeable within the meaning of s 5B(1)(a) or that the risk was not insignificant within the meaning of s 5B(1)(b). Counsel put that the Defendant does contest s 5B(1)(c) that the Plaintiff will have satisfied the Court that in the circumstances, the Defendant acting reasonably would have taken those precautions which would have prevented or minimised the risk of harm. In this the Defendant agreed that proper construction practice required the Defendant to avoid protrusions of greater than 0.5cm. The Defendant does not dispute that a one centimetre or greater protrusion would present a trip hazard. What the Defendant argued was that the truthful evidence of the Plaintiff for the purposes of finding that the extent of the protrusion was significant and a trip hazard, lacked the required reliability. The Defendant pointed to his evidence in the hearing of an estimate of protrusion of 3-4 inches (7.62-10.16cm), that he told Mr. Burn the protrusion was 2.5 inches (6.35cm) and that the evidence in the hearing permits not more than speculation as to what the extent of the protrusion was. Counsel for the Defendant put that the only evidence is that it was a very significant protrusion of those dimensions in inches (6.35cm-10.16cm) or no protrusion at all.
The present state of the authorities does not accept the possibility of risk of injury as sufficient to prove causation. It requires that the risk eventuate. Here, the Plaintiff must prove, in order to succeed, that had the footpath restoration work been adequately performed by the Defendant, it would, more probably than not, have prevented or minimised his injury: Springfield v Duncombe [2017] NSWCA 137 per Adamson J at [65] - [72] (Basten JA and Emmett AJA agreeing) where her Honour collected the leading authorities. In order for the Plaintiff to succeed the evidence must establish more probably than not that the protrusion of the Slab presented an unreasonable risk of harm.
As was stated by Maher JA in Gazo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 at [22]: "… To address the questions and consideration in s 5B it is necessary to formulate a Plaintiff's claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the Plaintiff alleges eventuated and to which those precautions should have been directed."
Applying what was stated by Basten JA in Gazo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 at [7] in order to establish a breach of duty, the Plaintiff here must establish the Slab was unduly protruding and caused the Plaintiff to trip.
In my opinion, in order to satisfy its burden of proving that taking of the precautions, which I have addressed, in construction would have avoided or minimised the risk of harm for the purposes of s 5B(1)(c) it was not incumbent upon the Plaintiff to prove a particular measure of height of protrusion. The Plaintiff's burden was to prove that the protrusion presented a trip hazard by being one centimetre or greater. Indeed, the evidence of Mr. Burn explained persuasively that the protrusion was likely to be transitional. It would likely therefore have been not as visible as if it had been across the width of the leading edge of the Slab.
In my opinion, the fact that the Plaintiff's right foot, as he described it, was felt by him to "hit it" (T 55. 46) causing him to trip and fall in combination with the consideration of his evidence that once he fell upon it there was the very substantial protrusion which he observed and the evidence of Mr. Burn explaining how that instability of the Slab is explainable by the failure to take the described precautions of proper building and inspection; persuade me to the standard of the balance of probabilities that the protrusion was of a measure representing a real trip hazard and probably more than one centimetre above the surrounding surface. Further that had the Defendant restored the footpath section according to proper practise, the Plaintiff's trip and fall would have been avoided.
It is not in dispute that if the edge of the Slab presented a risk of harm which was not insignificant to passing pedestrians, a reasonable person in the position of the Defendant would have established a proper underlay compaction and performed other restoration works for reinstatement of the Slab or surfacing with cold mix bitumen so that it would not move or protrude prior to Council enforcing the permanent restoration to be performed.
It is common ground that it was appropriate to replace the Slab with cold mix bitumen in the event that the Slab did not restore the surface adequately. This was Mr. Burn's preferred method. It was Mr. Zanco's method if the Slab was problematic, such as when it had broken. I infer from combination of that evidence, that if cut slab replacement was the method employed; then, if the Slab could not be established flush and stable, cold mix bitumen in substitution for the Slab was an appropriate course. In the absence of evidence that the Slab was in fact restored in a stable position such that it would not move or "wobble", it is not necessary to decide.
The evidence puts beyond question that it is because of the Defendant's failure to notify Bayside Council, as correct practice required it to do, of the Defendant's completion of the work and restoration of the Slab, that Council did not inspect it, as Council would ordinarily have done before the Plaintiff's trip. On the balance of probabilities such inspection would have included a check that the Slab was not "wobbly".
The Defendant's concessions make it unnecessary to examine s 5B(2) CLA considerations any further. Accepting the Plaintiff's evidence, as I do, I find the Slab to have been unstable and that its instability should have been obvious to the Defendant and to a Bayside Council inspector, had that inspector attended as they would have done but for the Defendant's failure to provide notification of completion of the works. I find that the Plaintiff was walking according to his habit of taking care because of his awareness of his vulnerability, particularly due to right foot drop, when the instability of the Slab caused a protrusion to be present which was sufficient for him to trip when his right foot hit it. More likely than not his injury occurred in that way. The creation of the condition of the footpath by the Defendant was a breach of duty it owed to the Plaintiff to take reasonable care to avoid foreseeable risk of injury to pedestrians taking care, as he was, for their own safety.
For completeness I add that the works had left some painted markings on the surface of the footpath at the site of the location, but I do not find those markings to provide sufficient warning of the hazard of the protrusion.
The precise measure of the protrusion of the Slab is not available on the evidence. Were it the 3-4 inch (7.62-10.16cm) estimate made by the Plaintiff whilst in pain and laying on the Slab looking across its top surface for about a minute, it ought have been obvious to him on his approach. The expert evidence of Mr. Burn was that until about three metres on approach the pavement is prevalent within the focus of vision of an approaching pedestrian but that within three metres distance, not so much.
Taking the Exhibit 1 photographs into account and accepting as I do that the Slab was obviously protruding when it was impacted by the Plaintiff's weight and whilst he was laying upon it, I accept the evidence of Mr. Burn that a force could make it protrude and a force could make it restore. In other words, it was unstable and could move in or out of position.
On the whole of the evidence including that the Plaintiff did not see the raised edge of the Slab, I consider it more likely than not that the edge of the Slab protruded by some measure sufficient to trip an elderly pedestrian, aware of his disability of right foot drop, in the habit of taking care as he walked. In my opinion, it is not likely, given those facts, that the protrusion was as great as the Plaintiff estimated it to be from his limited opportunity to look at it. In my opinion, whilst the protrusion was more modest that 3-4 inches, it was a danger not created by the natural condition of the footpath. It was a danger created by the Defendant's negligent carrying out of the works, failure to inspect the Slab adequately or at all for stability, and failure to cause the safety of the Slab to be inspected by Council prior to the Plaintiff's fall. The Defendant created the situation where an unsuspecting pedestrian could trip upon the state of the unstable Slab at their arrival.
Had the Defendant reasonably carried out the works, including by its own inspection or have properly notified Council which would have brought about an inspection; then more likely than not the Plaintiff's injury would have been avoided.

DAMAGES

The Plaintiff was 75 years of age at the date of accident, 77 years of age when he underwent left hip replacement consequent of the injury he suffered and 80 years of age at the time of this hearing. Dr. Youseff, Department of Aged Care, St George Hospital, whose report is dated 10 January 2018, listed the Plaintiff's pre-existing significant medical conditions and procedures he had undergone as follows:

2000 Alcohol abuse
2001 Infarction - Myocardial - Healed
2002 Gout, Hypertension
2005 Hypercholesterolemia, Osteoarthritis, Quadruple Coronary Artery Bypass, Left Nephrolithiasis
2008 Hyperuricemia, Nocturnal Cramps, B12 Deficiency
2010 Low Back Pain, Multi Focal Canal Stenosis especially at L2/L3 and L3/L4 with impingement at L5
2011 L4/L5 Severe Canal Stenosis due to Disc Protrusion, Neuropathic Pain Right Leg, Mild Level of Systolic Dysfunction, Bilateral L4 Laminectomy, Right Foot Drop and Paresthesia
2012 Right Foot Pain
2016 Osteoarthritis Left Knee

The Plaintiff was then consuming significant medication.
Immediately following his injury the Plaintiff suffered significant pain in his left hip region and after two days during which he was largely confined to bed because of pain, his wife took him to St George Hospital. The Emergency Department admitted him. His evidentiary statement reads that he was suffering mainly left hip pain but also left knee pain following the injury. He suffered an insignificant cut to his left elbow from which he completely recovered. He remained in St George Hospital for 5 days during which he underwent radiological examination which demonstrated the fracture of his greater trochanter suffered in the injury. The Plaintiff came to total left hip replacement performed by or under the supervision of Dr. Dixon, orthopaedic surgeon, between 6 and 8 August 2019, which procedure was consequent of his injury. His evidentiary statement fairly describes that the operation ended the constant pain in his left hip but he continues to have problems getting about, in part because of his left hip. The Plaintiff frankly puts that he is not as mobile as he was before his injury but is more mobile than he was before his hip replacement in August 2019. Presently he is able get about but slowly and with difficulty. He has trouble with distances and trouble negotiating stairs.
A matter which I consider to be of some significance is that whereas prior to his injury he walked without a physical aid, since his injury, he has continued to use a walking stick. He says that it makes him feel safe and that he is concerned about falling, particularly when going down stairs. In my opinion, any significant left leg impairment caused by the injury, when considered in addition to his pre-existing right foot drop (related to his back condition) has, as his Counsel puts it, had a more profoundly impairing effect on him than it would but for his right foot condition. The Plaintiff maintains that he had no left hip impairment prior to his injury. The evidence is supportive of that claim. Prior to his injury he used to walk his dog but he can longer do this. Prior to this injury he drove a manual car but he now finds this difficult because of the need to use the clutch with his left leg.
The parties agree that the Plaintiff's life expectancy is about 9.3 years according to actuarial tables.
This forthright and honest witness, volunteered in cross-examination that since his left hip replacement, his pre-existing back pain has resolved and he does not suffer pain within the left hip. But he has been recorded by doctors as complaining of soreness at the location of his hip injury and surgery. He gave the following evidence, from which I understood him to be a person fairly to be respected for stating the reality of his condition as it is confirmed by medical reports to really be, whilst speaking of it in modest terms (T 40. 18 - T 41. 18): "Q. And you've said in your evidentiary statement that the foot drop has always made, or even before you had this accident, the foot drop made walking awkward and difficult? A. Oh, yes. Yeah. Q. And walking is still awkward and difficult for you because of the foot drop. Is that right? A. Yeah. Q. You still have trouble walking because of the foot drop? A. No, no, no, not now. Not with the - I use a walking stick all the time now. Q. So the walking stick makes it easier for you? A. Yes. Q. But the problem is your foot drop. Is that right? That's why you have to use a walking stick? A. Yeah, when you're going downstairs and everything it's very handy. Q. Yes, but if you didn't have the foot drop you'd be able to walk around without a walking stick. Is that right? A. I don't know. I'm not game try it. HIS HONOUR Q. Not game to try what? A. Walking without a walking stick. HIS HONOUR: Thank you. PURDY Q. Is that because you might fall over? A. Yes. Q. And you might fall over because you can't bear weight on your right foot. Is that right? A. I don't know. Q. Well, why do you think it is? A. I can put weight on it. Q. Well, why do you think you'd fall over without a walking stick? A. Well, I'm a bit wobbly on both legs. Q. See, I'd like to suggest to you, Mr Barker, that your main problem is now your right leg. It's not your left hip. A. Everything's all right now that I got the hip out. Q. So that's fixed your left hip, hasn't it? A. It's fixed everything. Haven't got any pain."
In re-examination the Plaintiff explained that what he meant by his evidence of being "a bit wobbly on both legs" is that when going down stairs he has to use his walking stick and then grab the rail and that he "just seem[s] to be all over the place getting in the car now" and his wife generally drives: T 56. 5 - 25.
Several objective facts which are of significance in assessing the before and after injury scenario are: 1. The Plaintiff requires a walking stick for security whilst ambulating which he did not require before; 2. Whereas the Plaintiff drove a manual car, he now has difficulty operating the clutch with his left leg and requires his wife mostly to drive; 3. The Plaintiff feels unstable on both his left and right legs whereas prior to the injury his right foot drop was his prevalent cause of instability; 4. The Plaintiff does not complain of left knee impairment or disability; and 5. Since replacement surgery in August 2019 by Dr. Dixon, the pain in his left hip has been relieved and he reports an incidental relief from his pre-injury back pain.
The St George Hospital medical reports of his admission between 22 and 27 December 2017 (Exhibit C) record that the Plaintiff's injury was radiologically identified as a "comminuted mildly displaced fracture of the left greater trochanter with approximately 5mm of bony separation. There is a subtle extension of the posteroinferior margin of the fracture into the intertrochanteric area … There is anatomical alignment of the left hip joint."
When he presented at St George Hospital Emergency Department, he presented with pain in his left hip and left knee since the fall. He denied having struck his head. The Plaintiff reported that he had been using a walking stick to painfully mobilise since his injury (Exhibit C, St George Hospital Discharge Report page 12). During triage, registered nurse Browning recorded that on examination the Plaintiff "appears well mobilising with a stick unsteady on feet …". She recorded pain in the left knee and side since the injury. During that initial care, it was determined to attempt conservative treatment rather than to immediately proceed to surgery. An X-Ray of the Plaintiff's left knee on admission to investigate his pain at that location, found the bones to be osteopenic and degenerative changes without effusion. He was discharged ambulating on a 4 wheeled walker, suffering in particular localised pain on the outside of his left hip and with a referral to his treating GP and for referral for geriatrician care. On 10 January 2018, the Plaintiff's regular GP Dr. Roubina referred him to Dr. Youseff, Department of Aged Care St George Hospital. As far as I am able to understand those clinical notes (Exhibit C) the purpose of the referral was for specialist geriatrician assessment of age related osteoporosis.
On 14 June 2018 (6 months post-injury) the Plaintiff underwent further X-Ray of his left hip and pelvis because of worsening pain. Dr. Stevenson reported that the X-Ray identified extensive degenerative change within the left hip joint with asymmetrical joint space narrowing and subchondral sclerosis with almost complete loss of the joint space in the superolateral portion of the joint. The X-Ray showed the Plaintiff's fracture of his greater trochanter to be healing. Degenerative changes in the Plaintiff's right hip were described as "Mild".
The Defendant does not put that the Plaintiff was not caused to come to left hip replacement because of the subject injury. Physiotherapist Macintyre on 19 June 2018 reported (contained in Exhibit C) that she could not assist much with the Plaintiff's worsening left hip pain secondary to his fracture so she referred him for further X-Rays. Ms. Macintyre informed treating GP Dr. Roubina of her opinion that orthopaedic review should be considered.
On 12 October 2018, the Plaintiff underwent ultrasound of his left hip and left knee. Dr. Lovett reported (contained in Exhibit C) that the left knee bony articulating surfaces appeared to be intact. He identified tendinopathy of the gluteus medius muscle associated with the degeneration of the Plaintiff's left hip as well as distension of the trochanteric bursa. Because of his ongoing left hip pain the Plaintiff's hips and pelvis were again X-Rayed on the 26th of February 2019. Dr. Chu reported (contained in Exhibit C) that degenerative changes were more severe in the left hip and were associated with joint space narrowing, subarticular sclerosis and cystic changes. Dr. Chu observed irregularity of articulating of the left femoral head. Further ultrasound examination of the Plaintiff's left hip on the 8th of April 2019 was reported (contained in Exhibit C) by Dr. Abeywickrema to identify a full thickness chronic gluteus medius rupture, fluid in the greater trochanteric bursa associated with the complete gluteus medius tear and bone irregularity within the hip joint consistent with advanced osteoarthritis. When the Plaintiff came for review by Dr. Dixon, orthopaedic surgeon, on 3 June 2019, Dr. Dixon reported that the Plaintiff was "markedly disabled by his left hip pain and can barely walk. As a result I would like him to be placed on the 90 day category in view of the severity of his symptoms". There is no contest that the meaning on Dr. Dixon's brief treating report was that the pain and impairment was of such severity that the Plaintiff was to be placed on a shortlist priority for total left hip replacement.
The treating medical report evidence, which I have summarised above (with attention to those documents to which Counsel focused attention) causes me to find that the Plaintiff suffered continuing and progressing pain in his left hip and pelvic region, particularly his gluteus muscles, as well as increasing immobility over the period from his injury until his recuperation from total hip replacement in August 2019, a period of approximately 20 months.
The Plaintiff relies on the medico-legal reports of Dr. Ridhalgh, orthopaedic surgeon, dated 14 October 2020 and 23 October 2020 (Exhibit B). The Defendant relies on the medico-legal reports of Dr. Maxwell, orthopaedic surgeon, dated 23 August 2021 (Exhibit 2) and 19 January 2022 (Exhibit 4) as well as the report of Dr. Edwards, surgeon, dated 8 November 2021 (Exhibit 3). None of the expert medical reporters gave oral evidence. Their reports are not entirely consistent. Having considered each of the reports carefully with my acceptance of the Plaintiff's evidence which was honest as well as stoic when it came to his physical detriments, and bearing in mind the treating medical literature to which I was referred as well as the submissions of Counsel, I have arrived at the following conclusions in addition to my above stated assessment to the pain and disability of the Plaintiff between the date of his injury and completion of his recuperation from left hip replacement: 1. There is no expert medical opinion upon which I would conclude that the incident caused a permanent disability in the Plaintiff's left knee. The highest the medical literature goes is Dr. Ridhalgh's assessment that the injury "aggravated" his pre-existing age related degeneration; 2. All of the evidence except for an entry which must be an error at page 3 of Dr. Ridhalgh's report (because it conflicts with the St George Hospital contemporaneously obtained history notes), supports that from the date of injury and to the present, including after his having undergone total hip replacement, the Plaintiff requires the use of a walking stick for stability which he did not require prior to his injury; 3. Whilst Dr. Maxwell reported that the Plaintiff drives a manual vehicle, on the whole of the evidence the Plaintiff owns a manual vehicle but due to his post-injury left leg impairment, his medical advisors have recommended he change to an automatic vehicle, his wife usually drives him and he suffers difficulty operating the clutch with his left leg; 4. Whereas prior to the injury, the Plaintiff "did not have any problems with stairs or standing" (Dr. Ridhalgh report page 3 - inconsistent with St George Hospital admission history and the other evidence), his injury caused impairment of use of his left leg requires him to use a walking stick and handrail when going down stairs in order to feel safe; 5. Whereas prior to his injury the Plaintiff enjoyed normal use of his legs, for a person of his age but specifically impaired by his ongoing right foot drop; in consequence of the injury he continues to suffer a sense of "wobbly" legs and instability; 6. Whilst Defence Counsel pressed that due to his age and pre-existing medical condition, the Plaintiff's complaints can to some extent be attributed to his increased age from 75 years to 80 years; there is no medical expert opinion in evidence making that assessment and I employ my worldly experience; 7. I do not prefer the opinion of Dr. Maxwell that the Plaintiff's left hip function has been restored to the Plaintiff's pre-injury state and he suffers no impairment, because unlike Dr. Ridhalgh and Dr. Edwards, Dr. Maxwell did not perform a clinical comparison of function of the Plaintiff's left and right hips, which comparison when performed by Dr. Ridhalgh and Dr. Edwards showed restriction of movement in the left hip compared to the right; because it is contrary to the evidence of impairment and disability I have identified from the evidence; and indeed contrary to Dr. Edwards observation during clinical examination that the Plaintiff took short steps with his left leg whilst using a walking stick; 8. I prefer the report of Dr. Ridhalgh to the report of Dr. Edwards as to the Plaintiff's impairment of left leg use, particularly because whilst Dr. Edwards found restriction of left hip movement, compared to the right hip, that the Plaintiff walked with an impaired gait on the left side, as I have referred to and that he assessed the Plaintiff's result from left hip replacement as only "done reasonably well"; but nevertheless he concluded that the Plaintiff only had problems with gait because of his long standing right foot drop. I also have concerns regarding the accuracy of Dr. Edwards report, such as his reporting the Plaintiff came to left hip replacement after 10 months when it was 20 months and his reporting "long standing left foot drop" when it was right foot drop. 9. I also prefer the report of Dr. Ridhalgh because, to my reading, it displays a more thorough analysis. Indeed Dr. Ridhalgh found 0.5cm of leg length discrepancy on the left side due to the hip replacement, whereas neither Dr. Maxwell or Dr. Edwards, report having measured leg length discrepancy.
My conclusion is that this elderly, stoic, gentleman has suffered a very painful and restricted of movement period of approximately 2 years, after allowing for recuperation from total hip replacement, in consequence of the injury. Thereafter, he has been left with impairment of his left leg such that there is some restriction of range of movement with a shortened gait observable on physical examination, which objective medical impairments reveal in his everyday life such that he has difficulty using the clutch of a manual car, feels wobbly in both legs such that he uses a walking stick for security against falling and has difficulty with descending stairs because of that sense of insecurity. The impairment of the Plaintiff's left leg has been imposed upon his pre-existing impairment of use of his right leg because of his right leg foot drop. On the right side he has, from before his injury and continues, to require a high step as he walks. Overall, the Plaintiff's mobility and security of ambulation has been significantly restricted.
For the purposes of s 16 CLA, I find that the Plaintiff experienced significant pain and suffering for approximately 2 years and has continued to suffer loss of amenity of life consequent of his injury: s 3 CLA definition. Obviously, he has to a significant extent been deprived of his ability to participate in normal activities requiring ambulation and thus to enjoy his life and take advantage of the opportunities that otherwise it might offer.
I bear in mind that the Plaintiff has an actuarially assessed life expectancy of 9.3 years and I am to bear in mind that his loss of amenity is therefore to continue for less than the period which might be experienced by a much younger plaintiff and accordingly his compensation to be less: Reece v Reece (1994) 19 MVR 103.
Given the compounding effect of the left sided impairment having been imposed upon the Plaintiff's pre-existing right sided impairment, in my opinion the appropriate assessment under s 16 CLA is 23% of a "most extreme case". This assessment would entitle the Plaintiff to an award of non-economic loss damages in the sum of $35,500.
The Plaintiff is not undergoing medical treatment consequent of his injury of an expense identified to me in the evidence. I have not found that the incident is a contributing cause of any need for future left knee surgery. As I understand it, the Plaintiff's claim for compensation on account of future medical expenses is principally based on Dr. Ridhalgh's assessment, in his report dated 23 October 2020 of the cost of future left knee replacement. My conclusion is that the Plaintiff has not proved his entitlement to that compensation. I am not satisfied of the Plaintiff's entitlement to damages on account of an allowance for future medical expenses.
In the result, prior to discount for contributory negligence (s 5S CLA), the Plaintiff would be entitled to damages in the total of the above determined awards for past medical expenses ($7,517.50) and s 16 CLA non-economic loss ($35,500), in the total sum of $43,017.50.

Geoffrey Barker v A J Zanco Pty Limited t/as Krack Solutions

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