Glenn Turner v Harrington Estates [2015] NSWDC 256 | Case summary

District Court of NSW|2015-07-16|Before: Mr J

Judgment

On the evening of 19 November 2011 the Plaintiff, Mr Glenn Turner, was attending the wedding of his daughter at the Harrington Grove Country Club [1] when he suffered an accident in respect of which he brings a claim for personal injury damages against the First Defendant, as the occupier of the relevant premises, and against the Second Defendant, as the architect responsible for the design of the premises. The accident occurred when he fell into a garden bed adjacent to a parking bay where he had been accessing the boot of his parked car. The claim for personal injury damages is brought pursuant to the Civil Liability Act 2002 (NSW). [2]

Lay Witness

Mr Warren Bowers was the partner to the mother of the Plaintiff's son-in-law who was wed on the day of the accident. Mr Rodney Turner was the Plaintiff's brother and also attended the wedding as a guest. Mr Adam Bilsborough was a friend of the groom and attended the function as a guest.
The Plaintiff's wife, Mrs Karen Turner was informed of the accident and attended the scene thereafter. On arrival she stood beside the car looking at the garden and observed the Plaintiff hunched over the hole.
Each of these witnesses gave evidence of their observations and involvement at the accident scene. By and large their evidence which will be discussed below, was reliable and consistent with that of the Plaintiff.

Expert Evidence

Expert evidence in relation to the state of the premises was submitted by each of the parties. For reasons given in my judgment of 14 July 2015, I excluded the evidence of the Plaintiff's expert, Mr Harry Sprintz. Although I allowed the Plaintiff the opportunity to make an application following this decision, none was forthcoming.
The Second Defendant tendered two reports from Dr John Cooke, consultant architect, dated 1 October 2013 and 13 August 2014. [22] Dr Cooke's CV shows that he has been a practicing architect from 1966 to 1981, an academic (part and full-time) from 1974 to 2001. Between 1990 and 1992 he worked as a solicitor. His present position was as an architectural consultant. Dr Cooke inspected the Club "after dark on 19 September 2013" [23] and made various observations, the details of which will be discussed later in these reasons.
The Second Defendant tendered a report of Mr Mark Bullen, architect of Mark Bullen Architects Pty Ltd, dated 24 October 2014. Mr Bullen's CV was annexed to his report and showed that he has been an architect for 30 years, including 28 years as a principal of an architectural firm which has completed a number of mixed use and residential projects for private and institutional developers. For the purposes of preparing his report, he reviewed the documents previously referred to as well as associated plans and relevant Australian Standards. He visited the subject site on 27 September 2014 between noon and 3pm, examining the difference in levels between the concrete kerb and the base of the sunken garden soil level at three locations. Mr Bullen also made various observations the details of which will be discussed later in these reasons.

Other Evidence

The First Defendant tendered the Notice of Determination of the Development Application [24] for the subject premises by Camden Council, dated 23 July 2007. That tender was restricted under s 136 of the Evidence Act 1995 (NSW) as to the conditions relating to parking and fact that all works were to be carried out in accordance with the Building Code of Australia. [25]
In section 3 of the Details of Conditions- "Parking/Drainage (1)" the Notice states:- "Parking Spaces -The developer must provide parking for ninety-five (95) cars in the manner indicated on the approved plan. These spaces, associated access driveways and manouvreing areas must conform with Camden Council's Carparking Code (Development Control Plan No 97), and must be designed in accordance with a pavement design prepared by a Geotechnical Engineer and the Consent Authorities (ie Camden Council) Standard. Documentary evidence of compliance from an Accredited Certifier/suitably qualified person must be submitted to the Principal Certifying Authority prior to the Construction Certificate being issued."
In section 3 of the Details of Conditions- "Parking/Drainage (4)" the Notice states:- "Civil Engineering Plans - Indicating drainage, access roads, carparking areas, pavement design, details of linemarking, and traffic management details for the car parking area and the overflow car parking area, must be prepared in accordance with Camden Council's Engineering Works Development Control Plan and associated Guidelines and submitted for approval to the Principal Certifying Authority prior to the Engineering Construction Certificate being issued."
Next, the First Defendant tendered Appendix D to the development consent from Camden Council [26] which was a document published by Brown Consulting (NSW) Pty Ltd [27] and constituted the engineering design for the Club premises. In correspondence, dated 23 February 2009 addressed to the First Defendant, [28] it was stated:- "Driveway and carpark detail as conveyed on Brown Consulting (NSW) P/L Community Centre Engineering Design (Amendment 5) is generally in accordance with the standards specified in AS 2890.1:2004."
This is the standard referred to in the report of Dr Cooke. [29]
The First Defendant also tendered an Interim Occupation Certificate, [30] numbered 26147/1 and dated 20 March 2009, from the Principal Certifying Authority, certifying that the health and safety of the occupants of the building had been taken into consideration where an Interim Occupation Certificate has been issued and the building was suitable for occupation or use in accordance with its classification under the BCA.
It is convenient to examine the issue of liability commencing with the Second Defendant. This will include a consideration of the other evidence submitted by the Second Defendant.

Liability of the Second Defendant

By its Defence filed 29 June 2015, the Second Defendant admitted that it was retained to provide and did provide architectural, interior and landscape design services for Harrington Grove Country Club. It is asserted, however, that other consultants were engaged in relation to aspects of the design, including the car park. [31] The Second Defendant conceded that no fencing was shown on the detail elevations in the immediate vicinity of where the Plaintiff alleged that he had placed his foot in the garden bed and further that its drawings indicated that the distance between the car park and the soil was less than one metre. [32] The Second Defendant denied that the lighting in the vicinity of the accident was poor. [33] The Plaintiff did not advance this as a particular of negligence against the Second Defendant.
Much of the Second Defendant's submissions rested on the basis of the precise contractual relationship it had to provide architectural services to the developer of the site. This is reflected in the various documents which were Exhibit 2 in the proceedings.
In support of its case the Second Defendant tendered its fee proposal for landscape architecture and architectural services. [34] That proposal indicated that it would be necessary for the client to retain the services of other specialist consultants for the project. A number of practices were recommended, including Bassett Consulting.
Bassett Consulting's fee proposal itemised ESD, [35] fire, security, electrical, acoustics, hydraulics, mechanical and specialist lighting. The scope of the work that Basset Consulting outlined included the lighting systems and design of specialist external lighting features. [36] The outline included undertaking a defect inspection with each discipline with a report to the architect. [37] That proposal was accepted by email on 18 July 2006 by Mr Glen Harper from the Second Defendant to an email addressed to Mr Eoin Loughmane. [38]
On 14 November 2006, Bassett Consulting provided a revised scope of consultancy services and associated fee submissions. The letter noted:- "Specialist Exterior Lighting Based on your external lighting concept received 9/11/2006, we propose the following scope as a variation to the initial fee submission dated 23/5/2006 and the variation dated 13/10/2006; Documentation of step lighting throughout landscape, Documentation of wall washing lights throughout landscape, Documentation of tree uplights, Documentation of pool lighting, Documentation of tree canopy was lighting." [39]
The Second Defendant next referred to a document, being an email from Mr Glen Harper dated 24 February 2009. [40] It enclosed a memorandum of inspection, of the same date undertaken by Bassett Consulting including to the external lighting and stated:- "General Comments - In accordance with our scope of consulting services we undertook a final electrical installation inspection on Friday 20/02/2009. The scope of the inspection was to assess whether the installation has been carried out in accordance with the design intent as documented in BCE drawings E001->E301 Revision B and specification for construction, August 2007." [41]
The Second Defendant contended that the memorandum showed that Bassett traveled to the project, observed it and effectively signed off on it, sending such to the architect. [42] This document was noted a number of matters which required attention, including car park and tennis court pole specification sheets to be included in the report. [43]
The Second Defendant also relied on a document from Brown Consulting, being a letter dated 31 October 2006. [44] That document noted Brown Consulting as being instructed to commence the design of the Club premises. The estimate of fees from Brown Consulting included an amount in relation to the design of the car park and driveway. [45]
On 24 August 2007, Brown Consulting wrote to the Second Defendant confirming that drawings were prepared, having taken into account the requirements and recommendations of all the approved plans and relevant Camden Council design specifications. It noted that the plans prepared provided details of, inter alia, line markings and car parking. In addition, the requirements/recommendations of the documents and designs were prepared to include/consider the specific requirements of Camden Council as outlined in Development Consent 12646/2006 dated 23 July 2007, including:- "Internal driveway car parking area has been designed in accordance with AS 289.1-1993." [46]
On 9 April 2008, Mr Wayne Azzopardi, a Senior Project Manager at Brown Consulting, wrote to Mr Paul Hudson, the site manager for Mainbrace Constructions (NSW) Pty Ltd, [47] the builder. The email recorded the following:- "Adrian, I also had at drawing L-721 and whilst I have not changed the kerb type, I understand that you are discussing this with the structural engineer. I have included wheel stops which should reduce the structural engineer's concerns about the impact from parking vehicles." [48]
Document L-721 is located in Exhibit 2.1 at tab 19. Counsel for the Second Defendant stated in submissions that it appeared that this was a response to a structural engineer's concern about the impact of parking vehicles, the inference being the impact of vehicles parking against the kerb. [49] The email of 9 April 2008 was copied to Mr Glen Harper of the Second Defendant and the reference to "Adrian" in the email appears to be Adrian Collins, the landscape architect of the Second Defendant.
On 22 July 2008, Mainbrace sent an email to Mr Harper stating:- "Could you please specify which drawings should be used to determine the number and type of wheel stops, speed humps and car park signs to supply and install. Brown's civil drawings have discrepancies for all three of these items between L05138.cc-013revision05 and L05138.cc-009revision12." [50]
Adrian Collins from the Second Defendant, after receiving the aforesaid email passed it on to Mr Azzopardi from Brown Consulting on 24 July 2008. In response, Mr Azzopardi advised that drawing L05138.cc-009 should be referred to for the wheel stops and speed humps and drawing L05138.cc-013 should be referred to for the line marking and car parking signs. [51]
On 6 January 2009, Mr Collins wrote to Mr Azzopardi, seeking advice regarding a checklist from city planning services in relation to the subject site to be completed by early February 2008. This was responded to by Mr Azzopardi on 15 January 2009, requesting a copy of the WAE survey "so that we can review construction against the design levels." [52]
On 23 February 2009, Brown Consulting prepared a document which the Second Defendant contended confirmed that they had inspected the work that had been carried out and was satisfied that it complied with their designs. The document noted that the car park length was in accordance with AS 2890.1:1994, kerb and wheel stops as adequate and wheel stops placed at 900 mm in compliance with table 2.1. [53]
The Second Defendant contended document of 23 February 2009 indicated that Brown Consulting had designed the car park insofar as AS 2890 was concerned and had:- 1. Designed it; 2. Been out there; 3. Satisfied themselves that it complied with the design; and 4. Issued a certified confirming its compliance. [54]
The Second Defendant then drew attention to an interim occupational certificate numbered 26147 from Mr Brendan Bennett, private certifier on behalf of City Planning Services Pty Ltd. That certificate noted:- "A Construction Certificate has been issued in respect of the plans and specifications for the building; The health and safety of the occupants of the building have been taken into consideration where an interim occupational certificate is being issued; The building is suitable for occupation or use in accordance with its classification under the Building Code of Australia."
The schedule to that certificate noted that a final fire safety certificate had been issued by Space Age Electrics Pty Ltd, dated 5 February 2009, in respect of emergency lighting, exit lighting and artificial lighting as well as interior, decorative and display lighting. On 5 February 2009, it also noted a compliance certificate in relation to electrical works on 2 February 2009 as well as a compliance certificate dated 23 February 2009 and works as executed plans dated 9 April 2009 from Brown Consulting. [55] A compliance certification from Brown Consulting indicated that the driveway and car park detail as conveyed from Brown Consulting (NSW) P/L Community Centre Engineering Design (Amendment 5) is generally in accordance with the standard specified in AS 2890.1:2004. [56]
Finally, the Second Defendant relied on an inspection report completed by it. [57] That inspection revealed that the Second Defendant inspected the lighting and reported on the status of defects as well as the gardens, trees and soft works.

Mark Bullen

After reviewing the three proposals, the Second Defendant's expert, Mr Bullen, stated that the Second Defendant had dual roles on the project, being those of a landscape architect and of a head consultant for the Club, including for the subject car park. He stated that, in his experience, a head consultant assumed an obligation to brief and coordinate the input of other consultants in the design of the project. He further stated that this obligation did not extend to checking and assuming responsibility for other work of other consultants, especially where those consultants were separate consultants engaged by and on behalf of the client, as in this case. [58]
Mr Bullen then examined the services performed by other consultants and stated:- "Further, by reference to the various drawings provided to me, Hassell did not do: a) The design and documentation of the car park layout, markings, wearing surfaces and gradients. These were done by Brown as evidenced by its Civil Design certification date 24 August 2007 which confirms compliance with AS/NZS2890.1. b) The lighting system to the hard paved car park areas, for these appear on the drawings by Bassett at E002/issue A and marked for tender issue; and c) The design of the retaining wall and kerbs to the car park, for these appear on drawings produced by Simpson. Simpson drawing marked "SDA" and April 2008 refers (provided at Appendix A5)." [59]
The reference to Simpson is a reference to Simpson Design Associates Pty Ltd, Consulting Engineers. Apart from the diagram annexed as Appendix 5 to Mr Bullen's report there was no other evidence of this consultant's brief.
Mr Bullen's evidence of the measures the coordinating architect would have undertaken to ensure that the car park was safe for pedestrian use in the presence of a sunken garden bed, were expressed as follows:- "In my opinion an OCA would take the following measures: a) Ensure that the change of level from car park areas to the sunken garden bed was not more than 1000mm; b) Make the change of level from the carpark paved surface to the sunken garden bed readily detectable for all hours that the car park was available for pedestrian use. Such measures include: i) The use of contrasting colours to identify the edge of the paved areas. Clause 2.4.5.1 of AS/NZS2890.1-2004 identifies this as a reasonable measure. The use of a light concrete kerb adjacent a black bitumen surface would meet this requirement for daylight hours in my opinion. ii) Adequate lighting of the car park and pedestrian areas that meets the requirements of AS/NZS2890.1 at clause 4.7 for car park operating hours. c) Provide an area free of trip and slip hazards. In my opinion a kerb 135mm and readily detectable is not a trip hazard, and the bitumen surface does not present a slip hazard." [60]
The true nature of any duty in such a case does not arise from the contractual relationship of the Second Defendant although it can be thereby informed. This nature of the duty owed by an architect was described by Windeyer J in Voli v Inglewood Shire Council [61] and Florida Hotels Pty Ltd v Mayo. [62] These authorities were summarised by Hoeben CJ at CL in Indigo Mist Pty Ltd v Palmer [63] where His Honour stated:- "[122] The duty of an architect to third parties has been variously expressed. In Voli v Inglewood Shire Council [1963] HCA 15; 110 CLR 74 Windeyer J said at 85: "... What an architect must do to avoid liability for negligence cannot be more precisely defined than by saying that he must use reasonable care, skill and diligence in the performance of the work he undertakes ... Neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless, his contract with the building owner is not an irrelevant circumstances. It determines what was the task upon which he entered." [123] In Florida Hotels Pty Ltd v Mayo [1965] HCA 26; 113 CLR 588 at 599 Windeyer J said: "An architect employed to supervise the construction of a building must bring a proper degree of skill to his task and exercise reasonable care in its performance. Ordinarily the builder is an independent contractor employing his own workmen and engaging a subcontractor. The architect supervises the work as a whole." And at p 603 Windeyer J said: "In Voli's case an architect who designed the structure was held to have a duty of care to all persons who would later use it for the purpose for which it was designed. In such a case, if the design be defective as a result of the architect's negligence, and if, because of those defects, the structure collapses and persons using it (in the way it was contemplated it would be used) come to harm, then the architect is liable to them in damages. ... Where a person injured was someone who it might be contemplated would be within the area of risk created by the architect, there is, it seems to me, no ground for excluding the architect from liability.""
The Second Defendant described its duty as the responsibility for architectural design and landscape design as well as coordination design of other specialists into the framework. It was submitted that the Second Defendant's task was not to check on other consultant's work to make sure that they had done their job properly in the absence of something that would put a reasonably competent architect on notice that there was a significant problem. [64]
Although Exhibit 2.1 was admitted subject to relevance the Plaintiff appeared to concede relevance in closing submissions. [65] The Plaintiff contended that despite the use of consultants the Second Defendant still had "responsibility to make sure that once it was all put together it satisfied your design objectives when you designed the project." [66]
In my view the Second Defendant's duty is to be viewed in the context of the abovementioned authorities. In particular, it had an obligation arising from the design of the premises to coordinate the work of the other consultants to ensure that the overall design was safe for patrons using the premises including the Plaintiff.
The Second Defendant sought to define the risk of harm for the purposes of s 5B of the 2002 Act as follows:- "The proper identification of the risk is the risk that a person standing on the kerb at night closing the boot of his car would step back into the garden bed, without looking behind him, in circumstances where he: (a) did not know the depth of the garden bed; (b) could have closed the boot without stepping backwards." [67]
The principles relevant to ascertaining the relevant risk of harm were summarised in United Church Trust Property Trust v Miller. [68] In that case it was acknowledged that the risk of harm can be different in the case of each defendant and there can be a range of risks and a range of harms. [69]
In Collins v Clarence Valley Council [70] McColl JA stated:- "120. The foreseeability inquiry at the duty and breach stages raises different issues which progressively decline from the general to the particular. Section 5B operates on the basis that the Court has identified the "risk of harm" for duty of care purposes. That is to say, s 5B(1) is informed by the scope of the duty of care to which I have earlier referred. 121. The existence or non-existence of a duty of care fell to be considered at "a higher level of abstraction" than some factual considerations which are relevant to the breach question. The inquiry to be made in relation to duty or no duty related to the foreseeability of harm resulting to the appellant from the conduct of the Council, considered quite generally, in this case, as that of the roads authority responsible for the maintenance of the bridge. At the stage when the primary judge was considering the risk of harm for the purposes of formulating the relevant duty of care, his Honour was laying the foundation for "identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk."
It is clear that the risk is not to be confined to the precise set of circumstances that are alleged to have occurred although they must encompass those circumstances. In the circumstances of the present case I am satisfied that the risk of harm for duty of care purposes was the risk of stepping into an unguarded garden bed separated from a car parking area by a small kerb with a sudden drop in level.
The Plaintiff's particulars of negligence against the Second Defendant maintained, inter alia, the following:- 1. The failure to take reasonable care for the Plaintiff's safety; 2. The failure to warn the Plaintiff as to the presence of the sunken garden bed; 3. Designing a car park which included a sunken garden bed; 4. Designing a car park without making provision for any railing, fencing or safety barrier along the edge of the sunken garden bed; 5. Failure to design a car park which was reasonably safe for its intended use; and 6. Locating a car parking bay and kerb too close to the sunken garden bed.
The Statement of Issues, filed on behalf of the Plaintiff did not illuminate the nature of the case beyond this.
In submissions, Counsel for the Plaintiff stated:- "This is a serious risk of injury caused by what we say was a hidden trap on these premises, and if the architects wanted to run the case that they considered all of these possibilities and they decided it wasn't necessary, for these reasons of the visual cues, for reason of the fact, that it would otherwise have been apparent to reasonable users of the car park, someone needed to come along and give that evidence." [71]
The Second Further Amended Statement of Claim did not allege any failure referrable to sufficient lighting but did allege that the lighting was poor. [72] In response to paragraph [9] of the Further Amended Statement of Claim, the Second Defendant admitted there was to be a planting in the place where the Plaintiff indicated (in particulars) he placed his foot upon the garden bed. In respect of the allegation that the garden bed into which the Plaintiff placed his foot, being planted with shrubs and hedge plants, the Second Defendant pleaded that it did not know what planting or soil covering was present at the date of the Plaintiff's accident. Further, the Second Defendant put forward that it ceased to provide architectural, interior and landscape design services on the premises in 2009. Otherwise the Second Defendant did not admit the Plaintiff's allegation in paragraph [9A] of the Further Amended Statement of Claim that the "shrubs and hedge plants grew to a height….giving the impression…..that the ground below such scrubs and hedge plants was approximately level with the car park surface." [73]
Whilst there was some evidence in the final inspection report [74] of the observations of the Second Defendant at the time this was carried out, this was not related to the circumstances of the garden bed at the time of the Plaintiff's accident.
The Plaintiff presented no evidence as to the condition of the garden bed at the time that the Second Defendant's engagement ceased and nor did the Defendants.

Lighting

The Plaintiff conceded that further down from his car there was a light pole about 4 to 5 car bays away. The pole was green and he did not see any other light pole. Nevertheless, the Plaintiff's evidence in relation to lighting was that it was poor. [75] When asked why he would say that he stated:- "Because I didn't actually see the garden bed behind me, like, lit up." [76]
He was not cross examined as to this evidence.
He stated that he thought that there was a garden bed behind him with shrubs growing in it. He described it as "a half a metre of shrubbery area". [77]
Mr Bowers' evidence in relation to the lighting was:- "I don't think it was dark - that I couldn't see, but I don't think it was overly lit." [78]
He was not cross-examined in relation to this observation.
Mr Rodney Turner's observations were:- "Being an electrician I noticed that at - well, car park light is only an ambient light - it's not a bright light. So, it was light enough to see but probably not as a - if it were a walking area it would be lit more." [79]
In cross-examination by the First Defendant, he acknowledged again that the lighting was "ambient." [80]
Mr Bilsborough said that he saw the Plaintiff fall from a distance of two metres away at the most. He described the area in question as "pretty dark" [81]
He was not cross-examined in relation to this observation.
In relation to lighting, Mr Bullen observed that there were two light poles in the vicinity with one light being located 3740mm to the east of car space 1, measured from the rear edge of that space, and another located 5300mm to the west of car space 1, measured from the westerly rear edge of that same space. Car space 2 was noted to have its light located 2600mm to the west and another 6440mm to the east. The poles were set back from the kerb so that the light was located directly above the kerb. He measured the height of light 1 above the kerb as 2800mm and the height of light 2 above the bitumen as 3100mm. These locations and heights were not in dispute as applicable at the date of the Plaintiff's accident.
Mr Bullen then observed that the certificate of compliance from Brown Consulting referred to the 1993 version of AS/NZS 2890.1, not the 2004 edition which was current at the relevant time. He noted that clause 4.7 of AS 2890.1-2004 required parking areas and circulation areas, together with pedestrian pathways, should be adequately lit, and provide minimum lighting levels for open air car parks such as the subject car park as specified at AS/NZS 1158.3.1. The 1993 version of the standard also has a clause relating to lighting by reference to AS/NZS 1158.3.1 but also prescribed minimum illumination levels in lux for an open car park. The note in the 1993 version of AS 2890.1, in prescribing minimum illumination levels, stated:- "NOTE: It is likely that a forthcoming edition of AS 1158.1 will specify higher levels of lighting for open air car parks than the present edition. Being an issue of this revision it is recommended that the following minimum lighting levels be used in public car parks." (lighting levels listed)
Mr Bullen stated that the setting of illumination levels or type was a task for the specialist consultant who was engaged in that regard. [82]
Mr Bullen stated that he was not skilled and had no experience in the design of lighting to meet prescribed lighting levels and did not know if the same lighting to the car park was operating at the time of the Plaintiff's accident. [83] Mr Bullen stated that the task of the Second Defendant, having arranged for the employment of the specialist consultant on behalf of the developer, would have been:- "Coordinating the lighting proposal by checking that it was not in conflict with other services, structures and plantings, and satisfied architectural issues such as appearance, scale, colour, etc. Such coordination may include having the specialist consultant confirming that the proposal would provide adequate lighting levels to the car park and surrounding area, including the garden bed." [84]
Mr Bullen was cross-examined extensively regarding the distance from the top of the kerb to the base of the garden bed. The significance of this to the lighting was explored by Counsel for the Plaintiff in the following exchange:- "Q. You said in your report that you consider that an OCA acting under a retainer such as Hassell's in this instance would have an obligation to design a garden bed that was adequately lit? A. To see that the garden was adequately lit? Q. Yes. A. That's a bit different to your question in that Q. All right. I have asked A. In only the sense that Hassell, by my understanding of their retainer, were head consultant and they relied on a number of secondary consultants for advice, so that they were relying on Bassett in this case, which is a lighting and electrical consultant, to design the lighting for the car park. Q. As the head architect they would have the responsibility to oversee that work and make sure they were satisfied with it, wouldn't they? A. To the extent that they could they're not lighting experts so that they would ask the they would check with the consultant to see that they had complied with the standard and checked the light layout for all sorts of things. Q. The standard isn't the measure of whether or not you do something in all situations, is it? A. Not in all situations, no, but it is a if I can it's a very important guide to designers because the standards have been written with close collaboration of a broad range of experts and specialists within the fields, so, they are a particularly important guide for us. Q. Would you design a car park with a fall from a kerb of 810 millimetres without a guard rail? A. If the provided that the fall was detectible by being lit adequately yes. Q. So, not adequately lit means you wouldn't do it? A. I would look at other means of identifying the drop." [85]
It is not in issue that there were no lights in the garden bed itself. Insofar as the responsibility for lighting in the garden bed area is concerned, Mr Bullen, in his report, stated at [28]-[29] as follows:- "28. Again, I consider that the lighting and accent lighting that Hassell identify in the Agreement are those within the landscaped areas, consistent with the heading those services are listed under in the Agreement. Lighting to be designed by Hassell as landscape architect would, from my experience, include: lighting to shrubbery, up-lights to tree canopies, lights to pool, feature wall lighting, pathway lighting and the like. Simpson - Structural Engineering: 29. By reference to item 7 of my instructions dated 7 October 2014, Simpson Design Associates (Simpson) were the structural engineers on the project and designed the paving slabs, nominated pavement types and designed walls in the car park. Accordingly, I consider Hassell was not retained to provide these services." [86]
I accept that the lighting at the time was ambient based on the evidence of the lay witness. This was the clear evidence of Mr Bowers and Mr Rodney Turner. Although the Plaintiff described the lighting as poor, this was a relative term.
In light of the certificate from Brown, I do not accept that it can be assumed that the 2004 standard as to lighting was complied with (being the standard at the time) at the time that the Second Defendant's involvement ceased in 2009. No issue was raised that the lighting in place at the time of the accident differed from that which had been in place at the end of the Second Defendant's involvement in the project. Rather the Second Defendant maintained that it was not responsible for the lighting in the car park perse as this was specialised work undertaken separately from it.
The terms of the Council's approval were that the lighting of the premises be directed so as not to cause nuisance to owners or occupiers of adjoining premises in accordance with information contained in the Bassett Consulting Engineering Report dated 1 March 2007. [87] That document was not contained in evidence.

Visibility at the Accident Scene

The Plaintiff conceded that the lighting was sufficient for him to manoeuvre along the kerb in a crab-like fashion and further conceded that, as he walked before his fall, he felt there was no reason to fear that he could not see where he was stepping [88] and he stepped back not knowing how deep the garden bed was. He also stated that the lighting was not sufficient in revealing what he perceived to be a ground cover as he looked down to the garden bed, however, he stated that he could see leaves further down but not what was underneath. [89] The Plaintiff's evidence in chief was as follows:- "Q. Did you notice anything about a garden at all before your fall? A. No. Q. What did you think was behind you? A. Well, I thought it was a garden behind me but just Q. What made you think there was a garden behind you? A. I could see plants. Q. When did you first see plants? A. As, as I, like, approached the back of the car. Q. What did you see? A. I just seen, like, little plants about that high above the kerb. HIS HONOUR: Indicating about 21 centimetres. WELSH: May be a bit more maybe 25, your Honour. HIS HONOUR: Twenty five." [90]
In cross-examination by Counsel for the First Defendant, the following exchange took place:- "Q. But you could see that there was a garden at least immediately next to the kerb, couldn't you? A. Yes. Q. You didn't know the depth of the garden, did you? A. No, I didn't. Q. You didn't know whether it was containing, at that time, small plants or large plants? A. That's right. Q. You didn't know whether it contained trees or shrubs? A. That was small plants I believe. Q. What you could see was foliage, wasn't it? A. Foliage, yes, that's right." [91]
During cross-examination by Counsel for the Second Defendant the following exchange took place:- "Q. You could clearly see the kerb? A. Mmm‑hmm. Q. And you could see that the kerb was contrast to the bitumen, that's true isn't it? A. Yes. Q. You knew that there were trees behind the kerb? A. Yes. Q. But you didn't know the depth of which the trees were planted did you? A. No. Q. You couldn't tell what the depth was unless you carefully looked at it could you? A. That's right." [92]
When it was suggested to the Plaintiff that, if he had been exercising care for his own safety, he would know that he could not step off the kerb backwards at night without knowing how deep the garden bed was, he responded:- "No, well who builds a garden bed lower than a car park level anyway." [93]
Mr Rodney Turner's evidence in relation to the issue was as follows:- "Q. What had you observed? A. That it looked to be a garden and with shrubs in it probably yea high. Q. "Yea high" you'll have to hold up your hand so we can see what yea high means. A. I'd say 400 or 500 mil. " [94]
Mr Bowers also gave evidence in relation to this issue and stated:- "Q. Did you make any observation of what was in the area behind that small ledge at any stage before the plaintiff's accident? NEALE: I object, your Honour. What this witness may have seen it is not his case what he may have seen just can't assist your Honour. HIS HONOUR: I will allow it. WELSH Q. Do you remember the question? A. Yes. I thought it was a garden bed with shrubs growing in it. Q. Did you make any direct observation of the level of the earth or the ground in that area A. No, it just Q. before the plaintiff's accident? A. seemed to be a shrubbery area, like a, I don't know, half a metre shrubbery area, like a garden bed. Q. You've held up your hand there and said a "half a metre shrubbery area"; what is the half a metre to indicate? A. The height of the bush." [95]
Mr Rodney Turner's evidence was that he went into club and called the maître d' or "the woman who was running the show there, running the reception." [96]
It was not in issue that, following the accident, the incident report was completed by Ms Karen Morphett who noted the circumstances of the accident as:- "Putting stuff in the boot of car, stepped back over gutter, didn't realise there was a drop and fell down in ditch." [97]
The report also noted:- "Fill hole or fencing."
From the detail contained in the form, I infer that Ms Morphett was the person who was also the person who attended the scene as described by Mr Rodney Turner. Mr Rodney Turner, gave evidence of a conversation he had with her at the scene which he recounted as follows:- "Q. Doing the best you can, using the words you used and the words that she used, what did you say to her and what did she say to you? A. I think I was a little bit irate at the time, maybe, in that saying, you know "What's happening here? Why is this like this? Why is this look like this?" Meaning that it doesn't look like it would drop away, it looks like a garden bed. Q. What did she say to you? A. I don't recall. She was apologetic and she was nice, I think she did everything that she had to do." [98]
This evidence was not objected to or otherwise challenged. [99] Its contents and Exhibit H are, in my view, consistent with the observations of other witnesses at the time of the accident.
Critically, however, there was no evidence to suggest that, in the absence of the height and density of plantings and foliage at the time of the accident, the Plaintiff would not have been in a position to ascertain the depth of the garden bed from general observation. Nevertheless I accept that, at the time of the accident, the lighting was sufficient to enable observation of features of the car park including the presence of the foliage and its height above the garden bed but not the depth of the garden bed.

Depth of Garden Bed

Various witnesses gave evidence of the depth of the recessed garden bed at the time of the accident. The Plaintiff also acknowledged that the estimated height of the garden bed at "four feet", an answer which he acknowledged was an approximation. [100] Mrs Turner's assessment was that the height was waist/chest height. [101]
Mr Bowers described the Plaintiff as falling backwards into the bush area and he saw him lying on what he described as a "deep area" and "a lot deeper than what I initially thought it was". [102] He stated that the Plaintiff's son and another person descended into the hole to assist the Plaintiff. [103]
Mr Rodney Turner said that he saw the Plaintiff fall and thought that he would fall back against the fence but he went down parallel to the gutter and then flattened the trees which he thought were plants. [104] Mr Rodney Turner jumped in to the Plaintiff's aid and noticed the depth of the hole as 900 millimetres to 1 metre, [105] a distance which he later acknowledged was an approximation. [106]
Mr Bilsborough said that he was outside and getting ready to leave when he noticed that, towards the back of the car and in the car park, the Plaintiff fell down a hole that was behind the car in the shrubbery, bushy area. [107] He recalled with certainty that he moved away a shrub or a bush from where the Plaintiff had fallen. [108] He did not himself get down into the hole and stated that the Plaintiff was standing up and leaning against the cement that Mr Bilsborough was standing on. [109] He described the part of the Plaintiff's body that was leaning against the kerb as being between his belly button and the chest. [110]
In cross-examination by Counsel for the Second Defendant, Mr Bilsborough conceded that he had no reason to specifically turn his mind to the height of the "ditch" at the time. [111] He stated that, while he could not be one-hundred per cent sure, it was definitely higher than the Plaintiff's belly button. [112] He conceded, nonetheless, that he could not tell how high it was. [113]
On Dr Cooke's measurements carried out on 29 September 2013, the surface of the garden bed was between 150 millimetres and 550 millimetres below the level of the adjacent car park surface. [114] This was conceded by Counsel for the First Defendant and accepted by the Plaintiff as evidence of measurements on the day of the inspection. [115] Even so Dr Cooke was not called and how he derived these measurements was not explained.
When Mr Bullen carried out his inspection on 27 September 2014 he carried out a number of measurements. From car parking spaces numbers 1 and 2 as indicated in annexure 4 to his report (being in the vicinity of where the Plaintiff occasioned his injury) he measured distances between 810mm and 720mm, working from right to left. He measured the height of the kerb at 135mm. Mr Bullen noted that the soil in the sunken garden varied in level at different points and he observed that the soil adjacent to the car spaces had a slight slope down to the base of the retaining wall, towards the air conditioning enclosure of approximately 50mm over its width of 785mm. Accordingly, he opined of the difference levels discussed earlier that there was, across the sunken garden bed, a maximum difference of 725mm (in addition to the kerb of 135mm) and 1000mm. He noted that the shrubbery, growing along the shrunken garden bed was moderately dense to impassable at a height of around 1100mm above the bitumen of car spaces numbered 2 to 7, although it was generally absent at car space number 1. He noted that the side to the east was denser and presented difficulties measuring to ground level. Based on his observations, he concluded that the soil levels and the difference in levels presented at his measurements were at or close to those presented at the time of the Plaintiff's fall. This evidence was not challenged and I accept it in preference to the lay witness whose assessments were at best approximations based on recollections and Dr Cooke's evidence which as I have stated was unexplained.
Both Defendants contended that the design of the car park complied with the standard set out in the BCA at clause D2.16, such that there was, in the circumstances, no requirement for a balustrade.
In relation to the depth of the adjacent garden bed, Dr Cooke stated:- "The Building Code of Australia (BCA) does not expressly apply to the design of balustrades in landscape areas, although the performance provision in clause DP3 specifies that '(w)here people could fall 1m or more… due to a sudden change of level within or associated with the building a barrier must be provided…' (Appendix B). In my opinion the design of the car park area and the adjacent garden bed is 'associated with the building', however, the change of levels is less than 1m, varying between 100mm and 550mm. Accordingly there was no requirement under BCA clause CL.D2.16 for a balustrade."
Dr Cooke concluded that the design of the car park and the relevant area complied with AS/NZS 2890.1:2004 in relevant respects and with the BCA at the time of the accident.
When questioned about this Mr Bullen stated:- "Q. Are you saying someone falling into a hole 810 millimetres deep is much safer than someone falling into a hole a metre deep? A. Actually, again, as a practicing architect, we rely a lot on the regulations and standards to which have been developed in consultation with experts on what represents a reasonable hazard and what does not. HIS HONOUR Q. It's not an answer to the question that was put to you? A. I'm sorry. WELSH Q. Falling into a hole 810 mm deep, are you saying that's much safer than falling into a hole a metre deep? A. I don't know. Q. It isn't, is it? A. Well, I don't know. I'll tell you the reason I'm saying this is you can fall over a kerb onto a footpath and cause yourself serious injury. I just don't know." [116]
In Francis v Lewis, [117] Mason P (with whom Hodgson and Tobias JJA agreed) stated:- "42 The legal situation of a building erected in accordance with prevailing building standards has been considered in earlier cases. It is a subset of a wider body of law that holds in tension the proposition that a finding of negligence requires evidence capable of satisfying the tribunal of fact that there has been an unreasonable departure from the standard of care; and the proposition that lawful common practice is not determinative of liability in negligence. As Latham CJ put it in Mercer v Commissioner for Road Transport & Tramways (NSW) (1936) 56 CLR 580 at 589: The mere fact that a defendant follows common practice does not necessarily show that he is not negligent, though the general practice of prudent men is an important evidentiary fact. A common practice may be shown by evidence to be itself negligent. A jury is entitled, for example, on sufficient evidence, to find that a proper regard for the safety of other people would require the adoption of some precaution which has only recently been discovered. But a jury is entitled so to find only if there is actual evidence to that effect. 43 In Lanza v Codemo [2001] NSWSC 845, Wood CJ at CL reviewed the authorities and said: [168] It was submitted that the Australian Standard provided the measure of Moxham's duty to the plaintiff, and that since the harness generally complied with its requirements, there was no breach of that duty. This submission is not made good. [169] Mere compliance with a Standard, or even with common practice, does not solely or even primarily determine whether negligence exists or not: Florida Hotels v Mayo (1965) 113 CLR 588 at 593; Rogers v Whitaker (1992) 175 CLR 479 at 487; Mercer v Commissioner for Road Transport & Tramways (1936) 56 CLR 580 at 589. Evidence as to practice, or as to the existence of a Standard remains relevant, and it may help in determining what proper care and skill requires to be done in a particular context. However, in the end it is for the Court to adjudicate upon what is the appropriate standard of care: Ainsworth v Levi NSWCA 30 August 1995 unreported; Shead v Hooley [2000] NSWCA 362; and The Council of the Shire of Muswellbrook v Lettice [2000] NSWCA 359. See also Jones v Bartlett (2000) 205 CLR 166 at 177[23] per Gleeson CJ."
There was some evidence of another standard in clause 2.4.4.3 of AS/NZS 2890.1.2004 which was annexed to the report of Dr Cooke date 1 October 2013. This suggests that a barrier would be required in a multi storey car park on decks above ground level where the drop from the edge of the deck exceeds 600mm. [118] The significance of this, however, was not explored with Mr Bullen nor was it raised by Counsel for the Plaintiff. The Plaintiff did not question the applicability of the BCA standard beyond the cross-examination referred to above. To the contrary the Plaintiff's counsel stated:- "There is nothing in the standard for car parks which assists in resolving the issue. It is submitted that the position was best summed up by the second defendant's expert when he said that it would be appropriate to build a car park with a drop of 110mm [should read 810mm] in a location where such a drop was clearly visible." [119]
In submissions, Counsel for the Plaintiff, whilst acknowledging the BCA standard, contended:- "It's inconceivable that any architect would build in knowingly, having regards to what the standard may or may not be, a hole of at least 810 millimetres into anything which was in a location where people would not be able to appreciate that it was there."
Clearly the BCA standard does not describe the lighting conditions alongside of which it is intended to operate. However, the clear evidence from Mr Bullen was that the standard could only apply in the circumstances where there was associated lighting which would make the depth of the garden bed observable.
At [49]-[50] of his report of 24 October 2014, Mr Bullen stated:- "In my opinion, any inherent risk presented by the change of level from the subject car parking spaces to the sunken garden bed was, at the time of the incident, apparent to a person taking reasonable care and attention to their circumstances, subject to the assumptions identified at my paragraph 39 above. In my opinion there is and was no need for a fence, barrier, railing or any other construction to prevent a pedestrian from falling into the sunken garden bed from the subject car spaces. The change of level was reasonably detectable by daylight, and should have been so by nearby lighting at night, although I have not seen the subject lighting in night time conditions."
In cross examination Mr Bullen, stated:- "Q. Would you design a car park with a fall from a kerb of 810 millimetres without a guard rail? A. If the provided that the fall was detectible by being lit adequately yes. Q. So, not adequately lit means you wouldn't do it? A. I would look at other means of identifying the drop. Q. And you would have done that by means of some recessed lights in the bottom of the garden bed so that they were shining upwards so that people would be able to discern that there was that hole there that's right, isn't it? A. That NEALE: Your Honour, I object to this. Is this question being put on the assumption that Mr Bullen was in Hassell's shoes at the time of the design in circumstances where there was a lighting consultant retained? The basis of the question has not been identified in my submission. And what Mr Bullen may or may not have done is not relevant in my submission. The issue is what a reasonably competent architect in the position of Hassell would have done in the circumstances of the case. HIS HONOUR: It flows from an answer which was given by this witness that Ms Welsh asked him a question about would you design a garden bed with a fall of 810 millimetres without a guard rail, and I think the answer was if it was adequately lit Q. Is that what you said? A. Of that nature, yes, your Honour. Provided that it was detectable, for example, it was adequately lit, yes, I would. …………. WELSH Q. You say in paragraph 28, "Lighting to be designed by Hassell as landscape architect would, from my experience, include lighting to shrubbery", correct? A. Yeah. Q. That would be an ordinary part of an architect's job? A. No. In the landscape architect in this commission they would add lighting to shrubbery as feature lighting. Q. So that's Hassell as landscape architect A. Yeah. Q. would design lighting to shrubbery? A. That's right. Q. They would design up lights …….. WELSH Q. It would be their job to design up lights to tree canopies. You say that in paragraph 28, yes? A. As an example of the sort of feature lighting they might do, that's right. Q. Feature wall lighting? A. They do that. Q. Here we had a recessed garden bed, yes? A. Mmm hmm. Q. It was recessed to a very significant degree. Do you agree with that? A. It wasn't to any exceptional degree, no, because it wasn't over a metre. It wasn't particularly treacherous, provided that it was that the area was lit." [120]
Mr Bullen conceded that the Second Defendant would, as landscape architect, design lighting to the shrubbery. [121] He conceded that they might do feature lighting. [122]

Wheel Stops

Counsel for the Plaintiff conceded that the wheel-stop location, referred to in Dr Cooke's report, reflected the location at the time of the accident. [123]
Mr Bullen noted that they were located at approximately 970mm clear of the kerb. There was shading in patches to the bitumen surface which suggested that the wheel stops had been located approximately 525mm to the kerb at some point prior to his visit to the premises.
In regards to the wheel stops, Mr Bullen observed, by reference to the photographs in Dr Cooke's instructions, that the wheel stops were likely positioned closer to the kerb at the time of the alleged accident and there was no railing present on the top of the kerb. After the placing of that railing, it is noted that an obstruction was introduced which was liable to make contact with a vehicle which would overhang and accordingly he assumed that the wheel stops were relocated to avoid this. He regarded the locations of the wheel stops closer to the kerb before the railing was introduced as appropriate and complaint with AS/NZS 2890.1-2004 clause 2.4.5.4.
Mr Bullen conceded that car parks are not designed for every convenience although acknowledged that they were designed from the perspective of people walking around as well as people driving in a car park. [124] Mr Bullen acknowledged that it would be possible for a person, who was obtaining something from the boot of their vehicle, to stand on the kerb in order to do so. [125] He further acknowledged that there would be a small dimension between the boot and the edge of the kerb, such that it would be hard for the person to get around to the back of the vehicle without stepping onto the kerb. [126] He further stated that he would expect that someone would take caution when they stepped off the kerb into an area where they could not determine where the ground was [127] but accepted that if there was no visual clue as to the fact that the ground was depressed down 810mm, his answer would change. [128]
The evidence from Dr Cooke was that the wheel-stop was located 980 millimetres from the kerb which was slightly in excess of the distance of 900-910 millimetres specified for rear-end parking in Table 2.1 of AS/NZS 2890.1:2004. Dr Cooke stated that the available space between the vehicle and the kerb in this case was larger than were the gap to have followed the recommendation in the Australia Standard aforementioned. Dr Cooke's measurements were undertaken prior to the installation of the balustrade. Accordingly based on the measurements taken by Mr Bullen it does not necessarily follow that the wheel stops were moved after the accident when the balustrade was installed.
What doesn't appear to be in issue however is that that the area behind the Plaintiff's parked vehicle was restricted. In a supplementary report, dated 2014 and also part of Exhibit 1.3, Dr Cooke stated:- "…[R]estrictions apply when accessing the boot of a vehicle parked rear-in to a parking space, either because of walls, bollards, columns, another parked vehicle, or in this case a kerb, behind the boot of the vehicle being accessed. Car park users are able to access vehicles with safety in a car park designed in accordance with AS/NZS 2890.1:2004 if exercising reasonable care." [129]
In cross-examination by Counsel for the Second Defendant, the following exchange took place with the Plaintiff:- "Q. You were able to open the boot without stepping back into the garden weren't you? A. Yes. Q. You were able to put the cake in the car without stepping back into the garden? A. Yes. Q. You were able to close the boot without stepping back into the garden weren't you? A. Well as I closed the boot I stepped back in it again. Q. Why was there any need to step back while you were closing the boot? A. That's what I do. Q. You hadn't done it when you opened the boot had you? A. No. Q. The reason for that is that you could easily have closed the boot, after having put the cake in there, without stepping back couldn't you? A. Maybe I could have." [130]
From this, the Second Defendant contended that, bearing in mind the position of the wheel stops and the location of the boot of the car, it was unnecessary for the Plaintiff to step back into the garden bed. [131] However the Second Defendant's cross-examination did not let the issue rest at the point of that evidence.
The Plaintiff stated that his purpose on the top of the kerb was to access the boot from behind the car as the back of the bumper bar was level to the kerb. [132] He acknowledged that his car's tyres were adjacent to the wheel stop in the parking bay and stated that if the wheel stops were located out from the kerb then he would not have been able to access his vehicle without getting up on top of the kerb. [133] Critically, he then accepted a proposition put to him by Counsel for the Second Defendant that he would not have been able to close the boot without stepping back into the garden bed. [134] He accepted that if the wheel stops had been located further away from where they were then he would not have stepped onto the kerb and probably would not have had the accident. [135] This issue presumably was designed to advance its Defence at paragraph [2] that other consultants were responsible for this aspect of the design of the car park. However, in submissions this was not advanced with the Second Defendant, preferring to put its case on the basis set out in the preceding paragraph.
On the whole I accept the proposition accepted by the Plaintiff as put by Counsel for the Second Defendant that (at least from the rear) he would not have been able to close the boot without stepping back.
It was in any event not in issue that the proximity of the boot to the kerb brought about by the location of the wheel stop led the Plaintiff to stand on the concrete kerb. Indeed it was the experience of other witnesses in the case.
Mr Rodney Turner gave evidence that he had also gone to the back of the Plaintiff's car to assist in the loading of presents into the boot. He stated:- "I actually stood on top of the gutter because the car was backed up to where you would normally back a car up to the gutter but not over the - obviously - so you could stand on the gutter and put the presents in the car." [136]
Mr Bower's evidence was that, when the Plaintiff placed the cake into the car, he too was standing on the concrete kerb. [137]

Breach of Duty

The question which next arises is whether the Second Defendant breached its duty of care. That must be considered in light of the provisions of s 5B of the 2002 Act:- "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."
Bearing in mind the provisions of s 5B(1)(a) of the 2002 Act, I am satisfied that the risk of injury was foreseeable. The Second Defendant knew of the presence of the sunken garden bed and its depth. However, there is no evidence that it knew of the precise plantings and foliage which were in that area at the time of the accident. It certainly was aware of some plants as referred to in the diagram in Exhibit 2.1. Whether the Second Defendant could have envisaged that the plantings and foliage could have grown and obscured the depth of the area in question was matter on which the Plaintiff presented no evidence notwithstanding the Defence referred to earlier. Nevertheless, I consider that, due to the position of the wheel stops, it could have foreseen patrons mounting the kerb to place items in the boot of a vehicle and accidentally falling into the unguarded area. In this respect the fact that it did not design the wheel stop locations or the kerb was in my view irrelevant to its capacity to foresee the consequences as the coordinating architect. [138]
Bearing in mind the factors in s 5B(2), I consider the probability that the harm would have occurred if care was not taken to be low in circumstances where the depth of the garden bed was observable to a person in the position of the Plaintiff. I accept the likely seriousness of the harm to be high.
Having said that, I am not satisfied that the burden of taking precautions to avoid the risk as opposed to the magnitude of the risk required the Second Defendant to take the precautions contended by the Plaintiff. On the evidence, the design of the garden involved less than a metre drop and complied with the BCA standard. The Plaintiff has not demonstrated that it would not have been observable with the lighting that had been designed nor what was in place at the time of the accident if the foliage had not been left to the height and density which the First Defendant had left it to grow. To the contrary, at least at the time of the accident the evidence suggests that visibility was such as would have revealed the drop in the absence of the planting and foliage that was in place. The observations of the lay witnesses after the Plaintiff occasioned his fall are consistent with this.
The Plaintiff contended that, due to the Second Defendant's failure to adduce any evidence about the lighting, a Jones v Dunkel [139] inference arises. What the facts requiring an answer and what that inference ought to be drawn [140] was elaborated by the Plaintiff's counsel as follows:- "It might be appropriate at this stage to say something about the Jones v Dunkel inferences which the second defendant is resisting. The second defendant has run its case on the basis of documents which your Honour is left to understand, without any assistance from any principle of the second defendant, without any assistance from the landscape architect who was designated to supervise these works. There can be no doubt that the evidence about the visual cues which existed at this location at the time of this accident called for an answer from the second defendant. They've chosen to answer those questions through documents where it was entirely within their control to call the person who did the job, and they didn't do it. And in my respectful submission, that can only possibly lead to an adverse inference in relation to what that person did in assessing what was necessary to be placed at that location to protect members of the public, and that includes an adverse inference as to ‑ it would not have assisted the second defendant to call that landscape architect on the issue of whether or not there should've been a hand rail at that location in the circumstances." [141]
Whatever forensic choice a party takes cannot assist a party bearing the onus of proof fill in gaps in evidence. The Plaintiff's contention that it was "not sufficient" for the Second Defendant to call an expert and not the "architect who designed the sunken bed" [142] also overlooks the burden of proof that it bears.
I am required by s 5C(b) of the 2002 Act to not take into account the fact that the risk of harm could have been avoided by doing something in a different way from the way in which the thing was done. Pursuant to s 5C(c) of the 2002 Act, the subsequent taking of action does not of itself give rise to or affect liability. No party submitted that a question of social utility arises.
In my view the circumstances are not such that a reasonable person in the Second Defendant's position would have taken precautions of erecting a balustrade. The Plaintiff did not identify any other warning that should have been provided. Nor did the Plaintiff point to any evidence that the location or design of the parking area where the Plaintiff occasioned his injury was deficient beyond referring to the need to install a balustrade.
For these reasons the Plaintiff has not established breach against the Second Defendant.

Causation

Even if I am wrong in this view, I would not have found that any breach by the Second Defendant caused the Plaintiff's loss under s 5D of the 2002 Act. There was no evidence which establishes that the design of the subject area caused the Plaintiff's injury. The bed had a depth which complied with the BCA. Whilst the Plaintiff could not have observed its depth in the condition that it was in, there was no evidence to suggest that, absent the height and density of foliage, he could not have done so let alone in the lighting designed under the responsibility of the Second Defendant. As the Plaintiff put his case, injury was brought about by the obscuring of the fall in levels which led the Plaintiff to assume that he could step back in the garden bed when in fact it was not safe to do so.

Duty of Care

The scope and content of the duty of care owed by the First Defendant is informed by the following:- 1. The First Defendant was the owner and occupier of the car park, controlling access and maintenance. Its power of control is of significance in determining the scope and content of its duty especially so far as the physical condition of the premises is concerned; 2. There was evidence of it using the subject site as a reception centre thereby engaging in commercial activity by inviting the public to enter and use their services and facilities; 3. The fact that the relevant service was a car park. The operation of a car park involves the transit of vehicles and pedestrians in and out of the car park with consequential risk to safety of persons and property; and 4. The First Defendant was entitled to assume that the users of its car park would generally act with a reasonable degree of prudence in driving and parking their vehicle and looking after themselves.
The First Defendant contended that the risk of harm was an obvious one within the terms of s 5F of the 2002 Act and that accordingly there was no duty to warn by reason of ss 5G and 5H. [143]
In oral submissions, however, Counsel for the First Defendant stated:- "Your Honour on liability likewise I've extracted, I think fairly, all of the relevant transcript references on what we would see as issues that your Honour needs to focus upon, lighting, foliage, depth and the plaintiff's conduct in the circumstances. The lighting is also footnoted and actually transcripted in Ms Welsh's submissions but the simple point that the defendant would make is that each and every witness could see every item in and around the vicinity. The difficulty that they had was they didn't quite know whether the foliage which they knew to be there was the foliage of a bush or a tree, or a shrub and they did not know the depth. But I do say that the test for the first defendant as an occupier is to act in a way that is reasonable in the circumstances and there's no doubt that lights were there, there's no doubt that there was ambient lighting, there's no doubt that was capable of discerning all of the features except for the foliage and the nature of the foliage and the danger that that might have caused. And in those circumstances we say (1) there was no duty to warn as is pleaded against us, (2) that the lighting was adequate for the circumstances of the defence operation, (3) that the plaintiff has led no evidence whatsoever of the normality of standard that is associated with premises such as this, and on that point, your Honour, our case list refers to the Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 and it needs to be read in the context not of the special relationship which caused the error but more importantly what is required of a plaintiff to make an allegation against a defendant that is as opposed to others acted so as to be in breach of its responsibility to present a reasonably safe place of employment." [144]
The Plaintiff sought to define the risk of harm as the risk of falling into an unguarded hole. The First Defendant sought to characterise it as the risk of harm that a patron would fall into a garden bed whilst accessing the boot of their car, parked in the Club's car park.
These characterisations failed to properly characterise the true source of potential injury. The risk of harm in my view was the risk of stepping into an unguarded garden bed separated from a car parking area by a small kerb in with a sudden and inconspicuous drop in ground level.
In Morgan v Sheraton Pty Ltd, [145] Sheller JA (with whom Mason P and Fitzgerald JA agreed), referred to Romeo v Conservation Commission of the Northern Territory, [146] before stating:- "14. In Romeo, a case in which the High Court by a majority held that an occupier, in that case a public authority, was not liable to a plaintiff who when affected by alcohol went at night to a part of a public reserve at the top of an unfenced cliff, the presence of which was obvious, fell over it and injured herself, Toohey and Gummow JJ said at 455 after referring to Mason J's judgment in Shirt at 48: "But in the present case the risk existed only in the case of someone ignoring the obvious. In putting the matter in that way, there is a danger of drawing in the question of contributory negligence of the plaintiff to what is a consideration of the duty of care on the defendant. For that reason we think it is preferable to approach the matter on the footing that there was a duty of care on the respondent to take any steps that were reasonable to prevent the foreseeable risk becoming an actuality." The first part of this dictum describes as significant the foolhardy or reckless conduct of the plaintiff which is then, to avoid speaking in terms of contributory negligence, restated in the language of the reasonable steps to be taken by a defendant. A defendant is not required to take steps to guard against the risk of injury the result of an entrant's deliberate or reckless behaviour which is likely to cause him or her injury. 15. At 478 Kirby J said: "It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion. The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right. However, that expression of a duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrants. While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety; McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311-2; Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 at 431; compare Phillis v Daly (1988) 15 NSWLR 65 at 74.""
When the decisions in Romeo and Morgan v Sheraton were drawn to the attention of Counsel for the Second Defendant he informed the Court that it may be right to approach the analysis more in the context of breach rather than duty. [147]
The question of obvious risk in terms of duty was also discussed in Timberland Property Holdings Pty Ltd v Bundy. [148] There, the Court considered circumstances involving a Plaintiff slipping on a patch of grease or oil in a car park. Basten JA (with whom Handley JA and Hunt AJA agreed) stated:- "23 The appellant sought to derive support from the judgment of this Court in Richmond Valley Council v Standing [2002] NSWCA 359; (2002) Aust Torts Rep 81-679, being a case involving a fall by a 62-year-old woman who trod in a hole or gap between portions of concrete pavers forming a footpath. In assessing the extent of the duty of care on the part of the Council responsible for the maintenance of the footpath, Heydon JA (with whom Handley and Sheller JJA agreed) referred to the principles derived from Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, especially at [163] in the joint judgment of Gaudron, McHugh and Gummow JJ. In that passage their Honours stated in relation to pedestrians: "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road's surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger ..., or the surrounding area ... . In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it, 'of a kind calling for some protection or warning'. In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger." 24 The distinction to be drawn in formulating the duty of care is encapsulated by Heydon JA at [54] in Standing: "Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk. In that sense, there was a foreseeable risk of injury here. But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety." His Honour then continued in relation to the circumstances of the particular case, noting that the plaintiff was in an excellent position to see and avoid imperfections in the surface, that she was aware of unevenness in the paving slabs and cracks between slabs, and that there was no concealed feature or inadequacy of lighting or any other feature calling for special vigilance. 25 Just as it may be possible to describe most injuries which occur as being foreseeable, it may also be easy to describe the hazard which caused them in a general sense as "obvious". However, obviousness depends to a significant extent on the circumstances and position of the perceiver. That which is obvious from one position or at one time of day or in some circumstances, may not be obvious where those factors change. To determine what is obvious in a particular case, it may be useful to take the specific circumstances of the Plaintiff into account and then to inquire whether there was some aspect of her circumstances which was not reasonably foreseeable by the occupier. So long as there was no such unforeseeable circumstance, the question of obviousness must be answered by reference to her particular circumstances. 26 Reading the term "obvious" in the context in which it is used in Brodie, it is but a compendious way of concluding that no duty of the kind identified in that passage, and bearing in mind the distinction encapsulated in the passage from Heydon JA inStanding, arises. However, terms such as "obvious" or "conspicuous" are everyday words which may not always be used, even in a judgment, to describe the end point of an analysis such as that outlined above. Furthermore, it is clear that the joint judgment in Brodie was not seeking to draw some bright line between persons using reasonable care for their own safety (to whom a duty might be owed) and those who fail to exercise such care, as demonstrated by a significant level of contributory negligence. As the High Court noted in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 at [37]: "The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration." 27 As will be noted below, inadvertence may need to be distinguished from carelessness which would reduce a defendant's liability, so that acceptance not only of inadvertence, but also of a degree of carelessness is not inconsistent with the existence of a duty of care. That result is possible because the formulation of a duty and the existence of contributory negligence operate at different levels. A duty depends upon a risk foreseeable on a particular assumption, namely that a person will take reasonable care for his or her own safety. The duty may thus be found to exist, regardless of whether the particular plaintiff has in fact taken such care."
As noted earlier, I am satisfied that the lighting in the vicinity of where the Plaintiff occasioned his injury was ambient.
In view of the density and height of the plantings and foliage, in the garden bed area adjacent to where the Plaintiff fell, the extent of lighting described by the lay witnesses (including the absence of lighting in the garden bed itself) the depth of the garden bed - which I accept to be in the vicinity of 810mm, the drop in depth would not have been conspicuous to a person in the position of the Plaintiff. It follows I do not accept that the risk of harm was obvious in the circumstances.
Whilst the First Defendant sought to rely upon a normative standard being followed in relation to the depth of the garden bed, this is not determinative particularly in light of the evidence of Mr Bullen as to the need to ensure that the depth was observable. [149]
The depth of the garden bed needs to be considered in its context not in isolation.
Although the First Defendant pleaded reliance on s 50(2) of the 2002 Act, it has not been demonstrated that the Plaintiff's consumption of alcohol that evening impaired his capacity to exercise reasonable care and skill. The evidence was that from 11:30 to midday until the conclusion of the wedding, the Plaintiff revealed that he had consumed 6 to 8 beers.
Various questions were asked of the Plaintiff in which he acknowledged that, after the celebrations, he was feeling relaxed and euphoric. [150] Despite this, the evidence does not support that, in making the decisions he did, he was intoxicated to the point that his capacity was impaired as described in s 50(2). Whilst the First Defendant pleaded reliance on s 50(2), it made no submissions in this regard. The Second Defendant did not plead the section and it did not advance the argument beyond referring to the Plaintiff's consumption in submissions to demonstrate a failure to take reasonable care for his own safety.
The use of different colours for the kerb and the bitumen and the design of kerb area were put forward as features to distinguish it from the recessed garden bed. However, the circumstances were such that would not have signalled to a person in the Plaintiff's position that the garden bed beneath was recessed some 810mm below.
The location of the wheel stops was such as led to the rear of the vehicle being positioned so as to require a person in the position of the Plaintiff to access the rear of a vehicle in a position as described in the evidence. So much was accepted by the expert witnesses. This was a function centre where it could well have been anticipated that patrons may seek access to the rear of parked vehicles in order to deposit gifts and other items and not be deterred in the absence of any other indication of a drop in surface level.
Overall I am satisfied that the risk of injury was foreseeable and not insignificant. Taking into account the factors in s 5B(2) I note, in particular, that the probability of harm in the circumstances, where the depth of the garden bed was not observable, was high, as was the likely risk of serious injury. The cost of preventative action was the price of a balustrade which was ultimately installed by the First Defendant for the sum of $4760. [151] Whilst the status quo may have provided a preferred aesthetic appearance there was no social utility being advanced in leaving the area unguarded. That is not to overlook the question of aesthetics which can in some circumstances be a relevant matter in the negligence calculus. [152] It follows in terms of s 5B(1)(c) of the 2002 Act that I am satisfied that a reasonable person in the position of the First Defendant would have taken the precautions.
I am further satisfied that the First Defendant's failure caused the Plaintiff's injury in accordance with s 5D of the 2002 Act. In particular I am satisfied that but for the First Defendant's failure to install a balustrade over the kerb separating the garden bed the subject accident would not have occurred. [153] Subject to considerations of contributory negligence there is nothing to warrant a finding that responsibility for the accident should not be visited on the First Defendant.
The First Defendant submitted that if the Court were to find that the car park contained a foreseeable risk of injury to the Plaintiff, then this was a result of design and the First Defendant would be entitled to rely upon the Second Defendant's expertise and would not be liable for latter's negligence. [154] The First Defendant contended that it is entitled to assume that, having engaged such competent contractors, the car park would have been designed in such a way that it would be free of risks to patrons attending the club.
In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, the Court referred to the decision in Kondis v State Transport Authority [155] and, in particular, the judgment of Mason J (with Deane and Dawson JJ agreeing) at [679]-[687], identifying some of the principal categories in which the duty to take reasonable care under the ordinary law of negligence is non-delegable. It was stated that this (arguably) includes occupier and invitee. [156]
In Scott v Davis, [157] Gummow J stated:- "Further, with respect to any doctrine of "non-delegability", there is a difficulty in identifying any principle which dictates an expansion of liability such that the defendant becomes, in effect, the insurer of some activity even when it is performed by another. The explanation of the cases given by Mason J in Kondis was accepted in Burnie Port Authority v General Jones Pty Ltd. In Kondis, Mason J identified (i) cases where the defendant "has undertaken the care, supervision or control of the person or property of another" and (ii) cases where the defendant is so placed in relation to the person or property of the plaintiff as "to assume a particular responsibility" for the plaintiff's safety, in each case where the plaintiff might reasonably expect the exercise of due care. Such an approach requires some caution in its general application. It may explain the cases on "non-delegability"; but many other cases not decided on that basis also may have answered the criteria stated by Mason J. How then does the court decide a fresh case where the preferred criteria are historically descriptive but not normatively predictive? Some caution is required because the characterisation of a duty as non-delegable involves, in effect, the imposition of strict liability upon the defendant who owes that duty."
More recently, in Indigo Mist Pty Ltd v Palmer, [158] the Court of Appeal considered the liability of an occupier and an architect in relation to circumstances where a patron slipped on the internal stairs in a hotel. Hoeben JA (with whom Beazley JA agreed) rejected the occupier's reliance on Bevillesta Pty Ltd v Liberty International Insurance Co, [159] stating:- "87 The occupiers' reliance upon Bevillesta as authority for a capacity to delegate the duty of care which they owed to Ms Palmer, is misconceived. His Honour correctly distinguished the facts of Bevillesta from the facts of this case at [108] - [109] of his judgment (set out in par [46] hereof). The facts in Bevillesta involved the delegation of responsibility by an occupier to a cleaning contractor. That was an appropriate finding because there was a clear overlap in their responsibilities for the cleaning of the shopping centre. The circumstances of this case are quite different. 88 PKD had responsibility for the implementation of the refurbishment of the hotel. This included the design of and materials used in the stairs. It had no responsibility for the management or day to day running of the hotel. The content of the duty owed by the occupiers was not only to provide safe premises, but to exercise reasonable care to conduct the hotel premises so as to avoid exposing patrons to a foreseeable risk of harm. Their responsibility for the management and day to day running of the hotel could not be delegated to the architect. His Honour correctly found that the management of the hotel gave rise to different obligations to those associated with the design of the hotel. 89 The occupiers had to direct their attention prospectively to what action reasonable care required them to take in order to avoid a foreseeable risk of injury to patrons or other lawful entrants to the hotel. Once they accepted the design of the stairs, they had to consider for themselves what potential hazards arose therefrom. Given the v the premises, they had to determine for themselves whether a foreseeable risk of injury existed in relation to the stairs, and if so, what response they should make to it on a day-to-day basis. This they failed to do. Breach of duty has been established by Ms Palmer against the occupiers."
Consistent with these authorities it follows that the independent contractor defence raised by the First Defendant must fail. The First Defendant cannot rely on the condition of the premises left to them by Second Defendant to extract itself from its duty of care when it has the day-to-day responsibility for the safety of their premises and their operation.

Contributory Negligence

Both ss 5R and 5S of the 2002 Act were pleaded by both Defendants. S 5R of the 2002 Act provides:- "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
The principles to be applied are those set out by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd. [160]
In Verryt v Schoupp [161] Meagher JA (with whom Gleeson JA and Sackville AJA agreed stated:- "Section 5R of the CL Act, …, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence."
I do not accept that the Plaintiff's actions in stepping back into the garden bed when he was unaware of its depth were mere inadvertence as his Counsel claimed. There is a clear difference in walking along a level surface area and stepping onto a kerb and into a garden bed. This was not a path for pedestrian use. The presence of the kerb and its colouring as well as the vegetation identified it as such. Even accepting the Plaintiff's perceived need to step back in order to close the boot of his car, he failed to take precautions to satisfy himself that it was safe to do so. There was nothing to suggest that this was the only option available to him in the circumstances. Accordingly bearing in mind the risk of harm I assess contributory negligence at 15%.

Damages

The Plaintiff, Mr Turner, was born on 2 February 1958 and is currently 57 years of age.
He commenced employment as an apprentice motor mechanic at Frank Milazzo Automotive in February 1974 and remained there until April 1974. From April 1974 to February 1982 he was employed as a motor mechanic at Larke Hoskins. He completed his motor mechanic qualifications and an apprenticeship in 1978 and undertook a post-trade diesel certificate at St George Technical College in 1980. From February 1982 to August 1982 he was employed as a diesel mechanic by the Helensburg Bus Service. From October 1982 to September 1983 he was employed as a plumber's labourer at Bruce Souter Plumbers. In October 1983 he resumed employment as a motor mechanic with Larke Hoskins, with whom he remained until 10 April 1989 when he commenced employment with his current employer Transdev (previously known as Deanes Coaches, Connex and Veolia Transport) as a diesel mechanic. [162]
The Plaintiff's evidence was that, following the accident, he hit his back against the wall behind him and fell onto his hands and knees. [163] He stated that he noticed pain in his arms, being a tingling sensation. He was assisted by his brother. [164] An ambulance arrived, however, he did not go into the ambulance as he did not feel it was necessary. [165] He was instead taken home by his wife [166] and described his symptoms as a tingling in his arms, stating that he could not lift his arms above 90 degrees. [167]
The evidence of Mr Rod Turner (the Plaintiff's brother) was consistent with that of the Plaintiff. In particular, he stated that the Plaintiff flattened the trees that were there and which he had thought were plants. [168] He described the Plaintiff as being in shock at the time. [169]
The Plaintiff's wife, Mrs Karen Turner, gave evidence that the Plaintiff was complaining about his shoulders at the scene of the accident. [170] He described the Plaintiff as being in pain and in shock. [171] She also stated that the pain did not improve and consequently the Plaintiff went to see Dr Greg Chen, his general practitioner.
The Plaintiff saw Dr Chen on 21 November 2011 and 28 November 2011 before Dr Chen referred him for an ultrasound to both shoulders. The ultrasound was carried out on 5 December 2011 and noted that, in the right shoulder, the Plaintiff had supraspinatus tendinopathy. It also noted that in the left shoulder, the Plaintiff had a complete tear with a retraction of the long head of biceps and a partial thickness tear of the bursal surface of the supraspinatus. [172]
The Plaintiff was again seen by Dr Chen on 6 December 2011 and 20 December 2011. He was then referred to Dr Ireland, orthopaedic surgeon. Dr Ireland reported, on 16 January 2011, that the Plaintiff had marked restriction of the range of movement with less than half of the normal glenohumeral range and a positive impingement sign in both shoulders. Dr Ireland arranged for bilateral subacromial injections of steroid. In a report of 16 January 2012, Dr Ireland stated that if there were no dramatic improvement in his shoulders then he would request that an MRI be pursued. An MRI was carried out on 24 February 2012 and reported on by Dr Gregory Markson.
Dr Markson reported, in relation to the right shoulder, the following:- "Moderate-sized tear, involving supraspinatus along its anterior to mid portion at its juxta-insertional aspect with retraction in the order of 10 millimetres and background tendinosis. There is no muscle atrophy. Infraspinatus tendinosis without a tear. Complete tear of the subscapularis tendon without significant retraction and subsequent medial dislocation of the long head of the biceps tendon. Subacromial bursitis. Background impingement anatomy."
In relation to the MRI of the left shoulder, Dr Markson observed:- "A large, full thickness tear of the supraspinatus tendon, with background tendinosis and retraction in the order of 20 millimetres. Marked infraspinatus tendinosis. Subacromial bursitis. Chronic appearing full-thickness disruption of the subscapularis tendon with subsequent medial dislocation of the long head of the biceps, the upper aspect of which shows marked tendinosis. Degeneration at the biceps anchor. Subacromial bursitis as well as some mild adhesive capsulitis. Chondral wear along the inferior margin of the humeral head."
On 9 March 2012, Dr Ireland reviewed the MRI with the Plaintiff. He stated in the letter to Dr Chen of the same date that it was unlikely that there was going to be any substantial improvement in either shoulder and that, realistically, the Plaintiff would need them to be repaired. The Plaintiff decided to proceed.
On 14 March 2012, the Plaintiff underwent an arthroscopy and right rotator cuff repair at Liverpool Day Surgery. Dr Ireland noted in his report dated 25 May 2015:- "On 14 March 2012, Mr Turner underwent an arthroscopy and right cuff repair at Liverpool Day Surgery. It was noted at the time that he had an extensive tear of the subscapularis, dislocation of the biceps tendon and a complete tear of the supraspinatus, and a type III acromion. There was extensive adhesive capsulitis. He had extensive subacromial debridement and tendinosis of the biceps and repair of the subscapularis and supraspinatus tendon."
The Plaintiff was discharged on the same day and returned for review on 23 March 2012. He was noted to be comfortable. His wounds were healing well and his sutures were removed. He was referred to physiotherapy.
The Plaintiff described that, at the time of the surgery, there was no actual pain, just a lack of movement. [173] While he described there being pain after the surgery, he stated that he was not in pain at the present time. [174]
The Plaintiff saw both Dr Chen and Dr Ireland on 1 May 2012. On that occasion, Dr Ireland reported that the Plaintiff was still complaining on a significant amount of stiffness in the shoulder but was reasonably comfortable. Dr Ireland wrote to Dr Chen advising that it was time to commence a more aggressive physiotherapy and requested that the Plaintiff dispense with the brace which he was wearing in order to use the arm as much as possible on a day to day basis.
The Plaintiff returned to see Dr Ireland on 12 June 2012 at which stage he was noted to have made steady progress. Dr Ireland noted that the Plaintiff still had a moderate degree of adhesive capsulitis and his glenohumeral movements were only about 50 per cent of normal. He felt it would take many months to recover and accordingly instructed further exercises.
On 25 July 2012, the Plaintiff saw Dr Chen. On 30 July 2012, he returned to see Dr Ireland who noted that there was still evidence of adhesive capsulitis but overall the Plaintiff was managing well. He noted a keenness to return to work in a limited capacity "so that he could undertake computer training". The evidence was that the Plaintiff recommenced work on a one day per week basis on the weekend, being 12 August 2012 and remained on restricted duties until 9 September 2012 when he commenced working two days per week until 18 November 2012.
The Plaintiff saw Dr Ireland on 5 November 2012 when it was noted that he had made steady improvement in his shoulder but beyond that he was quite comfortable with most of his day to day activities and he was encouraged to increase his weight tolerances and the number of days which he was back at work. The Plaintiff was then referred back to his general practitioner and has not seen Dr Ireland since 5 November 2012.
In his report dated 25 May 2015, he described the Plaintiff as continuing to have symptoms from the left shoulder and a prognosis for the right shoulder which was fair.
After the weekend of 18 November 2012, the Plaintiff worked three days per week until 17 February 2013 [175] when it was noted that he had eventually returned to full-time work. However, in Dr Chen's report of 6 May 2015 it is noted that when the Plaintiff was reviewed on 24 January 2013 he was working three days per week as well as receiving ongoing physiotherapy. That report also noted that on 27 February 2013, the Plaintiff's right shoulder showed a good range of movement with some discomfort, with flexion and abduction. The Plaintiff's working days were subsequently increased from three to four days per week.
On 19 September 2013, Dr Chen records that the Plaintiff's working days were increased to five days with a limit on weight-bearing of 5 kilograms. In his report, Dr Chen noted that the Plaintiff was working a normal day, although with weight restrictions on his right arm of 5 kilograms and avoiding raising his right shoulder above shoulder height, and noted that he continued to have pain in the right biceps if he extends himself beyond the 5 kilogram weight restriction. His diagnosis and prognosis described the Plaintiff as having:- "Minor disability when using his right biceps, otherwise he does his normal daily activities."
The Plaintiff's own evidence was that, since completing physiotherapy, he does barbell exercises with both arms twice weekly. He stated that his left arm would cope reasonably well but the right arm was difficult to sustain in a raised position. [176] He described the strength in his right hand before the accident and compared this with its strength since the accident as being 50 per cent. [177]
He described using his arm above his head as an activity which would cause him pain. [178]
In his current position, the Plaintiff stated that he does not do overhead work or heavy lifting and if such a job were required then he would ask another person to assist. [179] He stated that that would occur about once per week. He stated that, prior to the accident, he was working five and sometimes six days per week and probably did overhead work every day. He also stated that he did heavy lifting. [180] He stated that, once or twice per week, he would get allocated heavy work although it would vary. He described his job as doing defect work in the morning and the work which he undertook as:- "Light, just, basic - you know, working around sort of this level."
He stated that he works at bench-height. [181] He described the sort of defects that he attends to as:- "Well, mainly suspension work, steering work, anything that - sort of yeah, it's mainly steering, suspension."
He also stated that he could repair defects in engines, such as "fan belt changes and all that sort of stuff". [182]
The Plaintiff described his left shoulder as "reasonably good". [183] He described the problems that he still had as an occasional ache and indicated that it was in the biceps. [184] He said that this ache presented when he was working "using spanners or things like that". [185] He stated that this ache arose "not often, once or twice per week" depending on what job he was doing. [186] He stated that he did not take pain killers at work.
The Plaintiff described his mood and emotions as being different since the accident than beforehand in that he was "a bit depressed, sort of, now and then, maybe. I just get sort of worried and things like that." [187] He described that he worried about the fact that he could not really do what he did before and was not fulfilling his capabilities or achieving that which he could do before. [188]
Mr Cameron Bacic, the maintenance workshop manager at Transdev, gave evidence and stated that he worked in the workshop at Menai until September 2014, having commenced in November 2010. He was the Plaintiff's supervisor for six months before the accident. He described the Plaintiff's work ethic at the time of the accident as excellent, that his abilities as a diesel mechanic were also excellent and that he had the ability to undertake heavy work associated with the trade to his full ability. He noted that the Plaintiff returned to his pre-accident hours on 19 September 2013, [189] however, Mr Bacic accepted that he never returned to full unrestricted duties as a diesel mechanic. [190]
He stated that the Plaintiff did complain of problems with his arms and shoulders and stated that this constituted "soreness, movement mainly and being upset that he can't do the things he wanted to do." [191] He described how the Plaintiff was unable to work above his shoulder height for lengths of time and cannot lift weights above shoulder height. [192]
Mr Bacic stated that the position that the Plaintiff had was not in existence before the accident but was "aroused from his long service to the company and his loyalty to the company with working there for 25 years, that they would like to find him something to do." [193] His evidence was that he did not commence work until 6am and the Plaintiff started work at 4am and so there was two hours in which he was not able to observe the Plaintiff's work before he commenced. [194]
In cross-examination Mr Bacic conceded that his role in relation to the period where the Plaintiff returned to five days per week was to secure the medical certificate and pass it on to Human Resources and Payroll. [195] He acknowledged that the purpose of this was to make sure that the Plaintiff was properly managed back into the workplace with his physical restrictions. [196]

Medico-Legal Reports

The Plaintiff was seen at the request of his solicitors by Dr Giblin on several occasions. In a report of 17 December 2012, Dr Giblin noted that the Plaintiff had recently attempted to return to playing golf but found himself limited to a three-quarter swing. He noted that the Plaintiff had recently returned to cutting the grass. His prognosis was described as stable and it was stated that his symptoms would persist indefinitely and in terms of exacerbations and remissions but associated with permanent physical limitations. Dr Giblin stated that the Plaintiff was permanently unfit for his pre-injury unrestricted work environment and unfit to use his upper extremities for repetitious pulling, loading, weight-bearing or repetitive use at or above shoulder height. He stated that he would be fit for a sedentary job, avoiding the aforementioned physical restrictions, preceded by an appropriate vocational rehabilitation. He also noted that it was reasonable to acknowledge that his injuries will be subject to re-aggravation as well as long term deterioration implicit in the conditions.
On 4 December 2013, Dr Giblin reported, following a consultation the previous day, that the Plaintiff's principal problem remained the constant ache with stiffness in the right shoulder. Dr Giblin noted that the Plaintiff had returned to full time suitable duties and opined that his condition was stable, that he remained fit for his current work environment in terms of selected duties but would have a degree of permanent physical restriction. He stated that the Plaintiff was permanently unfit to use his right upper extremities for heavy repetitious pushing, pulling, lifting, twisting, load-bearing, operating heavy or vibrating machinery or activities above shoulder-height.
On 5 August 2014, Dr Giblin reported, following a further consultation with the Plaintiff the previous day, that his chief problem, apart from constant ache, is that he was not able to use his right arm to push up loads above shoulder-height. He nevertheless noted that he was still playing golf once every two months from a social perspective and he was mowing the lawn. On examination Dr Giblin noted that the left shoulder had no sign of adhesive capsulitis and that there was a full active range of motion. The right shoulder was noted as having moderate adhesive capsulitis to passive range of motion assessment. Dr Giblin noted that the Plaintiff's condition was stable and that soft-tissue injury to the right shoulder would not change in terms of improvement. He again assessed the Plaintiff as permanently unfit to use his right upper extremities for any constant pushing, pulling, lifting, twisting, load-bearing, operating heavy or vibrating machinery or recurrent activities above shoulder-height. He assessed the Plaintiff as fit for his current suitable duties.
The Plaintiff was next seen by Dr Giblin on 15 April 2015. Dr Giblin reported on the same day, noting that he could not lift heavy weights nor could he use his right arm at or above the shoulder-height for forceful or time consuming activities. He noted the Plaintiff's return to playing golf for 18 holes every three weeks. He noted that the right shoulder still had significant capsulitis compared to the left side which was normal for his age. The left shoulder had a palpable click with positive impingement for the supraspinatus tendon. In all, Dr Giblin described the Plaintiff's condition as stable. He opined:- "His right should will, for the foreseeable future, remain stiff and mechanically compromised. He will have to favour the right one and put more pressure and use on the left one and eventually, as a direct result of that activity, he will develop left shoulder symptoms. He remains fit for his current job, acknowledging that his injuries would be subject to deterioration and further potential material aggravation from innocuous physical events. I assess him as permanently unfit to use his right upper extremities for heavy, repetitious pushing, pulling, lifting, twisting, load-bearing, operating heavy or vibrating equipment or recurrent activities from shoulder-height. These restrictions will apply indefinitely to his domestic, recreational or occupational activities. Although he may be reasonably independent in terms of his domestic responsibilities at the moment, there will be some ongoing physical restrictions as noted. As he ages, and his condition deteriorates in the future, there will be an increasing need for physical support at home."
Dr Harbison, orthopaedic surgeon, was qualified to examine the Plaintiff on behalf of the First Defendant. Dr Harbison reported on 15 October 2013. [197] Dr Harbison noted that the Plaintiff's left shoulder was causing him no pain but he did not have a full range of movement. He recorded that the left shoulder was not causing him any significant, practical difficulty. In relation to the right shoulder, there was occasional pain when his arm was elevated and he was not able to lie comfortably on his side. He noted that the Plaintiff's range of movement was restricted and this caused him difficulties with certain activities such as changing light bulbs and getting dressed. Dr Harbison opined that the Plaintiff had bilateral rotator cuff tears, involving subscapularis and supraspinatus in particular. He also noted that he had some incidental degenerative changes in both shoulders.
In relation to psychological injuries, the Plaintiff was examined by Mr Greg Anning, consultant psychologist, on 28 November 2013 and 4 September 2014. Whilst Mr Anning noted that the Plaintiff described himself as being depressed after his operations and getting frustrated at being unable to do certain things, he did not report any symptoms consistent with a psychological diagnosis. In his later report Mr Anning noted that psychological testing again suggested some denial or defensiveness and that was likely to be responsible for reporting a trouble-free picture. He stated that, whilst the Plaintiff may have been experiencing some unreported difficulties, he continued to have insufficient information to provide a psychological diagnosis.
The Plaintiff was examined by Dr Lee, consultant psychiatrist, at the request of the First Defendant. Dr Lee noted that the Plaintiff had no clinically significant mood disorder or anxiety. He stated that while the Plaintiff may have had understandable reactions to his physical symptoms, he might have been more severely depressed for about 9 months due to pain but has since recovered with the passage of time. He described the Plaintiff as having no evidence of depression or anxiety and fully fit from a psychiatric perspective.

Non-Economic Loss

The Plaintiff suffered significant injuries to his shoulders. He has by and large made a good recovery to his left shoulder. He still has restrictions in relation to his right shoulder. He does not have any ongoing treatment nor does he take painkillers. He has been able to return to employment with some restrictions, particularly as to overhead work and weight. He has also managed to return to performing household duties such as gardening and recreational activities such as gold. Whilst I am satisfied that his restrictions have been a source of frustration, I am not satisfied on the evidence that he has any psychological injury or disturbance. He specifically gave evidence that he has had no treatment for depression or anxiety and has not taken medication in relation to the same. [198] His evidence was that his social interaction with family has returned. [199] His resumption of golf commenced in September 2012 and he now plays once every three weeks. [200]
The Plaintiff's Counsel submitted the case represented 35% of a most extreme case. The First Defendant submitted that the casse represented 20% of a most extreme case. In all of the circumstances I assess the Plaintiff's condition as 28 per cent of the most extreme case, being an amount of $83,000.00.

Past Domestic Assistance

The Plaintiff's evidence was that, prior to the accident, he carried out garden care, lawn care and painting. [201] He also occasionally swept the floor, cleaned dishes and "all that sort of stuff". [202] He conceded that his wife primarily did most of the housework inside. [203]
The Plaintiff's evidence was that, after the accident and for approximately 5 to 7 weeks after the operation (which occurred on 14 March 2012), his wife assisted him with getting dressed and showering every day. He also gave evidence that his wife cooked meals and that he could no longer do the lawn or the gardening until September 2012. He stated that lawn mowing was performed once per week for one hour and a half and three to four hours was spent gardening. He described the gardening as plant maintenance. [204] Following the accident, he stated that his wife took over the lawn mowing and they did not worry too much about the gardening. [205] The Plaintiff described himself as performing approximately half an hour of housework per day before the accident, consisting of washing up and tidying. [206] He took a break until September 2012 from doing these tasks, which were being performed by his wife. [207]
The Plaintiff was not cross-examined in relation to these matters.
The Plaintiff's wife gave evidence in relation to the tasks performed prior to the accident as follows:- "Q. We've heard that you live in a house with a 500 odd square metre block and your husband used to do the lawns and the gardens, were they tasks that he enjoyed or not? A. Yes, yes. Q. What other things did he do around the house? A. General maintenance, washing up, you know, helping with things, hanging washing, normal things. Q. If you had to break down the things that he did around the house into an amount of time per day I'm going to have to ask you to do that any cleaning up in the kitchen, how often did he do that? A. Probably helped every night because I was working. Q. And for how long? A. Half an hour to an hour. Q. What tasks did that involve? A. Helping with a bit of cooking, cleaning up the dishes, washing up. Q. Other things that he did inside the house, how often did he do them and how long did it take him to do those things? A. Probably a bit of dusting around and sweeping up per day, you mean? Q. He wouldn't have been doing it every day, I expect, so A. No, he wouldn't have been doing it every day Q. how often did he do it and for how long? A. He probably helped out on the weekends once a week for probably half an hour to an hour. Q. The lawn moving did you ever notice how long it took him to do it? A. Yeah, probably about two hours. Q. And the gardening that he used to do? A. Yeah, probably about another hour." [208]
In relation to the period following the accident, the evidence of Mrs Turner was as follows:- "Q. What was he able to do over the period from the accident until, say, Christmas, over those six weeks or so? A. Nothing really. Q. Was he able to dress himself? A. At that stage, yes. Q. Were you having to do anything in particular for him? A. He wasn't doing anything around the house, really gardening or anything like that so not as far as him himself at that stage. Q. Was he able to do any of the things he had traditionally helped you with like cleaning up in the kitchen, or doing a bit of tidying up, sweeping, dusting? A. Not the sweeping and dusting, just nothing really of any major consequence, no. Q. Did he help in the kitchen or not? A. No. Q. What happened with the lawns? A. The lawns, I did them. Q. How often did you have to mow them? A. Through the it was sort of through the summer so every week to ten days. Q. How long did it take you to mow the lawns? A. Probably about an hour and a half, yeah. Q. Did you do other gardening or not? A. I couldn't do the whipper snippering, we had to get our son to come and do that every now and then cause I couldn't do that. Q. How often did you have to get him to do that? A. He didn't do it a great deal, the garden sort of went to a bit of rack and ruin. He probably did it every month or six weeks I suppose." [209]
Mrs Turner's evidence was that the Plaintiff did not return to mowing the lawn or doing gardening work by the time of his surgery on 14 March 2012. [210] Following the surgery, Mrs Turner had to shower him, dress him and give him his meals. [211] She stated that because she commenced work at 6am, she was not able to shower the Plaintiff every day and he was not able to undertake the task alone, resulting in the Plaintiff showering and getting changed about every second day. Her evidence was that this required around 45 minutes each time, for 5 weeks following the operation. After those 5 weeks, she assisted him with drying his back for the next 4 to 5 months. [212]
Mrs Turner ceased her employment on 13 April 2012. Her evidence was that, thereafter, she was able to be of greater assistance by helping the Plaintiff more often in showering, getting changed, preparing food and helping him in and out of a chair. [213]
After the Plaintiff went back to work in July 2012, Mrs Turner still assisted the Plaintiff in drying his back as he was unable to extend his arms around to do it and helped with his getting dressed. [214] Her evidence was that she did the lawn mowing about 9 months after the operation, being around 4 September 2012 when the Plaintiff resumed full duties. She conceded that he had now returned to doing the lawn mowing by himself. [215]
In cross examination by the First Defendant's Counsel, Mrs Turner stated that, by the end of 2012, the Plaintiff's day to day activities included going to work but did not include sweeping occasionally or washing up. [216] Mrs Turner described the day to day activities around the house, by Christmas 2012, as "not a terrible lot, no, not a terrible lot". [217]
The evidence of Dr Ireland, who was treating the Plaintiff around this time, was that when he was seen on 5 November 2012 he noted steady improvement to his shoulder. Dr Ireland specifically noted that the Plaintiff was quite comfortable with most of his day to day activities and encouraged him to increase weight tolerances and the number of days back at work.
In submissions, Counsel for the Plaintiff submitted as follows:- "WELSH: Your Honour, the need for personal care, the additional tasks that Mrs Turner was undertaking which are set out at p 29, line 50, of the transcript of the plaintiff's evidence, and p 76 in Mrs Turner's evidence, collectively arrives at that eight hour figure that we've claimed for that. HIS HONOUR: What was the second reference? WELSH: Mrs Turner's evidence commences on p 76, your Honour. It easily achieves that eight hours that we've claimed for that closed period of nine months, given that it's a fluctuating thing. It was quite a bit more than eight hours a week for the five weeks or so after the surgery, but generally speaking, eight hours a week in my submission may actually give the defendants a little bit of a favour, but it won't make much difference in the overall calculation of the case." [218]
Counsel for the First Defendant submitted:- "Your Honour will see just briefly, and it needs only be brief, I think, that in respect of care various matters emerged, but your Honour will read it that the plaintiff engaged in mowing undoubtedly and gardening undoubtedly. The plaintiff's assessment was two hours plus one hour, and the assessment of the plaintiff's wife was a little less than that. So that his inability to mow for a period after the accident would ordinarily sound in gratuitous care damages if it reached the thresholds. As for other what I regard as minuscule matters, and submit so, assistance with dressing was for a short period post-surgery; cooking cleaning and washing amounted to a half to one hour not every day, and, of course, terminated in any event because Mrs Turner took that over anyway on 13 April 2012 when she was made redundant. Your Honour will see that looking at the authorities on care, that there are duration and intensity requirements. That's the expression that's used in numerous cases, not the least of which is the one that's in my reference, the case of White v Benjamin, but the duration must be more than six consecutive months under the statute and under the Caselaw, and the intensity must be for each week more than six hours. For that reason, your Honour, we have filed an amended schedule of damages which simply says nil to that claim, and we do say, with due respect to plaintiff's counsel, that eight hours per week is an artifice." [219]
In McConachie (t/as Willancorah Pastoral Co) v Pack, [220] the Court of Appeal rejected a mechanical approach to the assessment of voluntary domestic assistance. Stein AJA stated at [20]:- "The written submissions of the appellant take on an air of unreality. They express a mechanical and arithmetic approach to the calculation of gratuitous domestic care services which the subject matter will not easily bear. As Foster AJA said in Werner v Krahe [2002] NSWCA 168 at [27] precision is impossible in this area and the question is largely one of impression."
In assessing the evidence, I am satisfied that Mrs Turner did work on the lawns for approximately one and a half hours which I accept was on a weekly basis. In relation to other garden work, however, the evidence from the Plaintiff was that this was largely not attended to. Mrs Turner's evidence was that her son assisted every month or every six weeks "I suppose". On this basis, I am prepared to allow a further half hour which makes a total of two hours per week on gardening related work.
The remainder of assistance which was provided was with bathing, cooking, washing, dusting and sweeping. In my view, the evidence overall does not enable me to be satisfied that this work, carried out by Mrs Turner, has met the threshold in s 15(3)(a) of the 2002 Act although I am satisfied that the threshold in s 15(3)(b) has been met.
In the circumstances, I decline the Plaintiff's claim in relation to past domestic care.

Future Domestic Care

The Plaintiff claims two hours per week for future domestic assistance at commercial rates. The parties have agreed on a rate of $40 per hour. [221]
The basis for this claim appears to be set on the reports of Dr Giblin. In his report of 17 December 2012, Dr Giblin stated:- "Whilst he may be reasonably independent in terms of some activities of daily living when his condition deteriorates he will require physical assistance."
On 4 December 2013, Dr Giblin stated:- "At this stage, I assess him as being independent in terms of his domestic responsibilities but this may alter if his condition deteriorates and his domestic responsibilities are enlarged. By the age of 65 he will be requiring at least two hours per week of domestic assistance and this will be indefinite."
On 5 August 2014, Dr Giblin reported:- "…I have no reason to change the general thrust of the comments and opinions as expressed in my previous reports."
Dr Harbison, in his report of 15 October 2013, expressed the view that the Plaintiff does not need domestic or personal care as a result of the injury.
When requested to comment on Dr Harbison's report, Dr Giblin stated on 15 June 2015:- "In relation to the answer to Q.10, it is my view that Mr Turner does not need specific regular domestic or personal care as a result of his injuries at this point in time but, as he ages and his injuries deteriorate, then it would be a reasonable consideration for some degree of physical support in relation to the increasing loss of function of his right upper extremities."
Both Drs Giblin and Harbison are orthopaedic surgeons and it is not clear that the assessment of a number of hours to undertake domestic duties is the kind of expertise normally attributed to orthopaedic surgeons. [222]
Counsel for the Plaintiff stated:- "In relation to future care, I concede that that two hours per week at $40 per hour for life should probably be deferred for a few years, because it's something that's going to be necessary according to Dr Giblin with deterioration in his shoulder, and I can tell your Honour that the figure for a deferral of five years is 0.784." [223]
Counsel for the First Defendant referred to the decision in White v Benjamin [224] where Basten JA (with whom Meagher JA agreed) stated:- "[85] It is necessary to refer to the passages in Miller v Galderisi [2009] NSWCA 353 (Miller), as to the proper approach to a claim for damages for commercial domestic assistance, a topic dealt with at [14]-[25]. It is true that the court stated that it was "not appropriate in this case to simply pluck a figure out of the air because there is a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future": at [24]. However, that statement was made in a context where the plaintiff had been in receipt of gratuitous assistance prior to, and was at the time of, trial and the court accepted that there was "no evidence that as a result of the injury suffered … or indeed for any reason, he required, or would require, commercial domestic assistance": at [14]. The court also held that there was "no evidence that this gratuitous assistance would cease at some time in the future": at [15]. However, the court stated at [18]: '[18] There is no reason in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases.' [86] After considering a number of variables relevant to any such assessment, the then referred - at [22] - to the necessary exercise as "a form of speculation guided by knowledge of the plaintiff's past and expectations, derived from general experience, as to the future", adopting the approach to contingencies identified by the High Court in Malec at CLR 640 and 643; ALR 546-7 and 549. [87] Although it is not entirely clear what standard the trial judge was applying by reference to what was "likely" and whether there was any "likelihood", it seems that he was applying a more definitive test than that required by Malec with respect to future contingencies. Further, as is clear from the general assessment of the evidence in Miller undertaken by this court at [20]-[21], it would be wrong to place too much weight on the existence or absence of direct evidence of intention. It was open to the trial judge to place limited weight on the plaintiff's expression of intention, although the fact that it was not challenged in cross-examination meant that it should not have been dismissed out of hand without reasons being given. It is also true that the plaintiff's case was not helped by her failure to adduce evidence from her husband as to whether, if funds were available, he would have undertaken less household cleaning, in favour of a commercial service. [88] What was required was consideration of the family circumstances, including the fact that Mr White was self-employed and apparently busy; that his wife was unable to do heavy cleaning and hanging out clothes; and that cleaning services are not the kind of personal domestic assistance which one spouse may prefer to obtain from another. Rather, they are services which are readily available and availed of by those who can afford them and who are otherwise engaged in remunerative employment or have a disability."
There was no evidence in this case that the Plaintiff intended to use commercial services and no evidence or family circumstances such that it would be required. In all, I decline to make an allowance in relation to future care.

Out of Pocket Expenses

The Plaintiff's claim for past out of pocket expenses is $15,262 and the First Defendant has agreed to this sum arithmetically. I accept it as reasonable and necessary in the circumstances in relation to past out of pocket expenses.
In relation to future out of pocket expenses, the claim advanced on behalf of the Plaintiff is for an amount of $50,000. In submissions, Counsel for the Plaintiff outlined the claim as follows:- "Now, in relation to future treatment expenses, the sum of $50,000 is claimed. Dr Giblin has a figure of $22,000 in his report for a shoulder replacement; $14,000 for an arthroscopy; he plucks a figure of $4,000 for other treatment. It can only be an educated guess at best. The fact that $15,000 has been expended in the past is some guide but not really because this man's right shoulder is going to cause him a lot of trouble as he ages. So, $50,000 may be a bit high but in my respectful submission it couldn't reasonably fall below $25,000 as a claim for future treatment expenses." [225]
Counsel for the First Defendant conceded that some allowance should be provided for future out of pocket expenses but proposed deferral of such for 15 years and a reduction of 25% pursuant to the decision in Malec v J C Hutton Pty Ltd. [226] Dr Harbison, in his report of 15 October 2013, [227] stated the following in relation to the Plaintiff:- "He does not need any further treatment, in particular, any further surgical treatment, in the foreseeable future. The degenerative changes would probably progress and it is possible, but not probable, that he may need surgical treatment in the longer term."
In his report of 17 December 2012, Dr Giblin stated:- "It is my view that further surgery is not mandated at this juncture but cannot be excluded in the future. Surgical considerations would include, but not be limited to, a left shoulder arthroscopic procedure with costs similar to that already expensed. The time off work, in terms of light duties work, would be at least 12 weeks. Rehabilitation considerations have not been included. The suggestion that surgery may be considered is based upon the current medical and surgical culture in which active clinicians practice and work."
On 4 December 2013, Dr Giblin opined:- "Over the longer term, there is the possibility of deterioration and material aggravation of his underlying injuries. In my view, further surgery is not mandatory at this juncture but cannot be excluded into the future. The most likely procedure would be a repeat arthroscopy with costs similar to those already incurred and the period of time off work, including on light duties, would be at least 12 weeks. Rehabilitation considerations may be necessary. … His ongoing medical costs will remain conservative, symptomatic and supportive in character. At this point in time, his medical costs are negligible but in the future this may change if his symptoms increase and medical management is required. The timeline is uncertain and the day to day costs are difficult to determine."
On 5 August 2014, Dr Giblin opined:- "Future treatment costs are difficult to determine given that no structured treatment plans are needed at this time. However, in the event of re-injury or deterioration, considerations may include visits to his family doctor, treating specialist, radiological investigations and prescriptive medications. These costs are difficult to determine at this point, but may be in the order of approximately $4,000 in the future. This does not include surgical considerations which are unlikely but cannot be completely ignored. Surgery may take the form of recurrent arthroscopy with costs similar to that already expensed."
In a subsequent report of 15 April 2015, Dr Giblin stated:- "Further surgery is not anticipated in the short term but cannot be excluded in the future. Surgery may take the form of, but not l;imited to, a right shoulder replacement and left shoulder arthroscopy with an all up medical and hospital costs and ancillary costs being in the order of $22,000 and $14,000 respectively. By the time that surgery is contemplated, it is unlikely that he will have paid employment, being past the age of 65. The likelihood of this occurring is in the order of 25%."
Then, after referring to Dr Harbison's views, Dr Giblin stated in a further report of 15 June 2015:- "In relation to the answer to Q. 7 on page 5, I have a variance, holding the view that the pre-existing asymptomatic degenerative changes which, have undergone material aggravation as a result of the index injury and have further had surgery, will continue to deteriorate and that further surgical treatment may be required in the longer term. It is my view that if the index injury had not occurred, then it is improbable as distinct from impossible that further surgical intervention would have occurred."
Based on the views of Drs Giblin and Harbison and conceded by Counsel for the First Defendant, it appears to me appropriate to make an allowance in relation to future out of pocket expenses. I propose to do so in an amount totalling $40,000, deferred for 8 years (multiplier 0.789), consistent with the view of Dr Giblin that by the time that this is required the Plaintiff will no longer be working. This sum comes to a figure of $31,560 in respect of which I will allow 25% pursuant to Malec v J C Hutton Pty Ltd, based on the likelihood assessment from Dr Giblin. This comes to an amount of $7,890.

Future Economic Loss

In relation to future economic loss, the Plaintiff has proposed an amount of $175,000 based on a loss of $500 (net) per week for the balance of the Plaintiff's working life, reduced by 15% to take into account vicissitudes. The Plaintiff has also proposed loss of superannuation at the rate of 13.5%, being an amount totalling $23,600.
The First Defendant, in its schedule, proposed a buffer for future economic loss of $20,000 which included superannuation.
The Plaintiff conceded that there is presently no claim for economic loss and, therefore, the calculation of an ongoing loss of earnings was not appropriate. [228] Nevertheless, it was claimed that the reduction in earning capacity was significant as the Plaintiff has 8 years of working life (or more) ahead of him. It was contended that the Plaintiff would not be able to be employed up until 65 years but would probably make it past 60 years of age. Attention was drawn to the fact that the evidence of Mr Bacic, relating to complaints about pain at work, and Counsel for the Plaintiff made a modified submission in which she stated that the Plaintiff's claim could be no less than $100,000. [229] The First Defendant submitted a buffer of $20,000 was appropriate. [230]
I accept the First Defendant's contention that ultimately the Plaintiff bears the onus in relation of loss of earning capacity, consistent with the decision in White v Benjamin. [231]
It is clear from Mr Bacic's evidence that the Plaintiff has communicated complaints of soreness and problems with his arms and shoulders. He has remained in his current employment as a result of his long service to the company over a period of "25 years" and he is a person described as good at his work.
The Plaintiff gave evidence that he enjoyed his work but that he had lost his current job and could not obtain work as a diesel mechanic and so would probably pursue employment as a bus driver. [232] His evidence was that he currently drives a bus for about an hour per day. [233]
Dr Giblin's evidence was that whether or not the Plaintiff could maintain his current employment until the age of 65 was doubtful. He stated that he could expect that, by the age of 60, the Plaintiff would need to have a sedentary, more supervisory role, avoiding constant use of the right arm in terms of physically demanding activity. [234] Dr Giblin maintained this view in his report of 15 April 2015.
In my view, it is appropriate to make some allowance for the loss of the Plaintiff's earning capacity in particular bearing in mind that the Plaintiff's working life may be cut short either through the loss of his current position or through deterioration as well in his condition. For this purpose, I propose to allow an amount of $90,000 based, inn broad terms the value of 18 months earnings. [235] The aforesaid sum includes superannuation.

Conclusion

Accordingly, the award of damages for the Plaintiff, Mr Turner, is as follows:- 1. Non-economic loss = $83,000; 2. Past out of pocket expenses $15,262; 3. Future out of pocket expenses $7,890; 4. Past economic loss = $52,800; 5. Loss of past superannuation at 11% = $5,808; and 6. Future wage loss (buffer) incl. loss of superannuation = $90,000
The above award of damages comes to a total amount of $254,760 which after deducting 15% for contributory negligence comes to an amount of $216,546.

Orders

The orders will be as follows:- 1. Verdict for the Plaintiff against the First Defendant in the sum of $216,546. 2. Verdict for the Second Defendant. 3. The exhibits are to be retained for 28 days.
I will hear from the parties as to costs and the position with regards to the cross claims which were stayed until the delivery of this judgment.

Endnotes

Hereinafter as "the Club"
Hereinafter as "the 2002 Act"
Exhibit 2.1 shows a sales and business office
Defence to the Further Amended Statement of Claim at [1]
Marked with an "X" on Exhibit B
Exhibit 1.3 at [19]
T 13.29
Presumably Mr Warren Bowes
T 33.50-34.2
T 34.17
T 34.34--.49
T T15.50-15.1 and 36.36-.48
T 16.4
T 16.10
T 16.19
T 17.6-.42
T 17.45
T 18.5
T 36.30
T 37.5
T 47.38
Exhibit 1.3
Exhibit 1.3 at [16]
Exhibit 1.4
Hereinafter as "BCA"
Exhibit 1.5
Hereinafter as "Brown Consulting"
Exhibit 1.6
Exhibit 1.3, report dated 1 October 2013 at [22]
Exhibit 1.7
Defence of the Second Defendant filed 29 June 2015 at [2]
Ibid at [6]
Ibid at [7(c)]
Exhibit 2.1, p 1
A reference to Environmental Sustainable Design
Exhibit 2.1, p 21
Exhibit 2.1, p 27
Exhibit 2.1, p 34
Exhibit 2.1, p 38
Exhibit 2.1, p 60
Exhibit 2.1, p 61 (BCE is a reference to "Bassett Consulting Engineering", see T 177.12)
T 177.15
T 177.6 and Exhibit 2.1, p 61
Exhibit 2.1, p 37
Exhibit 2.1, p 37
Exhibit 2.1, p 40
Hereinafter as "Mainbrace"
Exhibit 2.1, p 42
T 170.34
Exhibit 2.1, p 47
Exhibit 2.1, p 45
Exhibit 2.1, p 57
Exhibit 2.1, p 59
T 176.10-.16
Exhibit 2.1, pp 65-7
Exhibit 2.1, p 140
Exhibit 2.1, p 160
See Exhibit 2.2 at [14]-[15]
Exhibit 2.2, p 10 at [30]
Exhibit 2.2 at [40]
(1963) 110 CLR 74 at [84]-[85]
(1965) 113 CLR 588 at [599]
[2012] NSWCA 239
T 174.22
T 208.40
T 214.4
Second Defendant's Written Submissions at [11]
[2015] NSWCA 320 per Leeming JA (with whom Basten and Simpson JJA agreed) at [100]-[122]
Ibid at [109]-[110]
[2015] NSWCA 263
T 151.14
Second Further Amended Statement of Claim at [14]
Defence of Second Defendant to Second Further Amended Statement of Claim at [5]
Exhibit 2.1
T 16.7
T 16.10
T 61.18
T 60.32
T 66.5
T 69.36
T 103.46
Exhibit 2.2 at [37(b)]
Exhibit 2.2 at [38]
Exhibit 2.2 at [37(d)]
T 138.35-139.17
Exhibit 2.2
Exhibit 1.4, p 12
T 36.26
T 36.9-.16
T 15.22-.41
T 34.34-.49
T 46.20-.35
T 47.1
T 65.43-66.7
T 60.47-61.20
T 67.21
Exhibit H
T 68.1-.9
See Brierley v Ellis [2014] NSWCA 230 at [23]-[27]
T 49.50
T 78.22
T 62.15
T 62.40
T 66.19
T 67.15
T 69.45
T 103.49
T 104.14
T 104.26
T 105.2
T 109.50
T 110.10
T 110.21
Exhibit 1.3 at [19]
T 126.5-.23
T 141.48-142.17
[2003] NSWCA 152
See Annexure at p 19 to Exhibit 1.3
Plaintiff's Supplementary Written Submissions at [7]
T 139.12-141.45
T 141.2
T 141.39
T 119.1
T 142.42-143.11
T 143.47
T 143.49-144.2
T 144.22
T 144.30
At [6]
T 45.1-.21
Second Defendant's Written Submissions at [8]
T 51.20-.26
T 51.34
T 51.40
T 53.7-.14
T 65.6
T 60.17
See Morgan v Sheraton Pty Ltd (1999) 46 NSWLR 141 per Sheller JA (with whom Mason P and Fitzgerald JA agreed) at p 146
(1959) 101 CLR 298 at 322
Ibid at 321
T 209.23-.39
Plaintiff's Supplementary Written Submissions at [15]
First Defendant's Defence at [18]
T 160.20-.45
(1999) 46 NSWLR 141
(1998) 192 CLR 431
T 203.8
[2005] NSWCA 419
Francis v Lewis [2003] NSWCA 152 at [42]-[43]
T 47.1-.21
Exhibit J
Phillis v Daly (1998) 15 NSWLR 65 at [68f]-[69A]
Civil Liability Act 2002 (NSW), s 5D(1)(a)
Sweeney v Boylan Nominees Pty Ltd (2006) 227 ALR 46; Fabre v Lui [2015] NSWCA 147
(1984) 154 CLR 672
At p 550
(2000) 204 CLR 333 at [248]
[2012] NSWCA 239
[2009] NSWCA 16
[1985] HCA 34.
[2015] NSWCA 128 at [20]
Exhibit A
T 16.19
T 16.47
T 18.21
T 18.32
T 18.21-.26
T 66.21
T 66.26
T 78.28
T 79.11
Exhibit C
T 20.16
T 20.22
I assume the reference in Exhibit E to 17 February 2012 was a misprint and should have read 17 February 2013.
T 20.24-.46
T 21.3
T 21.6
T 21.17
T 21.35-.48
T 22.29
T 23.2
T 23.22
T 23.31
T 23.34
T 23.40-.43
T 24.11
T 24.15-.21
T 72.30
T 72.34
T 72.48
T 72.38
T 73.44
T 73.36
T 75.18
T 75.23
Exhibit 1.1
T 35.46
T 32.4
T 31.44
T 11.34
T 11.37
T 11.40
T 25.25-.37
T 25.50
T 29.50
T 30.8
T 76.37-77.22
T 79.21-80.5
T 80.16
T 81.37
T 82.26
T 82.45
T 83.6
T 83.23
T 84.21-.25
T 84.28
T 155.46-156.9
T 158.8-.28
[2004] NSWCA 148
T 155.38
Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 at [47]
T 156.11-.15
(2015) 70 MVR 188
T 156.16-.23
(1990) 169 CLR 638
Exhibit 1.1
T 154.4
T 154.23
T 158.44
(2015) 70 MVR 188 per Basten JA (with whom Meagher JA agreed) at [41]-[47]
T 29.15
T 29.27
Report of Dr Giblin dated 4 August 2014
See Exhibit M

Amendments 09 November 2015 - Corrected amount in paragraph [243] from $216,539 to $216,546 to match the amount awarded in paragraph [242] 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: 09 November 2015

Civil Liability Act 2002(NSW)ss 5B, 5C, 5F, 5G, 5H, 5R, 5S, 15

Glenn Turner v Harrington Estates

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Judgment (26 paragraphs)

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Legislation Cited (2)

Cases Cited (45)