Hodgson v Sydney Water Corporation

Hodgson v Sydney Water Corporation - [2016] NSWDC 361 - NSWDC 2016 case summary — Zoe

The Statement of Claim

The Statement of Claim upon which the plaintiff relies was filed on 7 July 2015. The plaintiff pleads in the Statement of Claim that at all material times the defendant was the owner of a concrete stormwater drain at Rose Bay (paragraph 2) and was responsible for the design, maintenance, repair and safety of the drain. It is said that it owed a duty of care to the plaintiff (paragraph 3).
The Statement of Claim pleads that the plaintiff was lawfully walking in an easterly direction along the beach at Rose Bay when she came to the drain and had to cross it to continue her walk (paragraphs 4 and 6). It is pleaded that at all material times Rose Bay Beach was used by thousands of people on a daily basis for recreational activities such as walking and swimming (paragraph 5). It is pleaded that in the circumstances the defendant owed a duty of care to persons crossing the drain as pedestrians on the beach to take reasonable precautions not to expose such persons to a foreseeable risk of suffering not insignificant harm which included the risk of harm through slipping on the drain (paragraphs 7-8). It is pleaded that the plaintiff was walking on the beach when her right foot slipped on the drain which is described as "mossy and slippery" (paragraph 9). It is said that the plaintiff suffered injury as a result of the slip.
Breach of duty of care is pleaded through failing to adequately inspect, maintain or repair the "mossy and slippery concrete stormwater drain" and failing to design the drain properly in the first instance so that it did not have an exposed concrete surface that could become mossy and slippery. A failure to warn is also alleged as well as a failure to provide a safe walking surface free of hazards in an area frequented by persons who include children, elderly persons and other members of the community (paragraph 11). As the case was run at trial, the plaintiff asserted that the defendant reasonably should have taken a number of interim measures in 2012-2013 to eliminate the danger in crossing the drain before the eventual removal of the concrete drain apron in 2014 by a contractor at the request of the defendant. The removal of the concrete apron was contemplated in 2013 prior to the accident.

[5]

The plaintiff's oral evidence

In her oral evidence in chief the plaintiff stated that she was born in October 1983 and was at the time of the trial married with a 15 month old baby daughter. She was accordingly 30 years old at the time of the accident. Her background was that she had completed Year 12 at school and then also completed a Bachelor of Communications Degree at the University of Technology, Sydney. During the last semester of her university degree and for several years thereafter the plaintiff worked in various positions in public relations, marketing and journalism (see Exhibit D). On 20 March 2013 she commenced working at David Jones as a Marketing Manager (T 36.47).
As at the end of November 2013 the plaintiff was on stress leave from her employment at David Jones (T 37.5). She gave evidence that she was paid her salary during a two months' notice period which commenced one or two days before the accident (T 105.15-.29).
The plaintiff was a resident of the Eastern Suburbs of Sydney and as at the end of November 2013 was generally familiar with the Rose Bay area. She gave evidence that she had walked along the beach at Rose Bay with her husband on two or three occasions prior to the fall (T 38.32) in order to give their dog exercise.
The plaintiff gave evidence in relation to the events of 30 November 2013. After parking her car in the area of Norwich Avenue in Rose Bay, she crossed New South Head Road with her dog and proceeded through a park. There she met her friend Ms Jan McKenzie who also had a dog with her. Both dogs were on the lead. The two women proceeded to the Rose Bay Beach area where the dogs were let off the lead and they ran in an easterly direction along Rose Bay Beach. Apparently Rose Bay Beach was an off leash area for dogs at the time.
The plaintiff gave evidence in chief that she proceeded with Ms McKenzie walking along the beach in an easterly direction. This was at about 12 noon. There were other people on the beach at the time (T 40.9).
The plaintiff gave evidence that she and Ms McKenzie arrived at the spot where they had to traverse the concrete apron which was situated on the beach in front of a pipe and which continued to the edge of the beach area near the water. They had to walk about 30-40 metres along the beach eastwards before they arrived at the concrete apron of the drain (T 40.25).
The plaintiff gave evidence that at that time the concrete apron was partially covered with sand and the tide was high (T 40.28). The seawater was touching the end of the concrete apron of the drain (T 42.43).
The plaintiff gave evidence that she stepped on the part of the concrete apron which was covered in sand and then proceeded to traverse the apron. To do this she had to step on a concrete area which was not covered in sand. The plaintiff gave evidence that her right foot slipped from under her and went out in front of her and her left leg followed in the same direction. The plaintiff stated that she fell with her right arm down and landed on the right palm with her hand being slightly behind her. She also struck the ground heavily on her buttocks (T 40.32-41.16).
The plaintiff said that she felt immediate pain in her right wrist extending to her right shoulder. She also felt pain in her right buttocks (T 41.19-29).
The plaintiff indicated that at the time there were oysters and barnacles on the side of the concrete apron and there was quite muddy water at the end of the concrete apron near the sea (T 42.48-43.3).
The plaintiff said that she did not observe any warning sign in relation to the concrete apron either before or after she fell on 30 November 2013 (T 43.26-35). The plaintiff gave evidence that if she had seen a warning sign she would probably have heeded the advice and not crossed the drain. This evidence was inadmissible for causation purposes: Section 5D(3)(b) of the CLA. The plaintiff also said that if she had seen a two-sided warning sign she would not have crossed the drain but would have found somewhere else to walk (T 44.3-14). The plaintiff gave evidence that she understood that her friend Ms McKenzie went back to the beach about a week later and took some photographs of the concrete apron and drain. She gave evidence that the conditions of the concrete drain and apron area on the day of the accident were the same as appears in those photographs taken by Ms McKenzie, which later became Exhibit B (T 44.1).
The plaintiff gave evidence that on 30 November 2013 she attended the Bondi Junction Medical Centre which was open seven days a week and consulted a Dr Aroney who placed her arm in strapping until it could be x-rayed (T 44.33).
The plaintiff gave evidence that she had an x-ray of her right wrist the following Monday. The plaintiff said a fracture of the right wrist was diagnosed and it was placed in plaster. The plaintiff also said she had significant pain at the time with constant ache at the fracture site and pain in her right shoulder and upper arm.
On 7 December 2013 the plaintiff, who was seven weeks pregnant at the time of the accident, miscarried (T 45.14).
The general practitioner (Dr Aroney) referred the plaintiff to a physiotherapist for treatment of her right shoulder. The plaintiff was given massage and stretching exercises to undertake. At this time her buttocks were still bruised and painful.
The plaintiff had in place the plaster cast on her wrist until 9 January 2014. The plaintiff said that at this time she was limited with what she could do. Her right wrist had been fractured and she was right handed. She could not drive, tie her shoelaces, had difficulty showering, could not prepare food and could not walk her dog (T 47.18-25). She was also limited from undertaking sports. Prior to this time she had actively taken exercise including at the gym, with weights, swimming and Pilates.
From January 2014 the plaintiff continued to have physiotherapy in the shoulder area with strapping being applied and rehabilitating her movement. Eventually the plaintiff was able to take up her Pilates again but with an altered programme which took into account her injured wrist and right shoulder.
The plaintiff gave evidence of other treatment which she received during this time. First, she received massage to her right shoulder area and to her neck which was quite tight following the accident. The plaintiff became pregnant again in late 2014. Secondly, the plaintiff had acupuncture in 2014 which helped her with her pain in her right shoulder. Although the plaintiff had received acupuncture prior to the accident date this was only for her hips and not for her right shoulder. The plaintiff had also not been receiving any physiotherapy treatment as at the date of the accident. The plaintiff indicated that the physiotherapy and the acupuncture helped relieve the pain which she had developed in her shoulders and neck following the accident (T 49.17; 52.20). These appear to be reasonable steps to alleviate her symptoms from the accident.
The plaintiff gave evidence that following the accident and the plaster being removed from her wrist, she found lifting activities harder and sitting at the desk for any period of time uncomfortable (T 52.36).
The plaintiff's daughter, Georgia, was born in June 2015 and is now 18 months old. The plaintiff gave evidence in chief that she had pain while she breastfed Georgia, particularly when she held her in the classic cradling position. This pain involved tightness in her neck and pain in her shoulders. At this time the movement in her right shoulder was more limited. The activities which she had to undertake with a new baby resulted in her feeling more pain in the right shoulder area (T 52.30-53.20).
The plaintiff gave evidence that in the period 2015 through to 2016 she continued to receive physiotherapy treatment and undertook clinical Pilates with a physiotherapist in order to attempt to build up her muscle strength in her back and shoulders. She found that the Pilates gave her significant pain relief and benefits in the neck and shoulder area (T 54.41-55.37).
Prior to the birth of Georgia, the plaintiff had worked fulltime. She left David Jones just prior to the accident and in early 2014 set up her own public relations agency called the Beanstalk Agency. This undertook public relations and marketing activities aimed at small to medium businesses. The activities undertaken included advertising advice, press releases and product/service launches. Work in the agency involved planning events for a client and setting up signage, moving furniture, lecterns and the like (T 56.26-33). The plaintiff gave evidence that she found problems with undertaking overhead activities where she needed to lift up her arms. Her neck was tight and she felt a lot of pain in her neck and shoulder area (T 56.47).
The plaintiff gave evidence that she wished to work as long as she could and to age 60 at least (T 57.8). The plaintiff said she continued to receive physiotherapy, acupuncture and also osteopathy services which provided benefits to her in relieving pain in her neck and shoulders (T 59.3-7).
The plaintiff gave evidence in chief that she had a "traditional" relationship with her husband Luke prior to the accident where she undertook most of the shopping, cleaning and domestic activities including walking the dog (T 59.23).
After the accident the domestic circumstances changed. The plaintiff began relying on her husband to do a lot more around the house including lifting and carrying. Her husband had his own business and was very busy in it being away frequently. The plaintiff because of her restrictions required help from her husband when he was at home particularly with her child including in bathing the child and putting her to bed. This was because the plaintiff found those activities including lifting her child to cause pain in her shoulder towards the end of the day (T 60.27-41).
In relation to domestic tasks inside the house, the plaintiff's husband helped with sweeping and cleaning. The plaintiff gave evidence that she also retained a cleaner to assist her and the cleaner came once per week for three to four hours (T 61.20). The cleaner was paid $25 per hour for the cleaner's work. The plaintiff said the cleaner assisted her with physical activity that could aggravate her shoulder and neck (T 61.10). The plaintiff indicated that but for the accident she would probably not have required the cleaner as she was only working part-time, about 10 hours per week. Before the accident the plaintiff had a cleaner but at that stage she was working fulltime.
The plaintiff gave evidence that she received anti-pain medication for a few weeks after the accident but had avoided taking it thereafter unless the pain was severe because she had prior difficulties with medication (where they had damaged her liver) and she did not like taking it (T 62.45)
The plaintiff gave evidence that on 12 December 2013 she forwarded an email to Woollahra Council to the following effect: "I would like to notify Woollahra Council that on Saturday 30 November 2013 at 12.15pm I slipped and fell at Rose Bay Beach, resulting in a fractured wrist, severe bruising and shoulder injuries. The incident occurred while attempting to cross the storm water drain on Rose Bay Beach between Tingira Reserve and Percival Park. The storm water drain is extremely mossy and slippery but there is no clear signage indicating this or warning of the dangers. I have since seen a single sign but it is not clear to people walking from either direction along the beach, as it points directly to the water. Please be aware that this is a very dangerous public hazard and I am disappointed with the council's lack of clear and obvious warnings. I have wanted to report this in person at the council but am now very limited in my accessibility as I cannot drive."
The plaintiff gave evidence that if she was awarded monetary compensation to assist her with domestic tasks she would retain someone to assist her (T 63.46).
At present the plaintiff said that she had pain in her shoulder whilst giving evidence and pains in her neck and shoulder sitting for periods whilst working and carrying her daughter. She said she could mop and vacuum but had difficulties with this particularly if her shoulder had flared up (T 64.13). She said she had difficulties also with any activities above the shoulder area. The plaintiff conceded that she had no troubles with walking the dog or in cooking unless she had to reach high cupboards which involved her raising her arms which caused her neck to be tight and sore. The plaintiff gave evidence that her grip strength was satisfactory but she was not as strong in undertaking tasks requiring strength such as opening a jar. She said she had no difficulties with using a keyboard. Overall, she found the pain and restrictions to be frustrating as she had been an independent person. In relation to her sports she had now got back to the position where she could undertake most activities but in relation to her Pilates she had needed to modify it to take account of her restrictions (T 64.65).
The plaintiff was heavily cross-examined in relation to the circumstances of the fall and her knowledge of the concrete apron at and prior to the fall; the extent of her injuries; and the degree of her recovery and her current disabilities.
The plaintiff gave evidence that she had lived in the Eastern Suburbs of Sydney for her whole life and was familiar with the Rose Bay area. She agreed that she had walked up and down the Rose Bay Beach once or twice in her childhood and two or three times with her husband to walk their dog (T 79.29; 80.26). She doubted that she had been to the Rose Bay Beach more frequently than that because it was not their local area and it was not a swimming beach although it was the only lead free beach in the area for dogs.
The plaintiff agreed that she had crossed the drain apron before (T 80.38). In doing so she had crossed in the same manner as at the time of the accident and had not crossed by going to the end of the concrete apron and walking around it (T 81.12). The plaintiff conceded that she may have crossed the drain when there were different tidal conditions to those at the time of the accident. The plaintiff accepted that she was aware that rocks along beaches could be affected by the tide and could be slippery (T 81.44). She also accepted that she knew prior to the accident that the apron of the drain in question could be slippery and was exposed to tidal movement. Whilst conceding that she knew that the surface of the concrete apron was exposed to water and subject to moss and algae and therefore could be slippery, the plaintiff indicated that she had previously crossed it prior to the accident without event (T 81.50). The plaintiff indicated that she was careful whilst attempting to traverse the drain at the time of the accident because she knew that if she was not careful that she could slip (T 82.31).
On the day in question when the accident occurred the plaintiff gave evidence in cross-examination that she stepped over the low wall at the edge of the concrete apron, walked on sand which was close to the wall of the apron, proposed following the sand within the apron to the extent possible and did not wish to walk on the concrete itself. This was because she had a concern as the apron appeared wet and slippery (T 83.41-84.39). The plaintiff said she was wearing sneakers at the time of the accident. The plaintiff conceded that she knew there was a risk of slipping in traversing the apron but did not think that a necessary result as she had previously walked across the apron without concern. At the time, her friend Ms McKenzie was walking in front of the plaintiff and the plaintiff was close behind her. The plaintiff conceded that she may possibly have stopped before stepping off the sand in order to gauge how she should step upon the concrete and to see whether it was slippery but she could not recall (T 85.10-45).
The plaintiff was pressed in relation to her knowledge of the risk of slipping at the time of the accident. She gave the following evidence: "Q. It's clear that you could've seen the sign if you had looked in the direction of the outlet? A. If I looked to the right yes. Q. That sign wouldn't have told you anything you didn't know, already which was that the drain was slippery. Or could be slippery where it was exposed? A. It would've told me there was a danger. Q. Yes but you knew there was a danger of slipping anyway didn't you? A. I - I - I was not necessarily because I'd crossed it. Q. You're not seriously telling his Honour that you didn't understand that there was a danger of slipping on the day of your accident, where the-- A. Well-- Q. --where the drain was not covered by sand? A. I - I didn't expect to slip no. Q. No but that's a different answer, you understood that there was a risk that you could slip didn't you? A. Yes. Q. That's a danger? A. Yes. Q. That's what the sign was warning of? A. Correct--" (T 88.28-89.2).
The plaintiff was asked questions in relation to the sign which was placed above the drain outlet facing the sea which stated "danger", "slippery surface" with the figure of a person slipping. The plaintiff gave evidence that she understood that the sign was there at the time of the accident as she had seen it in the photos taken by her friend Ms McKenzie several days after the accident. Ms Hodgson said that she had not noticed the sign previously in her other visits to the Rose Bay Beach. Ms Hodgson conceded that she would have had no trouble seeing the sign if she had looked to her right before attempting to traverse the concrete apron (T 88.11-88.25). The plaintiff conceded further that it was open to her not to have crossed the concrete apron if she chose to because she could have turned back even though she had planned to proceed up the beach (T 92.21-38).
The plaintiff was asked why she did not walk to the end of the concrete apron near the water and walk around it. The plaintiff said that she was wearing sneakers at the time and did not wish to get her shoes wet. When asked whether she could have taken her shoes off to walk around the apron she said the area was muddy and soft. She believed the water at the time was fairly close to the base of the apron. The plaintiff also gave evidence that it did not appeal to her to walk through the muddy area at the end of the apron in her bare feet as there was the potential for her to cut her feet (T 95.13). The plaintiff conceded that it was possible for her to have met her friend Ms McKenzie at the other end of the beach and to have walked down the beach to avoid the risk of slipping on the apron, although that was contrary to their plan and Ms McKenzie lived locally and had walked to the park to meet Ms Hodgson near the western end of the beach.
The plaintiff gave the following further evidence in cross-examination: "Q. This morning I asked you some questions about your understanding of the risk of slipping on the stormwater drain. A. Yes. Q. You understood that the risk of slipping involved potentially falling and injuring yourself, didn't you? A. Yes. Q. You were walking with Ms McKenzie? A. Yes, Jan McKenzie. Q. I think you said at the time you slipped she was in front of you, slightly in front of you? A. Yeah in front to the left. Q. In front to the left? A. Yes. Q. As you were walking towards the stormwater drain before you slipped of course, was Ms McKenzie also on your left at that time? A. Yes, she was. Q. You were talking to her? A. Yes, I was. Q. And you were directing your attention to your left. A. I was, yes. If I can expand, to my left and in front where my dog was." (T 121.43-122.19) … "Q. But nevertheless the base of the stormwater drain had what appeared to be algae or moss on the concrete surface where you stepped, correct? A. That's correct." (T 122.34-36).
The plaintiff was then cross-examined in relation to her injuries and disabilities. The plaintiff gave evidence that she had already experienced problems prior to the birth of her child Georgia but they worsened after that time when she had increased pain in her right shoulder and neck area (T 106.26-106.50). In due course, whilst the plaintiff still had problems with her shoulder and neck areas, the condition eventually stabilised and the difficulties plateaued (T 107.39). The plaintiff was able to undertake all domestic tasks but at the cost of transient aggravation of her condition (T 107.44).
The plaintiff agreed in cross-examination that she had never experienced pain in her left shoulder until the birth of her daughter (T 113.14). With the assistance of clinical Pilates under the supervision of a physiotherapist and light exercise, the plaintiff had been able to stretch her shoulder and neck area and reduce the tightness in the area.
The plaintiff confirmed her evidence in chief that her husband assisted with the bathing and preparation for bedtime of the baby daughter. The plaintiff conceded that she could undertake these tasks but on some days her symptoms were aggravated by it and she had pain and increased tightening in her neck and shoulder areas. The plaintiff said that her problems now were exacerbated by lifting heavy items particularly lifting her arm above the shoulder area and in undertaking heavier tasks. The plaintiff confirmed that she had pain on occasions while working at a chair for any period, although this could be relieved by standing up, moving around and the use of a posture pole.
In relation to her work the plaintiff said that she wished to continue working part-time but planned to have two more children and would hope that the work accommodated the planned expanded family. The plaintiff was cross-examined about her wide experience and qualifications and her ability to find different jobs in the public relations, advertising and journalism areas.
In re-examination the plaintiff gave evidence that if there was an area of sand on the base of the concrete apron when she attempted to cross it on 30 November 2013 she would have stepped on the sand rather than on the concrete top. In cross-examination her recollection was that the water from the sea was touching the apron of the drain at the time of the accident.
Overall, the plaintiff impressed me as an honest witness who gave her evidence truthfully and frankly and made appropriate concessions. I have no hesitation in accepting her as a witness of truth and in accepting her evidence.

[7]

Evidence of Erik Ahlberg

Mr Ahlberg lives in a block of apartments which overlooks Rose Bay Beach near the pipe outlet of the drain the subject of the proceedings. He moved into his unit in 1998.
Mr Ahlberg was shown a document which was part of Exhibit E and which was an undated letter to a Ms Belinda Duncan, Community Relations Adviser of the defendant, said to be "for the information session" on Saturday 20 October 2012.
Mr Ahlberg gave evidence that there was a general call from the defendant to residents in the area to attend an information session concerning what should be done in relation to the storm water outlet near the drain apron where the plaintiff fell (T 127.46). Mr Ahlberg said he was concerned principally about environmental matters being originally from Sweden where environmental matters were taken seriously. Mr Ahlberg said that he was "pretty confident" that he sent the letter to Ms Duncan, he believed by email (T 128.3, 128.22; 128.31; 136.23).
Mr Ahlberg said that he also attended part of the information session on 20 October 2012 and spoke to officers from Sydney Water at the time (T 129.44).
The letter from Mr Ahlberg to Ms Duncan included the following: "The stretch immediately in front of the property is used as a passage for people walking on the beach, to avoid the muddy waters caused by the storm water outlet. However, the storm water wall above the outlet has partly collapsed and is about to fall out as a big block. The storm water outlet is wide and very slippery, people often slip and fall when trying to pass. Some try to avoid the risk of slipping by climbing up along the wall that is about to fall out, a very dangerous, life threatening effort. To sum it up the storm water outlet is an eyesore, a safety risk and causing unnecessary negative environmental impact." (emphasis added).
Mr Ahlberg was cross-examined in relation to whether he was sure that he sent the letter and a further document headed "Polluting Rose Bay; Main Stormwater Pipeline" which is part of Exhibit E to Sydney Water. Mr Ahlberg believed that he sent both documents to Sydney Water but having regard to the date of the second document it was clearly sent in 2014 after the community meeting in October 2012 (and the accident) (T 138.18).
Mr Ahlberg gave evidence in cross-examination that prior to the drain being reconstructed in 2014 he observed people walk around the concrete apron by walking closer to the sea (T 141.23-44).
Mr Ahlberg impressed as a careful and thorough witness and I accept his evidence. Based on his evidence and taking into account the documents in Exhibit E, I find that the two page letter from Mr Ahlberg, part of which I have quoted above, was delivered to Ms Duncan, the Community Relations Adviser of Sydney Water prior to 20 October 2012.

[8]

Evidence of Ms Janette McKenzie

Ms McKenzie is a friend of the plaintiff, Ms Hodgson, and resides at Bellevue Hill in the Eastern Suburbs in Sydney. Ms McKenzie has been a friend of the plaintiff since 2010. Ms McKenzie said that she came to Sydney in 2000.
Ms McKenzie gave evidence that from the time she moved into her flat in Bellevue Hill in 2010 where she currently resides she developed a fairly regular pattern of walking and sometimes her walk took in Rose Bay Beach, depending on the tidal conditions. The factor which she took into account as to whether she walked along Rose Bay Beach was how she was going to move across the drain where the plaintiff fell (T 155.18). Ms McKenzie described the drain as a "hazard" and she would always leave her trainers on to walk over the drain (T 155.25). Ms McKenzie indicated that she did not want to walk barefoot on the drain as it was hazardous, slippery, there were rocks, it was slimy and there was glass in the vicinity (T 155.34).
Ms McKenzie said that from 2010 she observed that the appearance of the concrete drain would change depending tidally what was happening. She also noticed that a plank had been placed across the drain at different times but she never walked on the plank (T 156.7). Ms McKenzie pointed to the presence of a plank in the photograph of the drain which appears at page 89 of Exhibit F. However, the plank was only seen by Ms McKenzie on a couple of occasions prior to the accident (T 156.51-157.3).
Ms McKenzie was asked as to what she observed on the occasions that she had to traverse the drain. She said that she observed that there was some water on the concrete apron but not a lot, there was not a lot of sand and that looking at the drain she felt that it was going to be slippery. Prior to the accident with Ms Hodgson, Ms McKenzie said that she had experienced difficulties in crossing the drain as she was aware that it was slippery and that she had slipped on occasions without falling down. She gave evidence that she would concentrate in crossing the drain and stabilise herself so that she was "very aware of my core strength" (T 157.24).
Ms McKenzie said that prior to November 2013 she had walked in the area frequently and had gone along the beach probably on 30 to 40 occasions per year with her dog.
On the day in question, Ms McKenzie said that she met up with the plaintiff and was walking along the beach talking to her. The plaintiff was on her right. They arrived at the drain and were then side by side or the plaintiff was a step behind (T 158.22-36).
Ms McKenzie recalled that on the day in question the drain "looked slippery".
Ms McKenzie said that she walked very slowly and very cautiously across the drain. She said she swiftly became aware that Ms Hodgson had fallen and complained that her wrist was injured (T 159.3-14).
The following Wednesday or Thursday Ms McKenzie went back to the beach and took some photographs which were admitted as Exhibit B. The photographs were taken by her at about 9.30-10am. She thought the tide was very similar on the day of the accident as appeared in the photographs.
Ms McKenzie gave evidence in relation to a yellow sign that appears in some of the photographs which are part of Exhibit B. She said she first became aware of the sign on the day she took the photographs. She said she was surprised to see the sign as she had not seen it on the 30-40 occasions per year she had walked on the beach between 2010 and 2013 (T 160.40-161.4). When she took the photograph Ms McKenzie thought the sign "was a statement about what was going on on the lattice work" above the drain outlet (T 161.14).
Ms McKenzie was then subject to cross-examination. She was cross-examined in relation to the sign depicted on the photograph and indicated that she had not seen the sign because when she was walking easterly along the beach she had not been aware of it.
I observed Ms McKenzie carefully when she was giving this evidence and accept that she had not seen the sign prior to attending the beach on the Wednesday or Thursday following the accident even though she had walked along the beach 30-40 times per year in the four years prior to the accident.
Ms McKenzie gave evidence that sometimes the tide when she was walking along Rose Bay Beach came up to the end of the concrete apron. She conceded that some people walked out towards the water and around the base of the apron in order to proceed up the beach. She gave evidence that the water was not always shallow to permit that (T 169.27-38). Ms McKenzie said that on the day of the accident she was not going to go around the edge of the apron because there was water there and she was concerned that there were other items such as stones, glass, gravel and oyster shells (T 169.48). Ms McKenzie gave the following evidence: "We walked across the path we were travelling because we had trainers on and it was wet around the edge." (T 170.8).
Ms McKenzie identified this as meaning wet at the seaward end of the concrete opening. Ms McKenzie specifically gave evidence that the concrete apron did not have an obvious drop at its base on the seaward end on the day of the accident (T 170.40). The evidence of Ms McKenzie appears to have been that there was no obvious gap between the end of the apron and the sea at the time of the accident which would permit someone to walk on the shore between the end of the apron and the sea.
Ms McKenzie gave the following further evidence: "Q. Had you ever made any observation about what was in the water at that point just seaward of the end of the stormwater drain? HIS HONOUR: When? FOORD Q. On the occasions prior to November 2013? A. I've never seen it look as exposed as that before, but quite often it's, it's pebbly and there's, there's muck in the water. Q. Anything else? A. Sometimes there's glass in the water. The only time where I've ever gone at that end, I would be, I would actually be in the water with shoes off and I would be out in the water up to my knee. I would never go to that end because it's unsafe, it's dangerous." (T 171.5-20).
Ms McKenzie was a careful and impressive witness. I have no hesitation in accepting her evidence as honest and truthful.

[9]

Evidence of Ms Caryl Rorke

Ms Rorke gave her evidence by way of telephone from Tasmania where she is now retired. Between 2004 and 2014 she lived in the flat which was immediately above and slightly to the right (as facing the sea) of the stormwater drain where the plaintiff fell. From her balcony of the flat Ms Rorke was able to see people approaching the drain from both sides. She could also see people on the beach through the windows in her flat. She gave evidence that the numbers of people on the beach increased as the beach was cleaned up from about 2009.
Ms Rorke said she was able to observe people crossing the drain. The drain was often half filled with sand but there was always a rivulet of water exiting the pipe towards the sea. The plaintiff said that the drain "would get very dirty and very slimy": T 183.41.
Ms Rorke said that she observed people slipping on the drain from her flat. As a result of her concerns she discussed the matter with other residents in her block of flats.
Ms Rorke gave evidence that on about 2 February 2012 she sent a letter to Woollahra Council which was at page 1 of Exhibit F. The letter included the following: "The drain is constantly running and is a great source for slime and weed growth. It is particularly slippery this year. Pedestrians and visitors are constantly falling over on this slippery concrete crossing. I am resident of the [blanked out] apartment and have witnessed dozens of dangerous falls. On New Year's Eve there was a constant stream of visitors to Rose Bay beach at least 50% of whom, had bad falls, sometimes carrying bags and boxes of drinks. On Tuesday evening this week, an elderly man had a nasty fall and was very shaken. Fathers carrying young children across on their shoulders could cause a fatal fall for the child if the father slipped. PLEASE ERECT A SIGN on each side of the stormwater drain, visually warning of the slippery conditions. And when your guys come down to clean the beach as they often do, ask them to gurney the slime off the base. We request the Council takes this safety issue seriously and erect warning signs as soon as possible." (emphasis added).
Ms Rorke received a reply from Woollahra Council dated 13 February 2013 indicating that they had forwarded her letter to Sydney Water. Ms Rorke then gave evidence that she sent a further letter to Woollahra Council which she sent about 5 March 2012. This letter was to the following effect: "Thank you so much for your prompt response to our letter regarding the dangerous condition of the Sydney Water drain outlet, and passing our request and concerns onto them. We haven't heard from them as yet, and nothing appears to have been actioned, but we will contact them direct, and continue with this important request."
Ms Rorke gave evidence that on 25 April 2012 she sent a further letter to Woollahra Council which included the following: "You may recall that I/we (residents of xxx New South Head Road, Rose Bay) wrote to you in February, seeking assistance in preventing injuries and damage caused by pedestrians crossing the dangerously slippery drain belonging to Sydney Water on the beach adjacent to this building. You kindly and promptly did all you could and forwarded my letter to Sydney Water. They telephoned and reported that they had had discussions and decided that simple signs would attract graffiti but were looking at laying some type of non-slip grid on the surface of the concrete to reduce the growth of slime. Since then not a word - and certainly no action. February to May? I have no 'contact' at Sydney Water to approach and would ask you once again to forward this letter to them, rather than have a letter bounce around 'too hard baskets' of an impersonal office in Parramatta! Since I wrote we have had a couple of public holidays (Easter for one) in glorious weather drawing hundreds of visitors to the beach. There were at least 12 bad falls. One boy of about 16 knocked himself unconscious on the concrete floor. Dozens of children fell and one woman (witnessed by a neighbour) broke her arm. How many more accidents is Sydney Water going to be party to? I would like to issue an invitation to any member of Sydney Water to spend a weekend day on my balcony and witness this distress for themselves." (Exhibit B, page 14, emphasis added).
Ms Rorke confirmed that she had a telephone conversation with a representative from Sydney Water who indicated that Sydney Water was proposing a non-slip grid being installed (T 184.35-185.1). Ms Rorke gave evidence that she noticed more accidents when there were more people on the beach at the weekend and particularly public holidays such as New Years Day and Christmas Eve in particular (T 185.8).
Ms Rorke stated that she herself walked up the beach on occasion with her dog. When she crossed the drain she would cross it very close to the actual drain opening because the apron was at its narrowest at that position (T 188.19).
Ms Rorke also gave evidence that on occasions people slipped whilst carrying boxes of beer which would smash and would be cleaned up by residents the following day (T 191.42-192.13).
In relation to the letter of 25 April 2012 which was forwarded by Ms Rorke to Woollahra Council and which referred to "12 bad falls" (Exhibit F, page 14), Ms Rorke said that by that she meant a fall that warranted help from someone else. She said that she thought the most serious injury she saw was "the lady with the broken wrist, although there are a couple of bad head cuts": T192.39. Ms Rorke gave evidence that although there was often sand in the stormwater drain that was not always the case and where there was not sand the surface of the concrete stormwater drain was "slimy": T 192.50. This was observed by Ms Rorke in the period between about 2007/8 and 2014: T 193.16.
There is no satisfactory evidence that Sydney Water ever saw Ms Rorke's 25 April 2012 letter.
Ms Rorke gave her evidence clearly and directly and I accept her as a witness of truth. She was not cross-examined.

[10]

The plaintiff's liability bundle

The plaintiff tendered a bundle of documents relating to liability issues which became Exhibit F in the proceedings.
Those documents included: 1. The letter from Ms Rorke to Woollahra Council sent on or about 2 February 2012, an extract of which is quoted above (Exhibit F, page 1); 2. A letter from Woollahra Council to the defendant dated 9 February 2012 forwarding Ms Rorke's 2 February 2012 letter. The letter from Woollahra Council included the following: "As the drainage outlet is owned by Sydney Water, we request that Sydney Water respond to the request from residents to install signage to notify pedestrians of the slippery surface [of the concrete drain]" (Exhibit F, page 3); 1. Mr Allen who gave evidence for the defendant claimed he had never seen this letter in 2012-13. 2. The letter from Ms Rorke to Woollahra Council sent on or about 5 March 2012 which is quoted above (Exhibit F, page 5); 3. Internal emails within Sydney Water relating to the construction of potential warning signs sent in March 2012. These include an email to the following effect: "Recently a customer complained about the concrete outlet of the Norwich Rd Stormwater channel, which runs into Rose Bay near Vickery Ave. The customer said that the site can get very slippery, and has seen may some [sic] people fall over in this area. Jim and I attended a site inspection yesterday with someone from Woollahra council. It was decided that the best thing to do would be installing a slippery surface sign, to warn the public of the potential hazard. This will require a 2.2 metre high pole, with two slippery warning signs on both sides, as to allow it to be seen from both access points along the beach. I have attached a plot of the site, as well as some photos and a mocked up version of how I think the sign should look. David: Can you please inform me of the appropriate sign we should use at this site. Tim: can you please arrange for the pole and signs to be installed and let me know an approximate completion date so I can talk to the customer" (Exhibit F, page 6) (emphasis added); 1. Internal emails also in March 2012 within Sydney Water referring to the possible use of a non-slip surface product on the drain. This was apparently considered in the context that a sign would require ongoing maintenance and inspection and by putting up the sign there is an "admission of liability" by Sydney Water. Further emails describe signs as looking like "the only real option". However, a later email within Sydney Water dated 15 March 2012 states as follows: "I think the non-slip surface option sounds like a good idea to trial based on your advice can you and Tim please arrange for this to be installed as soon as possible. Stormwater team will inspect the site once a month, to assess how often it will need to be cleaned. We can then put a job in with Veolia for cleaning (probably every three months). As you stated this will hopefully work out to be more cost effective than the ongoing maintenance of a graffiti and salt damaged sign and post" (Exhibit F, pages 7-8) (emphasis added); 1. An email relating to a fall and injury by a German tourist on 30 March 2012 forwarded to Woollahra Council which was apparently then on-sent to Sydney Water (Exhibit F, pages 9-13 and 17). An internal investigation was undertaken by Sydney Water and liability was denied (Exhibit F, pages 18 and 30-31). A letter dated 22 August 2012 to the claimant asserts that warning signs were erected on 24 May 2012. The letter said the site was "frequently covered in algae which of course can be very slippery. This is beyond our control."'; 2. The 25 April 2012 letter sent by Ms Rorke to Woollahra Council which is quoted above (Exhibit F, page 14). As indicated above, There is no evidence this was copied to Sydney Water; 3. On 13 July 2012 Sydney Water sent out a consultant's brief to their "Engineering Services Panel" seeking quotations to undertake a review of the stormwater outlet (Exhibit F, page 19). The brief requested respondents to deal with "public safety" and public access issues (page 20). A response was received from G H D Engineers promptly (Exhibit F, page 21); 4. In the bundle is a 3 October 2012 circular letter to "customers" seeking feedback in relation to the stormwater outlet at Rose Bay Beach. The aim was to investigate ways to "improve accessibility for beach users around the Rose Bay Beach stormwater outlet" (Exhibit F, page 33). This was for the purpose of a community information session to be held on 20 October 2012 (Exhibit F, page 35). A Sydney Water overview dated 19 October 2012 stated that Sydney Water has looked at ways "to reasonably improve safety and accessibility around the pipe and apron" (Exhibit F, page 36); 5. There was in the liability material a summary of the community meeting feedback on 20 October 2012 which included various solutions including a bridge over the discharge pipe (Exhibit F, page 42). The general comments referred to from persons at the community feedback meeting included whether something could be put on the surface "to stop it becoming slippery" and whether the existing surface could be "roughed up" and cleaned regularly. A low bridge was suggested. The comments included: "Anything is better than nothing" (Exhibit F, page 43); 6. There is a Woollahra Council customer request management enquiry dated 13 March 2013 referring to a customer slipping and knocking the customer out and ending up in hospital. There is a reference to the concrete slipway needing "resurface" (Exhibit F, page 49); 7. The documents include an internal approval request in Sydney Water to obtain $110,000 in funding to undertake what are described as "public safety improvements at Norwich Road outlet". The document is dated 29 August 2013 (pages 52-53A); 8. The plaintiff's email of complaint to Woollahra Council quoted above is included (Exhibit F, page 56); 9. There is a design report from G H D Engineering dated December 2013 in relation to the alterations to the proposed stormwater outlet (Exhibit F, page 58). It appears from the documents that the work taken to modify the concrete outlet so that a beachgoer could walk along the beach without having to cross the concrete apron structure was completed in about mid-2014 (Exhibit F, page 82). This is the first stage of a potential three stage process, the third stage of which involves a raised walkway platform: Exhibit 3.

[11]

Medical reports

A number of medical reports and related documents were admitted into evidence in relation to the plaintiff's injuries and disabilities.
The medical reports and related documents included the following: 1. Medical notes of Dr Theo Aroney relating to a consultation on the day of the plaintiff's fall. The plaintiff saw Dr Aroney on 30 November 2013 and the notes include: "Fall 2 hours ago. Localised pain and swelling over scaphoid". The notes for 2 December 2013 refer to "left scaphoid clinical fracture … requiring scaphoid plaster 6 weeks"; 2. A medical certificate from Dr Mary Kearney in relation to the plaintiff for the period 27 November 2013 to 6 December 2013 stating that the plaintiff would be unfit to continue her usual occupation for that period; 3. There is a referral for physiotherapist treatment dated 12 December 2013 referring to ongoing pain in the right shoulder after the fall; 4. There is an ultrasound report relating to the plaintiff's right shoulder dated 24 November 2015 by Dr Williams referring to "abduction 110º with difficulty moving higher"; 5. Report of Dr Daniel Turner, osteopath, dated 15 September 2015. Dr Turner states that the plaintiff consulted him for low back pain and shoulder pain twice during pregnancy. He states that since giving birth and having to breast feed and carry an infant there has been an exacerbation of the plaintiff's shoulder pain and stiffness requiring more frequent consultations with Dr Turner for the plaintiff's neck and shoulder issues. Dr Turner indicates that most of the plaintiff's symptoms are right sided upper back, neck and shoulder; 6. There is a report dated 20 September 2016 from Ms Elizabeth Evans, physiotherapist. Ms Evans indicates that the plaintiff started attending physiotherapy during her pregnancy in early 2015 to maintain strength and postural control for her neck and back during targeted pregnancy Pilates classes. Ms Evans stated that in the plaintiff's post natal period, she returned to physiotherapy complaining of back and right shoulder pain. Treatment was provided to strengthen and release her back and right shoulder areas. It was indicated that the plaintiff continued to have tightness and pain in the right shoulder and neck and so was recommended to get massage and acupuncture to assist. 7. Report of Dr Michael Gliksman, Occupational Physician, dated 27 August 2015. The report described the fall. It then continued: "She suffered a forceful impact to the buttocks and to the extended right arm, which was also transmitted to the right shoulder and cervical spine. Ms Hodgson described the sudden onset of pain affecting the right wrist, associated with rapid swelling. She also experienced pain in the buttocks, as well as cervical and predominantly right shoulder pain." 1. Dr Gliksman indicated that the plaintiff had told him that she could: "Perform all domestic tasks required but at a cost of transient symptomatic aggravation. However she has no choice but to perform them, particularly as it relates to her baby daughter". 1. In relation to her shoulder movement Dr Gliksman reported as follows: "The left shoulder range of motion was full, in all planes. Right shoulder abduction, flexion, extension and adduction were full range. Right shoulder internal rotation was limited to 60 degrees. External rotation was limited to 70 degrees." 1. A dynamometer revealed a lesser grip strength in the plaintiff's dominant right hand compared to her left hand and Dr Gliksman described this as an abnormal finding and indicated a loss of grip strength in the dominant hand. Dr Gliksman described the plaintiff's disabilities as including the following: "Ms Hodgson suffers disabilities affecting the right dominant upper limb. This is in the form of reduced right hand grip strength and right shoulder range of motion. The conditions affect adversely Ms Hodgson's capacity for prolonged or repetitive typing, and for setting up and dismantling displays. Such tasks remain possible but should be paced according to symptoms. Fitness for work other than her pre-accident occupation is similarly limited. Any task requiring repetitive keyboarding, strong or repetitive gripping with the dominant upper limb, or lifting or pushing or pulling of more than 15kg (or more than 10kg repetitively) should be avoided." 1. Report of Dr Gliksman dated 2 February 2016. In this report Dr Gliksman stated as follows: "When coupled with the examination findings that were detailed in my report of 27 August 2015, the indication is of a self-limiting soft tissue injury to the right upper limb, apart from the fracture sustained at the distal right radius. As the latter did not invade the joint space, it too is likely to prove self-limiting. Thus on the balance of medical probability and considering the conditions affecting the right upper limb alone, it is more likely than not that the need for domestic assistance will decline and resolve within the next several months, if it has not done so already." 1. Report of Dr Gliksman dated 12 July 2016. In the report Dr Gliksman stated: "Given persistence of findings relating to the right wrist and right shoulder, it is more probable than not that Dr Stephenson's conclusion: "that there is likely to be some persistence of restriction of the final range of motion right shoulder and right wrist (sic)" is reasonable." 1. Dr Gliksman disagreed with Dr Stephenson's conclusion that the plaintiff's future capacity for work was unaffected or that there was likely to be no ongoing need for treatment in the future. Dr Gliksman said that appeared to be inconsistent with the persistence of symptoms and signs; 2. Report of Dr Brian Stephenson dated 3 May 2016. Dr Stephenson noted on his examination that there was a loss of range of motion in the plaintiff's cervical spine. In relation to the shoulders he stated as follows: "At the right shoulder there was no impingement evident but there was some loss of range of motion in abduction and flexion with loss of the last 40º of possible abduction and flexion range. There is a full range of motion in the opposite left shoulder." 1. Dr Stephenson diagnosed "soft tissue injury to the right shoulder girdle region following a direct impact following a fall on the outstretched right upper limb where an undisplaced oblique fracture of the dorso-radial aspect of the distal radius was sustained …". Dr Stephenson said that although he could not rule out some musculo-ligamentous cervical strain occurring at the time of the fall the symptoms of the cervical strain should resolve satisfactorily. His prognosis was as follows: "The prognosis based on the current clinical findings is that there is likely to be some persistence of the restriction of the final range of motion right shoulder and right wrist. Basic conservative advice is appropriate. There were no indications for any more active treatment at this time. I saw no indications for continuance of physiotherapy at this time following the injury of 30/11/2013. I accept that it would have been appropriate to have regular physiotherapy for the right upper extremity following the injury but in my opinion there is no indication for a continuance of physiotherapy although a home based physiotherapy exercise program could be continued". 1. Dr Stephenson saw no impact on the plaintiff's ability to perform her job.

[12]

Oral evidence of Dr Stephenson

Dr Stephenson was called to give oral evidence. He agreed that he had examined the plaintiff on 28 April 2016. He also confirmed in chief that the mechanism of the injury described to him by the plaintiff of a slip and fall onto the right wrist was the classic type of injury where one would not only find the injury to the right wrist but also because of load factors injury to the upper extremity to the shoulder girdle (T 208.36).
In cross-examination, Dr Stephenson's attention was directed to Dr Gliksman's report of 27 August 2015 and Dr Gliksman's own conclusions in his report of 3 May 2016. He was asked whether the plaintiff's deterioration in the condition of her neck and right shoulder a few months after the birth of her baby in June 2015 were connected to the accident. Dr Stephenson responded: "It's difficult to be sure because first of all Dr Gliksman hasn't actually given the range of motion in the shoulders. He said they were full in abduction, flexion, extension, adduction but he hasn't given the range of motion, so we don't know they were full. Also he's found probably significant restriction of the internal rotation at 60 degrees and also limitation of external rotation at 70 degrees so when Dr Gliksman saw the claimant on 27 August 15 he hasn't established in my opinion that the right shoulder has fully recovered. The second point is that as regards the ultrasound in November, 24 November 15, the signatory to the report is not on this page but I'm told it was Dr Williamsz who's a radiologist. He spells his name with an S-Z at the end. He found what one would call a description of impingement. In other words, he found a deduction to 110 degrees. He didn't tell us how much further the lady would lift her arm except that it was obviously painful." (T 212.5-18).
Dr Stephenson also said that the plaintiff was still restricted in overhead work and her overhead capacity was limited because of restricted elevation (T 212.38) even though there was improvement in her level of restriction from November 2015 until May 2016. Dr Stephenson did express the opinion that the plaintiff's problems with her left shoulder were unrelated to the accident (T 213.1). This appears not to be disputed by the parties.

[14]

Evidence of Robert Allen

Evidence was given on behalf of the defendant by Mr Robert Allen. Mr Allen is currently employed by the defendant, Sydney Water, having commenced work there as a graduate in February 2007. He was involved in a graduate role for 18 months until he was promoted to the position of Services Delivery Officer. He then worked within the Asset Management Division of Sydney Water from September 2010 to September 2012. From mid-2013 he moved from the Asset Management Division of Sydney Water to the Services Delivery Division within Sydney Water. In that capacity he was the manager for delivering stormwater services for Sydney Water. That role included management of certain assets which included the stormwater outlet at Rose Bay Beach.
Whilst working in the Asset Management Division of Sydney Water Mr Allen reported to Mr Jim Walsh and was trained to move into Mr Walsh's position as Stormwater Operations Manager.
Mr Allen gave evidence that Sydney Water controls and is responsible for about 450km of stormwater drains within the Sydney region and that the drain at Rose Bay Beach was part of the system. He indicated that the drain transfers road stormwater into a pipe and then outlets it through the beach into the sea. The area serviced by the drain was about 83 hectares.
Mr Allen gave evidence that the drain and concrete apron which existed at Rose Bay Beach prior to mid-2014 had been constructed by the New South Wales Public Works Department, he believed in the early 1930s: T 291.21. He understood the purpose of the concrete apron to be to convey the stormwater flows from the pipe across the beach to prevent scouring on the beach: T 291.31.
In his evidence in chief Mr Allen said that he first became aware of public safety issues in relation to the concrete apron following a fall by a German tourist in 2012: T 291.48. He said he and other management at Sydney Water considered the issue and decided to review the asset: T 292.11. Their concerns were that the concrete apron was structurally at the end of its life and that there had been slips on the concrete apron: T 292.18. More concerns were raised towards the end of 2012 when the headwall of the pipe outlet where it emerged above the beach collapsed.
Mr Allen said that in determining what to do about the beach outlet in 2012 from a public safety point of view Sydney Water considered a number of different options including placing a non-slip surface directly on the drain apron which was not regarded as feasible, constructing a sign and other longer term solutions. The non-slip surface was considered not to be feasible because the products investigated were not used in a marine environment and Sydney Water did not want to be the cause of more slips: T 293.38. The construction of a warning sign was considered a viable response and this in due course was constructed. This sign was a two-sided sign as is shown in Exhibit 2. This was constructed in about March-May 2012 shortly after the defendant was told of the fall and injury of a German tourist: T 294.12.
Mr Allen gave evidence that Sydney Water had two sources of money for something like the retainer of engineers, the first being for operational matters and the second being for capital works. Operational matters largely related to the maintenance of assets whereas capital works funds were used for replacing existing assets or for major repairs to existing assets. Operational matters were regarded as matters involving less than $10,000 (although Mr Allen appeared to be not certain on the amount) whereas capital works matters involved the expenditure of more than $10,000. Mr Allen gave evidence that eventually funding was obtained from other areas of Sydney Water on the basis of public safety to retain GHD Engineers which resulted in the pipe and apron being eventually removed and replaced with a different pipe exit without a concrete apron. This is the first stage of a potential solution. The drain is currently being monitored to determine whether the subsequent stages are required. Stage 3 involves a pedestrian platform going over the drain area.
Mr Allen indicated that it was decided by Sydney Water to adopt a staged approach in relation to the solution to the drain. Mr Allen said that the final approval needed for the reallocation of funding to the GHD Engineering capital works was that of Mr Freeman of Sydney Water who approved the project on 18 September 2013: T 301.28. Mr Allen indicated that funds for capital works if they could not be obtained within Sydney Water were allocated on a four yearly basis by the Independent Pricing and Regulatory Tribunal: T 301.40. Mr Allen said it took from December 2012 to 18 September 2013 to identify available funds: T 302.39. The first stage which removed the concrete apron was, according to Mr Allen, completed by 26 June 2014: T 303.22. Mr Allen indicated that approval under the Environmental Planning and Assessment Act 1979 ("EP&A Act") was required for all three stages of the proposed GHD Engineering design: T 303.32; T 304.2.
Mr Allen was subjected to detailed cross-examination by counsel for the plaintiff including in relation to potential interim measures that could have been undertaken by Sydney Water prior to the GHD Engineering solution which was completed in June 2014.
Mr Allen gave important evidence and made a number of significant concessions as follows: 1. Mr Allen conceded that as at 2012 he was aware that Rose Bay Beach was a busy beach: T 322.44; 2. Mr Allen conceded that as at 2012 he was aware that many pedestrians traversed Rose Bay Beach: T 322.47; 3. Mr Allen conceded that as at 2012 he was aware that Rose Bay Beach was one of the few "dog friendly" beaches in the Eastern Suburbs of Sydney: T 323.3; 4. Mr Allen conceded that he attended Rose Bay Beach with at least a representative of Woollahra Council on 13 March 2012: T 306.49. He also conceded that at this time he was told by Woollahra Council that the drain outlet was in a dangerous condition (T 307.3) and that many people had slipped and fallen on the drain (T 326.43; T 327.10; T 329.19); 5. Mr Allen conceded that by mid-2012 he was aware that a German tourist had fallen on the concrete apron and injured herself on 30 March 2012; 6. Mr Allen conceded that as a result of his site inspection of the concrete apron at Rose Bay Beach on 13 March 2012 he decided that a two sided warning sign should be erected: T 307.31. He understood that the sign stayed in position until the wall it was attached to collapsed in about November 2012: T 308.7. When the headwall of the drain collapsed, he instructed the maintenance contractor to reattach the same sign which he understands was attached to webbing (facing the water) as indicated in the photos in Exhibit B: T 308.7; T 308.44; T 311.2. At that time there was no head wall to affix the sign to. Mr Allen said the para-webbing indicated in Exhibit B was likely placed by the Sydney Water maintenance contractor, Veolia: T 311.2; 7. Mr Allen conceded that his proposed 2.2 metre high pole sign with a slippery warning sign on both sides was not constructed (see Exhibit F, page 6): T 313.11. The reasons were that the defendant did not own the beach area; there was concern about the effect of the marine environment and the defendant did not wish to cause any more damage to the aging concrete apron structure by installing the sign on the apron: T 313.43. Therefore the sign was attached to the head wall of the pipe: T 314.4; 8. Mr Allen conceded that Sydney Water had a budget set aside for urgent remedial repairs: T 315.15. He conceded that there were always resources available to remedy dangerous situations: T 315.23; 9. In relation to the allegation that Mr Allen knew in 2012 that the apron was dangerous because many people had fallen on it, he said he thought the apron was "potentially" dangerous as at March 2012 as he only knew of one person who had fallen over: T 315.35. In light of other evidence, this was clearly incorrect: he was aware of other falls: see (d) above; 10. Mr Allen said that he had initially considered that the placement of a non-slip surface on the concrete apron was a good idea (T 316.12) but further consideration altered his view. It was considered after investigations that there was not a suitable non-slip surface product which would work and which was suitable to a marine environment which was wet for frequent periods: T 316.42; T 317.3; 11. Mr Allen understood the drain to be frequently wet. He conceded that the defendant did not trial the product to test its suitability: T 317.7; 12. Mr Allen agreed that the placement of a non-slip grid was also considered but was rejected as being unsuitable in a marine environment: T 317.32. He said one factor taken into account was that any drilling into the concrete apron for the placement of a grid could disturb the structure which was towards the end of its service life: T 318.17; 13. Mr Allen conceded that Sydney Water did not ask GHD Engineering for advice in relation to alternatives at that stage but could have done so: T 317.49-318.7; 14. Mr Allen was taken to his 15 March 2012 email (Exhibit F, page 7) which stated that the stormwater team would inspect the site once a month to assess how often it would need to be cleaned and then the defendant could put in a job request to its external contractor for cleaning probably every three months. He agreed that inspections did not occur by the defendant once a month and no request was put in to the external contractor, Veolia, for cleaning every three months: T 319.1; T319.15. He gave evidence that Veolia had advised that guerneying and spraying the concrete surface would not work very well as the algae would grow back quite quickly: T 319.18; 15. Mr Allen conceded that Sydney Water did not own any other stormwater drains as at 2012 with a concrete apron which crossed a public beach: T 319.37. He therefore had no experience in relation to such a construction; 16. Mr Allen agreed that no regular system of inspection or maintenance was initiated from July 2012 and the concrete apron was not cleaned as an interim measure: T 320.49; T 321.6; 17. Mr Allen agreed that no stainless steel poles with chains attached to them were erected over the apron or a Japanese-style bridge: T 321.8-.15; 18. Mr Allen agreed that the only interim safety measure taken by Sydney Water in relation to the drain apron was to erect the sign: T 321.17; T 321.43; 19. In relation to the suggestion of taking other interim measures such as the installation of a Japanese-style bridge or the affixing of a chain walkway over the drain, Mr Allen indicated that in his view this would require either capital funding or was complex and required approval from other interested parties, the community, Woollahra Council and had environmental issues attached to it: T 322.5. When taken to the plank shown in Exhibit F, page 89, Mr Allen stated that he understood this was placed there by a member of the public: T 322.20; 20. Mr Allen conceded that guerneying the concrete apron would not have damaged it: T 323.32. He also conceded that labourers could have been retained with a shovel to clean the area and scrub it: T 323.36. In answer to the suggestion that a wooden plank walkway could have been dyna-bolted to the concrete structure, he indicated that Sydney Water did not wish to damage or further dilapidate the concrete apron until a final solution was achieved having regard to the age of the apron: T 323.41-.48. In relation to the suggestion of a rubber mat being placed over the drain and stapled to the drain, Mr Allen said he did not think this would work in a marine environment due to algae coming on such a mat: T 326.12. Mr Allen conceded that Sydney Water had the resources at the time to engage the contractor, Veolia, to undertake cleaning of the drain apron on a monthly basis: T 330.28. Mr Allen agreed that the apron needed particular attention: T 330.40; 21. Mr Allen disagreed with the suggestion that the concrete apron did not get the priority it deserved from Sydney Water: T 331.41. He said the two sided sign had been erected, there had been site inspections and that in due course GHD Engineering had been retained for a comprehensive structural solution: T 331.44. Mr Allen said that solutions other than the sign had been looked into by Sydney Water and were not deemed to be practical prior to a long term solution. He said he did not think the other solutions were appropriate: T 332.9; 22. Mr Allen conceded that Tim Osmand, Belinda Duncan and Matthew Lewis (the latter being the Acting Manager Stormwater for the defendant as at July 2012) all still work for Sydney Water. None of them gave evidence; 23. Mr Allen indicated that the defendant took a 10 yearly structural assessment of all of its assets such as the stormwater drain: T 335.22; 24. Mr Allen conceded that Sydney Water in 2012-13 did not take any steps to remove algae from the drain to make it less slippery. Mr Allen agreed that Sydney Water should take into consideration public safety as a priority: T 339.41; 25. In re-examination Mr Allen conceded that he did not arrange monthly cleaning through the contractor Veolia of the concrete apron: T 341.9. He said he did not arrange this as he did not think cleaning would work on the surface. Veolia had advised that they had cleaned similar assets and the algae grew back quickly. Further, the tidal sand would need to be removed before it was cleaned. The asset was close to residences and this would cause noise and disturbance. In the end he thought it was impractical to do the cleaning: T 342.2. In relation to the placement of a non-slip grid, Mr Allen gave evidence in re-examination that he thought it was feasible to do it and it could have been attached to the concrete apron but he did not want to further dilapidate the concrete apron: T 324.19. He said he further did not see a non-slip grid in either steel plate, rubber or plastic as being a practical alternative: T 343.16.
Overall, I found Mr Allen to be a truthful witness. The real issue in the proceedings is the reasonableness of the decisions made by Sydney Water in which he was involved in 2012-13.

[15]

Submissions for the plaintiff

The plaintiff submitted in summary as follows: 1. Rose Bay Beach was a busy beach in the densely populated Eastern Suburbs of Sydney. Australians are "beach goers"; 2. The concrete apron on the beach constituted a dangerous hazard to beach users. There was no practical alternative in the circumstances for the plaintiff to traverse the concrete apron; 3. The defendant was well aware prior to the accident that falls had occurred on the apron and it was dangerous. That knowledge was held since at least March 2012; 4. There were many reasonable interim measures which were available to the defendant to take in relation to the concrete apron. These should have been taken as the apron was dangerous. Merely installing a small two-sided sign to the stormwater outlet was not sufficient. This was particularly the case after the head wall collapsed and the sign was placed on para-webbing facing the beach where it could not be reasonably seen by users; 5. Potential reasonable interim solutions until a final structural solution was arranged included regularly cleaning the apron, guerneying it, installing a non-slip surface, installing a non-slip grid, constructing a bridge, affixing planks over the drain; installing a steel pole and chain mechanism to hold onto whilst crossing the drain. These were reasonably available and no steps were taken by the defendant; 6. The plaintiff should be accepted that she did not see the sign. The drain was not an obvious risk; 7. The potential for interim measures to be adopted meant that the defences in Sections 5H and 5I of the Civil Liability Act were inapplicable. In relation to the defence under Section 5M, the sign after it was reattached was ambiguous about the risk warning and was not situated such that it was reasonably likely to result in people such as the plaintiff being warned of the risk before engaging in their recreational activity; 8. On the facts no contributory negligence has been established. The plaintiff exercised care in crossing the drain; 9. The resources defence under Section 42 of the CLA was not applicable as there were no financial constraints to taking steps on an interim basis promptly and the defendant had a budget for urgent measures; 10. In relation to the defence under Section 43A the defendant was not exercising a special statutory power. If it was, the acts and/or omissions of the defendant were so unreasonable that no authority having the special statutory power could properly consider the acts or omissions to be a reasonable exercise of, or failure to exercise, its powers; 11. The plaintiff had suffered a life altering but not catastrophic injury which impacts on virtually every aspect of her daily life. Future commercial care was needed. Substantial damages were warranted.

[17]

Findings of fact

Having regard to all the evidence, including the evidence referred to above, the following factual findings are made: 1. The defendant corporation owned the drainpipe and concrete drain apron situated over and on Rose Bay Beach under consideration in the present case. This included the pipe carrying the stormwater drain to the commencement of the beach, the concrete head wall situated around the pipe and the concrete apron below that pipe which fanned out to transport the stormwater from the pipe to the sea; 2. Rose Bay Beach is situated in the Eastern Suburbs of Sydney which is a densely populated part of the city. The court is able to take judicial notice of the fact that attending the beach, particularly in warmer weather, is a popular recreational past time of many Australians including at beaches in the Eastern Suburbs of Sydney. Rose Bay Beach was used on a daily basis in 2012-13 by many persons including residents of the Eastern Suburbs; 3. Rose Bay Beach was at all relevant times an "off-leash" beach for the purposes of dogs. At all relevant times owners brought their dogs to the beach to enable the dogs to run along the beach whilst not on the lead. This included on occasions the plaintiff and her friend Ms Jan McKenzie; 4. Rose Bay Beach at the relevant time was the only beach in the Sydney metropolitan area which was a public accessible beach containing a concrete apron of the sort in consideration in the present case to the knowledge of Mr Allen of Sydney Water; 5. The stormwater drain and the concrete apron had been constructed by the New South Wales Department of Public Works at an uncertain time but probably in the 1930s; 6. At all relevant times, pedestrians who were walking along the beach at Rose Bay had to either traverse the apron of the concrete drain, walk around the end of the drain closer to the sea or back track on their pedestrian journey along the beach to avoid traversing the concrete drain. To back track was somewhat inconvenient for pedestrians particularly those whose dog, child or companion had already traversed safely the concrete drain ahead of them. To walk around the end of the concrete drain seawards was also often inappropriate. Depending on the height of the tide, water from the sea could be up to or covering the seaward end of the concrete drain. Further, the area immediately seaward at the end of the concrete drain was often muddy and dirty and on occasions contained dangerous or potentially dangerous material such as broken glass. It was accordingly common for pedestrians walking along the beach to walk across the apron of the concrete drain. In relation to those parts of the concrete apron not covered in sand, the concrete was often highly slippery, covered in algae and/or moss and was potentially dangerous to pedestrians as injury was likely if a pedestrian slipped and fell; 7. By no later than February-March 2012 relevant officers at the defendant were aware that people had been injured by slipping on sections of the concrete apron of the drain owned by the defendant and that the drain was potentially dangerous to pedestrians walking along the beach. I find that there is no evidence the defendant was aware of this hazard prior to this time; 8. The letter from Ms Caryl Rorke to Woollahra Council faxed on 2 February 2012 was forwarded to the defendant with the letter dated 9 February 2012 from Woollahra Council (see pages 1-4 of Exhibit F). This is very likely as Ms Rorke was contacted by officers of the defendant; 9. On 13 March 2012 Mr Jim Davis and Mr Robert Allen from the Asset Management Division of the defendant attended a site inspection with an officer from Woollahra Council to inspect the drain and the apron. The view was formed by the officers of the defendant that the drain apron represented a potential hazard and the best thing to do would be to install a slippery surface sign. It was originally decided that this would require a 2.2 metre high pole, with two slippery warning sides on both sides so as to allow it to be seen from both access points along the beach. Subsequently a decision was made that this was inappropriate (due partly to the fact the beach was owned by another authority) and a sign was installed in about March-May 2012 in the form of that shown in Exhibit 2. Apparently the sign was attached in the way shown in Exhibit 2 so that it could be attached to property owned by Sydney Water, being the head wall to the drain and not property owned by other statutory authorities. The defendant was also concerned in placing the sign into the apron itself as this may involve the dilapidation of the concrete apron which was old; 10. The sign as shown in Exhibit 2 remained in its location for at least several months; 11. Mr Allen from Sydney Water also considered other options to render the apron area less slippery including a non-slip surface and a non-slip grid. Both were eventually discounted because of an inability to find a solution which was perceived by the defendant to be suitable for marine purposes and environmental purposes and having regard to the fact that the water from the drain created algae along such a surface. In the end the only interim measure adopted by Sydney Water to deal with the safety issue relating to the drain apron was the placement of the two-sided sign shown in Exhibit 2; 12. No other maintenance of the drain including the cleaning of it was undertaken by Sydney Water or at its direction by its contractors at any time from February/March 2012 until the date of the plaintiff's accident on 30 November 2013; 13. On 30 March 2012 a German tourist slipped on the concrete apron and was fairly seriously injured. The German tourist notified Woollahra Council of her accident. The defendant became aware of the accident no later than 30 June 2012 when the German tourist forwarded her information to Mr Allen of the defendant. Accordingly, by 30 June 2012, Mr Allen of the defendant who was the relevant responsible officer was aware that there had been several accidents through beach users slipping on the concrete apron in recent times: T 326.43; T 327.10; T 329.19; 14. Although a Sydney Water claim form was sent to the injured German tourist eventually, by letter dated 22 August 2012, Sydney Water denied liability. The letter included that Sydney Water regarded the presence of algae on the drain as beyond their control but had erected an appropriate warning sign; 15. On 13 July 2012 Sydney Water issued a request to its engineering services panel seeking quotations to undertake a review of the stormwater outlet. It was noted that the water flowing across the concrete apron led to a slippery concrete surface and presented a potential public safety issue/hazard when crossed. A response was received from GHD Engineering dated 27 July 2012. GHD noted that the key objective was to develop options that addressed inter alia public safety and public access issues; 16. The defendant did not seek formal advice from GHD Engineering in relation to interim measures to protect persons traversing the concrete apron. Informal oral advice was sought on the suitability of cleaning the apron. No steps were actually taken in the end by the defendant in relation to the hazardous nature of the concrete apron other than the erection of the two-sided sign and seeking a final structural solution; 17. In early October 2012 the defendant sought feedback from residents in the area in relation to improving access to beach users around the Rose Bay Beach stormwater outlet. A community information session was held on 20 October 2012 at which representatives from Sydney Water including Mr Allen were present. Residents raised various options with Sydney Water in relation to the taking of interim safety measures including roughing up the existing surface, cleaning it regularly, cleaning the moss off the concrete apron and constructing a low bridge. The comment was made that "anything was better than nothing"; 18. At some time towards the end of October or in early November 2012 the head wall over the top of the outlet at the drain collapsed into the drain channel (Exhibit F, page 46A). A comparison should be made between the photograph which is Exhibit 2 and the photograph which is Exhibit B3. Thereafter, a contractor of the defendant removed the concrete out of the concrete drain apron and attached the webbing indicated in Exhibit B3 and reattached the damaged two sided sign shown in Exhibit 2 in the manner shown in the photograph which is Exhibit B3. At this time the sign was facing towards the beach. The sign was also confusing in that it was not certain whether the sign was indicating that the head wall at the top of the drain had a slippery surface or whether the concrete apron below had a slippery surface: see the reference in the first document in Exhibit E; 19. Both the plaintiff and Ms McKenzie gave evidence that at no stage up to the time of the accident did either of them see the sign as shown in Exhibit 2 or in Exhibit B3. Having regard to the collapse in November 2012 of the head wall with the sign and the infrequent use by the plaintiff of the beach prior to the accident I accept this evidence. I also accept the evidence of Ms McKenzie that she had never seen the sign before the accident. Having regard to the size of the sign and its location in Exhibit 2 and the ultimate location of the sign in Exhibit B3, I find that any reasonable person using the beach from November 2012 would have been confused in relation to the sign even if they had seen it. I also find in the light of all the evidence that a reasonable person may well not have seen the sign having regard to the fact that it was attached to the webbing shown in Exhibit B3 and facing the sea at the time; 20. In my view, the defendant acting reasonably should clearly have taken interim safety measures in the period between at least the end of October 2012 and the date of the accident if not from April 2012 to the date of the accident to protect beach users traversing the concrete apron from what was clearly to its knowledge a hazardous and dangerous drain apron which had caused falls and injuries to pedestrians. I do not accept the evidence of Mr Allen that Sydney Water had taken all reasonable steps to consider interim measures. It was clear from Mr Allen's evidence that Sydney Water had an operations budget to undertake emergency repairs when required. The apron of the drain in my view was dangerous and highly hazardous and interim measures needed to be taken promptly and certainly prior to the summer period commencing at the end of 2012. This was particularly the case where children were persons who were potentially likely to cross the drain and the defendant was aware of injuries which had already occurred to people slipping on the drain. In my view merely erecting a relatively small two sided sign in March-May 2012, reattaching that sign in a damaged state in November 2012 and consulting GHD on a final structural solution was insufficient to deal with this known dangerous hazard in the period March 2012 to November 2013. 21. In my view such interim measures which should reasonably have been taken by the defendant are as follows: 1. (a) Inserting vertical stainless steel rods into the concrete apron on each side of the concrete apron so as to create a walkway with a chain or steel handrail being attached to the vertical steel rods to provide pedestrians with safety support; 2. (b) placing a non-slip metal grid on a part of the concrete apron between the vertical steel rods; 3. (c) cleaning the grid of moss/algae on a regular basis, including as required during warm weather; or 4. (d) replacing (a) above with a temporary wooden walkway over the drain with a steel handrail and non-slip metal grid surface; 5. Each of the alternative measures above would be attached to the concrete apron and thus not trespass on the beach area owned by another authority; 6. The measures would be temporary measures to avoid the clear and obvious danger to the public; 7. The measures above were different to those considered by Mr Allen and Veolia as more regular cleaning and the steel rodded walkway/handrail would be involved; 8. The situation in my view constituted a clear danger to the public and was an emergency in all the circumstances having regard to the known injuries; 9. In my view it is no reasonable answer to the above to say that the concrete structure was old and nearing the end of its life and may be damaged. Whilst that was a factor it was a concern of Sydney Water itself and did not outweigh the clear and obvious danger to the public. 10. In my view these were the minimum measures which should have been taken by Sydney Water pending a final structural solution to the problem. As stated, I find that such measures could have been attached to the concrete part of the drain owned by Sydney Water and not required to be inserted on property owned by other statutory authorities, and were reasonable and appropriate in all the circumstances. In my view Sydney Water should also have presented the problem to its external contractors and stated that a solution was required on an interim basis as a matter of urgency having regard to the danger involved. In my view any reasonable public authority would have taken these steps in the circumstances. Taking no interim measures other than the erection of the sign was to ignore a clear danger to the public; 1. The plaintiff and her friend Ms McKenzie arrived at Rose Bay Beach on 30 November 2013 and proceeded by foot with their dogs along the beach in an easterly direction. Ms McKenzie was slightly ahead of the plaintiff and passed over the concrete apron safely. The plaintiff slipped and fell on an area of the drain not covered by sand. It is likely she slipped on an area covered by algae. I find that the plaintiff exercised due care in crossing the drain at the time in question. She walked on the sand covered surface where there was a surface covered by sand and only slipped on that part of the surface not covered by sand. She was wearing sneakers at the time; 2. I find that the plaintiff was aware at the time that there was a risk and a danger that she could slip on the concrete surface of the drain that was not covered in sand having regard to its condition. In my view that follows from the plaintiff's cross-examination at T 88.28-89.2, T 121.43-122.19 and T 122.34-.36. Accordingly, the sign which the plaintiff and Ms McKenzie did not see would merely have informed the plaintiff of what she already knew from the appearance of the drain. I accept the defendant's submissions to this effect. 3. As stated, I find that the plaintiff exercised all reasonable care in crossing the surface of the drain. She was paying attention to the drain. I find that having regard to the fact that the tide was lapping at the end of the drain and the end of the drain consisted of dirty water and a muddy area, it was not reasonable to expect the plaintiff to traverse the drain by going around the edge of it at the seaward end in the circumstances; 4. I find that the plaintiff fell in the way which she described in her evidence and that she attended her doctor as indicated. I find that the plaintiff fell on her wrist resulting in a fractured wrist, severe bruising to her buttocks and a right shoulder injury; 5. On 29 August 2013 a proposal was prepared within the defendant to obtain funding of $110,000 to undertake "public safety improvements" to the drain outlet. The application referred to the need to take "high-priority safety projects" without exceeding the approved funding for the stormwater capital programme. In due course more senior officers of the defendant approved the application. Mr Allen said that the important approval was by Mr Freeman, the General Manager Liveable City Solutions, on 18 September 2013. Again no interim safety measures were taken by the defendant despite the structural solution being a public safety improvement other than the installation of the sign in March-May 2012; 6. The plaintiff notified the Council of her accident by email dated 12 December 2013; 7. In due course GHD Engineering recommended a final design report for the removal of the concrete apron in a report dated December 2013 (Exhibit F, page 58). Stage 1 which was the removal of the drain was approved and this was undertaken in mid-2014. Later the current state of the drain outlet is being monitored by the defendant. There are two possible later stages to be considered, the third stage of which is to have a raised walkway platform crossing the area where the water emerges from the drain.

[19]

Duty of care

The duty of care issue is intermingled with some of the statutory defences relied upon by the defendant, The CLA does not itself provide a general statement as to the circumstances in which the relationship between a plaintiff and a defendant will give rise to a duty of care. That is left to the common law. I agree with the plaintiff's submission in this regard.
The plaintiff submits that as the owner or occupier of the drain in question on the beach the defendant owed a duty of care to the plaintiff and the class of persons of which she was a member to take reasonable care to avoid foreseeable risk of suffering not insignificant harm: submissions paragraph [29].
The defendant in its defence concedes that it was responsible for the maintenance, repair and safety of the concreted stormwater drain but does not admit it was responsible for the design of the drain or owed the plaintiff a duty of care. In its submissions, a limited duty of care analogous to, but the same as, that of an occupier seems to be conceded: defendant's submissions paragraph [24]. As found in the factual findings above, the defendant was aware at all relevant times that the concrete apron was situated on a beach at Rose Bay which was a beach in the Eastern Suburbs of Sydney and which was used by the public frequently.
As the owner of the drain and the occupier of that part of the beach where the drain was situated, in my view the defendant owed a duty of care to beach users traversing the concrete apron which included the plaintiff. The duty of care owed is, in my view, the same as that owed by an occupier of premises. In Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [7]-[8], the Court of Appeal stated as follows: [7] It was common ground that McDonald's owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury to him arising from the physical state of its land, on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7 ; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42 ; (2007) 234 CLR 334 (at [45]) per Gummow J. The appellant submitted that Holistic's duty was relevantly identical with McDonald's, a proposition Holistic did not dispute insofar at least as liability to the appellant was concerned. [8] Gleeson JA (with whom Emmett JA and Tobias AJA agreed) addressed the content of the assumption that an entrant uses reasonable care for his or her safety in his pellucid judgment in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (at [159]) as follows: [159] The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, "the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case": Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42 ; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19 ; 221 CLR 234 at [35].
See also Brodie v Singleton Shire Council (2001) 206 CLR 512 at [150]; Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 at [91].
In my view, the risk of harm in the present case was that the plaintiff in traversing the slippery concrete apron would slip on it having regard to its mossy/algae covered state and would result in injury to her. The defendant's obligation as the occupier of that part of the beach with the concrete apron is not to make the premises as safe as reasonable care and skill can make them but is a duty only to take that degree of care which is reasonable under the circumstances. What constitutes compliance with the duty of care will depend on all the circumstances of each case: Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32].
In my view, and subject to the statutory provisions which I will consider shortly, the duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff as a person crossing the drain apron arising from the physical state of the apron would involve: 1. Constructing a sign warning of the risk in question; and 2. Until a final structural solution was achieved as recommended by GHD, to consider and to take where available reasonable interim measures to avoid a foreseeable risk of injury to persons traversing the drain from the physical state of it which was that it was frequently slippery and covered with algae/moss.
Sections 5F, 5G and 5H of the CLA provide as follows: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection."
In the present case, as found above, the plaintiff understood there was a danger and risk of slipping on the drain apron on the day of the accident and that the risk of slipping involved potentially falling and injuring herself.
Having regard to this factual finding, the risk was an "obvious risk" within Section 5F of the CLA because it was a risk that, in the circumstances, was obvious to the plaintiff. In my view it was also obvious to a reasonable person in the position of the plaintiff. As Section 5F(3) of the CLA makes clear, a risk of something occurring can be an obvious risk even though it has a low probability of occurring. Section 5G is inapplicable as the plaintiff cannot prove on the balance of probabilities that she was not aware of the risk being the type or kind of risk in question. The plaintiff in the present case was aware of the risk. Under Section 5H of the CLA the defendant did not owe a duty of care to the plaintiff to warn her of an obvious risk. Accordingly, in the present case, I find that the risk was an obvious risk.
I accept paragraphs [77]-[80] and [82] of the defendant's written submissions. The result of this conclusion is that the defendant had no need to construct a warning sign warning the plaintiff of this slipping risk that she was already aware of. The absence of a sign facing the plaintiff warning her of the risk is also non-causative of the plaintiff's loss.

[20]

Breach of duty of care

As indicated above, there was no duty of care on the defendant to warn the plaintiff by way of a sign of the risk of slipping on the concrete drain and resulting in injury as it was an obvious risk to the plaintiff.
The defendant also pleads that the risk was an "inherent risk" under Section 5I of the CLA. A defendant is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
Section 5I of the CLA provides as follows: "5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk."
In my view, this section is inapplicable to the facts of the present case. As Section 5I(2) makes clear, an "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. As I have found above in my factual findings, the risk of the plaintiff slipping in the present case was something that could have been avoided by the exercise of reasonable care and skill by the defendant taking the interim measures which I have referred to. Whether that results in a finding of a breach of the duty of care owed by the defendant to the plaintiff depends on the application of Section 5B of the CLA.
Section 5B of the CLA provides as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
As I have found above, over a year before 30 November 2013 the defendant was well aware that the concrete drain was slippery and potentially dangerous and that persons had slipped in traversing it suffering injury.
Whether the defendant in the present case breached its duty of care owed to the plaintiff depends upon a consideration of the matters set out in Section 5B. That is a question to be determined prospectively by reference to the evidence: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [30]-[31]; Takla v Nasr [2013] NSWCA 435 at [71]. In Takla, McColl JA at [72]-[73] stated as follows: "[72] The breach inquiry required the primary judge to identify accurately the actual risk of injury the appellant faced as it was only through the correct identification of the risk that his Honour could determine what a reasonable response to that risk would be: Dederer (at [18], [59]) per Gummow J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 (at [192]) per Gummow and Hayne JJ. His Honour identified that risk (at [57]) as MTK's insolvency preventing her from getting her money back. The appellant did not cavil with that aspect of his Honour's reasons. [73] Section 5B(1) of the Civil Liability Act required the primary judge to consider the issue of whether the respondent had breached his duty of care in failing to take the precautions for which the appellant contended by determining whether the risk was foreseeable, was not insignificant, and was such that in the circumstances, a reasonable person in the person's position would have taken those precautions."
I note the following in relation to the present case: 1. The risk to the plaintiff was foreseeable by the defendant being a risk of which the defendant knew or ought to have known. The defendant in the present case knew that persons traversing the concrete apron had fallen and suffered injury. Clearly the risk of a person in the position of the plaintiff falling and suffering injury was foreseeable and known to the defendant; 2. The risk was not insignificant in the present case. Here, the defendant was aware of falls in 2012 and the risks to pedestrians on the beach through the October 2012 community consultation. It was also aware from the German tourist incident that serious injury could be received. In my view the risk was clearly not insignificant; 3. In the circumstances a reasonable person in the position of the defendant would have taken the precautions alleged against the risk of harm. The danger of serious injury or even death through someone falling and hitting their head on the concrete apron was not insignificant. The defendant was a major public corporation. The defendant had identified that action for public safety reasons should be considered. In my view a reasonable public authority in the defendant's position would have decided to take interim measures and not left the hazard in the drain unchanged until a final structural solution was achieved to the drain problem. I have set out above the interim measures which I think should have been taken and in my view a reasonable person in the defendant's position would have taken those precautions; 4. In my view the probability that harm would occur to a pedestrian in the position of the plaintiff traversing the drain if care were not taken by the defendant was reasonably high; 5. The likely seriousness of the harm which a pedestrian could suffer if they slipped was serious and significant including even potential death if the person's head hit the drain heavily; 6. The burden of taking precautions to avoid the risk of harm in my view was not overly significant in the present case. It is true that Stage 1 of the solution ultimately implemented cost over $90,000. However, the burden of taking the interim measures which I have referred to above would be considerably less than that. The potential danger to pedestrians was significant and Mr Allen admitted that the defendant had a budget for taking urgent measures to protect public safety; 7. The social utility of the activity that creates the harm being the draining of stormwater into the sea is a relevant factor. However, this could be achieved readily even if interim measures were taken or the concrete drain was ultimately removed as has occurred. In my view, the social utility of draining the stormwater over the concrete apron was not of such a critical nature that the interim measures should not have been taken.
Having regard to all these matters, and subject to any statutory defences which remain to be considered, in my view the defendant has breached its duty of care owed to the plaintiff.
While the risk to the plaintiff and a person in the position of the plaintiff was obvious to the plaintiff and such a person: 1. The danger of slipping and injury was significant and known to the defendant; 2. A person walking eastwards along the beach had to traverse the drain unless they turned back or went to the seaward end of the drain which involved its own risks; 3. The defendant had not consulted GHD on the need for an urgent interim solution; 4. A final structural solution was planned but its completion date was unclear - as at mid-2012 it was in fact two years away; 5. The risk and danger to the public was more important than the risk of damage to the apron through dilapidation by an interim solution; and 6. The danger reasonably required some action to be taken.
However, I accept the submissions of the defendant at paragraphs [93] to [104] that the failure to remove the concrete apron well before the plaintiff was injured was not a breach of the duty of care owed.

[21]

Causation

The relevant principles in relation to causation are set out in Sections 5D and 5E of the CLA. These sections are as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
Accordingly, the plaintiff in the present case has the onus of proving on the balance of probabilities any fact relevant to the issue of causation.
The relevant principles to apply in relation to Section 5D are set out in the following cases: Strong v Woolworths Ltd (2012) 246 CLR 182 at [18], Wallace v Kam (2013) 250 CLR 375 at [16]-[19]; and Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ at [198], at [197] per Beazley P and at [319]-[324] per Basten JA.
The determination of factual causation in accordance with Section 5D(1)(a) of the CLA involves nothing more or less than the application of a "but for" test of causation. That is to say, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd, above, at [18].
In the present case this involves a determination of whether, but for the breach of duty of care which I have found, any loss or damage suffered by the plaintiff would not have occurred.
In the present case, I find as a fact that the plaintiff fell on that part of the drain not covered in sand which was slippery due to algae/moss covering it. I also find as a fact that if the defendant had implemented the interim measures which I have referred to above, that the plaintiff would have not slipped. The plaintiff struck me as a careful person and I think it very likely that she would have crossed the drain over the proposed interim walkway or grid and would have held onto any handrail (or equivalent such as a metal chain or similar) and thus would not have slipped and suffered the injury which she suffered.
I do not see any reason under Section 5D(2) of the CLA why responsibility for any harm which the plaintiff has suffered should not be imposed on the defendant. Also in my view it is appropriate for the scope of the defendant's liability to extend to the harm caused under Section 5D(1)(b) of the CLA. In my view there is no reason, subject to the statutory defences which I will consider, that the breach which I have found should not extend to the loss and damage suffered by the plaintiff as a result.

[22]

The recreational activity defence

Sections 5J, 5K and 5M of the CLA provide as follows: "5J Application of Division (1) This Division applies only in respect of liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff. (2) This Division does not limit the operation of Division 4 in respect of a recreational activity. 5K Definitions In this Division: dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. obvious risk has the same meaning as it has in Division 4. recreational activity includes: (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure." "5M No duty of care for recreational activity where risk warning (1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. (2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if: (a) the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the defendant) and the risk was the subject of a risk warning to that other person, or (b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent). (3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. (4) A risk warning can be given orally or in writing (including by means of a sign or otherwise). (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk). (6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in. (7) A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety. (8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person. (9) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant. (10) The fact that a risk is the subject of a risk warning does not of itself mean: (a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity. (11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity. (12) In this section: incapable person means a person who, because of the person's young age or a physical or mental disability, lacks the capacity to understand the risk warning. parent of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person."
The first question is whether the plaintiff was engaged in a "recreational activity" at the time she suffered the harm in question. In my view the plaintiff was clearly engaging in a "recreational activity" within the definition in Section 5K of the CLA at the time of her injury. Walking along the beach with her dog and her friend was clearly a pursuit or activity engaged in by the plaintiff for enjoyment, relaxation or leisure at a place (being the Rose Bay Beach) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure. The evidence clearly established that people regularly walked along Rose Bay Beach for relaxation or leisure purposes particularly for exercising their dog as it was an off leash beach.
Under Section 5M of the CLA a defendant does not owe a duty of care to another person such as the plaintiff who engages in a recreational activity to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. Under Section 5M(3) of the CLA a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. A defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. Under Section 5M(4) a risk warning can be given in writing including by means of a sign.
The defendant in the present case relies on the risk warning in the sign shown in Exhibit 2 and in Exhibit B3. It seems, and I find, that the sign was in the position indicated in Exhibit B3 at the time of the accident.
The warning, in my view, was adequate on the face of the sign to indicate that something was slippery and may result in a person falling: see also Sharp v Parramatta City Council [2015] NSWCA 260 at [30]. However, in my view the warning given on the sign in the location in Exhibit B3 was not given in a manner that was reasonably likely to result in people in the position of the plaintiff being warned of the risk before engaging in the recreational activity: see Sharp, above, at [32]. This is for the following reasons: 1. A person in the position of the plaintiff approaching the drain to cross it would be concentrating on looking down at their feet and in being careful to cross the drain without slipping by, wherever possible, walking on sand areas; 2. The sign as situated in Exhibit B3 is facing the sea not facing persons walking westwards or eastwards along the beach. In my view the location of the sign was such that it was not placed in a location reasonably likely to result in people such as the plaintiff being warned of the risk before engaging in the recreational activity. I accept the evidence of the plaintiff and Ms McKenzie that they had never seen the sign when previously walking up and down the beach; 3. I also accept the submission of the plaintiff that the sign was ambiguous. In my view, a person who actually saw the sign as shown in the photograph marked as Exhibit B3 would reasonably conclude that the sign may be referring to walking along the concrete head wall immediately above the drain as opposed to traversing the concrete apron. This is another reason why in my view the sign was not reasonably likely to result in people in the position of the plaintiff being warned of the risk before engaging in the recreational activity.
For the above reasons Section 5M of the CLA does not result in a duty of care not being owed by the defendant to the plaintiff for recreational activity on the basis that a risk warning was given within the section.

[23]

Section 42 of the CLA

Section 42 of the CLA provides as follows: "42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate."
This section clearly applies to civil liability in tort: Section 40(1) of the CLA.
The term "public or other authority" in Section 42 is defined in Section 41 of the CLA as having the following meaning: public or other authority means: … (e) any public or local authority constituted by or under an Act, or."
The defendant would appear to be a public authority constituted by or under an Act being a public authority constituted under the Sydney Water Act 1994 (NSW). See Section 4 of the Sydney Water Act 1994.
Sections 5, 21 and 37 of the Sydney Water Act provide as follows: "5 Functions of Corporation (1) The Corporation has the functions conferred or imposed on it by or under this or any other Act. (2) The principal functions of the Corporation are those that are referred to in section 12 and that are the subject of one or more operating licences. (3) Subject to the terms of any operating licence, the Corporation may: (a) provide facilities or services that are necessary, ancillary or incidental to its principal functions, and (b) conduct any business or activity (whether or not related to its principal functions) that it considers will further its objectives. (4) This section does not limit the functions of the Corporation apart from this section, but is subject to the provisions of this Act, the State Owned Corporations Act 1989 and any other Act or law." "21 Objectives of Corporation (1) The principal objectives of the Corporation are: (a) to be a successful business and, to this end: (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the Corporation, and (iii) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, and." "37 Ownership of works (1) The Corporation is the owner of all works installed in or on land, at sea, in or on the seabed, in rivers and other waterways and in or on the beds of rivers and waterways by the Corporation and of all works in or on land or in water vested in or transferred to the Corporation (whether or not the land is owned by the Corporation). (2) The Corporation may, subject to this Act, operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works to ensure that, in the opinion of the Corporation, the works are used in an efficient manner for the purposes for which they were installed. (3) The Corporation may sell or otherwise deal with works that it owns. (4) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900."
The pipe and the drain in the present case would appear to be "works" within the meaning of Section 3 of the Sydney Water Act being a "stormwater drainage channel" as "an artificial channel by which surface water is carried off". I agree with the defendant's submission in this regard: paragraph [120]. Clearly this is a task of a kind which is normally undertaken by public authorities where it involves road surface stormwater.
Under Section 42(a) of the CLA the functions required to be exercised by a public or other authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions. It is clear from the evidence of Mr Allen, that the defendant had at all relevant times resources reasonably available to it to remedy dangerous situations as they arose: T 315.21-.31; T 326.25; T 327.2; T 330.25-.40; T 336.39; T 337.31-.37. Mr Allen noted that the interim measures proposed by counsel for the plaintiff in cross-examination were potentially not particularly expensive.
In my view the proposed interim measures suggested by the plaintiff in the light of the maintenance and corrective functions of the defendant, were not limited by the financial and other resources that were reasonably available to the defendant for the purposes of exercising its functions within Section 42 of the CLA in the light of the evidence of Mr Allen.
I have found that the defendant was aware that falls had occurred causing injury by mid-2012. I have found that this caused a review and the briefing of the defendant's engineering panel for public safety reasons. A public meeting was arranged to discuss the issue and the defendant was further alerted to the dangerous situation: Exhibit F, page 42; T 335.38-T 336.39. In my view the totality of the evidence resulted in Sydney Water becoming aware of an emergency situation with summer fast approaching and urgent action to avoid further falls was required. There was a budget for urgent operational matters: T 337.33.
The defendant raises the issue of the need for environmental approval for construction of any interim structure: see submissions at [139], Exhibit 4 and T 330.28-.49. Exhibit 4 states as follows: "Under Part 5 of the EP&A Act, Sydney Water is both the proponent and determining authority for the proposal … The State Environment Planning Policy (Infrastructure) 2007 allows the proposal to be carried out without development consent."
Accordingly, external development consent does not appear to have been needed. Further, Woollahra Council was clearly pressing for steps to be taken in relation to the apron: see the correspondence in Exhibit G. In addition, any environmental matters could have been considered after interim steps were taken to reduce the danger posed by the apron to beachgoers.
In my view Section 42 does not apply to excuse the liability of the defendant in the circumstances of this case. I reject the defendant's written submissions in paragraph [141] that the interim measures to the stormwater drain did not attract an obligation in the defendant to use emergency funds.

[24]

Section 43A of the CLA

Section 43A of the CLA provides as follows: "43A Proceedings against public or other authorities for the exercise of special statutory powers (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power: (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44."
The plaintiff is suing in the present case in relation to the failure by the defendant to exercise a special statutory power conferred on the defendant. That special statutory power is the power conferred on the defendant to "repair, replace, maintain, remove, extend, expand … [or] improve" the concrete apron of the drain in the present case under Section 37 of the Sydney Water Act 1994. That power is in my view of a kind that persons generally are not authorised to exercise without specific statutory authority under Section 43A(2) of the Act. Generally persons are not authorised to install, maintain, extend or expand concrete pipes and drains across public beaches in the Sydney metropolitan area.
The plaintiff submits that the defendant was not exercising a special statutory power: written submissions paragraph [52]. I agree with the defendant's written submissions in paragraphs [120] to [127] in the light of Section 37 of the Sydney Water Act 1994 quoted above and recent Court of Appeal decisions, that the liability alleged here is based on the defendant's failure to exercise a special statutory power, being the power under Section 37: see Curtis v Harden Shire Council [2014] NSWCA 314; 88 NSWLR 10 at [4], [235], [244]-[245]; and Roads and Maritime Services v Grant [2015] NSWCA 138 at [23]. See the Second Further Amended Defence paragraph [14].
It seems clear that the failure to exercise the special statutory power in Section 37 of the Sydney Water Act 1994 is relied upon by the plaintiff as giving rise to liability in the defendant in the present case.
Under Section 43A(3) an omission involving a failure to exercise a special statutory power does not give rise to civil liability unless the omission was "in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the … omission to be a reasonable … failure to exercise its power".
In my view the alleged omission of the defendant in the present case was different to the omission of the council in Rockdale City Council v Simmons [2015] NSWCA 102 at [97]-[102]. The omission to take action in the present case was a decision made by the defendant due to the fact that it did not consider certain potential interim measures to be feasible and because the defendant did not wish to fix anything to the structure of the concrete drain due to its age and the potential to cause further damage to it: T 323.44.
In Bankstown City Council v Zraika [2016] NSWCA 51, Leeming JA (with whom Gleeson and Simpson JJA agreed) stated as follows at [109]-[110]: "[109] Section 43A assumes the existence of a duty of care and identifies the standard to be applied in determining whether that duty has been breached: Curtis v Harden Shire Council [2014] NSWCA 314 ; 88 NSWLR 10 at [234] and [272]. Another way of describing the operation of the section is that s 43A confers a qualified immunity upon a defendant where that section is applicable: Roads and Maritime Services v Grant at [57]. [110] There was also no dispute between the parties to the appeals as to the proper approach to be taken to the standard imposed by s 43A. Obviously, the source of that statutory standard is derived from the judgment in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, but it is necessary to apply those words, originally uttered in a public law context and which have subsequently given rise to a variety of characterisations and reformulations in that context (see Minister for Immigration and Citizenship v Li [2013] HCA 18 ; 249 CLR 332) to the area of tortious liability. The context is different, and it is important to apply the legislative text. In cases where s 43A applies, the court must look at the matter having regard to what the authority in question could properly consider a reasonable exercise of the power: Curtis at [6]. As Bathurst CJ there said, "[i]f the authority could properly consider what was done was a reasonable exercise of the power then there will be no liability". To the same point are the observations of Basten JA, with which Beazley P agreed, in Curtis at [278]: the court is required to consider whether no authority properly considering the matter could consider it to be reasonable. His Honour stated that the approach resembled the test for apprehended bias, in that rather than assessing reasonableness for itself, the court was required to "view the matter through the eyes of a responsible public authority".
In Roads and Maritime Services v Grant [2015] NSWCA 138, Basten JA (with whom McColl and Emmett JJA agreed on this point) stated at paragraphs [34]-[37] as follows: "[34] This case had nothing to do with a road on private land: it was concerned with the erection of a sign on a public road. As the parties accepted on appeal, the carrying out of such work constituted the exercise of a special statutory power, as held by this court in Curtis. It followed that the appellant could not be liable in a civil action for any act or omission involving the failure to exercise its relevant statutory powers unless the act or omission was in the circumstances "so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power." [35] The test to be applied is, as noted in Curtis, grammatically awkward. There are, three separate elements to the test which need to be identified. First, the requisite assessment of unreasonableness is to be made by an hypothetical reasonable public authority: while the court must make the assessment, it must do so by reference to the approach properly taken by such an authority. The significance of that element is that the exercise must be undertaken having regard to the limits beyond which a person (such as an authority) having necessary expertise in traffic engineering would not step. [36] Secondly, the test is formulated in the negative. By contrast with s 5B(1)(c) of the Civil Liability Act, it is not satisfied by evidence of what a reasonable traffic engineer would have done as a precaution against an identified risk. Rather, it is only satisfied by proof that no traffic engineer acting reasonably would have failed to take the precaution identified by the plaintiff. That is, accepting that there will be a range of views amongst reasonable traffic engineers, the omission must be such that no person with the requisite expertise could properly consider the omission to be reasonable. The fact that a high threshold is being prescribed is revealed by the double negative, "so unreasonable that no authority …". [37] Thirdly, the section reformulates the standard by which a breach of duty is to be judged. Once the section is engaged, the plaintiff will have to establish negligence beyond the statutory threshold in order to succeed. An assessment of the relevant evidence in the present case demonstrates that the plaintiff failed on any view to establish that burden. (Indeed, it may be doubted whether the evidence established breach according to the ordinary standard identified in s 5B.)"
In Mansfield v Great Lakes Council [2016] NSWCA 204 Basten JA (with whom Beazley P and Leeming J agreed) stated as follows at [34] -[37]: "[34] The issue in dispute therefore resolved itself into a question whether the omission was "so unreasonable" that no roads authority could properly consider the omission to be a reasonable exercise of, or failure to exercise, its statutory powers. [35] The standard of unreasonableness incorporated into s 43A derives from the ground of judicial review of administrative action which allows, in extreme and unusual circumstances, a qualitative review of the decision of the administrator, in circumstances where no relevant legal error can be identified. Such an approach was accepted by Lord Hoffmann in Stovin v Wise, a view from which he partly recanted in Gorringe v Calderdale Metropolitan Borough Council, in passages discussed in Curtis. The justification for adopting such a standard may have been in part that there was seen to be an inconsistency between the conferral, by statute, of a discretionary power on a statutory authority and the imposition, by the general law, of a duty to exercise that power. In the language used by Gummow J in Pyrenees Shire Council v Day a claimant in tort seeks "to translate the public law 'may' into the common law 'ought'." The effect of s 43A is that a statutory power to act will be coupled with a duty to act for the purposes of civil liability in tort by adopting broadly analogous principles from public law. [36] The trial judge found that the plaintiff failed to satisfy the high hurdle created by s 43A in circumstances where it had proffered no evidence to demonstrate that no roads authority acting reasonably would have failed to undertake the replacement of the culvert prior to 1 January 2010. The appellant submitted that this was an erroneous approach, because the test was objective and the relevant inference could be drawn from the evidence in fact adduced at trial. [37] Although not clearly identified in the appellant's submissions, there were in effect two limbs to the exercise upon which it relied. First, the circumstances in which the omission occurred involved, on one view, ignorance on the part of the Council as to factors which would have required it to act. If that were correct, the appellant needed to establish that the ignorance of the Council was itself so manifestly unreasonable that no council acting properly could have failed to identify the circumstances calling for action. The second limb of the exercise was to establish that, given the knowledge which it ought to have had on that standard, the Council could not have failed to act."
In 2012-2013, the evidence establishes that the defendant, through its officers, was aware: 1. That Rose Bay Beach was a busy beach in the Eastern Suburbs of Sydney; 2. That many people had slipped and fallen on the stormwater drain prior to 13 March 2012; 3. That a German tourist had slipped and fallen on the drain on 30 March 2012 suffering serious injuries; 4. That the defendant had decided that a review needed to be conducted of the site as a matter of public safety; 5. That it was necessary to warn members of the public of the dangers of slipping on the drain by the erection of a two-sided sign on the drain headwall; 6. That it was reasonable to consider and investigate prudent interim safety measures other than a two-sided sign; 7. That there was potential for serious injury to be incurred to persons traversing the drain by falling on the slippery surface; 8. That persons at the public consultation meeting in October 2012 had referred to the danger of the existing drain apron.
In my view, in those circumstances, no reasonable public authority would or could have waited such a lengthy period until mid-2014 as occurred for a contractor to provide a final structural solution. In my view, any reasonable public authority would have investigated all possible interim solutions as a matter of some urgency and, if necessary, would have consulted external experts to come up with a suitable safe interim solution in the meantime. Merely erecting a two-sided sign which had collapsed in November 2012 and was then reattached facing the sea in my opinion was manifestly unreasonable in all the circumstances. As at October-November 2012 the defendant was not aware that it would have been able to locate the capital works moneys from other areas to undertake Stage 1 of the works completed in mid-2014. The danger of the drain could have existed as at October-November 2012 for many more years unless action was taken to protect the public.
I conclude that the omission of the defendant in the circumstances to take the interim measures which I have found should have been taken was so unreasonable that no public authority having the special statutory power in question which the defendant had could properly consider the omission to take action to be a reasonable failure to exercise its power within Section 43A(3) of the CLA.
In arriving at this conclusion I take into account the reasons of the Court of Appeal in Roads and Maritime Services v Grant [2015] NSWCA 138 and Mansfield v Great Lakes Council [2016] NSWCA 204 referred to above.
I note that: 1. The requisite assessment of unreasonableness is to be made by an hypothetical reasonable public authority: the court must make the assessment and it must do so by reference to the approach properly taken by such an authority; 2. The section is only satisfied by proof that no public authority acting reasonably would have failed to take the interim measures identified by the plaintiff in the present case. That is a high threshold; 3. The section incorporates by reference a test similar to the public law Wednesbury Corporation test; 4. A plaintiff will still have to establish negligence beyond the statutory threshold in order to succeed in proceedings.
This case is quite different in my view to Mansfield. In Mansfield the omission involved, on one view, ignorance on the part of the council in question as to factors which would have required it to act. In the present case, the defendant was well aware that falls and injuries had occurred by persons slipping on the concrete apron in question. With the knowledge which it had arising from those falls and the public consultation meeting, together with the seriousness of the injuries that had occurred in at least one case and which could potentially occur, in my view the conduct of the defendant was manifestly unreasonable and no reasonable defendant authority could have failed to act in the circumstances to take the interim measures.
The present circumstances are unusual where the public authority defendant had precise knowledge of serious falls which had occurred and the risk to the public of further falls. Concern about the dilapidated state of the drain and further concerns that any steps may damage the drain further towards the end of its practical life, are in my view not decisive. In circumstances when the defendant was actively considering a final solution to the problem with external engineers and where capital funding was uncertain, no reasonable authority in the position of the defendant could have failed to act to prevent the serious risk posed to members of the public for potentially years.
In coming to this conclusion, the court: 1. Recognises the seriousness of the findings; 2. Takes into account the defendant's internal consideration and rejection of a number of interim measures; 3. Takes into account the evidence given in re-examination by Mr Allen particularly at T 342.1-T343.18. The evidence at T 342.2-.13 did not involve the defendant seeking advice about cleaning part of the apron utilised for a walkway purpose or the frequency of cleaning required for that limited purpose.
For all of the above reasons I find that the defendant breached its duty of care to the plaintiff and caused the plaintiff the injury which she suffered on 30 November 2013.

[25]

Contributory negligence

The defendant asserts that the plaintiff's damages should be reduced because of contributory negligence.
Sections 5R and 5S of the CLA provide as follows: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
In considering contributory negligence I take into account the comments of the Court of Appeal in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [144]-[145].
The defendant submits that the contributory negligence of the plaintiff is significant and there should be a finding of 100% contributory negligence.
The plaintiff submits that there should be a finding that there was no contributory negligence on her behalf.
In my view, having assessed all the evidence, I do not believe that any damages awarded to the plaintiff should be reduced because of the contributory negligence alleged.
I take into account the following matters: 1. The plaintiff gave evidence that she had walked over the concrete drain before on a few occasions and had not slipped; 2. On the day in question Ms McKenzie had walked across the drain in front of her and had not slipped; 3. The plaintiff was wearing sneakers at the time of crossing the drain; 4. The plaintiff observed the drain carefully before she proceeded and stepped wherever possible on the sand covered areas. The plaintiff appeared to me to be a careful person; 5. Whilst she was aware that there was a risk of slipping she took all reasonable precautions in the circumstances before crossing the drain; 6. Her dog had already crossed the drain and was well ahead of her; 7. The level of the sea was, according to the plaintiff, near the end of the drain and walking around the end of the drain was not practical in the circumstances; 8. There was no evidence that the plaintiff was aware at the time of other people having slipped on the drain; 9. The sign shown in Exhibit B3 had not been seen by the plaintiff or Ms McKenzie and appeared to be facing the sea.
Taking all of these matters into account I find that there was no contributory negligence by the plaintiff.

[31]

Future economic loss

The plaintiff seeks a buffer in an amount of $50,000 under this head. The plaintiff relies on her difficulty with her right shoulder in particular and the problems she has when she has marketing events for her business. It is submitted that given the physical restrictions the plaintiff suffers from and the fact that she works for herself the buffer claimed for should be allowed. It is submitted that the appropriate assumptions for the court to make are that the plaintiff will continue to work in the same business area, that physical work is required from time to time for marketing events, that she will continue to have difficulty with those physical tasks and that there is a potential limitation in her earning capacity. Obviously the evidence must be taken into account that she proposes to have further children which may cause breaks in her earnings.
In Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Tobias AJA (with whom Basten and Meagher JJA agreed) stated as follows at paragraphs [118]-[119]: "[118] In Kallouf v Middis [2008] NSWCA 61 the Court (comprising McColl JA and Hall J) set out at [46]-[61] the principles guiding the assessment of future economic loss. It was emphasised that what is involved is an assessment of the injured party's loss or diminution of earning capacity rather than loss of earnings, provided that that loss or diminution is productive of financial loss. True it is that where incapacity is established at the date of trial, what is to be evaluated is the extent of the possibility that the plaintiff may not work in the future or may lose time from work and allowance must be made in the determination of compensation in respect of that possibility. That evaluation will depend upon the evidence. However, it is for the defendant who contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to him or her: see also Mead v Kerney [2012] NSWCA 215 at [25]-[27] per Macfarlan JA, McColl JA and Sackville AJA agreeing. [119] As the assessment of damages for future economic loss involves reference to future or hypothetical events, it has been described as a "process of estimation of possibility" which is "necessarily an imprecise matter of estimation, carried out within broad parameters". Nevertheless, the onus lies upon a plaintiff to adduce evidence to establish not only the extent to which his or her earning capacity has been diminished but also the financial loss that that will cause. In that assessment, past earnings are a relevant consideration."
A buffer may be awarded (Penrith City Council v Parkes [2004] NSWCA 201) but only if the diminution of earning capacity is or may be productive of financial loss: Medlin v State Government Insurance Office (1995) 182 CLR 1 at [3].
There is no suggestion that the plaintiff was likely to have been limited in the way she is but for the accident.
Doing the best I can on the limited evidence, I think that there is a real possibility that the plaintiff's future earning capacity will be diminished to some extent having regard to her restrictions and she may well be unable to take on certain jobs that require more physical work with the setting up and dismantling of displays/advertising boards and the like. Alternatively, she may well need to pay for an assistant in some cases.
However, I do not think that the buffer claimed of $50,000 by the plaintiff is appropriate. Doing the best I can on all the evidence I allow the amount of $15,000 under this head of damages for the chance of a diminution in earning capacity.

[35]

Future commercial assistance

It is submitted on behalf of the plaintiff that she continues to have difficulties with her wrist and right shoulder. It is stated that the plaintiff would not have a cleaner now to assist her with household tasks if it were not for the accident. It is said that she only had assistance at the time of the accident because she was working fulltime in a demanding job. I refer to the evidence set out in paragraph [33] above. The plaintiff gave evidence that if an allowance was made in her damages for commercial assistance with the household tasks she had difficulty performing she would avail herself of that award: T 63.46. The amount sought by the plaintiff is calculated on the basis of future commercial assistance for 2.5 hours per week x $25 x a multiplier of 988.9 being the 5% multiplier for the plaintiff's life expectancy of 53 years. In my view the number of hours sought at the rate sought are appropriate and I find that the plaintiff needs assistance for this period. The rate of $25 per hour was the rate which the plaintiff paid for her current cleaner which appears very reasonable: T 61.24. However, in my view providing commercial assistance for the plaintiff's life expectancy is excessive. It is expected that as the plaintiff grows older she would require commercial assistance for cleaning in any case. I accordingly allow the commercial assistance for 48 years for which the multiplier is 966.6 which comes to the amount of $60,412 which I allow.
I have taken into account the defendant's written submissions (paragraphs 199-213). In my view the child care expenses are not related to the accident but the cleaning expenses as claimed are. They relate to the difficulty with the plaintiff's right shoulder and have been reduced for unconnected matters.
According to my calculations the amount to be awarded to the plaintiff is $114,412. I will enter judgment for the plaintiff. However, because of the potential for errors in calculation I grant leave to the parties to bring in Short Minutes of Order reflecting the mathematically agreed calculation of damages. Liberty to apply to the court is also granted in relation to the issue of costs.
A summary of the damages I have allowed is as follows: Non-economic loss $21,000.00 Past economic loss Nil Future economic loss $15,000.00 Past out of pocket expenses $6,000.00 Future out of pocket expenses $12,000.00 Past domestic assistance Nil Future commercial assistance $60,412.00 Total $114,412.00

At a glance

Court

Decision date

Source

Judgment (37 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (30)

Cited By (1)