Horne v J K WILLIAMS CONTRACTING PTY LIMITED

Horne v J K WILLIAMS CONTRACTING PTY LIMITED - [2022] NSWDC 135 - NSWDC 2022 case summary — Zoe

[3]

The pleadings

The plaintiff particularises the defendant's negligence as follows: 1. It exposed the plaintiff to a risk of damage and/or injury of which it knew or ought to have known; 2. It failed to take any or any adequate precautions for the safety of the plaintiff; 3. It failed to take any or any adequate measures to prevent the injury to the plaintiff; 4. It erected barricades adjacent to the construction zone which created a collision hazard for persons such as the plaintiff riding a bicycle; 5. It failed to light and/or properly light the area of the construction zone (including the barricades) so that same could be observed by persons such as the plaintiff; 6. It failed to illuminate the area of the construction zone (during times of darkness) so as to avoid the risk of injury of a person (such as the Plaintiff) coming into collision with the barricades; 7. It failed to have in place suitable and/or sufficient warning signs preceding the construction zone so as to alert persons such as the plaintiff as to the existence of the barricades; 8. It failed to warn the plaintiff through the use of illuminated markings and/or signage in and around the barricades so that the presence of same could be discerned by persons such as the plaintiff; 9. It failed to erect signs indicating the presence of the construction zone (and the barricades) so that persons such as the plaintiff could have taken an alternate route or have travelled on the other side of the road; and 10. It failed to undertake an appropriate (or any) risk assessment of the construction zone so as to ensure that same was obvious and/or discernible by night so that persons such as the plaintiff (riding a bicycle) could be aware of the extraction presented by the barricade.
The defence filed on 8 July 2021 denies negligence and relies on defences pursuant to sections 5B - 5F of the Civil Liability Act 2002 (NSW) ("the Act" or "the CLA").
The defence additionally pleads that the Limitation Act 1969 (NSW) applies, and that the plaintiff's claim is statute barred by section 50C. A claim of contributory negligence is also brought.
An application for leave to amend the defence to rely upon s 5L of the Act, made on the first day of the hearing, was refused, for the reasons set out in more detail below.

[9]

The lighting issue

The issue dominating the hearing was the broken light in one of the two street lampposts. The relevant evidence was as follows: 1. The description by the plaintiff and his son of the lighting, including photographs taken by the plaintiff shortly after his accident. 2. Expert evidence set out in two reports (Mr Dubos for the plaintiff and Mr Smith for the defendant) and a conclave summary. This conclave has resulted in an agreement between the experts (and the parties) that, if the broken streetlight had been operational, the plaintiff would have had enough light to see the barricades. 3. Documentary evidence, including Australian Standard 1742.3 2009, documents produced by Endeavour Energy and documents attached to the expert reports.
The defendant was not responsible for the streetlights; Endeavour Energy was. The relevant lighting Standard, AS 1742.3-2009 ("the Standard"), has been referred to in the experts' reports (CB 81 - 2, 90 - 93 (Mr Dubos); CB 153 - 4 (Mr Smith); see also CB 158, 160 - 1, 163 - 5, 739 and 1045). No evidence has been tendered by either party from Endeavour Energy, the entity responsible for the streetlight, as to when and in what circumstances it was notified one of its streetlights was not operational, or as to when and in what circumstances the streetlight in question was repaired. The only evidence from Endeavour Energy in relation to the streetlamp (as opposed to the streetlight) is that a new post was put in as part of a "bulk replacement" in November 2017. There is, however, evidence from the plaintiff that, after his complaint to the defendant and his solicitor's letter to them on 1 February 2017, the broken light was repaired.
The bright orange barricades put up by the defendant on the verge in front of the building site were clearly visible during the day. The problem was that, at a time unknown to the parties, but before the plaintiff's accident, one of the street lights failed.
As noted above, the experts agree that if both street lights (instead of only one) had been operational, there would have been sufficient lighting for the plaintiff to see the orange barricade in his path. In other words, if both street lights had been on, the plaintiff should not have had any difficulties in seeing and avoiding the barricades.
The plaintiff asked me to find that the broken or non-functional streetlight might never have worked, or at least have been out of action for a long period of time. Mr Hickey stated in his opening: "So, insofar as the lighting is concerned, the plaintiff is uncertain as to whether or not that light was ever there and operating, but certainly previously because there were no obstacles he'd been able to make his way along that grass verge on many occasions with his son. His son will also give evidence, he's now 17 years of age, will also give evidence as to his recollection of the night." (T 13).
The plaintiff and his son rode along this route regularly. He told Dr Rickard-Bell that "earlier in the day [he] had travelled down the same road and there was no indication of any barricade in place" (CB 200). While that is probably incorrect (the plaintiff, a poor historian, repeatedly gave 10 January 2017 as the date of the accident), there is a great deal of evidence that he regularly drove and cycled past the accident site.
The plaintiff took a photograph of the lighting in the week following the accident (T 64 - 66), in circumstances where it is agreed between the parties that the street light lamp was still not operational. He gave evidence about using his iPhone filters because the lighting was insufficient otherwise to take a photograph. There is no expert evidence as to how such a photograph should be interpreted in the absence of expert evidence, and I have been mindful of the warnings about judges embarking upon such a task without the assistance of expert opinion: Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955; Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956; Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186.
The plaintiff notified the defendant of the lighting problem ten days or two weeks after his accident. Mr Dubos, the plaintiff's expert, records at paragraph 19 of his third report (CB 139): "Mr Horne has informed me that he notified J K Williams Contracting of his accident about 10 days to two weeks after it occurred and in about five days after that, the street light was working. Mr Horne has informed me that he lives very close to the area where his accident occurred and he has visited the site on a series of occasions since the time of the accident."
Mr Dubos made a similar observation in his first report (CB 81) that the lighting was "rectified and the lighting made operational". The plaintiff's cross-examination on these issues (at T 118) is set out in more detail below.
The plaintiff also took photographs of the site of the accident after the streetlight was repaired although, as Mr Gambi points out in his supplementary submissions (paragraph 6), these photographs (if there was more than one) were not put into evidence (T 118). Once again, there is the problem of interpreting photographs without the benefit of expert evidence (and additionally, as the plaintiff said at T 118, it would appear some flashing lights had been added after the defendant was notified of the accident).
The plaintiff submits that, notwithstanding these observations, I should find that the street light was more likely than not to have remained non-operational up until around November 2017, when the entire lamp post was (as part of a general replacement) removed and replaced.
The defendant asks me to infer that it is more likely than not that this was the light was working as recently as a week before the accident. The defendant submits that this evidence supports the likelihood of the street light still being operational, in that the plaintiff noticed nothing untoward in terms of lighting in the street during his previous cycle trip down this road; and the carrying out of a series of inspections of the site clearly necessary for the Construction Traffic Management Plan commissioned on 4 November 2016 and in particular the Traffic Management Plan commissioned by the defendant from Allroad Alliance dated 12 January 2017, only a week before the accident. The defendant also relies upon the speed with which it would appear that the light was replaced after complaint. Whether drawn from these facts individually or in total, the defendant submits that I should find that the light was only broken for a very short period of time before the accident, in circumstances where the defendant (who put up the barriers two days before the accident) had no prior indication that one of the traffic lights had failed.

[10]

The plaintiff's evidence

The plaintiff, who is effectively unemployed due to a complicated medical history of prior injuries, is a man of fifty years of age who resides with his teenage son in a home belonging to his father. Despite his health problems, he led an active and outgoing life before the accident the subject of these proceedings and in particular enjoyed regular bicycle rides with his son in the streets around where they lived.
A problem which initially loomed large, in terms of the plaintiff's evidence, was the question of the date of the accident. The plaintiff told the hospital emergency staff on 29 January 2017 that he suffered a head injury "ten days ago" (CB 309, 315, 333) and told Dr Sharma on 2 February 2017 that he had a head injury "20 days ago" (CB 268 - 269) but thereafter told the Hawkesbury Road Medical Centre (CB 391), Dr Saha (CB 463, 427), Dr Dowla (CB 424), Dr Yeung (CB 300 - 303, 430), the NDIS (CB 448 - 454), Dr Porteous (CB 221), Dr Rikard-Bell (CB 200, 204, 232, 237), Medicare (CB 1211) and other doctors that the accident occurred on 10 January 2017.
It is not in dispute that the barrier with which the plaintiff collided was not put up until 19 January 2017. If the accident occurred on 10 January 2017, he could not, therefore, have collided with the barrier. The discrepancy is thus of some moment.
The plaintiff's former solicitors wrote to the defendant on 1 February 2017 (Exhibit D) and on 20 July 2018 giving the date of 10 January 2017 (CB 877). They brought an application for discovery before action in this Court in 2018. However, when the statement of claim was filed by the plaintiff's current solicitor, the date for the accident was given as 19 January 2017, not 10 January 2017
Mr Hickey blamed the plaintiff's general practitioner at the Ozmed Medical Centre for this error in the date, asserting that other doctors, including the plaintiff's other general practitioner, had copied the wrong date from their notes. This is incorrect. While the plaintiff was seeing two general practitioners concurrently and the medical records from the first (Ozmed Medical Centre) were not transferred to the second (Hawksbury Rd Medical Centre) until 7 August 2019 (CB 443). This means that the plaintiff, who was visiting both centres, was the source of the error, not erroneous records kept by Ozmed Medical Centre.
Caution must be exercised when considering apparent errors as to the date or circumstances of an accident as set out in medical records, for the reasons explained in Hill v Richards [2011] NSWCA 291 at [23]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8] and Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]. The focus of such medical records is generally on treatment of the plaintiff rather than the cause or date of the accident. However, in the present case, the plaintiff also told his own solicitors the wrong date, so the likelihood that these doctors all mistook the date of the accident is low.
The plaintiff's father was certain of the date and, on the balance of probabilities, I am prepared to accept that the accident did occur on 19 January 2017, and that the reason for the confusion in the plaintiff's mind relates in part to his head injury at the time. Although the hospital notes describe the plaintiff as "hitting a pole" rather than a barricade, I am satisfied, in part from the corroborative evidence of the plaintiff's father and son, that the accident occurred on 19 January 2022 as pleaded in the statement of claim.
The plaintiff told the court that he rode along this particular route two to three times per week and that it was a route that he was very familiar with, including after sunset. His previous rides had been uneventful. He frequently rode with his son, who was riding behind him in his usual fashion on the night of the accident. He told the court that he had no recollection whether the overhead streetlight in question was ever operating (T 25) but was certain that he had ridden along that same part of the road the week beforehand without any difficulty (T 26).
The plaintiff acknowledged that the light on his bicycle was not a strong light ("basically useless, so you wouldn't see anything, anyway": T 54) and, moreover, was fixed in a downwards position to enable him to see potholes in the road. He told the court that when he rode at night he would position the light at around a 45 degree angle or a little higher (T 54), "just to try and illuminate just in front of us" (T 54). He and his son were travelling as "between a medium and fast pace" (T 54).
The plaintiff described the route he took as involving travelling on the wrong side of the road, for safety reasons: "Q. Was that invariably your custom? A. Yes. That is. Q. Why was that? A. Where we ride, on the opposite side of Victoria, there is no lighting whatsoever; it's too dangerous, it's an uneven surface, so we ride on the oncoming traffic side. That way, I can keep an eye on any cars coming towards us, and we can then get onto the footpath area, if we need to, very quickly. Q. So, when you're travelling up Victoria Road, you'll be travelling on the righthand side; is that correct? A. That's correct, heading west." (T 26 lines 11 - 23)
He described the lighting and surface of the road as follows: "Q. And, when you made reference to the area that you couldn't ride on because there was no lighting, on that area, what is the nature of the surface? That is, the left-hand side of the road. A. It's grated, it's in really bad condition. There's a lot of, like - I wouldn't know what you call it - rifts, I suppose, like that, or places that a front wheel will kick out on you even in the daytime." (T 26 lines 25-30)
The plaintiff and his son had approached the intersection in his usual fashion, checked without stopping for traffic and then continued across the same track upon which he always travelled, with his son travelling about two to three metres behind him. The plaintiff described the accident occurring as follows: "Q. When you approached the intersection with William Street, what was your custom? A. Have a glance down William Street. We can - we can usually see if there's any cars coming up from William, with the glare of the headlights and so forth on the road, and then basically just continue across the same track that we'd always do. Q. You continue to cross, which was again on Victoria Road. A. That's correct. Q. Were you on the roadway, or by this stage, where you up on the grass verge? A. On the verge. Q. When you'd ridden in the past, had you always written on the grass verge when you went up there? A. Yes. Q. You'd never had any problems moving through that area unobstructed. A. Not at all. It was well maintained. Q. In any event, on the evening of the accident, what happened as you made your way up onto the verge? A. Sorry? Q. On the evening of the accident, what happened to you after you made your way up onto the verge? A. Probably travelled around about, I'd say, a good 10 metres, and just struck something and landed on my head. Q. When you say you landed on your head, did you land directly to the ground on your head, or did something happen to your body after you struck something? A. Well, I - when I struck something, I went up and over, and then came down, hit the - hit - like, I learnt that it was actually - well, the barricade, I went over that, went in between the barricade and a steel fence that was there as well. Q. Did you come into contact with the steel fence? A. Yes. Q. Then I take it that you ended up on the ground. A. That's correct. Q. Did you end up on the ground on the side of the barricade that you hit it, or the other side? A. The other side." (T 27 lines 5 - 50)
It is clear from this description that the plaintiff had not observed any signs indicating roadworks, or luminous paint or lighting or other warning of the existence of the barricade (T 63). It is not in dispute that there were none.
The plaintiff's explanation for riding on the wrong side was that the footpath had a concrete or bitumen path along it and cars tended to park in driveways over the cement, so it was safer to ride on the road surface: "Q. It's not a formed footpath, is it? Is there a concrete or bitumen footpath? A. Yes, there is. Q. Okay, well, why weren't you riding on that? A. Because cars, of a night time, don't park out there because of the crime, so they park along their driveways and it defeats the purpose. If that's clear, why not ride that rather than on a footpath where you've got to keep on going in and out of cars?" (T 107 lines 13 to 19)
Following his fall, the plaintiff experienced dizziness, nausea, ringing in his ears and tenderness in the right shoulder as well as his neck (T 29). The next morning he still felt very dizzy and had blurry vision. On 29 January 2017, largely at the urging of his father, he attended the local hospital. Further details of the plaintiff's injury and disabilities are set out in the section of this judgment on damages.
The plaintiff intended to bring proceedings against the defendant from the very first. He immediately consulted his solicitor (who was acting for him in unrelated proceedings), took photographs of the site, rang up the defendant to warn of his fall and instructed his solicitors to send a letter on 1 February 2017.

[11]

The evidence of the plaintiff's son

The plaintiff's young teenage son was a keen bike rider who enjoyed his regular outings with his father. He described how they rode down Victoria Street on the footpath, as they had done on previous occasions (T 151). He was two to three metres behind his father as they crossed into William Street and the incident occurred.
The plaintiff's son had only a general recollection of the accident. He could see the light pole, although very poorly (T 164, 166) and also the fencing around the road construction work (T 164). He thought the street light was on, but very faint (T 166): "Q. That's because the light above you on that light pole was not on? A. It was very poorly lit, yes. Q. When you say very poorly lit, are you saying that the light was on but not providing much illumination, or was not on at all? A. Not shining much illumination. Q. Is it possible that what you in fact observed was that your father hit the light pole itself? A. I do not recall."
I find this description of more assistance, in terms of ascertaining what the lighting was like, than the photograph the plaintiff took, which is of little assistance as well as difficult to interpret without the benefit of expert evidence.
Although the plaintiff's son said he had some limited vision, he also said that he was only able to discern that it was a barricade that his father had hit when he was a little over a metre away from it (T 152). He was, nevertheless, able to stop in time, despite the speed at which they were travelling, which suggests that he had more than a metre to stop before seeing the barricade. Importantly, the plaintiff's son knew that he was in a construction zone because he could see the area around them and because of the terrain over which they were travelling: "Q. You knew you were in a construction zone though, didn't you, at the time? A. Yes. Q. You knew that either because you could see what was going on around you, or the terrain that you were travelling over? A. Yes." (T 164 line 49 to T 165 Line 4)
The plaintiff's son's evidence is corroborative of the plaintiff colliding with a barrier, but it also suggests that there was more light available than the plaintiff was willing to admit.
Although the plaintiff's son appears to suggest (T 166) that the street light was merely faint and that the street light in question was not broken, I propose to treat that evidence with caution, given the witness's age and his obvious desire to answer truthfully. It is not in dispute that the light in question was not working.

[12]

The expert evidence

The expert reports need to be read with some caution, for the following reasons: 1. Although the experts provided a series of reports and held a conclave shortly before the hearing commenced (namely 22 February 2022), their differing view were reconciled by the agreement between them (and the parties) that, if the streetlight with the broken light had been working, there would have been sufficient light for the purpose of the plaintiff's bike journey along the path. 2. The parties' closing submissions raised significant issues concerning the Standard, a document which the experts had referred to in their reports but neither analysed nor applied. This means that the experts have not expressed opinions about the relevant provisions in the Standard, which was not provided to the court until the final day of submissions. Nevertheless, many of their conclusions and findings can be applied to this new material.
As noted above, in the course of preparing their reports, both experts referred to the Standard (CB 81 - 2, 90 - 93 (Mr Dubos); CB 153 - 4 (Mr Smith); see also CB 158, 160 - 1, 163 - 5, 739 and 1045). However, the basis of the plaintiff's reliance upon the Standard as put to me in closing submissions by Mr Hickey was not raised with the experts either in their reports or in their conclave, which explains why the experts did not deal with these issues in more detail. While the expert evidence provides guidance as to whether, by reason of the Standard, the defendant, in order to satisfy s 5B(c) of the Act, ought to have undertaken a risk assessment of the works at night, the failure of the parties to put these matters to the experts reduces the value of their reports.
The plaintiff (supplementary submissions, paragraphs 13 - 16) asserts that the Standard required that the risk management of any works entailed the identification and analysis of all hazards likely to arise during works on roads, including the setting up, operating, changing and ultimate dismantling of a traffic guidance scheme, followed by the determination of appropriate measures to mitigate risks in accordance with Standard Clause 2.2.3 and 2.5.5. Clause 2.5.5 in fact includes a requirement that not only should an assessment be made by day, but "the same assessment should be carried out at night with dipped headlights" and that if problems are identified "it should be adjusted and re-inspected". The plaintiff submits that, if such an inspection had been undertaken, it would not only have required that this be done, but also engaged other requirements of the Standard which relate to "night conditions" (Clause 6.3.6) and in particular Clause 2.4.3 (night conditions) which states that hazards or barriers may require flood lighting to make them more conspicuous.
The plaintiff submits that there is no evidence offered by the defendant as to whether there was risk management at all or that any inspection was undertaken in relation to traffic control needs, either by day or by night (supplementary submissions, paragraph 20). The very nature of the activity engaged in by the defendant, and the significant risks caused by the erection of barricades along a site walked on by pedestrians, required the defendant to carry out the requirements imposed by the Standard.
Mr Hickey submits that in determining whether the defendant would have taken precautions against a risk of harm caused by inadequate street lighting, I should have regard to the following factual elements that satisfy the criteria of s 5B(2): 1. There was a probability that harm would occur to a bicycle rider such as the plaintiff or, for that matter, a pedestrian walking along what had, up until the barriers were installed, been a thoroughfare at night time. 2. A bicycle rider who hit the barricade was likely to suffer harm. 3. The burden of taking the precautions to avoid the risk of harm fell in the obligations imposed by the local City Council as well as compliance with the relevant Standard. This was not an onerous burden.
Mr Hickey refers to Lloyd v Thornbury [2019] NSWCA 154 at [58] - [70] in terms of the distinction between the probability of harm being accentuated by night-time conditions and what a reasonable response would be. He submits that the defendant's failure to comply with the Standard by not undertaking a night time risk assessment or inspection as to the impact of barricades on a thoroughfare upon night time thoroughfare users amounts to breach of duty of care.
What does the Standard actually say? 1. First of all, traffic management plans need to take into account all manner of road users, including bicycles (Clause 2.2.2(d)). Risk management needs to focus on all hazards likely to arise and the suggestions set out in the Standard are "minimum requirements", not maximum requirements (Clause 2.2.3). 2. The work place must be clearly identified by appropriate signs and barricades. 3. Where work on a site goes overnight (in that the work is done for more than one day, or work is done at night), Standard Clause 2.3.6 provides that "temporary lighting" should be provided where the path through the site "could be difficult to follow" (which is not the case here, as the pathway was outside the site). This Clause goes on to state that "lighting from other sources, especially flare sources, should be taken into account when assessing the need for temporary traffic route lighting" and that lighting for pedestrians should be provided as specified in Clause 2.3.8(c). Illuminated flashing signs should, however, be dimmed at night to avoid glare. This is one of a series of references to glare problems for residents and motorists; the risk of glare at night from site lights must therefore be taken into account when considering Mr Dubos' recommendation for night lighting. Where there is work in progress at night (which was not the case here) it was recommended that the entire site be lit and high visibility garments worn; however, there was no night-time work being carried out at the Victoria Road site. 4. Concern about glare is one of the main features for night work conditions as set out in Clause 2.4.3. There is a series of precise requirements for the visibility of signs, and the need for floodlighting is carefully put as "may", with the need to protect approaching drivers very much in the foreground: "Hazards or barriers may require floodlighting to make them more conspicuous. Care should be taken that floodlighting does not cause visibility glare for approaching drivers." (Clause 2.4.3) 1. Individual signs and devices, as opposed to barriers, should be checked to retroflectivity as soon as possible after installation (Clause 2.5.1). Night-time effectiveness can best be checked by viewing the signs by vehicle headlights in dark conditions. However, this obligation is to check signs which contain retroflectivity; there is no requirement that the streetlighting must also be tested. 2. The requirements for safety barriers are set out in a series of provisions, such as Clause 2.4.5. 3. Once the erection of signs and devices is completed, a competent person on site should carry out a functional inspection. This inspection should be carried out from within the traffic stream at the normal traffic speed, taking in all of the signs and devices. "The same inspection should be carried out at night with dipped headlights" (Clause 2.5.5).
Mr Gambi responded first by pointing out that the plaintiff's expert never specifically asserted that a risk assessment should be carried out at night or that there has been a failure to comply with obligations under the Standard. However, the failure of the parties to appreciate these issues and to put them to the experts for advice does not mean that I should determine this issue on that limited basis.
Contrary to the plaintiff's submissions, the defendant did undertake a risk assessment, in the form of a detailed Traffic Management Plan commissioned by it with Allroad Alliance (CB 731 - 50). This report, dated 12 January 2017 (a week before the plaintiff's accident) specifically noted that, given the absence of footpaths and bicycle paths in the immediate vicinity of the worksite, pedestrian and cyclist activity was "expected to be minimal" (CB 772). This report was in turn following on from the Construction Traffic Management Pan commissioned from Cardno (NSW/ACT) Pty Ltd dated 4 November 2016 (just over two months before the plaintiff's accident). Both these reports set out in very great detail what the defendant and others at the building site had to do.
The scope of the Traffic Management Plan included a vehicle movement plan as well as a pedestrian movement plan to facilitate the construction of a roundabout. Water-filled barriers were recommended on Victoria Street "to facilitate a safe work area for the construction". To maintain safety, a series of traffic management techniques such as portable traffic signals and barriers were to be installed (CB 735). There was, however, no reference to any need for special lighting in the area of the accident, although the Standard specifically directs attention to the issue of night time inspection.
Mr Gambi distinguishes Lloyd v Thornbury on its facts. The defendant in those proceedings was a householder who had dug holes in the backyard to deal with a drainage problem and left these unfilled. The plaintiff was a tenant who had run out into the backyard in an emergency where there were fighting dogs in the backyard. Gleeson JA considered that there was a realistic possibility of physical harm at night (as opposed to the day) if the tenant misjudged the location of the holes. I agree that the difference in factual circumstances renders the findings of little assistance in these proceedings.
What both sets of consultants for both these reports clearly foresaw is that the "minimal" pedestrian and cyclist movements in the area would be controlled by the construction of a temporary pathway through the work site behind a suitably brightly coloured barrier with a 1.2 metre clearance (CB 740 and 748 - 9). This temporary path started just before the temporary road that was an extension of Cottage Street. Its purpose was to direct non-vehicular traffic away from the construction site. It was part of an overall risk assessment plan for the whole site. The defendant was entitled to assume, given the very recent dates of these reports, that they were based on current road conditions.
One of the difficulties facing the plaintiff, who submits I should find that the traffic light in question had either never functioned at all or was broken for some time, is that these two comprehensive reports must have taken all aspects of the Standard into account, as lighting was part of the site planning. How likely is it that neither of the authors of these two comprehensive reports, the second of which was prepared in the week before the plaintiff's accident, noticed that one of the traffic lights was not working? I am satisfied that when the second of these reports, dated 12 January 2017, was prepared, the inquiries identified by the Standard would have been carried out and that, if the traffic light was not working at that time, it would have been observed and rectified in much the same way that a faulty traffic signal would be rectified. Such a finding would also be consistent with my conclusion from the plaintiff's own evidence that, when he rode along the same street in the week before the accident, he noticed nothing wrong with the lighting because the street light was still working.
The timeline is of particular importance in terms of risk. The defendant had two very recent reports to hand, telling it what to do, in circumstances where the plaintiff submits that, after the barricades were installed, the defendant should have carried out its own additional risk assessment that very night. Given that the barricades only went up on 17 January 2017 and the plaintiff's accident occurred on 19 January, the defendant would have had to carry out that risk assessment on the evening of the same day of installation, namely 17 January, in order to order and obtain extra lighting and/or persuade Endeavour Energy to come to fix the light the following day (18 January 2017) in order for the plaintiff to be able to cycle safely on 19 January 2017.

[14]

The relevant statutory provisions

The relevant provisions are as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence - (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 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. 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."
As to obvious risk, the defendant also relies upon 5G, in that riding a bicycle through an obviously not properly illuminated pathway with a light pointing downwards and not illuminating the path ahead created the s 5F "obvious risk", as the plaintiff could have ridden into any number of obstacles in those circumstances and not necessarily the precise risk that occurred on the night in question.
In general terms, s 5B requires the plaintiff to establish whether in the face of a risk of harm that was foreseeable and not insignificant, a reasonable person in the defendant's position would have taken precautions, including having regard to the matters set out in s 5B(2). Section 5B provides a defence to the effect that the precautions against the risk of harm are not required to be taken unless the risk was foreseeable and not insignificant, and the precautions should be taken only were reasonable person in the defendant's position would have done so.
The first question is to identify the duty of care owed to the plaintiff. Once that has been established, the question is then a proper identification of the risk of harm which is asserted to have materialised. It is after these two issues have been determined that the provisions of the Act in relation to the defences operate.

[15]

Foreseeability

The plaintiff must prove that the risk of harm was foreseeable to the defendant.
Mr Hickey submits that the idea that a construction company such as the defendant would place barricades in an area previously used as a thoroughfare without first properly determining what the lighting circumstances were (and, for that matter, what other potential problems, such as inclement weather) "seems almost absurd" (submissions, paragraph 66); this is a case which "overwhelmingly satisfies" the requirements of s 5B of the Act. He submitted that, on the day that the barricades were put up, the defendant's staff should have checked that the site was properly lit and that the streetlights were working. This meant that they would have had to carry out such an inspection immediately on that same night or the following night (18 January 2017) because the plaintiff's injury occurred on 19 January 2017.
Mr Gambi submits that foreseeability under the Act requires either actual knowledge of the risk of harm or constructive knowledge. There was nothing in the two reports (and in particular in the report dated 12 January 2017) to indicate that one of the street lights near this site was not working. He submits that the defendant was entitled to assume that the streetlights, an essential part of every streetscape, were operational when they constructed the barricades as part of the site work which was set out in the reports which had been provided. This was not a case where there had been a blackout; there still was lighting in the street, although as a reduced level. As to foreseeability in relation to the reduced lighting, Mr Gambi submitted that the defendant was entitled to assume that motorists and cyclists travelling at night would be using properly operational and fitted lights which would have provided more illumination. Another factor in relation to foreseeability was that the reports commissioned had confirmed that pedestrian and cycling activities in this area were minimal.
It is acknowledged that, if the streetlight had been working, there would have been sufficient lighting. Just as importantly, this was not a case where there was a total blackout; the lighting was poor, but it was still possible to see, according to the plaintiff's son. The plaintiff himself said that when he travelled down this road the week before he had had no difficulty and had not observed additional darkness; while I regard this as indicating the street light was still working, if I have erred in this regard, then it is an indication of the relatively subtle impact of one streetlight not working would have. This was not a straightforward case of Stygian darkness requiring immediate action but a situation where one of two streetlights was not working and where the impact of that light not working may not have been immediately apparent. In those circumstances, I cannot be satisfied that the alleged risk of harm was foreseeable to the defendant.
The plaintiff had therefore failed to satisfy the first limb of s 5B(1) of the Act.
In the event that I have erred in this finding, I have made findings in relation to the remainder of the issues for determination.

[16]

Not insignificant risk of harm

The term "not insignificant" is to be judged objectively by examination of the person in the defendant's position, in prospect and not in retrospect: Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292 at [100]-[104].
Mr Hickey argues that hindsight can play no part in relation to the defendant's responsibilities, which were imposed upon it by its terms of engagement in relation to the provision of appropriate hazard control in the area in which construction was to be undertaken in general, and in relation to the barricades in particular. He submits that there is "no evidence the defendant undertook any risk assessment in connection with how the construction work may affect the vehicular, bicycle or pedestrians traversing the area after dark or during inclement weather" (submissions, paragraph 69).
This is not correct. First, the defendant was one of a number of organisations participating in this work, and the defendant's work needs to be seen in context with risk management for the whole project. Second, the Traffic Management Plan commissioned by the defendant with Allroad Alliance specifically considered the risks in relation to "a safe work area for the construction: and for "various traffic management techniques such as portable traffic signals and road closures" (CB 735). The defendant was entitled to rely upon that plan, which makes no mention of the need for further or other lighting needing to be used, and also upon the Safe Work Method Statement for Traffic Control dated 8 November 2016 (CB 1150 - 1166). Third, if these experts were looking at the between November and January for the purpose of all these reports, it is more likely than not that someone would have been in attendance at night as well as during the day, given the wide range of signage and lighting issues covered in the report, in which case, if they did not notice one of the street lights was not working, the likelihood was that the street light in question was still operational at that time.
The obstacle into which the plaintiff collided with a large and long series of brightly coloured orange barricades of the kind commonly used in roadwork or building work. They are designed to be seen and were constructed conformably with the recommendations in the reports.
The defendant was not responsible for the failure of one of the lights operating from the street lights. It is conceded by the plaintiff that if the overhead light had been fully operational at the time of the incident, then he should have seen the barricades in time to avoid them (Exhibit X). The questions are whether the defendant should have provided extra lighting in addition to the light coming from the remaining streetlight, which was still operating and whether, in circumstances where there was greater than usual darkness as a result, the relevant risk of harm was foreseeable and not insignificant. Mr Hickey submits that the risk of harm of obstructing a thoroughfare is "so patent" as to be obvious (submissions, paragraph 70).
In such circumstances, the plaintiff has failed to establish that the risk of harm was not insignificant.

[18]

Obvious risk

In Sutherland Shire Council v Henshaw [2004] NSWCA 386 at [88] Bryson JA stated: "88 The concept of an obvious risk is very elusive. What is obvious depends first on what the risk physically is. What is obvious also depends greatly on physical conditions: night, day, fog, driving rain; and on what the pedestrian is doing, which may or may not be reasonable, or sensible: walking, running for a bus, chasing a toddler, jogging, running from the police, carrying an armload of goods, dodging a bicycle, responding to a noise which could indicate a danger, marching in step in a procession: and on characteristics of the pedestrian: infant, aged, sober, drunk, blind, lame. The pedestrian might be blind outside a Blind Institution where obviously there are many blind pedestrians, and might be drunk outside a hotel."
The relevant factors to take into account when determining "obvious risk" are in Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234; (2005) 214 ALR 452; (2005) 79 ALJR 904; (2005) Aust Torts Reports 81-795; [2005] HCA 19 at [36] and [37]: "[36] The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community's standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings. [37] The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration."
In Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754; [2004] NSWCA 247 at [161], the Court stated that a danger is obvious where both the condition and the risk are, in the individual circumstances of the case, apparent to, and would be recognised by, a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment.
A number of cases dealing with obvious risk claims relate to the visibility of a risk that can be seen during the day but not at night: 1. In Temora Shire Council v Stein (2004) 134 LGERA 407; [2004] NSWCA 236, the plaintiff who was aware of a race driveway (and in fact previously tripped on it), knowing it was very dangerous, tripped and fell while using the pathway at night. An expert report noted that there would have been little illumination of the site, but this report was rejected by the Court of Appeal for a number of reasons, including a failure to take into account a light pole on the other side of the street. 2. In Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364, the plaintiff was walking on a stairway at night which was illuminated at the commencement of the stairs by light from the car park, but not in the middle. Caution must be exercised when considering the observations in this judgment as obvious risk was not pleaded. 3. In Sibraa v Brown [2012] NSWCA 328, the plaintiff tripped over wire mesh on her neighbour's lawn which was visible during the day but not at night, as there were no lights in the backyard. Campbell JA, in the course of setting aside judgment for the plaintiff at first instance, referred to other occupiers' liability cases where a person had been injured at night by falling over obstacles which would be visible during the day (in Jaenke v Hinton [1995] QCA 484, the plaintiff had a torch but it was insufficient light). Caution must be exercised in this regard as these are occupier's liability cases.
The question is whether it has been shown that a reasonable person in the defendant's position would have foreseen that the non-functioning light pole involved such a risk of injury to pedestrians and cyclists of normal physical capacity using the path at night, and exercising reasonable care for their own safety, that such a reasonable person would have taken remedial action prior to the accident. She continued to move forward because she knew there was a light at the top of the stairs, and fell as a result. Caution must be exercised, however, in relation to this decision, as the defence of obvious risk was not raised.
When considering what the plaintiff should have done when confronted by a stretch of road which was darker than usual because one of the streetlights was not working, I should take into account the "natural human inclination to minimize effort" (Stojan (No 9) Pty Ltd v Kenway at [150]) in continuing when encountering the risk, as well as the possibility that a person arriving at the dark part of the path could be at some risk going back (Stojan (No 9) Pty Ltd v Kenway at [150]).
These were large and brightly-coloured barricades which would have been visible if the plaintiff had a proper bicycle light.

[19]

Causation

The relevant test for causation is set out in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najam (2009) 239 CLR 420 at [41]: "The first point to make about the question of causation is that, in these cases, it is governed by the Civil Liability Act."
The Court also stated at [44]: "It is not necessary to examine whether or to what extent the approach to causation described in March v Stramare might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied."
As Mr Gambi sets out in his written submissions at paragraph 152, the "particular harm" must be identified so as to ask whether it was caused by the breach of duty (s 5D(1)(a) requires the plaintiff to establish that the breach of duty was a necessary occurrence of the injury). The test is the "but for" test: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najam at [55].
The plaintiff submits that if a finding of breach of duty is made, the factual causation between the breach and the accident is "clear and unequivocal" (submissions, paragraph 75). This is because the plaintiff does not accept the defendant's arguments that fluorescent strips or other markings would not have made a difference. The plaintiff and his son had travelled over this area many times without incident and the only reason the plaintiff did not do so on the night in question was because the lighting was insufficient for the plaintiff to see the barricade placed in what would have been his path.
Mr Gambi submits that, if a finding of breach of duty were made, such a finding could not be causative of the plaintiff's injury. This was because the real cause of the accident was a combination of one of the street lights not working (in circumstances where the defendant neither knew about, nor was responsible for, this failure) with the plaintiff's own actions in not using a properly adjusted bicycle light to ensure maximum range of illumination ahead. The failure to operate the bicycle light and adjust it properly was a failure for which the plaintiff was solely responsible.
Both experts set out, in their report and in the Conclave, their extensive experience riding bicycles at night and the degree of lighting necessary. The plaintiff's own evidence was that the bicycle light he used was of little assistance. He had it turned down so that he could see potholes and in those circumstances, even if there had been fluorescent strips, he would have been unlikely to see them until too late, as he could only see about a metre in front of the bicycle's front wheel; the plaintiff told the court that he was looking down for potholes in any event (T 107, 117).
Taking all of the above into account, even if there had been a breach of duty (which I note that I have not made), any such finding could not be causative of the plaintiff's injury.

[21]

The limitation issue

The accident occurred "on or about 19 January 2017" according to the statement of claim filed on 24 February 2021. The limitation period is three years, and the statement of claim was thus filed approximately 13 months out of time.
Personal injury actions fall under Part 2 Division 6 of the Limitation Act 1969 (NSW). The relevant sections are ss 50C and 50D, which provide: "50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire - (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts - (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased."
A cause of action is discoverable by the plaintiff on the first date that he or she knows or ought to know that injury (or death) has occurred, that the cause was the fault of the defendant and that the injury was sufficiently serious to justify the bringing of an action.
The correct test to apply to the question of when a plaintiff "ought to know" has been comprehensively discussed in Best v Rosamund [2020] NSWCA 90 and Pomare v White [2019] NSWCA 317, with the principles set out in Baker-Morrison v State of New South Wales [2009] NSWCA 35 were explained and applied. Essentially, the cause of action is "discoverable" for the purposes of s 50C if the relevant person has either actual knowledge of specific facts or alternatively "constructive knowledge" which allows a finding based on what the plaintiff would have discovered if he had taken all reasonable steps to ascertain the fact (Pomare v White at [57]). As Basten JA states in Baker-Morrison at [25], both limbs require giving content to the concept of "knowledge" and each of the relevant "facts" (I note the further explanation of "fact" at [27] and "fault" at [28]).
In Baker-Morrison, as here, the plaintiff had sought legal advice very soon after the injury, but the complexity of the issue about which she would have required to have knowledge was considerable. Basten JA noted at [40]: "40 The exercise undertaken by the State in the present case fell far short of demonstrating that the plaintiff's mother knew, at the relevant time, of any steps which could and should reasonably have been taken by the occupier of the premises to render the sliding door safe. The primary particular of negligence on the statement of claim was a failure to provide "a protective guard or covering along the area of operation of the … sliding glass doors". Until the plaintiff's mother was aware (or ought to have been aware) of the availability and reasonable practicability of installation of such a device, she could not be said to be aware that her daughter's injury was caused by a failure on the part of the State to take reasonable care for her safety. These are the terms in which the relevant test under s 50D(1)(b) should be formulated."
BastenJA also noted the requirements for solicitors to satisfy themselves that there was a bona fide action: "43 It is also appropriate that s 50D be read in a broader context. Thus, a claim for damages for personal injury, brought by a solicitor, must be accompanied by certification in accordance with the Legal Profession Act 2004 (NSW), s 347. The statement of claim in the present case bore such a certification which read: "I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success." 44 A further element of the broader legal context is that, for a person such as the plaintiff under legal incapacity, proceedings may not be commenced except by a tutor; nor may the tutor commence proceedings except by a solicitor: UCPR, r 7.14. To the extent that par (c) requires an assessment of the seriousness of injury sufficient to justify the bringing of proceedings, coherence with the broader statutory framework requires that the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made."
The question of what should be done in circumstances where the objective test for "ought to know" can be satisfied may often be sufficiently answered where the plaintiff has sought legal advice. Basten JA stated at [57] - [60]: "57 The next question was whether the plaintiff's mother ought to have known each of the facts identified in sub-s 50D(1). The answer to that question must depend upon the effect of sub-s (2). It purports to provide a definition of what is covered by the phrase "ought to know". That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken. 58 In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking "all reasonable steps". (In some circumstances there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion: no such question arose in the present case.) 59 The phrase "ought to have known" can mean either that the person should have inquired as to a fact (the active sense) or that he or she should have been told of the fact (the passive sense). In this context, 'should' connotes a culpable omission, either by the person who should have known, or by the other person who should have supplied advice or information. If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather, the expression "ought to know" was identified by reference only to what the putative plaintiff "would" have found out, if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only. Further, the word "would" (rather than "should") is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice. 60 It was not suggested that, in the 26 day period after the accident, the plaintiff's mother should reasonably have taken any step which she did not take. Accordingly, unless the plaintiff's mother in fact had the relevant knowledge, the defence must fail."
This is particularly the case where the legal adviser has taken steps to find the necessary information. Mr Wilkinson advised the plaintiff that the preliminary discovery application was necessary "in order to discover if they are the most appropriate entity to commence proceedings against" (Exhibit D, letter dated 29 August 2018).
The first question is when the discoverability period begins. The following factors are relevant: 1. The plaintiff agreed that he knew full well, very soon after the incident, that he had hit something and had an accident (T 115), and he took photographs of the scene and of his helmet (T 115). 2. The plaintiff knew he had suffered an injury at the time (T 139) and sought medical advice 10 days after the accident. He discussed the fact that he was going to bring a claim with his doctors from including Dr Park, whom he saw approximately within one month of the incident, and who told him that the circumstances of the accident sounded "like a liability claim" (T 140). 3. Even before the plaintiff consulted lawyers, which he did very soon after the accident, he was already aware that the party responsible for the construction work was the defendant and was aware of its corporate name (T 139). He knew that it would be the construction company responsible for putting up the barricades and doing the roadworks who would be responsible (T 139), and he knew the correct corporate identity to be sued (T 139). In his own mind, he was satisfied that the party was responsible for his accident was the defendant (T 140). 4. The plaintiff also knew that the accident happened because there was insufficient lighting the to warn him of the barricades (T 139 - 140). He notified the defendant by telephone several days or a week after his 29 January 2017 visit to the hospital, when he "told them that I'd smacked into the barricades and that there's no light there" (T 138). He agreed that he had telephoned the defendant because he blamed them for causing the accident. 5. He was sufficiently familiar with the concept of commencing legal proceedings to know that if proceedings were to be commenced there would be commenced against the defendant (T 140).
The question was whether the plaintiff also needed to know that he needed an expert report to tell him whether or not there was a liability case against the defendant. He said in examination-in-chief: "Q. You retained solicitors, initially, in this matter, a firm of Adams and Partners, is that correct? A. That's correct. Q. They, on your behalf, I think, contacted the defendant in these proceedings, do you know? A. Yes. Q. How long after the accident was it that you retained the lawyers? A. Well, they - I didn't retain the lawyers; they were always my lawyers, and I was in active talks, still, with them. And it was mentioned to John when I was speaking to them, John Isaacson, what had happened. So it's not like I sought a solicitor straightaway: it was, like, they were doing my family law, they've done a previous worker's comp. So, yeah, they're family lawyers. Q. So you were seeing them for the purposes of your family law as at around the time of the accident, is that correct? A. That's correct. Q. Ultimately, you consulted them in connection with this accident? A. Yes. Q. After consulting them, I think that you saw them and they provided you, effectively, with a letter outlining what may or may not have been your rights in connection with the accident A. Mm hmm. Q. and some of the things that would need to be done before they could provide you with advice; is that correct? A. Yes." (T 54 line 46 - T 55 line 25)
The plaintiff agreed that letter asked him to provide some money for the purpose of obtaining expert advice: "Q. When you read that letter, you understood that you were being asked to provide them with some money? A. That's correct. Q. What was the purpose of that money? A. To get some expert advice. Q. They gave you some advice in connection with whether or not you ought commence without the expert advice. Is that correct? A. Yes. MFI #4 LETTER DATED 12/05/20 Q. At any time during the course of your retainer of Adams and Partners in connection with this case, did they ever give you any advice that you want proceed on the matter without obtaining the appropriate expert and other evidence? A. I - sorry? Q. At any time during the time that you retained Adams and partners A. Mm. Q. in terms of this accident, did they ever tell you that you could proceed without expert evidence? A. No, they didn't." (T 56 line 5 - 29)
The plaintiff later consulted new solicitors: "Q. You ultimately went to see Mr O'Hare, is your current solicitor. Is that correct? A. That's correct. Q. At that time, did he provide you with advice as to whether or not he thought you had a viable claim? A. He said he'd have to get the expert advice. Q. After getting the expert advice, I think proceedings were commenced. Is that correct? A. Yes. That's correct. Q. In terms of since you've been with lawyers, you've tended to rely you have relied upon the advice during the course of your retainer of those lawyers? A. Yes. Q. Do you have any particular knowledge of law over and above being involved in a family law case and having had a workers comp case? A. No." (T 56 line 36 - T 57 line 5)
Mr Gambi asked at T 139: "Q. And when you went to speak to Adams Partners Lawyers, you were already aware, were you not, that the party responsible for the construction works was the defendant, JK Williams Contracting Pty Limited? A. Yeah. Q. And if anyone was going to be liable for your accident, it would be the construction company responsible for putting up the barricades and doing the roadworks. Correct? A. Correct, yeah, I suppose. Yes. Q. You didn't need to be told anything else, I want to suggest to you, as at 1 February 2017, that you needed you needed an expert report to tell you whether or not there was a liability case against the defendant. You already knew that, didn't you? A. No. Q. Why not? A. I'm not a lawyer. Q. Well, you don't have to be a lawyer. You knew who was responsible for the roadworks and the barricades. A. Fair call." (lines 23 - 44)
Given all these activities by the plaintiff himself, I am satisfied that the discoverability period commenced shortly after the accident, but that the plaintiff falls within the parameters of Baker-Morrison in that he put all of these matters into the hands of a solicitor.
I am satisfied that, conformably with Baker-Morrison at [58], the plaintiff not only took the step of instructing a solicitor but also provided full instructions, including documentation. The plaintiff having taken all reasonable steps, the limitation argument must fail.

[22]

Reasons for refusal for leave to amend

On the first day of the hearing, the defendant sought leave to amend statement of claim to rely upon a defence under section 5L of the CLA, on the basis that the plaintiff was engaged in a "dangerous recreational activity". Contrary to the requirements of Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, no explanation was offered for the delay in bringing the application, other than the counsel had been briefed very late. The application was opposed by Mr Hickey, who submitted that not only would it cause actual prejudice to his client but it would probably require the adjournment of the hearing in order to lead evidence in reply, as well as causing the hearing to exceed the time previously allotted.
I was not provided with any authority as to whether riding a bicycle at night (whether with adequate lighting or not), as opposed to, for example, competitive bike racing, amounted to a "dangerous recreational activity". I note that in Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682, where the plaintiff was participating in a charity bike ride and her bicycle wheels became stuck in a gap between planks on the bridge, a defence under s 5L not only failed but was not even raised on appeal.
Mr Gambi's submissions consisted of asking me rhetorically whether there could be any doubt that riding a bicycle is a sport as well as a recreational activity (T 10). If so, the mere addition of some act of dangerous nature, such as having the bicycle lamp turned down, was sufficient to transform the act of riding a bicycle into a dangerous recreational activity.
The concept of what amounts to a "dangerous recreational activity" was most recently referred to in Cox v Mid-Coast Council [2021] NSWCA 190, where the activity in question was flying a light plane. The court noted at [16] that horse riding might be considered a dangerous recreational activity, and that the challenge to the finding that the plaintiff was engaged in dangerous recreational activity for the purposes of s 5L was no longer pressed. Quad bike riding has also been deemed to be a dangerous recreational activity: Alameddine v Glenn Worth Valley Horseriding Pty Ltd [2015] NSWCA 219. However, as the Court of Appeal noted in Cox, there does need to be some flavour of dangerousness inherent in the activity for the activity in question to fall within the parameters of s 5L, which must be construed as having a specific role to play as opposed to the more general provisions of the CLA. Otherwise, activity such as driving a motor vehicle (especially a vintage motor vehicle), any activity on a holiday or going on a bushwalk would all arguably be caught.
The principal reason for rejection of the application for leave to amend is its timing. In Aon Risk Services Australia Limited v Australian National University, the majority judgment stated, at [99]-[102]: "99 In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun, which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh. 100 The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corp Aust French J said of Bowen LJ's statements in Cropper v Smith: "… That may well have been so at one time, but it is no longer true today … Non‑compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary." 101 In Ketteman Lord Griffiths recognised, as did the plurality in J L Holdings, that personal litigants are likely to feel the strain more than business corporations or commercial persons. So much may be accepted. But it should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effects upon its ability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court Procedures Rules, of minimising delay, may be taken to recognise the ill‑effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings. 102 The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill‑effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment." Footnote omitted
The definition of a "satisfactory explanation" is given at [103]: "The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case."
The following observations were made at [106]: "Given the requirements of the Rule and the effects associated with delay, it was incumbent upon ANU to tender an explanation as to why the matter had been allowed to proceed to trial in its existing form. It needed to explain why it was seeking leave to amend at the time of the trial, when the two insurer's defences had identified the issue central to the claim it sought to bring against Aon more than 12 months earlier. None was given. His Honour was in error in accepting that ANU had provided a satisfactory explanation. The statements made by counsel foreshadowing leave to amend were not evidence. The ANU's solicitor's later affidavit did not support them. In addition to the defences, the letters written by Chubb in 2003 showed that ANU was told of the importance of the valuation of the property to the insurers long before the receipt of more recent documentation. ANU's solicitor did not suggest that the defences, raising the same matter in connection with the misrepresentations, were misunderstood in their potential relevance to Aon. He did not say that ANU was first alerted to Aon's possible involvement as a result of what was said in mediation."
Mr Hickey, drawing my attention to ss 56-58 of Civil Procedure Act 2005 (NSW), stated that his client was in no position to meet any such claim. The prejudice would be considerable, and there may well be a need for further reports from the liability experts.
For the above reasons, I refused the defendant's application for leave to amend the defence.

[23]

Contributory negligence

Bicycle riders are incorporated into the Road Rules 2014 (NSW) by reason of the provision that a "driver" can also include a "rider". Rule 17 specifically refers to bicycles, as does the Dictionary and Rule 19 provides: "19 References to driver includes rider etc Unless otherwise expressly stated in these Rules, each reference in these Rules (except in this Division) to a driver includes a reference to a rider, and each reference in these Rules (except in this Division) to driving includes a reference to riding."
The obligation to drive (or ride) as near as is practicable to the far left side is set out in Rule 129: "129 Keeping to the far left side of a road (1) A driver on a road (except a multi-lane road) must drive as near as practicable to the far left side of the road. Maximum penalty - 20 penalty units."
In addition, pursuant to Rule 131, a driver (or rider) must drive to the left of any oncoming vehicle: "131 Keeping to the left of oncoming vehicles (1) A driver must drive to the left of any oncoming vehicle unless - (a) the driver is turning right at an intersection, and (b) the driver is passing an oncoming vehicle turning right at the intersection, and (c) there is no traffic sign or road marking indicating that the driver must pass to the left of the oncoming vehicle. Maximum penalty - 20 penalty units."
While I note that Rule 131(1) does not apply if the rider is riding on a footpath or nature strip, the plaintiff was still on the wrong side of the road.
In addition, the plaintiff, after crossing the intersection and coming onto the grass verge while accompanied by his son, was in breach of Rule 250(1)(a): "250 Riding on a footpath or shared path (1) The rider of a bicycle who is 16 years old or older must not ride on a footpath unless - (a) if the rider is an adult - the rider is accompanying a child under 16 years of age who is riding on the footpath and the child is under the rider's supervision, or (b) if the rider is not an adult - the rider is accompanying a child under 16 years of age who is riding on the footpath under the supervision of an adult and the rider is also under the supervision of the adult, or (c) the rider is a postal worker who is riding the bicycle in the course of his or her duties as a postal worker, or (d) the rider is carrying a person who is under 10 years old as a passenger on the bicycle or in or on a bicycle trailer towed by the bicycle and the bicycle is not a pedicab. Maximum penalty - 20 penalty units."
These are, however, minor matters which of themselves would not demonstrate contributory negligence. It is the provision requiring lighting (in the form of a flashing or steady white light clearly visible for 200 metres) that gives rise to issues of contributory negligence in these proceedings. The Rule is as follows: "259 Riding at night The rider of a bicycle must not ride at night, or in hazardous weather conditions causing reduced visibility, unless the bicycle, or the rider, displays - (a) a flashing or steady white light that is clearly visible for at least 200 metres from the front of the bicycle, and (b) a flashing or steady red light that is clearly visible for at least 200 metres from the rear of the bicycle, and (c) a red reflector that is clearly visible for at least 50 metres from the rear of the bicycle when light is projected onto it by a vehicle's headlight on low-beam. Maximum penalty - 20 penalty units."
The plaintiff's bicycle lamp, which was not properly fitted, in that it was turned down, and which only illuminated about one metre in front of his bicycle, was completely inadequate. Not only was it unlikely to have made the plaintiff clearly visible for 200 metres, but it also failed to provide any proper light for the plaintiff to assist him in riding along his chosen path; instead, as the plaintiff acknowledged, the bicycle light was "only a guide" (T 112).
Those who ride bicycles at night are required to exercise reasonable care, especially where they are cycling along dark streets without adequate illumination from street lights. The plaintiff was riding with his light focussed down because of potholes, which meant that he had no forward vision. Had his light been focussed on the path ahead, he would have seen the orange barricades.
Mr Gambi also relies upon the evidence that the plaintiff riding quickly downhill in circumstances where there was a need to slow down or stop at the intersection. This is in fact contrary to the evidence of the plaintiff's son, who said that the two of them had stopped at the intersection for a few of the sections of the road, in order to check for traffic and to see if it was safe to proceed, given that it was darker than usual. I accept Mr Gambi's submission that, on the evidence of the plaintiff's son, there would have been time to notice not only the construction work but also the large orange barricades.
There was expert evidence on the issue of contributory negligence. In the conclave, Mr Smith considered that the bicycle light was sufficient light for the plaintiff to see the barrier (page 2 of the 22 February 2022 conclave), but this opinion must be read in light of the agreed position that, if the streetlight had been working, the plaintiff would have been able to see the barricade.
The circumstances of the accident were therefore very materially contributed to by the plaintiff's own conduct. If I had found for the plaintiff, I would have accepted Mr Gambi's assessment of 50% contributory negligence.

[24]

Quantum

In the event that I have erred in relation to my findings on liability, I set out the relevant submissions on quantum and alternate findings on damages.
The plaintiff has provided the following schedule of damages: Non-Economic Loss The plaintiff claims 33% pursuant to section 16 of the Civil Liability Act 2002. $229,000.00 2. Past Treatment Expenses (a) Medicare $3,093.05 3. Future Treatment Expenses a. 20 psychological treatment consultations at a cost of $250 per session ($5,000). b. 6 sessions with a psychiatrist at a cost of $350 per session ($2,100). c. Further assessment by an Ophthalmologist (say $400). d. Use of complex prisms incorporated into the spectacles or patching regime (say $1,000). e. Regular physiotherapy (say $1,000). f. Pain relief long term at a cost of $30 a month ($5,994.69). g. Consult with General Practitioner one to three times a year for review and planning at a cost of $100 a visit ($3,330.38). h. Exercise physiology program attending twice a week over ten weeks at a cost of $2,000. i. Consult with Orthopaedic Surgeon for review at a cost of $750. j. Shoulder surgery for an arthroscopy, possibly debridement and likely repair at a cost of $7,500 to $12,000. k. Course of physiotherapy after surgery to restore functional capacity at a cost of $1,000. l. Further specialist review of his possible brain injury at a cost of $2,000. m. Number of tests including an in-depth neuropsychological assessment at a cost of $4,000. n. Course of occupational and physiotherapy directed rehabilitation on his vestibular symptoms, his visual systems, and his ongoing nausea, with a course of rehabilitation at a cost of $3,000. o. Occupational Therapist assessment of his residual reduced capacity and ongoing restrictions for advice on strategies to maximise functional capacity in future to limit future disability at a cost of $2,000. $41,075.07 4. Past Domestic Assistance Period 1: 12.5 hrs per week x 2 weeks x $30.15 = $753.75 Period 2: 12 hrs per week x 13 weeks x $30.15 = $4,703.40 Period 3: 8.50 hrs per week x 251 weeks x $30.15 = $64,325.03 Total: $69,782.18 4 5. Future Domestic Assistance The OT report of Ms Owen (JC be page 254) opines a need for future domestic assistance provided on a Commercial basis at a rate of seven hours per week. Currently, assistance is being provided on a gratuitous basis by the Plaintiff's father and his son. Current arrangements are likely to continue to time. However, the plaintiff's father is currently 79 years of age whilst his son is completing his HSC. The reality of the situation is that ultimately the Plaintiff required to obtain assistance from someone other than his father or his son. The plaintiff claims future commercial assistance at a rate of $55 per hour x 4 hours per week deferred for five years. $149,350.00 TOTAL $492,300.12"
The defendant also provided a schedule of damages, details of which are referred to in the discussion of the heads of damage set out below.

[25]

Non-economic loss

The plaintiff was cross-examined at some length about his injuries and disabilities. He has particularised the following continuing disabilities: "PARTICULARS OF CONTINUING DISABILITIES 1. Double and blurred vision. 2. Nerve Palsy. 3. Post-traumatic hearing loss. 4. Vestibular disturbance. 5. Tinnitus. 6. Vertigo. 7. Chronic adjustment disorder. 8. Chronic pain syndrome. 9. Traumatic brain injury. 10. Injury to right shoulder. 11. Injury to cervical spine. PARTICULARS OF CONTINUING DISABILITIES 1. Difficult to physically care for himself such as finding it difficult to bend and put socks on. 2. Wears thongs so he does not need to bend. 3. Eats easy meals and take-away or his father will normally prepare food. 4. Missing meals. 5. Not showering regularly. 6. Does not pay a lot of attention to himself and does not care for himself well. 7. Forgetful. 8. Cannot complete tasks. 9. Loses interest when watching movies and videos. 10. Cannot follow instructions well and he does not have the patience to be able to follow through and complete paperwork given to him. 11. No longer likes to go boating or fishing. 12. No longer interacts with friends and there are some mates he dos does not see any longer. 13. Difficult to work and sustain employment. 14. Low mood. 15. Concussion. 16. Ringing in the ears. 17. Balance problems. 18. Glare sensitivity. 19. Double vision. 20. Vomiting. 21. Nausea. 22. Severe imbalance. 23. Unable to sleep due to the severity of the tinnitus only managing 2 to 3 hours per night with sedatives. 24. Insomnia. 25. Chronic right shoulder pain. 26. Chronic cervical pain. 27. Limits driving to short distances to take his son to school and occasionally he drives to the Doctors. 28. Reliance on family for domestic duties"
The first issue for determination is the unravelling of the causation skein in relation to the plaintiff's considerable health issues. The plaintiff at the time of the accident and for some time beforehand had provided medical certificates to authorities concerning his inability to work, was receiving medical treatment which included pain medication and had ongoing depression and other mental health issues for reasons relating to other events in his life.

[26]

The plaintiff's medical conditions before the accident and their relationship to his subsequent injuries

A number of the doctors who provided reports noted the plaintiff's long history of physical and psychological ailments and, in particular a work injury and motor vehicle injury of some seriousness.
The plaintiff's medical history stretches back for about twenty years. He injured his lower back working for Sydney Water in 2000 which aggravated the L3/4 intervertebral disc (Exhibit 2, p. 4) and a CT scan showed significant disc protrusions. He underwent a left L4/5 and L5/S1 decompression, laminectomy and neurolysis on 25 January 2012 (Exhibit 2, p. 28). The operation does not appear to have been successful in that he told Dr Coffey the following year that "things have not gone terribly well"; Dr Coffey describes him as having come complaint of whole-leg pain, weakness and giving way, and that the foot drop had become worse (Exhibit 2 p. 5). This was still a problem in 2021 when Dr Coffey reviewed him on 9 September. The plaintiff was still complaining of residual weakness in the left leg and there was still a mild foot drop. Osteoarthritis of the left knee was also present. An MRI demonstrated moderate degenerative changes in the right knee as well as a degenerative medial meniscal tear with subluxation & bone oedema over the anterior medial aspect of the tibiofemoral joint (Exhibit 2, p. 8).
In his report dated 12 February 2013 to the plaintiff's general practitioner, Dr Saha, Dr Coffey went on to say: "Mr Horton has a long and complicated history relating to a workplace injury back in the year 2000. At that time he was a contracting water board worker doing metered checks. He fell over a fence sustaining an injury to his back and left knee. He tore his hamstring as well as a number of other injuries to the back and was left with persistent radicular leg pain always on the left side. Over a number of years he apparently developed a foot drop affecting the left foot and put up with this for a period of six years until he was subsequently and eventually seen by a spinal surgeon, Dr New, in 2011. At that time he apparently had a slight foot drop and there was evidence of disc protrusion and pressure on descending nerve roots." (Exhibit 2, p. 5)
It is in this context that Dr Coffey reports the plaintiff describing whole of leg pain with the foot drop being worse, noting that the plaintiff took weight on the right leg where possible. He goes on to describe how a brace for the knee and foot drop were approved and fitted, and that other treatments had included Lyrica and an appointment with a pain specialist. A follow-up report dated 7 March 2013 described prognosis with arthroscopy of the plaintiff's knee as extremely guarded, given his current presentation.
Prior to the accident, the plaintiff was undergoing a great deal of medical treatment. As late as 2015, he was still being issued with a WorkCover certificate in relation to his injury in 2000, which contained restrictions (CB 408) such as his inability to drive for longer than 30 to 50 minutes. His common-law claim in relation to the 2000 injury settled in July 2015. Over this period the plaintiff had been prescribed a wide range of drugs including tramadol, Lexapro, OxyContin, Serepax and Lyrica. Prescriptions for Endone and Tramadol from his general practitioner were written in October, November and December 2015 (Exhibit 1, p. 6). He was also prescribed Stemzine and Tamaze in 2016 (Exhibit 1, p 9) as well as further courses of Endone and Tramal.
The plaintiff's health problems had significant impacts on his day-to-day activities. Dr Saha filled out a mobility parking scheme application form on 14 October 2016, relying upon "severe low back pain" which was not temporary in order to fulfil the necessary prerequisites for the scheme. Dr Saha also completed a Centrelink medical certificate listing all of the plaintiff's back problems, including low back and left leg pain. The plaintiff was certified unfit for 12 months from 1 November 2016 to 1 November 2017 (CB 462). Coincidentally, this covered the period during which the plaintiff's accident occurred. As at November 2016 the plaintiff was limping and required a referral to an orthopaedic surgeon.
Dr Saha filled out another Centrelink medical certificate on 27 April 2018, but it is of significance that the injuries to which he referred in the previous certificate are set out once again. The additional symptoms of double vision secondary to a traumatic head injury in January 2017 was added, which suggests that Dr Saha considered this was the only injury of concern arising from this event. The plaintiff was again certified unfit for 12 months.
Dr Saha filled out an NDIS form on 17 February 2020 identifying the plaintiff's primary impairment as being chronic low back pain, but referring to the head injury following the pushbike accident as another impairment, together with an impairment said to be "left shoulder pain" (CB 471).

[33]

Orthopaedic and neurological issues: Right knee, back and left shoulder

Dr Coffey's report of 9 September 2021 sets out that, after his fall from the bike, he had had a significant progression of right knee symptoms with established degeneration and a moderate synovitis with effusion. He recommended a steroid injection and foreshadowed that an arthroscopy to bribe and might be necessary.
This was also noted to be the case after the injury by Dr Walker, a neurologist, in his report of 20 October 2021: "Mr Horton has always had many symptoms. When he was visiting the Hawkesbury Road family Medical Centre for instance in just a single year of 2014 he was already on Lyrica and Endo and for his chronic pain as well as Sarah packs for anxiety. He had lower back pain and knee pain and was on Lexapro at one stage for depression. He had insomnia, frequent headaches and pain in the left shoulder. He had erectile dysfunction and was involved with the rehabilitation specialist because of all these different issues." (CB 258)
The plaintiff also suffered a motor vehicle accident in which he injured his face and nose (CB 327) as well as suffering from whiplash. According to Prof Chin, the trauma to the plaintiff's face was severe. Prof Chin also refers to "a bad car accident many years ago which left him now with the permanent balance disorder as well as permanent hearing loss on the affected side" (CB: 459).
In conclusion, the medical reports demonstrate hearing, vision, balance, psychiatric and neurological issues, complicated by the exacerbation of prior physical injuries. The plaintiff had a slightly limping gait due to his knee pain according to Dr Walker which, combined with his visual problems, constituted real difficulties for the plaintiff. However, Dr Walker added: "neither of his ophthalmologists have provided an adequate explanation for his diplopia. The only vestibular function study that has been done was done seven years before the accident. The commonest cause of tentativeness, recurrent vertigo, and hearing loss is Meniere's syndrome which has nothing to do with head injuries."

[34]

Occupational therapist

An occupational therapist, Ms Owen, saw the plaintiff on 20 January 2021. Her report is unsatisfactory for the following reasons: 1. She describes the plaintiff (CB 237) as having suffered a neck injury, right shoulder injury, right knee injury, brain damage and post-traumatic stress disorder as a result of the accident (erroneously stated to be 10 January 2017). The sources for this information are the 16 reports set out at schedule 16 (CB 254 - 5). However, the occupational therapist does not appear to have appreciated that the plaintiff's physical condition prior to the accident was such that he had effectively ceased work; to the contrary, she states that he made a complete recovery from his injuries in 2000 and was "able to continue working, presenting with occasional discomfort in his lower back" (CB 240). She similarly states that he recovered from his lower back injury in 2013 (CB 241) and asserts, incorrectly, that the plaintiff has "no history of anxiety, depression or psychosis in the past" (CB 241). These are significant errors. 2. The occupational therapist asserts that these injuries impacted upon his capacity to manage tasks he had been able to perform independently prior to the accident, including mopping, vacuuming, bathroom cleaning, meal preparation, cooking, shopping, spring cleaning, garden maintenance, lawn mowing and driving for long distances. As is set out below, his evidence was that he was able to perform many of these tasks. 3. Ms Owen asserted that the plaintiff had had a significant weight gain which she attributed to the accident the subject of this claim (CB 238). No such claim has been particularised and there is no direct evidence of any weight gain, significant or otherwise, causally related to the accident. 4. Although the occupational therapist must have been aware that the plaintiff had been assessed by other occupational therapists for the purpose of his prior claims for injury, and advised to use a wide range of equipment, she neither checked to see that equipment had in fact been used nor explained how its use should be attributed to this accident as opposed to the previous accidents for which it had been recommended. The list of equipment and domestic assistance in question is quite extensive. Exhibit 2 at p. 64 refers not only to domestic services were cleaning two hours once a week as well as mowing and gardening services for one hour once a fortnight but also a toilet surround, a big stick, a clamp rail for the bath, shower stool and a long handle dustpan and broom. 5. Although the occupational therapist claims to have read the clinical notes from the plaintiff's general practitioner, she admitted to observe that the plaintiff's general practitioner, Dr Saha, recorded the plaintiff's need for lawn mowing assistance and domestic cooking help as being primarily due to his chronic low back pain, as well as his left shoulder pain (CB 450 - 451). These were pre-existing injuries.

[35]

The evidence of the plaintiff and his family

In cross examination the plaintiff conceded he was in fact able to perform many of the activities Ms Owen claimed he could not do: 1. He acknowledged that he was able to mop the floors, although he qualified this by saying that he did it in "small portions" (T 129). 2. He is able to vacuum, although he said that he needed to "manage that with tablets" (T 129). He is similarly able to manage the lounge room matt (T 130). 3. Although scrubbing the bathtub was not possible, he could still do some bathroom cleaning, such as cleaning the mirror, as long as it was on a level plane. It was only when he bent down that he had problems with dizziness and nausea (T 131). 4. He has no difficulty mowing the lawns using a ride-on mower. He claims the cost of this ride on mower, according to the occupational therapist report (CB 251). 5. Other family members, namely his father and his son, look after their own rooms and help out. 6. The plaintiff had taught his son how to cook (T 131) and said that he still cooked, although only once or twice a fortnight. 7. Although the plaintiff does not receive a carers pension, he provides some assistance to his father, such as making him a copy, but otherwise his father is self-sufficient (T 132). I note the occupational therapist claims that the plaintiff's father spends 8.5 hours a week assisting the plaintiff. What those tasks are have not been identified, although there is a reference at CB253 to the plaintiff's father driving him to medical appointments during the first 14 weeks of the plaintiff's recovery.
The plaintiff acknowledged that his difficulties in doing chores around the house arose from the back problem which had "always been there" (T 128) and his knee problems (T 128).
The occupational therapist also recommended assistance tools to assist the plaintiff performing certain tasks around the home. The plaintiff agreed that some had already been provided in relation to his earlier claims for compensation, and some had never been taken up despite earlier recommendations. The occupational therapist does not refer to any of the prior recommendations made for assistance of this kind, or identify what (if any) items previously recommended by other occupational therapists he had installed or found useful.
I particularly note: 1. Some equipment, such as a long handled dustpan and broom as well as a shower stool (T 136), had been provided to the plaintiff as part of compensation for his prior injuries. The plaintiff said the condition of these had "deteriorated". The occupational therapist does not refer to seeing these at all. 2. A recommendation arising out of these earlier awards of damages for placing a rail around the bath had never been carried out (T 134). 3. The plaintiff had previously been advised to get a bed stick but he no longer used it (T 134 - 5) and the toilet surround "didn't work out" (T 136). 4. The occupational therapist also recommended reimbursement for what she called additional costs for online shopping of mainland commonly used grocery items, such as some being $10 per shopping when spending under $100. 5. The occupational therapist also recommended a bath sponge because of problems with his legs, which are unrelated to the injuries the subject of this claim (T 136).
The plaintiff's son gave evidence about the degree of assistance his father required. He was an honest and open witness and I accept that he has been assisting his father, but he is also a teenager who is capable of a degree of self-care as well as having responsibilities for maintaining the home in a neat and tidy fashion.
The plaintiff's father also gave evidence about the degree of assistance the plaintiff required. He was similarly an honest and frank witness. He is clearly protective of his son and concerned for his welfare. In practical terms, where the plaintiff has made admissions about his ability to perform household tasks, I would prefer to rely upon those admissions.
The likelihood is that the plaintiff will continue to reside in the current premises owned by his father "indefinitely" (T 137), and he expects that his son will continue to live with him at that address until he finishes schooling and moves out to make a life of his own.

[36]

Conclusions as to non-economic loss

The onus lies on the defendant to identify a pre-existing condition which would have impaired the plaintiff's functioning pre- or post- injury: Watts v Rake (1960) 100 CLR 158; Purkiss v Crittenden [1965] 114 CLR 764. The defendant identifies the following health issues asserted to be unrelated to the accident: 1. Prescriptions from 29 January 2015 onwards for, inter alia, Endone, as well as WorkCover certificates for his injury in 2000, including unasserted driving ability of only 15 to 30 minutes (CB 408). The plaintiff's common law claim was settled on 20 July 2015 (CB 417). 2. Dr Saha's completion of a Centrelink medical certificate referring to multilevel lumbar disc bulges for which the plaintiff was certified unfit for the 12 month period from 1 November 2016 onwards, which would cover the date of the accident (CB 462). He also made an application for a mobility parking scheme permit on the basis of severe low back pain which was described as not being temporary. Dr Saha completed a further form to this effect in 2018 and 2020. The plaintiff still had chronic lower back pain as at November 2020, and was referred to a pain management specialist.
Pre-existing conditions or injuries of this kind must be taken into account by the court conformably with the approach set out by Ipp JA in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [100]: "100 The word "precision" used by Barwick CJ, Kitto and Taylor JJ must be seen in the context described. In my view, it was intended by that word to contrast the evidence required to discharge the evidentiary onus on a defendant with the hopelessly inadequate evidence actually adduced; not to connote that more was required than "evidence sufficiently precise and definite to displace the inference that the disabling pain from which the plaintiff suffered after the accident was caused by the hurt she then received" (being the words used by Windeyer J at 171)."
The entirety of the plaintiff's medical history, both before and after the accident, must be taken into account when assessing damages arising from the incident in question.
Taking all of the above into account I prefer the assessment proposed by Mr Gambi of 25% of the most extreme case.

[38]

Past and future domestic assistance

The unsatisfactory nature of the occupational therapist report, in terms of the other significant problems which the plaintiff was suffering were not taken into account, must significantly detract from the reliability of her report. Where a plaintiff, well prior to the accident in question, relied upon medical certificates concerning his physical condition for the purpose of being determined to be unfit for work, or to have a mobility sticker, he cannot expect the court to accept assertions that prior to the accident he was able to perform household tasks without difficulty.
I also note the concessions made by the plaintiff in cross examination that, contrary to his statements to the occupational therapist, he is still able to perform household tasks such as mopping the floor, vacuuming and other chores around the house, although slowly and in stages. I also note his admissions that items he required beforehand such as a folding shower chair were necessary because of his back, and that the recommendation for a bath sponge was because of his legs, which are unrelated to the injury he suffered in these proceedings.
I would not have awarded any sum for past domestic assistance as I do not consider the plaintiff could have satisfied the minimum threshold test in s 15, which is at least six hours a week for a minimum of six months, or that the need in question arose solely because of the subject incident.
I would have had similar reservations about the plaintiff's future need for care. The likelihood is that the plaintiff's current living arrangements will continue for some years, as he intends to live in his father's house indefinitely. There is no basis for awarding the plaintiff any damages for future attendant care services on a commercial basis as there is no evidence upon which funding can be made that there is a need for commercial domestic assistance after the availability of gratuitous assistance ceases: Miller v Galderisi [2009] NSWCA 363 at [18].
In particular, no evidence was led as to intention or future plans in this regard.

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