Lee v The Council of the City of Sydney

What Caused the Plaintiff's Fall?

1. There is a serious issue in the proceedings as to the cause of the plaintiff's fall. After he fell, the plaintiff was assisted by bystanders to a nearby park bench. The plaintiff first noticed the uplifted paver after his fall, while sitting at the bench. The paver was some six metres away from the bench(TP 69.40 - 50; TP 40.69 - 20). The plaintiff agreed that he did not see the paver before the accident, that is to say he did not see it either immediately before the accident, or on previous runs in the area.
2. The plaintiff candidly admitted that his evidence as to his belief that he tripped on a raised paver was an exercise in reconstruction. He accepted that he did not in fact know what had occurred. This uncertainty as to the cause of the plaintiff's fall becomes an important issue in the proceedings as it was clear that to the immediate right of the raised paver, there was a raised tree root.
3. This raised the very real possibility that the plaintiff in fact tripped on the tree root, and not on the paver. The importance of this issue is obvious, as if the tree root was the cause of the plaintiff's fall, then there would be no potential liability in the defendant.
4. The plaintiff's case was that he tripped on the paver with his right leg.
5. This theory of the mechanism of the fall was not consistent with the history given by the plaintiff to Mr Cochbain a liability expert called on his behalf. It was also inconsistent with the history given by the plaintiff to Dr Ivers.
6. The plaintiff conceded his memory of events was better closer to the accident than it was in the witness box (TP 75.15; 75.49; 79.34). The following evidence I believe is relevant to his admitted reconstruction of events:

• On 28 July 2020, the plaintiff agreed he must have told Dr Ivers the history provided as, "his left leg slipped causing his right leg to hyperextend at the hip". (TP 75.35 - .45).
• On 21 November 2022, the plaintiff gave a history taken by Dr Keller which the doctor recorded as follows; "He states either his left or right foot stopped on a protruding brick, so that both feet stopped suddenly and he bent double with his head approaching his knees before he fell". The plaintiff however says that Dr Keller's recording of his history was "inaccurate" (TP76.25 - .35).
• The plaintiff agreed that he was interviewed by Mr Cockbain on 20 September 2022 (TP76.44), and he agreed he must have told Mr Cockbain the account of the accident as reported by him(T77.50). He also agreed that he understood that it was important for Mr Cockbain to understand the facts of the fall for the purposes of his report (TP 77.30). That report relevantly at paragraph 36 states, "The plaintiff moved to the right side of the footpath and he did so, his left foot tripped on a raised paver of the footpath". The plaintiff accepted that this account was "correct": "A: I'd say it could be correct. I-I always thought it was my right. I always thought it was my right foot that hit the paver" (TP77.24).
• The account of the accident the plaintiff supplied to Ms Gracy an occupational therapist on 22 May 2023 was the same as that given in evidence in chief, but the plaintiff conceded this was "a reconstruction of what happened to [him], rather than a direct memory of events"(TP79.39).

1. As I have earlier mentioned, the importance of the issue as to the mechanism of the fall was that as the tree root was immediately to the right of the paver, if the plaintiff's left foot was in the vicinity of the paver, then his right foot must have been in very close proximity to the tree root. This elevates the possibility of a trip on the tree root, rather than the paver.
2. The defendant contended that even if the fall was caused by a trip of the right foot this was also consistent with a trip on the tree root by the plaintiff's right foot. It argued that if it was the plaintiff's right foot which tripped, the evidence is equally consistent with the cause of the trip being the tree root. This root was immediately adjacent to the identified lighter paver (exhibit PX1, top and bottom photos at p.15 of expert report exhibit PX 20, p. 102 CB).
3. The state of the evidence therefore on the mechanism of the fall is quite uncertain and in reality, the plaintiff invites me to speculate as to that mechanism. He does so for the simple, and candidly admitted reason that he does not actually know the mechanism of his fall. His reconstruction of the events surrounding his fall was inevitable as the plaintiff again candidly admitted that he did not see the raised paver before his fall.
4. It seems to me therefore, that given the very real possibility that the fall was caused by a trip on the tree root, the plaintiff has been unable to prove the balance of probabilities that he tripped on the raised paver. Put another way, the plaintiff has been unable to persuade me to the point that I am actually persuaded that his fall occurred in the manner which he asserts (Watson v Foxman (1995) NSWLR 315 at 319).
5. As such the plaintiff's case must fall at its first hurdle.
6. Strictly speaking this finding renders it unnecessary for me to consider other aspects of the case but as they were fully argued before me it may be prudent to do so.

Section 45 of the Civil Liability Act

1. The defendant submitted that as a road authority, it enjoyed the protection of s 45 of the Civil Liability Act.
2. Section 45 is in the following terms: "45 Special non-feasance protection for roads authorities (1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. (2) This section does not operate-- (a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or (b) to affect any standard of care that would otherwise be applicable in respect of a risk. (3) In this section-- "carry out road work" means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993. "roads authority" has the same meaning as in the Roads Act 1993."
3. At the outset it is important to note what is required to be established by the plaintiff in order to defeat the protection afforded by s 45, is that the knowledge of the risk concerned must be "actual" knowledge. Thus, constructive notice is insufficient. Further the actual knowledge must relate to the "particular risk" which has materialised.
4. In Eddy v Goulburn Mulwaree Council [2022] NSWCA 87, Kirk JA (with whom Bell CJ and Gleeson JA agreed) considered s 45. His Honour discussed the concept of "particular risk" where it appears in the section. His Honour stated: "Again, in my view, in general the risk should be characterised with greater specificity than that which is required for the purposes of the breach analysis.[70] As indicated above, as a matter of text and context the particular risk spoken of in s 45 must be a manifestation of a kind of risk identified for the purposes of s 5B, and commonly will be a narrower, more particular risk than that which is identified for the forward-looking purposes of s 5B. The word "particular" must be given work to do. The question is how much work.[73] That does not require that the authority know of every detail of the risk. In the Goondiwindi situation there can be no doubt that the council in question had a real chance to respond to the risk of harm (and had in fact done so) regardless of whether it knew precisely how many potholes there were, exactly what size they were, or whether it knew of the existence of the particular pothole that caused the claimant's injury. It knew that there was a risk of harm of a particular kind at a particular location.[81] What is necessary is meaningfully to capture the practical reality of the risk which came home, such that the risk of harm which led to the injury to the claimant was a risk that the roads authority was already actually aware of at the time of the incident in question. The specificity of the identity of the location and of some particular risk (beyond that roads can deteriorate, or be dangerous, or the like) will be relevant.[83] That understanding reflects the apparent purpose of the provision, which is to limit liability of roads authorities for liability arising from omissions unless they have actual knowledge of the particular danger, and thus have had some opportunity to respond. It should be noted that it is not necessary to undertake some assessment of whether or not there was in fact sufficient time or resources to respond to the prior knowledge of the risk. The notion of having been put on notice so as to have had an opportunity to respond is relevant as a purposive consideration influencing the level of characterisation of risk to be adopted. It is not a legal test. Those are the sorts of issues which may be involved in the separate question of assessing whether any claim in negligence can be made out.[84]"

The Council's Alleged Actual Knowledge of the Lifted Paver

1. The plaintiff's case in relation to the defendant Council's actual knowledge was that the defendant was aware of the raised paver, and had been so aware from May 2018. The plaintiff's case was that but notwithstanding this knowledge, the Council had failed to rectify the raised paver.
2. The evidence disclosed that on 25 May 2018 one of the defendant's asset inspectors detected and reported a paver defect at the relevant location. This report was referred in the normal course to Civil Works Maintenance for repair (exhibit PX 24 -p.59 of Pl's Tender bundle (TB).
3. The defendant's procedures then involved the creation of Rectification Requests (see exhibit PX 24 -TB.50 to 64). These requests could arise following proactive inspections by Council Officers, or from public requests or complaints. Thereafter a process ensued of assessment for the purposes of identifying which defects are deemed to require repair in accordance with the Council's policies and practices.
4. Mr Nish Fonseka an Asset Inspector in the employ of the Council, gave the following evidence as to Council's procedure at TP 141.50 - 142.15: "A. So as far detecting, we have what's called a proactive roster where we physically walk a precinct and, yeah, we just visually inspect. And when a defect is identified, we have a - intervention criteria. So yeah, when a - when a defect is identified, we go back into the office, log it into our system which is called CAMS as a defect. That system directs that defect to the relevant department. And then from there, whoever's looking after that department will, you know, create jobs and schedule repairs. Q. Now, how do you record a defect while you're doing these physical patrols? A. Photos. We take - we take photos."
5. Rectification requests were then issued to a relevant civil works maintenance crew for attention and repair. The practice was for the maintenance crew member to record the date and fact of repairs on a job card, and take a photograph of the repair work which was recorded on the rectification request (Mr Fonseka: TP 142.40; 144.35). This practice is evident in the rectification requests contained in exhibit PX 24.
6. The photograph of the defects requiring rectification were marked by way of a red circle, to indicate where the defect was located: TP 144.10 (see also TP 145.25; 146.25). This marking serves to direct the civil works crew member to the defect requiring alteration. In this case, the crew member was Mr Summers, from the stoneyard section.
7. The asset inspector who identified the relevant paver defect was Pierre Restoux. Mr Restoux is no longer employed by the Council (TP 145.05). No issue was taken as to the failure of the defendant to call him.
8. After having been directed to attend to a notified defect, a civil maintenance crew member then documents the repairs undertaken by the crew by way of photographs which are also recorded in the Rectification Request.
9. Mr Summers gave the following evidence: Q. If you're looking at this, page 58 of the rectification request, do either of the photos on that page tell you where the defect was to be attended to? A. Yes. Yes. The second one. The bottom one. Q. The bottom one. And how does it do that? A. Well, it's got the red line - the red circle around it. Q. Well, is that something you were familiar with? A. I - Q. Are you familiar with receipt of photographs telling you where to do the work? A. Yeah. Q. And if a photo doesn't have a circle on it on this document - this three-page document - what does that tell you? A. Which document am I looking at? Q. Well, the - the three-page document, which is page 59, 60 and 61. A. Okay. Well - well, that's - that's a photo of completed work without the circle. (TP 150.15 - .20; Mr Summer's evidence TP 158.30; TP 161.05 - .20)
10. On 13 July 2018 Mr Summers, a brick layer who had been employed by the Council since 1985, responded to the request for the repairs at two locations reported in the paved area near the relevant tree surround in the 25 May 2018 Rectification Request (exhibit PX 24, pp.59 - 61 Pl's TB). When Mr Summers arrived to attend to the rectification, he discovered the defects had been already repaired, presumably by another crew, and reported as much (Job sheet - exhibit DX4: "Already completed").
11. The 25 May 2018 rectification request records two photographs with red circles showing the relevant two areas identified for attention. The photographs record pavers close to the park bench identified as one defect, and three circled pavers adjacent to the tree surround with a tree root seen extending almost to the middle of the three pavers. The relevant defect in this rectification request is highlighted in exhibit DX1, where the configuration of disturbed pavers can be clearly seen.
12. The practices which I have just described therefore result in there being "before" and "after" photographs for each defect in Rectification Request dated 25 May 2018.
13. Mr Summers says he took each "after" photograph of the defect relevant to Job number 10264814 (recorded on the Rectification Request and related Job Card (exhibit DX4). As I have earlier indicated, he recorded that the rectification work was already completed.
14. The plaintiff contends that Mr Summers took a photo of the incorrect location for the relevant defect. I do not accept that this is the case.
15. The relevant 25 May 2018 rectification request contain two photographs with red circles showing the relevant two identified areas for attention. There are pavers close to the park bench identified as one defect, and circled three pavers adjacent to the tree surround with a tree root seen extending almost to the middle of the three pavers identified as another defect. The relevant defect in this rectification request is highlighted in exhibit DX1, where the configuration of disturbed pavers can be clearly seen.
16. In accordance with the practice which I have described, there are "before" and "after" photographs for each defect in Rectification Request dated 25 May 2018.
17. Mr Summers says he took each "after" photograph documenting that each defect relevant to Job number 10264814 (recorded on the Rectification Request and related Job Card exhibit DX4) was already completed.
18. The plaintiff contended that Mr Summers took a photo of the incorrect location for the relevant defect. I do not accept this submission. To my mind, as the related defect was very close nearby and easily referenced from the "before" photos, I find it impossible to accept that Mr Summers photographed repairs at a different location. The photograph circling both defects shows they are no more than a metre or two apart. In my view, it is quite improbable that Mr Summers wandered off and took a photo of a different paver near the surround of a different tree.
19. The plaintiff also placed emphasis on the fact that there were not dates on the photograph of the completed works. In my view, the absence of dates on the photographs to my mind is of no consequence. Mr Summers explained the photos of completed work were not dated.
20. In conclusion, the plaintiff's case was that when Mr Summers photographed what he claimed to be the rectified paver, he in fact photographed the wrong location. The plaintiff says that in fact the paver was never repaired. I do not accept that this is the case. I accept the evidence of Mr Summers.
21. As the plaintiff's case on actual knowledge rests solely on the contention that the Council was on notice of the defect by dint of the report of the raised paver on 25 May 2018, which report went unattended, and as I have accepted the defendant's evidence as to that issue, the plaintiff's case must fail.
22. As a consequence in my view, the proceedings are not maintainable against the defendant pursuant to s 45.

The Potential Liability of the Defendant at Common Law, as Modified by the CLA

1. As I have indicated, notwithstanding this conclusion, as other matters by way of defence were argued before me, I shall now move to consider the defendant's contentions in support of the proposition that even absent the protection of s 45, the Council would nonetheless not be liable to the plaintiff in negligence. As these contentions are unnecessary to be determined by me, I shall deal with them in a more truncated manner, than the issues might otherwise have warranted.
2. Mr Glascott of counsel, who appeared for the defendant, submitted that even if his client was not protected by s 45, the defendant nonetheless was not liable to the plaintiff in negligence.
3. At the forefront of this contention was his reliance on what fell from the High Court on the duty of care of roads authorities in Brodie. He relied particularly on the judgment of Callinan J where his Honour stated: "There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level."[355]
4. I was also referred to the judgments of Gleeson CJ at [8], Gaudron, McHugh and Gummow JJ at [163] to similar effect.
5. The plaintiff's failure to warn allegations, which include the failure to barricade or place signage or otherwise mark the "raised paver", in my view do not give rise to liability. I take this view as the risk was an obvious risk to both the plaintiff and a reasonable person in the plaintiff's position (ss. 5F,5G and 5H of the Civil Liability Act). The fact that the risk posed by the defect was obvious negates a duty to warn of it. I shall return to this topic later in these reasons.
6. Moreover, in my view the difference in levels in the paved footpath was of kind which did not pose a "trap" so as to attract the exception referred to in Brodie at [163]. The difference in levels posed by the lifted paver was not quantified in the proceedings, but on any view of it was a minor difference. This minor difference as I have indicated was neither concealed nor shaded so as to prevent its visibility. In fact, if anything, the raised paver was highlighted due to its colour being lighter than the surrounding pavers.
7. The clearly apparent nature of the raised paver, in my view attracts the comments of Callinan J in Brodie at [355] to which I have earlier referred:
8. Mr Glasscott submitted that the authorities reveal that differences of 25mm or 50mm between the formed and unformed verge are tolerated by the law as unexceptional. He drew my attention to the judgment of Gleeson CJ in Brodie at [6], [7] where his Honour said: "In Littler v Liverpool Corporation, Cumming-Bruce J said:"Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green. "I agree with Callinan J that no case of negligence was made out against the respondent."(my emphasis)
9. I agree with this submission.
10. The Council submitted that there was no legal obligation to mark or repair the difference in paver heights because it was an obvious risk of a kind which was not concealed, was open to view by pedestrians, and did not constitute a trap (Brodie/Ghantous per Gleeson CJ at [6] and [7];per Gaudron, McHugh and Gummow JJ at [163]; per Kirby J at [246]; per Hayne J agreeing with Callinan J at [339]; Callinan J at [355] (as above). I also agree with this contention.
11. I note that the same conclusion has been recently reached by the NSW Court of Appeal with respect to the duty owed by private occupiers in respect of such minor defects in paved surfaces, even where they were known to exist (see Bruce v Apex Software Pty Ltd [2018] NSWCA 330. In that case, the Court held that an aged care home was not liable in negligence for failing to repair a 10 to 20 millimetre difference between a concrete slab and brick pavers in the main entranceway because the difference was: "readily apparent, both from the different surface materials and their colouring. The fact of a difference in the levels of the two surfaces was also obvious to anyone giving some attention to the surface on which they were walking. Whilst the extent of the difference in levels at any point may have been difficult to determine, the fact of the difference remained obvious and recognisable as something which ordinary life experience and common sense showed must be avoided or accommodated…" (at [27] per Meagher JA, Leeming and White JJA agreeing).
12. With respect to a road authority in Botany Bay City Council v Latham [2013] NSWCA 363 Adamson J (Leeming and Ward JJA agreeing) reaffirmed that irregularities in a footpath do not indicate a road authority must repair the same to avoid negligence.
13. At [43] Her Honour noted in respect of notably uneven pavers beside a tree that: "It is accordingly necessary for this Court to apply s 5B(1)(c) itself. Ms Latham could not establish that there was any apparent irregularity beyond that which might be expected on an unexceptional footpath in a suburban street. Accordingly, in my view, even had the Council inspected the area prior to the fall with a view to identifying irregularities in the surface of the footpath that could give rise to the risk of pedestrians tripping and falling, nothing would have been done in the relevant area because nothing was reasonably required to be done. The effect of s 5B(1)(c) of the Act in these circumstances is that the Council was not negligent for failing to inspect the area or eliminate unevenness in the pavers and is therefore not liable to Ms Latham".
14. More recently the Western Australian Court of Appeal, in Rankilor v City of Perth [2016] WASCA 29, summarised New South Wales authority since Brodie/Ghantous in support of the proposition that a 20 to 25mm paver protrusion ([29]) in a shaded footpath([69],[70]) did not call for a response (at [49] to [59]). The Western Australian Court of Appeal held at [47]: "As the primary judge noted, claims by pedestrians who have been injured as a result of tripping on an irregularity in a pathway have often come before the courts. In such cases the courts have consistently pointed out that uneven paving stones and differences in levels in a pathway are part and parcel of daily life, and ordinarily pedestrians will be expected to exercise sufficient care by looking where they are going and observing and avoiding such hazards. A pedestrian is not entitled to expect that an outdoor pathway will be smooth and perfectly level".

Section 5B (1)

1. The defendant submitted that in relation to section 5B(1) of the Civil Liability Act, the risk of harm, being the risk of a pedestrian injuring him or herself, by tripping on the paver height difference of about 25mm or even 50mm was: 1. not foreseeable; 2. insignificant; and 3. a reasonable council would not have taken any precautions of the kind alleged (or any other precaution) having regard to the section5B(2) factors, namely; (a) the probability of harm was slight, (b) the seriousness of any harm was similarly slight, (c) the burden of lifting the pavers has to be considered in the context of the burden of repairing all similar defects in the council area (s. 5C(a)), and (d) the social utility of provision of footpaths is recognised.
2. I agree with these contentions.

Obvious Risk Negating Duty to Warn

1. As I have earlier indicated, I am of the view that the risk of harm posed by the defect constituted by the raised paver was an "obvious risk" within the meaning of section 5F of the Civil Liability Act.
2. To my mind the risk of injury was an obvious risk to a reasonable person in the plaintiff's position (even if not to the plaintiff) within the meaning of section 5F of the CLA and therefore there was no duty to warn of the risk (Collins v Clarence Valley Shire Council [2015] NSWCA 263 per McColl JA (Macfarlan JA agreeing) at [136]; cited in Bowman v Nambucca Shire Council [2020] NSWSC 1121 at [256]).
3. Mr Phillips of Senior Counsel who, with Mr Robison, appeared for the plaintiff, submitted that the raised paver was not obvious to the plaintiff, as the plaintiff had to negotiate the cyclist which precluded him from seeing the raised paver.
4. I do not accept this submission. In my view the paver, if it was raised, constituted an obvious risk as a matter of fact. The fact that the plaintiff had to negotiate the cyclist did not absolve him from the need to watch where he walked or in this case ran. The authorities make clear for example that pedestrians must watch their step when walking even if they must also have regard to traffic.

Failure to Repair

1. As I have indicated, in my view, the difference in paver height was not a "trap" warranting warning or repair. It is the kind of difference reasonably expected to exist in paved footpaths in the vicinity of street trees.
2. In RTA v Dederer, Gummow J states at [45]: "…The modern form of the principle has been frequently affirmed in recent times, both with regard to occupiers and roads authorities. Of course, the weight to be given to an expectation of reasonable care for their own safety is a general matter in the assessment of breach in every case" [citing Thompson v Woolworths at [35] "but in the present case it was also a specific requirement, as a matter of law, in the scope of the RTA's duty of care"; (as cited in Ratewave).
3. Accordingly it is necessary to consider the expectation of a plaintiff to take reasonable car for their own safety. In this regard, it is not appropriate to assess a plaintiff's behaviour as only relevant to contributory negligence. The defendant submitted that if the plaintiff's accident was due to mere inadvertence, it does not impose a more onerous obligation upon a road authority such as the defendant.
4. As I have earlier indicated, in the ordinary course of foreseeable use of the paved area, it is to be expected that pedestrians would see and negotiate uneven pavers particularly near trees. The defendant submitted that it was important to recognise that absence of contributory negligence in the plaintiff does not convert the case into one of negligence in the defendant. The submissions culminated that accidents do happen and can happen without negligence on the part of anyone.
5. I agree with this submission.
6. In this case, it is my opinion that the concept of making due allowance for human nature did not call for measures to make the visual cues more obvious. In Owners Strata Plan v Perrine [2002] NSWCA 324 per Santow JA at [31];Davies AJA (Sheller JA agreeing) stated at [54]:"…although it is good practice to define the nosing of stairs with a white line or other differentiation, it is not generally negligent to fail to do so", and cited Wilkinson v Law Courts Ltd [2001] NSWCA 196.

Section 43A

1. The defendant submitted that plaintiff's allegations of failure to carry out "road work" or "traffic work" by way of installation of barricades or warnings on the road involved the failure to exercise a special statutory power. Accordingly it was submitted that the plaintiffs allegation attracted the operation of section 43A of the CLA.
2. The Council went on to contend that the failure to carry out the repair work earlier, or place barricades or signage, was not so unreasonable that no reasonable authority could consider the same to be a reasonable exercise of the Roads Act powers.
3. I accept this submission.
4. Section 43A of the Civil Liability Act NSW 2002 relevantly provides: "43A Proceedings against public or other authorities for the exercise of special statutory powers (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power - (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44".
5. The defendant submitted that each of the allegations of failure to repair the footpath, or place barricades or warning signs, involves the doing of "road work" or "traffic work" which only a road authority could perform (see ss. 71, and 87 of the Roads Act 1993 (NSW)). These powers are "special statutory powers" by reason of the fact they are "of a kind that persons generally are not authorised to exercise without specific statutory authority": see section 138, and sections 114 and 115 of the Roads Act (1993) NSW.
6. The exercise of these powers, as has been recently considered in Wells v Council of the City of Orange (No 2) [2017] NSWSC 510 where Hoeben CJ at CL stated: [147] An analysis of the power to "carry out traffic control work" can be found in Roads and Maritime Services v Grant [2015] NSWCA 138 at [31] - [32]. It was also considered in Curtis v Harden Shire Council [2014] NSWCA 314 where Basten JA said at [254]:"254 ... It was submitted that the Council was exercising powers as a landowner. Attention was also drawn to the possibility that the use in s 43A(2)(b) of the term "specific statutory authority" might invite a comparison with powers exercised under some more general statutory authority. However, these factors have no direct application in the present case: the prohibition on any person installing prescribed traffic control devices combined with the requirement for statutory authority to undertake such an activity, placed the grant of authority for such activities squarely within the concept of a "specific statutory authority", as used in s 43A(2)(b)." [148] For those reasons, whether by way of "carry out road work" or "carry out traffic control work", the defendant's power to close Jilba Street and deploy barriers and signs for that purpose was a "special statutory power" as that expression is defined under s 43A(2) CLA. Accordingly, I accept that the provisions of s 43A CLA apply to the facts of this case.
7. In my view it is clear from the authorities that it is for the plaintiff's to prove the requisite elements and standard under s 43A in order to prove liability: see Mansfield v Great Lakes Council [2016] NSWCA 204; 217 LGERA 317 per Basten JA: [37] Although not clearly identified in the appellant's submissions, there were in effect two limbs to the exercise upon which it relied. First, the circumstances in which the omission occurred involved, on one view, ignorance on the part of the Council as to factors which would have required it to act. If that were correct, the appellant needed to establish that the ignorance of the Council was itself so manifestly unreasonable that no council acting properly could have failed to identify the circumstances calling for action. The second limb of the exercise was to establish that, given the knowledge which it ought to have had on that standard, the Council could not have failed to act. [38] So far as knowledge was concerned, the appellant needed to establish that the inspections carried out by Mr Margery were so manifestly defective that no roads authority could properly have thought them adequate. Whether or not it was necessary to put a proposition in those terms to Mr Margery need not be determined; it is sufficient that the cross-examination of Mr Margery, passages of which have been set out above, failed to seek, let alone elicit, any concession that his conduct was inadequate, let alone grossly inadequate. As to the affirmative evidence, the expert report of Mr Jamieson went no further than to state that from an engineering point of view, the result was "foreseeable". [30] Mr Jamieson expressed no opinion to support a conclusion of manifest unreasonableness for the purposes of s 43A." (emphasis supplied).

Proof of 43A unreasonableness

1. In the present case, it is my view that the plaintiff has not proved that the failure to repair or warn of such a slight difference in paver height was so unreasonable that no reasonable road authority would have failed to take either of those steps, within the meaning of s. 43A of the CLA.
2. As I have earlier discussed the authorities have emphasised that such slight differences in footpaths, where the difference is not obscured or concealed so as to constitute a "trap", are normal tolerances within footpaths and to be expected in everyday life (Brodie; Ghantous per Callinan J at [355]; Gaudron. McHugh, and Gummow JJ agreeing at [167]).
3. Importantly in Roads and Maritime Services v Grant [2015] NSWCA 138, Basten JA stated: [35]"The test to be applied is, as noted in Curtis, [15] grammatically awkward. There are, three separate elements to the test which need to be identified. First, the requisite assessment of unreasonableness is to be made by a hypothetical reasonable public authority: while the court must make the assessment, it must do so by reference to the approach properly taken by such an authority. The significance of that element is that the exercise must be undertaken having regard to the limits beyond which a person (such as an authority) having necessary expertise in traffic engineering would not step. [36] "Secondly, the test is formulated in the negative. By contrast with s 5B(1)(c) of the Civil Liability Act, it is not satisfied by evidence of what a reasonable traffic engineer would have done as a precaution against an identified risk. Rather, it is only satisfied by proof that no traffic engineer acting reasonably would have failed to take the precaution identified by the plaintiff. That is, accepting that there will be a range of views amongst reasonable traffic engineers, the omission must be such that no person with the requisite expertise could properly consider the omission to be reasonable. The fact that a high threshold is being prescribed is revealed by the double negative, "so unreasonable that no authority …". [37]"Thirdly, the section reformulates the standard by which a breach of duty is to be judged. Once the section is engaged, the plaintiff will have to establish negligence beyond the statutory threshold in order to succeed. [16] An assessment of the relevant evidence in the present case demonstrates that the plaintiff failed on any view to establish that burden. (Indeed, it may be doubted whether the evidence established breach according to the ordinary standard identified in s 5B.)" (my emphasis).
4. Similarly, in Bankstown City Council v Zraika; Roads and Maritime Services v Zraika (2016) 94 NSWLR 159 ; [2016] NSWCA 51, the Court (per Leeming JA, Gleeson and Simpson JJA agreeing) stated, in relation to the standard required to be satisfied under section 43A for imposing liability upon the Council: [109] "Section 43A assumes the existence of a duty of care and identifies the standard to be applied in determining whether that duty has been breached: Curtis v Harden Shire Council [2014] NSWCA 314; 88 NSWLR 10 at [234]and [272]. Another way of describing the operation of the section is that s 43A confers a qualified immunity upon a defendant where that section is applicable: Roads and Maritime Services v Grant at [57]. "[110]"There was also no dispute between the parties to the appeals as to the proper approach to be taken to the standard imposed by s 43A. …..In cases where s 43A applies, the court must look at the matter having regard to what the authority in question could properly consider a reasonable exercise of the power: Curtis at [6]. As Bathurst CJ there said, "[i]f the authority could properly consider what was done was a reasonable exercise of the power then there will be no liability". To the same point are the observations of Basten JA, with which Beazley P agreed, in Curtis at [278]: the court is required to consider whether no authority properly considering the matter could consider it to be reasonable. His Honour stated that the approach resembled the test for apprehended bias, in that rather than assessing reasonableness for itself, the court was required to "view the matter through the eyes of a responsible public authority"".
5. The s 43A standard requires consideration whether what was done or not done was what no other authority could have considered to be reasonable, in accordance with the interpretation of the standard in Grant: "…the omission must be such that no person with the requisite expertise could properly consider the omission to be reasonable…".
6. In my view, the plaintiff has not satisfied that standard.

Conclusion on Liability

1. For all of these reasons it is my view that the plaintiff's case must fail

Damages

1. Having so concluded, it is strictly unnecessary for me to decide questions of loss and damage, though it is appropriate for me to do so (Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339 at [64] - [65]). As findings on damages issues are unnecessary on my reasoning, I shall express a view on them in a more abbreviated manner than may otherwise have been appropriate.

Non-economic Loss

1. The plaintiff contended that I should find the plaintiff's injuries to be 35% of the most extreme case. The plaintiff's contention involved acceptance that the plaintiff suffered from ongoing psychiatric sequalae following his fall.
2. I do not accept that such psychiatric sequalae has been established, and accordingly I assess the plaintiff's injuries on the basis of his physical injuries only.
3. I assess them at 25% of the most extreme case.

Past Economic Loss

1. The defendant submitted that the plaintiff's pre-incident tax returns support the plaintiff's income of being no more than $30,000 net per annum (Exhibit D3). Those returns show the following: 1. 2017 - $512.74 net pw; 2. 2018 - $536.50 net pw; 3. 2019 - $937.98 net pw; 4. 2020 - $nil; 5. 2021 - $581.44 net pw; and 6. 2022 - $581.44 net pw.
2. There is no loss in the 2021 or 2022 years.
3. The defendant contended that the 2019 financial year was a "windfall year" as the plaintiff "happened to have more work that year than previous years" (TP 91.35), and less travel allowances (TP 91.40). I agree that this year can be seen to be out of the ordinary and should not form part of the basis for calculating past economic loss.
4. Based on these assumptions, the defendant submitted that this head of damage be assessed on the following basis, namely that loss is:

• Say $536 net pw multiplied by 52 weeks (for 2020 financial year). This equals $27,872.

1. Plus:

• Lost income after 31 October 2022 when the plaintiff ceased working for Fabritexture on the NQS stadium job (67 weeks from 31.10.22 to 23.2.24-$581.44 net pw x 67 =$38,956 discounted for non-exercise of residual earning capacity opined by Dr Ivers1 x 0.85 = $33,113).

1. I agree with the defendant's analysis and assessment and thus assess past economic loss at $60,985.

Future Economic Loss

1. In my view, the plaintiff's most likely circumstances, but for the accident, was that he would have continued in his former employment earning approximately $530 net per week (which he earned post-accident in the 2021 and 2022 tax years).
2. The evidence, which I accept demonstrates that the plaintiff has a residual earning capacity and could work in a sedentary position or occupation (Dr Iver's report exhibit PX6, p.8). The evidence suggested that he could earn $550 net pw ($28,600 net per annum) which is the same as he earned before the accident.
3. The plaintiff has not looked for work since October 2022 (TP 53.10; TP 94.25). Dr O'Neil suggested that he should look into being a trainer assessor. The plaintiff appeared to accept that this would be possible (TP 63.45).
4. The plaintiff said "maybe" to the question as to where he could undertake sedentary work if he was able to move around (TP 94.01).
5. The defendant submitted that the plaintiff's residual earning capacity is such as to make it unlikely that he suffered any loss.
6. Dr Ivers, an orthopaedic surgeon qualified by the plaintiff, reported that the Plaintiff had no impediment to a return to some form of work such as engineering and drafting, console operation, or light retail roles.
7. Dr Keller, the defendant's occupational physician, similarly reports the Plaintiff demonstrated capacity to return to full­ time work with physical restrictions.
8. In my opinion, the plaintiff has capacity to perform an engineering or drafting role. In my view, he has the capacity to undertake tasks which do not require the wearing of a harness or physical exertion beyond his capacity. Indeed it may be that the plaintiff has the potential to exceed his pre­ incident earnings.
9. I also note that the plaintiff has been receiving income protection payments of $800 per week for one year (TP99.30).
10. He also received income protection after the injury for one year (TP 99.45) after waiting three months.
11. That said, I consider that it is appropriate to award such a buffer to cover both the need for the plaintiff to be retrained, and the fact that at his age there may be some reluctance to employ him in a new role. I consider that an appropriate buffer to be $30,000.
12. As to the plaintiff's residual capacity I should also add that in the report of Dr Lee, a psychiatrist, on whom the defendant relies (DX6) the doctor raises the possibility of the plaintiff malingering. I should make explicit the fact that I do not consider the plaintiff to be a malingerer, on the contrary I have formed the view of him that he was a hard worker who would be keen to get back to work if the appropriate opportunity presented itself.

Past Out of Pocket Expenses

1. These were accepted in the sum of $15,036.13.

Future Out of Pocket Expenses

1. Dr Keller opined there were no indications for surgery, and that the Plaintiff was unlikely to receive lasting benefit from passive physical therapy. He made no recommendation for further treatment.
2. The plaintiff ceased taking medications in 2021 (TP 86)
3. Dr Ivers (exhibit PX 6, p.7) states:

• "I do not consider that any further surgical treatment would be of benefit… I conclude it would be reasonable for Mr Lee to embark on a self managed hamstring strengthening programme, using exercises learned and provided by the physiotherapist";
• "Surgery is not indicated";
• "I do not consider that any further specialist intervention will be required";
• Re: rehabilitative treatment such as physiotherapy or hydrotherapy in the future: ".. A continuation of prolonged hands-on therapy is not required";
• "I note that Mr Lee is managing at the present time
• taking Panadol and the occasional codeine. A continuation of Panadol when pain becomes problem is appropriate. More significant pain medication is not likely to be required".

1. The defendant submitted that if an allowance for pain medication is made, the plaintiff's damages schedule claims $10.08 per week x 737.8 =$7,437.02. The defendant submitted that this figure should be discounted for fact plaintiff stopped medication in 2021 and may only need pain medication intermittently.
2. It accordingly discounted the plaintiff's calculation by 15%, arriving at a figure for this head of damage at $6,322. I agree with this analysis.

Past Domestic Assistance

1. On Ms Gracey's assessment, the Plaintiff has no entitlement to damages for past gratuitous assistance as the assistance recommended does not exceed the thresholds set forth in section 15 of the CLA.
2. I accept Ms Whitmore's assessment for this head of damage (exhibit PX 8, p.32). On the basis of that report, only the period between the accident and 23 November 2019, and from that date to 23 January 2020 are recoverable as they are the only periods in which the "intensity" and "duration" thresholds pursuant to s 15 of the Civil Liability Act were met. I would allow $13,000 for past domestic assistance.
3. I consider that such to be appropriate based upon the following evidence of the plaintiff.
4. By October 2020 the plaintiff was doing "frog squats" (TP 82) and said his limitations were "solar panel cleaning, up ladders or standing still long periods" (TP 83.15). The plaintiff demonstrated a frog squat to the court (TP 96.45).
5. He was doing "heavy exercise" at home in February 2021 leading to him having a fainting episode and it was noted he had lost weight due to the exercise (TP 84.20).The plaintiff agreed he was back to doing most things around the home by February 2021 (TP 84.35; TP 85.10) and applying for jobs through Freo hire company (TP 85.20).
6. The plaintiff went to see Dr Greenwood with pain in the ribs from lifting weights (TP 85.45).The note says, "Injured rib last Friday at gym" (TP 86.17) which the plaintiff explained was his home gym.

Future Domestic Assistance

1. Ms Gracey opined that no allowance should be made for the Plaintiff to receive personal or domestic assistance.
2. Nonetheless I consider that it is appropriate to make some allowance for the heavier tasks such as spring cleaning (0.25 hr per week3), and infrequent cleaning of the gutters and solar panels and any unexpected home maintenance task. I would allow 2 hours per quarter. I consider it appropriate to make an allowance of 0.5 hour per week. This should cover tasks which the plaintiff's family members cannot undertake.
3. I calculated the allowance as follows:

• 0.5 hours per week x $50 per hour (for commercial assistance)= $25 per week x 737.8 (life expectancy of 24 years) = $18,445 x 0.85 (15% reduction for vicissitudes including improvement in medical condition), being a total of $15,678.

Conclusion

1. For the above reasons there should be judgment and verdict for the defendant against the plaintiff. Costs should follow the event.

Orders 1. That there be judgment and verdict for the defendant against the plaintiff. 2. The defendant to file and serve any evidence and submissions on the issue of costs on or before 4:00pm on 21 March 2024. 3. The plaintiff to file and serve any evidence and submissions which it wishes to make on the issue of costs on or before 4:00pm on 28 March 2024. 4. The defendant to file and serve any submissions in reply on or before3 April 2024 5. That the submissions in each case not exceed 5 pages in length 6. That the filing of the documents referred to in orders (2), (3) and (4) be effected by way of email transmission to my associate. 7. That any issue as to costs be decided on the papers DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2024