Leman v HV Operations Pty Limited

The issues in dispute

1. The issues in dispute, as helpfully identified by the defendant, are: "Liability 1. Whether the defendant's duty as occupier or controller of the premises included a duty to take reasonable care to provide the plaintiff with a safe place and/or system of work. 2. Whether the defendant's duty of care as occupier or controller of the premises included a duty to carry out reasonable maintenance of the car park and its drainage system. 3. Whether the defendant's duty of care included taking steps to prevent the plaintiff from engaging in the ordinary "every day" conduct of stepping over a gutter. 4. Whether the defendant discharged any duty of care it owed to the plaintiff by the provision of a paved pathway into the subject car park that did not require the plaintiff to negotiate the gutter he allegedly slipped on, together with a warning to use the designated walkways. 5. Whether the plaintiff, with knowledge and experience of the existence and location of the gutter he allegedly slipped on, was guilty of contributory negligence in failing to take reasonable care in the prevailing high rainfall weather conditions to either: a. avoid the gutter by remaining on the designated walkways; or b. identify and safely cross the gutter by reducing his ambulatory speed and keeping a better lookout as to where he was placing his feet. 6. Whether the gutter was contaminated with water and mud due to a failure in reasonable maintenance or as a result of the prevailing high rainfall weather conditions. 7. Whether the plaintiff has discharged his onus of proving that a reasonable maintenance system would have prevented the gutter and associated drainage system from becoming contaminated with water and mud, given the prevailing high rainfall weather conditions. 8. Whether the plaintiff has discharged his onus of proving that any breach of the defendant's duty of care was a necessary condition of the occurrence of the harm that befell the plaintiff. Quantum 9. Whether the chronic tendinosis of the plaintiff's left Achilles tendon was present prior to 18 November 2013. 10. Whether the incident which occurred on 18 November 2013 caused any injury or aggravation of significance in the plaintiff's left Achilles tendon, or alternatively, whether any injury or aggravation of the plaintiff's left Achilles tendon was temporary or ongoing. 11. Whether the tear of the plaintiff's left medial gastrocnemius muscle which occurred on 18 November 2013 recovered within 3-6 months. 12. Whether the surgery on the plaintiff's left Achilles tendon in June 2014 resulted from the incident which occurred on 18 November 2013 or was due to the plaintiff's pre-existing chronic tendinosis of the left Achilles tendon. 13. Whether the surgery on the plaintiff's left knee in November 2014 resulted from the incident which occurred on 18 November 2013 and/or any treatment of injuries sustained by the plaintiff on that date or was due to the pre-existing chronic degenerative condition of the plaintiff's knee. 14. Whether it is likely that the plaintiff would have required surgery on his left Achilles tendon and/or left knee whether the incident occurred on 18 November 2013 or not. 15. Whether the need for surgery on the plaintiff's left Achilles tendon and/or left knee was accelerated by the incident which occurred on 18 November 2013 and, if so, to what degree. 16. Whether the plaintiff's capacity for and ability to work would have been reduced by his pre-existing medical conditions whether the incident on 18 November 2013 occurred or not. 17. Whether the plaintiff is entitled to damages for non-economic loss and, if so, the assessment of same. 18. Whether the plaintiff is entitled to damages for out-of-pocket expenses and, if so, the assessment of same. 19. Whether the plaintiff is entitled to damages for economic loss and, if so, the assessment of same. 20. Whether the plaintiff is entitled to damages for domestic care and, if so, the assessment of same." (Exhibit 4)
2. The plaintiff provided a statement of issues (Exhibit B) which dealt in a general fashion with liability, s 5B Civil Liability Act 2002 (NSW), contributory negligence and question of damages. The two specific issues in relation to causation identified by the plaintiff are: 1. Whether the injury caused the plaintiff's need for surgery to his left ankle by Dr Rao on 14 June 2014, and 2. Whether it played any role in the plaintiff's need for surgery on his left knee by Dr Harvey on 3 November 2014.
3. Although not specifically stated in the statement of issues by either party, both counsel agreed that the plaintiff's credibility was also an issue in these proceedings, particularly in relation to quantum and causation.

The circumstances of the accident

1. On the day in question, it had been raining very heavily all day and was still raining by the time work finished at the mine site. There was a cement path to the car park which was under a covered walkway. The plaintiff, who had parked his car there and intended to drive home, left the walkway part of the way down: "Q. Can you please answer this question: when you walked along, on 18 November 2013, when you'd finished work in the workshop, towards your car and you were on that walkway which you've marked as "A", approaching the south‑east corner of the carpark, did you sigh or make any observations of the condition and the surface of these uncovered paved areas that are represented in exhibits D or E, did you? A. I did. Q. What did they look like? A. They were wet and muddy. Q. Then did you continue to walk along the covered pathway? A. Yes. Q. Then what did you do? A. I took an earthen pathway that was a direct line to my car. Q. What was the condition of that area as you were walking across to the edge of the carpark, what was the condition of that area, including the edge of the carpark, the gutter of the car washing, to your observation on that day? A. It was wet and muddy. Q. Did you observe the level of any water in that area? A. It was up to and offer the height of the gutter. Q. Were you moving quickly or slowly? A. I was walking, but I was ‑ it was raining and I was walking at a fast pace to get out of the rain. Q. As you were walking towards that area, what happened? A. I got to the edge of the gutter behind my car or to the left of my car ‑ actually to the left of the car which was in between two car spaces, slipped off the edge of the gutter‑‑ Q. Stopping you there, was there any water at or about that area? A. Yes, there was. Q. Where was that water? A. It was out over the gutter and on to that earthen area behind the area. Q. Over the top of the gutter? A. Over the top of the gutter. Q. If you like, as a pool, if you like, or an area of water‑‑ A. That's correct. Q. ‑‑over the level of the gutter? A. That's correct. Q. Then what happened then? A. I slipped off the edge of the gutter. Q. Which foot? A. The left foot Q. What happened then? A. It slipped off the gutter and fell underneath me, and I feel down into the carpark area just beyond the gutter with‑‑ Q. Then, when you fell, firstly, what did you notice about your body in terms of your anatomy? Did you experience anything? A. Immediate pain. Q. Where did you experience that pain? A. Ankle and calf. Q. Did you fall to the ground? A. I did. Q. Well, to the carpark floor, if you like? A. Yes. Q. The bitumen surface there? A. Yeah. Q. What did you notice about your, apart from the, I think you've described pain in your ankle and your calf, were they both on your left side? A. On the left side. Q. What did you notice about the clothing and other things that you were wearing? A. Well, they had just fallen into about 5 inches of water, so I was very wet. Q. What did you do then? A. I was able to get up. I didn't report it then. I got up and got in my car and drove home. Q. When you were at home, did you make any observations about your person, that is, we know your clothes were wet? A. Yeah."
2. As is set out in more detail below, this covered walkway was designed for employees to reach the car park by walking on a cement footpath rather than across the ground. The plaintiff describe the gutters of the covered walkways which adjoined the cement path (at T 47): "Q. Did you make any observations of the covering to the covered walkway related by the oblong "A" in diagram Exhibit F at any earlier time than the date you were injured on 29 November 2013? A. Yes. Q. What did you observe about the state of the covering, including the gutter, from time to time, in the period up to 29/11/2013, if anything? A. There were grass and plants growing out of the gutters of the covered walkways. Q. Now, in relation to the surface area of the carpark, again, in the period up until ‑ in the period of your experience of attending the Howick carpark operated by Hunter Valley Operations, the defendant, in terms of the surface of the carpark and the drainage areas of the carpark, did you make any observations, from time to time, prior to 29/11/2013 about the condition? A. Yes. Q. What did you observe? A. They were unkempt; they were muddy and full of debris. Q. In the period up to the time, on the day of your injury, did you observe anything in relation to the way water would either drain from the covered way or drain into the carpark during periods of rain? A. Well, the water‑‑ Q. Did you make any observation? A. Yes. Q. What did you observe? A. That the water wasn't piped from roofing to any stormwater area. The water just ran off the roof on to the ground, off the gutters. Q. In terms of the surface area of the floor of the carpark and the drainage areas, did you notice anything about the way the water would ‑ well, anything about water during periods of rain? A. Yes. Q. What did you observe? A. That the drains were blocked preventing the water from getting away. Q. Did anyone from Howick or Hunter Valley Operations, did you see anyone employed by Howick/Hunter Valley Operations in the area of the carpark, from time to time, during these observations that you made? A. No. Q. Did you ever observe employees of Howick/Hunter Valley Operations walking in and about the carpark area on which day when you made observations about the condition of the covered way, its gutters or the drainage that you've referred to? A. Yes. Q. Did they work there every day? A. Yes."
3. In cross-examination, the plaintiff was shown the defendant's film footage of the path the plaintiff actually took, which was to leave the covered walkway, walk across the wet ground, cross over another pathway, leave that pathway and go back onto the wet earth again and then arrive at the spot where his vehicle was parked: "Q. You will see from that that the fellow who filmed that bit of footage made an assumption about the path you actually took on the day that you slipped off the gutter. A. Mm. Q. According to the best of your recollection, does he have it right, or was there some deviation in your path of travel from what he showed on the video there? A. No. In my recollection he was right. Q. And you would agree with me then that after leaving the covered walkway, you walked across an urban patch of ground and crossed over another pathway, left that pathway and you were back on earth again before you got to where your vehicle was parked on the side of the car park there. A. Correct."
4. Although he did not mention it during his evidence in chief, the plaintiff acknowledged in cross-examination that there was a sign at the spot where he left the covered walkway to follow this uncovered pathway. That sign said: "Use Designated Walkways": "Q. I'm not sure if you picked it up on the video, and I'm happy to play it for you again, but at the part of the covered walkway where you left the pathway, do you agree that there was a sign on a post there that says, "Use designated walkways"? A. I have seen that sign. Q. And that sign was there on 18 November 2013, wasn't it? A. Correct. Q. In fact, it had been there for some months before then, hadn't it? A. I'm unaware of that, but I had seen the sign there. I don't know how long it had been there, but, yes. Q. You'd certainly seen it before that day? A. Yes. Yes. Q. When I say, "that day", I mean 18 November 2013. A. Yes. Q. You agree with me that by stepping off the covered walkway, you deviated from the instruction in that sign? A. I disagree. Q. Do you agree with me that when you came to the end of the pathway closer to your car that you crossed to get to your car and left that pathway you also deviated from the instruction in that sign? A. Yes."
5. The plaintiff agreed that the covered walkway had been in place for some considerable time and was the path to the car park (T 88). His explanation for deviating from it to walk across the muddy ground, contrary to the sign, was because the whole car park was flooded, but he acknowledged that he had to walk through four or five inches of water to get to his car in any event: "Q. Raining constantly I think you said? A. It was raining constantly. Q. And it was heavy rain. A. On and off. Q. Would you agree with me that had you taken the side path which skirted the car park and took you to the driveway entry into the car park, you could have avoided the gutter which was flooded on 18 November 2013. A. Had I taken that designated pathway, I would have gone to a flooded car park. There was no difference where I went. The car park was under water there, or the car park was under water down there. The whole car park was flooded. Had I gone the pathway, the long way, to get to my car, I would have had to walk through four or five inches of water to get to my car. Q. But you had to walk through four or five inches of water to get to your car in any event, didn't you? A. Only at the back of my car. My car was parked right there. I only had two or three feet of water, underwater, to get to my car. Q. But you knew the gutter was there, didn't you? A. I did. Q. You knew that in order to get to your car you had to negotiate the gutter? A. I did."
6. The plaintiff denied that he was running but agreed that he was "hurrying along walking" because the pathway he was following was uncovered (T 89). However, he did not agree that he was hurrying in such a way that he was not paying attention to where the gutter was: "Q. You were walking very quickly? A. I was hurrying along walking, yes. Q. You were hurrying in such a way that you weren't paying attention to where the gutter was, weren't you? A. No. Q. So you're saying you could see where the gutter was as you approached your car A. I could. Q. Nevertheless, you didn't step over the gutter, did you? A. I didn't get a chance to do that, no. Q. When you say you didn't get a chance to do it, are you saying that you could see the gutter on your way to the car? A. I could see the gutter. Q. And didn't you have every chance to step over it? A. I did have every chance to step over it. As I stepped on to the gutter to step over it, I slipped off the gutter. Q. You've already given evidence that on your way to the car that day you could see it was wet and muddy? A. Yes. Q. It's a matter of common human experience that when things are wet and muddy they're slippery is it not? A. They are. Q. And you would agree with me, or you know yourself from slipping off your truck that if you're trying to go up or down a step or a ladder or a stair that's got ‑ it's mud or something on it, you can slip on it and fall? A. On a ladder, most certainly. Yeah, it's a dangerous exercise going up and down ladders, especially when they're covered in mud. This was flat ground ‑ flat ground. I could see the gutter. I just slipped off it. Q. Well, it's not flat ground when there's a change in surface level from where the gutter is to a car park below it, is it? A. No, it's not. Q. It is a change in height? A. It is a change in height. Q. And you knew that it was wet and muddy? A. I did. Q. And you say you could see the gutter in front of you? A. It was covered in water and mud, but I could see the gutter."
7. The plaintiff was asked about the method he employed to step across the gutter: "Q. Don't you agree the sensible thing for you to have done was instead of stepping on the edge of the gutter where you could slip, it would have been safer for you to put your entire foot over the gutter on to the ground below it? A. That was the plan. That was the plan, until my left foot hit the gutter and slipped off it. Q. So you're saying your left foot hit the gutter because you didn't take proper care to step over it properly? A. I wouldn't say that, no. Q. Well, how did it come about if you could see the gutter in front of you, you've agreed with me that you know that if things are wet and muddy they can be slippery. You've agreed with me that changes in surface height can give rise to a fall. A. Yes. Q. Why didn't you take the care to ensure that your foot didn't strike the edge of the gutter such that you slipped? A. I'm sorry, but accidents happen. It was a complete accident. I didn't mean to do it. It just slipped off the gutter."
8. Mr Talintyre then put to the plaintiff: "Q. And that complete accident happened because you didn't want to negotiate through more water in the car park than you could avoid; is that correct? A. That's correct. Q. In other words, instead of using a designated pathway which would have taken you around the gutter and down a driveway exit to the car park, you decided you would cut short how much water you might have to walk through? A. Correct."
9. The plaintiff also provided instructions to Mr Jason Wagstaffe of SAFEgroup Pty Ltd with information (both in a telephone call and by way of a letter of instructions from his solicitor) concerning the circumstances of his accident. Mr Wagstaffe's report was tendered (Exhibit C, pages 10-70).
10. Mr Wagstaffe described the circumstances of the plaintiff's accident as occurring "whilst walking towards the car park area" when the plaintiff "mis-stepped" and fell when he stepped on a gutter camouflaged by plant debris, water and mud (page 8).
11. Mr Wagstaffe's report sets out the basis upon which his expert opinion would support findings of negligence. No expert report was tendered in reply, but he was cross-examined as to his conclusions.

The report of Mr Wagstaffe

1. As noted above, in the general description of the plaintiff's accident (see above) and of the car park (see paragraph 26 on page 10), Mr Wagstaffe makes no reference to the covered walkway constructed to enable employees to access the car park without walking onto wet or muddy terrain. He mentions the "covered pedestrian walkway that ran from the main workshop through to the bathhouse" in paragraph 31 on page 12, but does not identify it as the means of access to the car park, or refer at all to the sign which the plaintiff acknowledged was present on the day.
2. This is only the first of the deficiencies in Mr Wagstaffe's report. Although he refers to the need for there to be a "clear understanding of the factors leading to injury", such as the "design and physical condition of the walking surface, the provision and maintenance of available drainage and the environment that the plaintiff was required to contend with" (page 9, paragraph 20), he never directed himself to the identity of the defendant beyond noting that it "owned and operated Howick mine" (page 8), or to the adequacy of the walkway system and use of the sign.
3. In particular, Mr Wagstaffe did not trace the path that the defendant says the plaintiff should have taken, namely to follow the covered walkway and comply with the sign, and compare that with the path the plaintiff would otherwise have taken, which would have meant walking on cement and avoiding the choked gutter. He appears to have thought that the plaintiff was expected or obliged to leave the pathway and walk across muddy terrain in the rain and out of shelter.
4. The plaintiff himself acknowledged that the walkway was there to be used. His reason for not doing so is that he wanted to get to his car and it was quicker for him to do so by using what he considered to be an easier shortcut, namely to walk along the muddy track which came closer to his car than the slightly longer route under the covered walkway where he was walking on cement.
5. In his closing submissions, Mr Hart made much of the fact that the path the plaintiff took was, as the photographs showed, one which had clearly been used by many others. However, this information does not appear to have been provided to Mr Wagstaffe. This means that I have no expert opinion as to whether this is in fact the case. Mr Hart invited me to infer regular use from the state of the path, but the dangers of making such assumptions from photographs are well known (QBE Insurance (Australia) v Orcher [2013] NSWCA 478 at [23]; Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 at [69] - [75]; Blacktown City Council v Hocking [2008] NSWCA 144 per Spigelman CJ at [7] to [13] and Tobias JA at [167] to [171]).
6. Finally, Mr Wagstaffe's language, proposals for change and observations about risk are at times so vague as to be incomprehensible. A typical example is paragraph 80 which states: "Once appropriate risk control measures had been identified; [sic] then appropriate systems should have been developed, implemented, monitored and reviewed to ensure that the risk of injury was effectively reduced and was being effectively managed." (Exhibit A, page 31)
7. What Mr Wagstaffe needed to address was the question of whether the covered walkway and the warning sign to use the covered walkway and to keep to that path was sufficient to amount to a risk control measure which would effectively reduce the risk of injury.
8. Mr Wagstaffe complains (paragraph 81) that he had not been provided with any documentation that would indicate that these necessary hazard identifications and risk control measures had been undertaken and utilised in developing a safe and trafficable car park for use by pedestrians such as the plaintiff. How he could make such a statement when he must have seen the covered walkway and the sign in question is unclear.
9. Mr Wagstaffe's eight conclusions concerning the failure of the defendant to develop, implement and "embed" appropriate systems to deal with this risk all suffer from a combination of the above failures to make proper enquiries from his own observations of the car park, considering the utility of the covered walkway and sign and asking the plaintiff about these matters.
10. Mr Wagstaffe acknowledged a number of these problems in cross-examination, such as the existence of the sign "Warning: Use Designated Walkways" which appears in one of the photographs he took but, as is noted above, is not otherwise mentioned in the report: "Q. I take you to page 19 of your report, do you see in the top photograph there is a sign on the yellow post and would you agree with me that that sign reads "Warning: Use designated walkways"? A. Yes. It does. Q. I want you to assume that that sign was on that post as at 18 November 2013 and had been for some time before that; do you understand that assumption? A. I do. Q. You've marked in that photograph with means of a red arrow the path that you were instructed that the plaintiff took on the day of his injury which caused him to leave the paved covered walkway and across a patch of earthen ground. Would you agree with me that in doing so he deviated from the instruction in that sign? A. Yes. That is correct, based on your assumption. Q. Looking at the diagram produced to you, which is copy of exhibit 2 already before the Court, I want you to assume that that's a representative diagram showing the covered walkway on the right‑hand side and then leading off the covered walkway, a paved walkway which leads in the general direction of the corner of the car park and then splits into two. There is a short side pathway which terminates and then there is the pathway continues on past down the side of the car park and ends where the words "kerb" appear on the diagram; do you understand that? A. Yes, sir. Q. I want you to assume that that paved walkway had been laid and was in use as at 18 November 2013 and, indeed, for several months, if not years, beforehand; do you understand that? A. Yes. I do. Q. Would you not agree that had the plaintiff complied with the direction in the sign that I've taken you to, that he would have walked along the covered walkway and then effectively followed the arrows along the paved walkway to arrive at the car park where the words "kerb" appear on the diagram? A. No. I would disagree with that. Q. You'd agree that a designated walkway connotes a walkway that's been indicated by paving or posts or something of that nature? A. I do." (T 224 line 40 to T 225 line 30)
11. Confronted with the designated covered walkway and sign, Mr Wagstaffe offered an alternate explanation: "A. I do, however, if I may place my opinion with that, the plaintiff explained to me that the car park was full of water, so, therefore, taking the route of either kerb, as you have suggested, would mean that he'd get significantly wet. Also he had to place his crib bag in the boot of his car. Therefore, the quickest or the shortest means of travel using the designated walkway, as you've drawn here, or has been provided here, would be via the short piece of concrete then towards the rear of the plaintiff's car. Q. You haven't said anything about any of that in your report, have you? Indeed, if I could take you to page 37 of your report. I take you back, for contest, to page 36 of your report. Do you see that paragraph 98 begins with your treatment of what you consider to be reasonable preventative measures that could and should have been implemented by the defendant. Do you see that? A. Yes, sir. Q. If you go over the page to page 37, paragraph E, isn't it your opinion that the defendant could and should have instructed the plaintiff to use the dedicated pedestrian pathway during periods of wet weather and then you're saying in italics "The issuing of such instruction would have ensured that the plaintiff approached his vehicle from the front and not from the rear where the concrete gutter was positioned"; do you see that? A. I do. Q. Isn't it the case that the defendant had done exactly what you had expected the defendant to do; that is, provide that paved walkway which would have brought him around to the front of his car avoiding the gutter? A. Correct. Q. What it really comes down to, in your opinion, is how wet his feet were going to get taking one path or another? A. Yes. At the end of the day it comes down to the human need to stay dry, if you will." (T 225 line 35 to T 226 line 17)
12. Mr Wagstaffe acknowledged that the plaintiff was going to get wet no matter which way he went and went on to concede that, to avoid a known hazard, the safest option was for the plaintiff to stay on the paved walkway to get to the car park, so as to avoid walking across the muddy earth and the debris piling up in the gutter: "Q. I want to put a series of assumptions to you. Firstly, I want you to assume that Mr Leman was perfectly familiar with the layout of the car park and knew the gutter was there; do you understand that? A. Yes. Q. Secondly, that he knew the gutter and the ground around it was wet and muddy because of the weather; do you understand that? A. Yes. Q. Thirdly, that he actually saw the gutter on his approach to the car; do you understand that? A. Yes. Q. He accepted that it's a matter of common human experience that when the ground is wet and muddy, it can be slippery; do you understand that? A. Yes. Q. He agreed that when there is an elevation change, such as a step or a stair or a ladder, especially if it's slippery, that can result in a fall if you're not careful; do you understand that? A. I do. Q. Isn't it the case that much of your opinion is predicated on an assumption that Mr Leman did not discern the gutter on his approach to the car because you had described it in a number of parts in your report before objection as being camouflage? A. That is my opinion, yes." (T 227 line 35 to T 228 line 10)
13. He eventually conceded that the plaintiff should have stayed on the designated walkway when asked to do so by Mr Talintyre at T 228: "Q. Now, doesn't that suggest to you, he knew the gutter was there; he knew it was a potential hazard to be avoided because it could be potentially slippery and the safest course for me to take was stay on the designated pathway and approach the car park so he would arrive at the front of his vehicle? A. Based on the assumptions put to me, that would be the case." (T 228 lines 34-38)
14. As to the degree to which the car park was under water, Mr Wagstaffe agreed that he had been relying upon statements by the plaintiff about the state of the car park when he viewed the car park on the sole occasion he visited the site. He also agreed that he was not a hydraulic engineer, but said that this was not necessary for the purpose of his report (T 229). He agreed, however, that it was purely an assumption on his part that the drain was blocked on the day in question (T 229). He went on to concede at T 230: "Q. You are unable to give an opinion as to whether the drainage system of the car park would have coped with the volume of water that fell that day whether the drain was blocked or not, can you? A. No, sir." (T 230 lines 30-33)
15. However, the most significant admission Mr Wagstaffe made was in relation to the erecting of the sign: "Q. Wouldn't you agree that things like erecting signs could be the result of a risk assessment carried out as to whether a certain hazard existed and what measures might be taken to guard against it? A. I believe so, yes, sir." (T 230 lines 35-38)
16. After an interruption, Mr Talintyre put the question again: "Q. I'll just put the question again, Mr Wagstaffe, in your experience, wouldn't you agree that the existence of a sign indicates that somebody has turned their mind to the existence of a hazard and sought to do something about it to prevent that hazard causing somebody to be injured? A. I do, but the existence of a sign, whilst someone has turned their mind to it, may have ‑ turning their mind to it may have been through ‑ for various reasons, one of which may have been an issue to do with someone having an incident similar to that of the plaintiff's or it may be for some other purpose. There may have been some other reason that someone turned their mind to it. It may not be the same kind of situation the plaintiff encountered on the day. Q. If we accept that, though, isn't the effect the same, that somebody has appreciated that there is a potential hazard, even if it had manifestly previously and sought to do something about it by directing people to stay on the pathway? A. That is correct." (T 232 lines 5-20)
17. Finally, Mr Wagstaffe was cross-examined about the mechanics of the accident. He agreed that stepping over a gutter was not a particularly difficult thing to do: "Q. Now, stepping over a gutter isn't a particularly difficult thing for an adult pedestrian to achieve, is it? A. Depending on the circumstances, sir. Q. Assume that the person had appreciated that the ground might be wet, muddy and slippery and also assume that the person, as a result of that appreciation, was taking reasonable care in their speed of travel and where ‑ they were watching where their feet was going, assuming all those things, it's not a particularly difficult operation to achieve, is it? A. It's not, as long as you know what the depth of that gutter is. If you don't know what depth is when you step over it, it becomes significantly more difficult. Q. I asked you to assume previously that this man was perfectly familiar with the layout of the car park and the gutter because ‑ I'll also put to you that he'd been parking there several times a week for about 18 months beforehand. So do you understand that assumption? A. I do. Q. So assuming that and assuming he knew the height of the gutter, wasn't a particularly difficult operation for him to achieve, taking into account the other assumptions I just put to you, was it? A. Based on your assumptions, no." (T 232 line 34 to T 233 line 6)
18. Mr Wagstaffe also acknowledged that if the plaintiff had approached his vehicle from the front, accessed via the pedestrian pathway, he would not have encountered the concrete gutter and suffered the misstep or fall, and that the plaintiff must have appreciated the risk: "Q. Isn't it the case, if I take you to page 35 of your report, it remains your opinion that had Mr Leman approached his vehicle from the front, accessed via a dedicated pedestrian pathway, such as the one I've shown you on the diagram, then Mr Leman wouldn't have encountered the concrete gutter and wouldn't have suffered the misstep or fall? A. That is correct. Q. Now, you also say on that page that, in your opinion, he should have been warned about the hazards associated with the car park during wet weather and specifically instructed not to approach his motor vehicle from the rear during periods of wet weather. If you, again, assume the assumptions I've put to you earlier about what this man knew about the state of car park, the gutter, how high it was, et cetera, no further warning is necessary, is it? He appreciates the risk, does he not? A. Based on your assumptions given to me earlier, yes, that's the case. Q. Assuming he's aware of the risk as a result of those assumptions I put to you, he doesn't need to be prevented from using that car park, does he, he just needs to take reasonable care? A. Yes. Yes, that would be the case." (T 233 lines 8-27)
19. He also agreed that it was a matter of common human experience that accessing car parks might from time to time require somebody to walk across wet and muddy ground, and that one of the ways to avoid this was by staying on any paved walkway that the owner of the premises had provided (T 234).
20. Mr Hart's submitted that Mr Wagstaffe (T 253-254) had been denied the benefit of documents which would have supported the plaintiff as there had been a failure to comply with a subpoena which called for documents in relation to a risk assessment. He submitted that there could not have been such a risk assessment and that, in those circumstances, foreseeability was a foregone conclusion. I do not accept that submission. The covered walkway and sign owe their existence to some form of risk assessment, however informal. The question is whether, in terms of the Civil Liability Act 2002 (NSW), these measures are sufficient.
21. I also reject the submissions that the only safe way the plaintiff had to the waterlogged car park was by taking the short cut past the sign. I am satisfied, from the film footage provided by the defendant, that any difference in time or convenience caused by using this covered walkway would be trifling.
22. Mr Wagstaffe is an expert witness who has referred to the Code of Conduct in his report. The purpose of the Code of Conduct, as Shore J noted in Jermen v Shell Company of Australia Ltd [2003] NSWSC 1106 at [28]-[29], is to eliminate what his Honour called the "hired gun expert and return the expert to the traditional role of being an objective witness furnishing independent evidence for the Court's benefit". In Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [69], Heydon JA refers to R v Turner [1975] QB 834 at 840 where Lawton LJ noted that if an expert had "omitted to consider relevant [facts], the opinion is likely to be valueless".
23. Mr Wagstaffe's failure to observe and analyse the walkway design and the use of the sign is hard to understand. The degree of weight I give to any of the findings made by Mr Wagstaffe must be substantially undermined not only by his concessions in cross-examination but by the fact that he failed to refer to or examine these visually obvious features as being the system in existence to enable workers such as the plaintiff to reach the car park. Mr Wagstaffe's concessions in cross-examination and his unsatisfactory omission of this essential evidence from his report not only mean that no weight can be placed upon any of his findings as to risk, but that his evidence in fact supports the defendant's contentions.

Submissions by the parties in relation to the circumstances of the accident

1. Mr Hart relied upon the plaintiff's description of the gutters and drainage in the car parking area generally, which is submitted showed "not only absence of maintenance, but an absolute negligence in relation to the control of water and other material from the covered ways, from the roofs, from the gutters, absence of downpipes, the potential for debris from trees that Mr Wagstaffe gave evidence of, causing drainage problems" (T 253). His submission was that any place which has water and mud lying about created a foreseeable risk within the meaning of s 5B of the Civil Liability Act 2002 (NSW) and was not a far-fetched or fanciful risk within the calculus of Wyong Shire Council v Shirt (1980) 146 CLR 40
2. Mr Talintyre's submissions (T 254) were that the defendant was not obliged to provide a means of access to all available points and all conceivable routes to the car park and that a safe means of access, namely a covered walkway which covered a concrete path skirting the corner of the car park (which did not require anyone to negotiate a gutter) and the erecting of a sign advising that the covered walkway was to be used was sufficient. There was no evidence, even from the plaintiff, that the car park contained hazards other than the gutter containing tree debris as a result of the heavy rain.
3. This brings me to the duty of care the defendant, as owner of the site, owed to the plaintiff.

The duty of care owed to the plaintiff

1. It is by defining the duty of care owed to the plaintiff, namely to provide safe and well-maintained means of accessing the workplace and car park, that the difficulties with the plaintiff's case become apparent. The defendant is the owner but not the occupier or controller of the premises. The defendant's duty of care to the plaintiff was thus to take such care as was reasonable in the circumstances to avoid a foreseeable risk of injury.
2. For the reasons set out below, I consider that the duty of care is that identified by counsel for the defendant in his submissions, namely as a duty to provide a safe means of access to the car park for persons who had parked their car there, and for a car park able to be safely accessed by those persons despite it being open to the elements.

The relevant statutory provisions

1. Section 5B of the Civil Liability Act 2002 (NSW) provides: "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."
2. The question of what amounts to a want of "reasonable" care for the safety of the defendant is generally considered within the framework of the statement by Mason J in Wyong Shire Council v Shirt at 47-48 as follows: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
3. The duty of care must be identified with precision, for the reasons explained by the NSW Court of Appeal in Jackson v McDonald's Australia [2014] NSWCA 162 at [7]-[8]. It is only through correct identification of the risk that the Court can determine what a reasonable response to that risk would be: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at [7]. In the present case, this requires a focus upon the defendant's role as the owner (but not the occupier or controller) of the premises.
4. When considering the content of the duty owed by the defendant to the plaintiff, regard must be had to s 5B(2), while noting that this is a non-exhaustive list of factors. The term "reasonable" is helpfully discussed by Brereton J in Morgan v Owners Strata Plan 13937 [2006] NSWSC 1019 at [32] as follows: "The duty of the Owners to Mr Morgan was that general duty of care owed by occupiers to entrants, to take such care as is reasonable in the circumstances for their safety, and to protect them from risks of injury which can be foreseen and avoided [Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614, 663]. However, the content of that duty varies according the circumstances of the entrant's presence on the premises, the obviousness of the risk, the probability of the risk occurring, the magnitude of the consequences, and the cost or inconvenience of taking steps to remove, avoid or avert it [Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40]. An occupier of premises is required to take only such care as is reasonable in the circumstances, not to make the premises as safe as reasonable care and skill on the part of anyone can make them [Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, 177, 184-5 (Gleeson CJ); Wilkinson v Law Courts Limited [2001] NSWCA 196, [21] (Heydon JA)]. One must not slide from determination that a risk of injury exists to a consideration of preventability: a defendant will be liable only if its failure to eliminate the risk shows a want of reasonable care for the safety of the entrant [Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317, [99] (McHugh J); Cafest v Tombleson [2003] NSWCA 210 (Meagher JA)]. The content of a duty of care in a particular case cannot therefore adequately or usefully be described simply as one to take reasonable care to avoid a foreseeable risk of injury to a person in the situation of the plaintiff, as that leaves open the content of the term 'reasonable' and thus the content of the duty, without which the issue of breach cannot be determined [Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, 213 [166] - [167] (Gummow and Hayne JJ)]. So it is essential to identify with precision, by reference to considerations of the nature of those indicated in Wyong Shire Council v Shirt, what was a reasonable response to the risk of harm that existed [Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 611-2 [192] (Gummow and Hayne JJ)], a judgment which is to be made having regard the situation before, not after, the accident [Vairy v Wyong Shire Council [2005] HCA 62, [49], [126]]. It is necessary to consider these questions from the perspective of the defendant, with its state of knowledge, and ask whether the defendant acted as a reasonably prudent person ought to have acted [Woods v Multi-Sport Holdings Ltd (2002) 208 CLR 460]."
5. What is reasonable will vary upon the circumstances of the plaintiff's entry (or in this case exit) from the premises. The failure to eliminate a risk (for example, cementing over the pathway or erecting some more extreme form of barrier than the sign in place) is not necessarily negligent: Tame v New South Wales (2002) 211 CLR 317 at [99].
6. Counsel for the defendant draws my attention to Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [21] where the broad steps of the Supreme Court and their safety were considered in the context of determining the content of the duty of care. The Court noted (at [33]) that, rather than focus on the incident involving the plaintiff and how it should have been avoided, the incident needed to be seen in context: "[33] The criticisms made by the plaintiff in relation to the danger of falling on the steps naturally focus on what in fact happened to the plaintiff. But if the degree of attention to safety which the plaintiff submitted to be appropriate was in fact appropriate, much more would have been necessary to deal with the risk of injury happening in other ways (see generally Jones v Bartlett [2000] HCA 56; (2000) 75 ALJR 1; 176 ALR 137 at [19]; Taber v NSW Land and Housing Corporation [2001] NSWCA 182 at [60]). Dr Emerson complained of the dimensions of the steps, the lack of marking and the absence of handrails (presumably one on each side of a user of the steps would be called for ideally). He also referred to the absence of a "simple warning sign", which he said, "would have provided sufficient stimulus to the Plaintiff to be aware of the hazard of the non-standard steps" (Blue 12B). But the steps are used by many persons who speak English badly, so the warnings would have to be in more than one language. Perhaps there should be other warnings about the danger of descending steps in wet weather, the general need for care in using steps, the need to look out for persons manoeuvring trolleys or wheelchairs or television cameras, and so on. The more the warnings, the less the effectiveness of each. The human imagination can conjure up many circumstances in which a user of the steps might suffer injury. A particular measure directed to the avoidance of a particular type of injury might in itself be relatively inexpensive and relatively easy to implement. But if measures are to be taken to reduce all the dangers which can be imagined, very heavy burdens would be imposed: yet the form of injury from which the plaintiff suffered does not appear any more likely than most of the other imaginable forms of injury. This highlights the difficulty which confronted the plaintiff in isolating the three matters on which he relied to establish a breach of duty."

Findings concerning duty of care and breach of duty

1. As noted above, I have found that the plaintiff voluntarily left the designated walkway to traverse muddy and wet ground and then a gutter containing debris despite knowing of the hazards because he wished to get to a particular spot in the car park where he had parked his car. This involved leaving the designated walkway, contrary to the sign, and walking across muddy and wet earth not once, but several times, as well as negotiating the choked gutter. The plaintiff was able to see the potential risk, namely the choked gutter, but proceeded nevertheless. In addition, whether by reason of the weather or because of the plaintiff's hurry to get to his car and out of the rain after leaving the covered path, he was hurrying across wet terrain.
2. Section 5B Civil Liability Act 2002 (NSW) limits the duty of care to taking precautions that a reasonable person in the position of the defendant would take in order to guard against foreseeable and not insignificant risks of injury. That duty did not extend to providing a means of access to all or even some of the alternate routes to the car park. It was limited to providing a safe means of access to the car park in the form of a walkway which skirted the corner of the car park and went on to the car park entry, as well as a sign to discourage persons both from leaving the walkway and from taking the path that the plaintiff took. By erecting the covered walkway and in putting a sign in front of the shortcut (which required traversing muddy and wet ground as well as the gutter), the defendant had complied with its obligations. I also reject the asserted failure of the defendant to maintain the car park as based upon Mr Wagstaffe's unqualified hydraulic engineering observations.
3. The fact that the plaintiff tripped while stepping over a gutter while walking through wet and muddy conditions in the course of travelling over familiar territory and where he knew the gutter was an obstacle is not, without more, evidence of negligence. Where there is heavy rain, gutters, footpaths and nature strips in cities as well as in mining areas may be wet and muddy and choked with leaves. I am satisfied that, in the present case, the defendant had discharged the duty that it owed to the plaintiff and that there was no breach of that duty.
4. I am satisfied that the plaintiff suffered the accident he did because, contrary to the system set up for his benefit, he left the covered walkway and traversed wet and muddy ground, slipping and falling on the gutter when he misstepped. He was aware of the risk of leaving the covered path and of the wet and dangerous conditions, as well as of the gutter in question.
5. In those circumstances, any claim for negligence against the defendant must fail.
6. I next set out the alternative findings I would have made in relation to contributory negligence.

Contributory negligence

1. Section 5R Civil Liability Act provides: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
2. The effect of this provision is to require individuals to take responsibility for their own lives and safety. In Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 the Court noted at [145]: "Section 5R(1) reflects the "fundamental idea that people should take responsibility for their own lives and safety" and also the proposition expressed by Callinan and Heydon JJ in Vairy (at [220]) that "the duty that [an injured plaintiff] owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized": Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 (at [68] - [70]) per Ipp JA (Giles JA and Hunt AJA agreeing); see also Gordon Martin Pty Ltd v State Rail Authority of New South Wales & Anor [2009] NSWCA 287 (at [39] - [41]) per Beazley JA (Giles and Ipp JJA agreeing)."
3. The question of whether a person has been guilty of contributory negligence is determined objectively. However, some regard must be had to human nature; for example, in Stojan (No 9) Pty Ltd v Kenway (No 9) Pty Ltd v Kenway the Court noted that the plaintiff became aware of the risk partway along the stairwell, when she discovered the next portion of the stairwell was in darkness. The Court took into account that the person in such a situation would be inclined to continue to move forward, and correspondingly found that contributory negligence existed, but not to the extent claimed by the respondents (at [152]-[153]).
4. The fact that a plaintiff has chosen an obviously dangerous route (such as a garden bed in a car park rather than the normal pedestrian walkway: Wright v Perpetual Ltd [2011] NSWDC 37 at [103]) may also be relevant.
5. Any person who leaves a designated covered walkway and ignores a warning sign may be said to be putting themselves at risk. In the present circumstances, that risk was substantial. The plaintiff compounded this risk by hurrying over what he knew to be wet and muddy ground in circumstances where he could see and was familiar with the drain, which was a known hazard over which he had to step.
6. In the event of liability being established, a substantial discount must be applied in relation to damages to account for the plaintiff's contributory negligence.
7. In Stojan (No 9) Pty Ltd v Kenway the Court rejected the submission of the respondent to the appeal that contributory negligence should be assessed at 100%, and assessed contributory negligence at 50%. However, the plaintiff in Stojan (No 9) Pty Ltd v Kenway only found that the stairwell was not properly lit after she commenced to use it. In the present case, the plaintiff deliberately chose to leave the covered walkway and disobey the sign.
8. Leaving a designated path in such circumstances is conduct near the top of the range in terms of contributory negligence. I am of the view that contributory negligence should be assessed at 85%, to take into account the significantly higher factors present in this case.

Damages

1. I next set out below some observations as to the damages to be awarded in these proceedings. I also make findings as to the plaintiff's credit, since this is a relevant factor in relation to the issue of damages.

The plaintiff's medical history

1. The plaintiff has a long and complex medical history. Fortunately, the relevant features of this history were summarised for the purpose of a joint expert report as a chronology from his first significant injury in 1999: "(i) In 1999 the plaintiff underwent a left knee arthroscopy. (ii) An MRI of the plaintiff's left knee carried out on 29 August 2000 showed a complex abnormal signal within the posterior horn and posterior body of the medial meniscus, with differential diagnosis including post meniscectomy changes versus recurrent meniscal tear. (iii) On 23 October 2000, the plaintiff underwent an arthroscopic left subtotal medial meniscectomy. (iv) On 31 March 2003, the plaintiff underwent revision of a previous right sided medial meniscectomy. (v) On 1 July 2011, the plaintiff consulted Dr Pinczewski for bilateral knee pain, who was of the opinion that the plaintiff may well require total knee replacement into the future. (vi) An MRI of the plaintiff's left knee carried out on 28 July 2011 showed degenerative change with full thickness cartilage loss over the medial femoral condyle, peripheral meniscal rim has intrasubstance degenerative change and horizontal cleavage tear in the posterior horn remnant … large joint effusion and large Baker's cyst with evidence of inferior leak. (vii) On 29 July 2011, the plaintiff consulted Dr Pinczewski, who was of the opinion that the plaintiff will require bilateral total knee replacements in the future but he advised delaying it for as long as is humanely possible. (viii) In September 2012, the plaintiff slipped off the step of a truck and sustained an injury to his left Achilles tendon. (ix) An ultrasound of the plaintiff's left ankle carried out on 8 October 2012 showed chronic nodular tendinosis of the middle third of the left Achilles. (x) On 4 December 2012, the plaintiff consulted Dr Neil Halpin for pain related to his left Achilles tendon, who recommended a course of injections. (xi) On 20 August 2013, the plaintiff consulted Dr James O'Sullivan for left heel pain related to Achilles tendinopathy, who recommended the cessation of smoking, stretching and Voltaren. (xii) On 17 September 2013, the plaintiff underwent an injection of steroid and local anaesthetic around the left Achilles nodule. (xiii) On 5 November 2013, the plaintiff underwent an injection of steroid and local anaesthetic around the left Achilles nodule and received advice about surgery from Dr James O'Sullivan. (xiv) On 18 November 2013, the plaintiff slipped in a gutter. (xv) An ultrasound of the plaintiff's left ankle carried out on 22 November 2013 showed chronic left Achilles tendinosis with some inflammatory change and possible minimal central bleeding but no transverse tear and an oblique tear through the lower end of the medial gastrocnemius muscle with local oedema and bleeding. (xvi) An MRI of the plaintiff's left ankle carried out on 7 February 2014 showed chronic insertional tendinosis of the Achilles and an intrasubstance tear, longstanding in nature but no pathology in the gastrocnemius muscle. (xvii) On 13 June 2014, the plaintiff underwent left Achilles surgery. (xviii) On 3 November 2014, the plaintiff underwent a left knee replacement. (xix) An MRI of the plaintiff's left ankle carried out on 17 December 2014 showed a satisfactory post-operative appearance to the Achilles tendon and no new pathology was identified."
2. The parties were able to distil the medical issues for the experts in the following seven questions: 1. Do you agree that the chronic tendinosis of the plaintiff's left Achilles tendon was present prior to 18 November 2013? If not, why not? 2. Do you agree that the incident which occurred on 18 November 2013 did not cause any new pathology of significance in the plaintiff's left Achilles tendon? If not, why not? 3. Do you agree that the tear of the plaintiff's left medial gastrocnemius muscle shown on the ultrasound dated 22 November 2013 recovered within 6 months? If not, why not? 4. Do you agree that the need for surgery on the plaintiff's left Achilles tendon in June 2014 resulted from the pre-existing chronic tendinosis of the plaintiff's left Achilles tendon, and not the incident which occurred on 18 November 2013? If not, why not? 5. Do you agree that the need for surgery on the plaintiff's left knee in November 2014 resulted from the pre-existing chronic degenerative condition of the plaintiff's knee and/or the aftermath of the Achilles surgery in June 2014, and not the incident which occurred on 18 November 2013? If not, why not? 6. Do you agree that the plaintiff was going to require a left knee replacement at some stage in his future, whether the incident on 18 November 2013 occurred or not? If not, why not? 7. Do you agree that the incident which occurred on 18 November 2013 did not accelerate the need for surgery on the plaintiff's left knee? If not, why not and how is any such acceleration assessed and measured, to the extent it can be?

The plaintiff's evidence

1. The plaintiff gave evidence as to his condition before this accident, which he described as that of being in general good health (although with the beginnings of Achilles heel and knee problems) and of his ongoing disabilities after the accident. These disabilities included not only having treatment for the torn muscle but his deteriorating Achilles heel which required surgery as well as the knee replacement. He continued to work for some months after the incident the subject of these proceedings, but became unable to do cope; he left work and has not worked since. He gave evidence that the knee replacement had afforded only limited improvement of his pain: "Q. During that period of time, were you also being reviewed by Dr Roe who had done the Achilles surgery from time to time? A. Yes. Yeah. Q. Did you then undergo an operation through your private fund, on approval from your private fund on or about 3 November 2014 which was a total knee replacement with Dr Harbury? A. Yes. Q. From that time, have you ever been able to return to any form of employment? A. No. Q. In terms of the results, on the outside anyway, can I show you two photographs. They appear at 3 and 4 of the plaintiff's exhibits. Is that the current situation in terms of the scarring on the exterior part of your leg? A. Yes. Yep. Q. After the total knee replacement, you described to her Honour that ‑ I think you had some improvement after the Achilles operation at least. A. Yes. Q. What was your experience after the total knee replacement, in terms of your pain or other problems with your knee? A. I still had ongoing pain with my pain." (T 65)
2. He continued to have problems for some time: "Q. Were there any other complications after that operation that you can recall? A. I had patella problems with that knee." (T 65)
3. He is currently completely unfit for any work and has limited mobility: "Q. Including further investigations of your ankle and your knee? A. Yes. Q. Did Dr Roe send you for further investigations by a neurologist? A. Yes. Q. And that's Dr Katekar. A. Correct. Q. To see the reasons for the problems you were continuing to have with your ankle? A. Correct. Q. After the total knee replacement, has it returned to functioning in terms of getting around like you used to? Leaving work aside, what are the sensations when you walk in the light of that total knee replacement, what's the type of ‑ how do you feel about your knee in your normal activity? Just describe that as best you can. A. It's stiff, it aches and unstable. Q. In terms of instability, has that ever led to any other problems? A. I've had falls since. Q. Describe how they happened? How do those falls happen? A. Just my knee gives way. Q. And you've let doctors know that it happens from time to time? A. Yes." (T 66)
4. This evidence was, however, of little assistance in that it is clear, from his medical history, that he suffers from a constellation of interacting medical issues and pain which are best left to the medical practitioners to unravel.
5. Although the plaintiff seemed keen to attribute all of his pain and suffering to the circumstances of his accident, that is not borne out by the medical evidence in this regard. Unfortunately, in the accounts he has given of this past medical history to medical practitioners, such as Dr Bodel and Dr Rao, the plaintiff has dwelled at some length upon the injuries the subject of his claim and has not described other injuries such as the 2012 fall (which he did not tell Dr Bodel about) or indeed any detail of the extent of his pre-existing problems to Dr Rao. Mr Talintyre submitted (T 279) that in those circumstances the plaintiff could not be regarded as a person who was being frank and honest.
6. While I agree that this is a problem for the plaintiff in terms of whether I should accept his evidence, the real difficulty is that the plaintiff's own medical evidence is scant in terms of showing that the plaintiff's injury on 18 November 2013 was the catalyst for the plaintiff's need for the ankle surgery carried out in June 2014.
7. This includes the investigation records. Mr Talintyre draws to my attention that the ultrasound taken after the accident in November 2013 did not show any injury to the Achilles tendon but to the muscle above it, which was the muscle tear he sustained.
8. As is set out in my analysis of the medical reports below, all of the medical evidence points to the pre-existing Achilles tendon injury as being an escalating problem which inevitably required surgery, even before the plaintiff's fall. For example, the plaintiff had consulted Dr Halpin and Dr O'Sullivan about these issues, and shortly before the accident he was discussing surgery with Dr O'Sullivan. I am satisfied from these reports that surgery on the plaintiff's Achilles tendon was inevitable, and that this was his condition prior to the accident on 18 November 2013.
9. The second problem I have is the linking of the accident the subject of these proceedings to the knee surgery in June 2014. The connection between the knee and the ankle is difficult to quantify and I note, in terms of muscle wasting, that the plaintiff was diagnosed as having muscle wasting as early as August 2000 (Dr Pinczewski).
10. I am also satisfied that this was only a frank tear to the muscle, treated appropriately by physiotherapy (as to which see the reports of Sean Henderson from Muswellbrook Physiotherapy, discussed below) which had resolved in or about March 2014.

The plaintiff's ongoing disabilities

1. When considering the plaintiff's disabilities, it is important to take into account that, as at 18 November 2013, he already had a series of medical problems. These included his bilateral knee pain which was diagnosed as being likely to require total knee replacement in the future (1 July 2011), the injury to his left Achilles tendon in September 2012 likely to require surgery in the future, and other longstanding health issues such as weight problems.
2. The plaintiff's current disabilities according to the amended statement of particulars are: 1. pain, discomfort and restricted movement in the left leg, ankle and knee; 2. altered gait; 3. aggravation of lower back pain as a result; 4. sleep problems; 5. dependence upon analgesia; 6. disruption to social, domestic, recreation and other activities; and 7. what is called "total economic incapacity" from 14 June 2014 to date.

The medical evidence

1. The plaintiff tendered nearly 500 pages of medical evidence, most of which consisted of reports from treating doctors and results of X-rays and other investigations. As is set out below under the heading "Application to reopen", the plaintiff made an application on 3 May 2017 to tender further documents in relation to medical issues, which application was refused.
2. Most of the medical material tendered by the plaintiff (including the letter to Dr Machart from the defendant's solicitors, which was tendered at the commencement of addresses) was not referred to by the plaintiff in submissions. The principal medical evidence referred to by the parties in the submissions was the opinions of Dr Bodel for the plaintiff, Dr Machart for the defendant and Dr Millons, whose reports were relied upon by both parties.

Dr Millons

1. It is helpful to start with Dr Millons' reports, since these reports were tendered and relied upon by both parties. Dr Millons was retained by Coal Mines Insurance Pty Ltd, in relation to the workers compensation insurance claim. He described the plaintiff's injury as follows: "HISTORY OF CURRENT MATTER It was sometime in 2012 that Mr Leman first injured his left leg. He missed a step getting down from a truck and came down very hard on his foot. He was aware of pain in the region of what he sites as the Achilles tendon. He took the four rostered days off that were due. He thinks that he saw his LMO, Dr Foster, at the time. He was referred through to see Dr O'Sullivan, foot and ankle specialist, and came to an injection into the Achilles tendon region which gave him three or four days' relief from his symptoms. Mr Leman appears to have kept working in the face of some ongoing discomfort in the Achilles tendon. He just put up with that. He was able to perform his normal duties. On 18 November 2013, Mr Leman had finished work. He was heading to the carpark. It was raining and wet. He slipped and fell, twisting his left ankle as he tried to retain his balance. He was aware of a sudden, severe pain in the calf. He managed to drive himself home. The calf was very painful. He went to work the next day, reported the incident and was referred through to see Dr Debelak. Dr Debelak sent him for some physiotherapy which is continuing at Sean Henderson's hands. It appears that BulkTrans were half way through a four year contract at Hunter Valley Open Cut but lost the contract. Mr Leman worked on for another 4 or 5 weeks at Hunter Valley. Someone else took over the contract and he was offered a position. However, he would have had to have had a medical and Dr Debelak felt that, the way his left ankle was, he would not pass the medical. The position is open to him when he has fixed the problem. In the meantime, he has taken up his causal position at Ravensworth, working 3-5 shifts per week. Mr Leman remained under Debelak's care. The physiotherapy was aggravating and, perhaps six weeks ago, he felt he may have been doing too much exercise because he had more pain in the ankle and there was some bruising of the leg. Mr Leman was referred to see Dr Rao, orthopaedic surgeon, one week ago. Dr Rao suggested that he needs an operation on the Achilles tendon, presumably to explore, decompress and debride the tendon to promote healing. Mr Leman will be in a moonboot and on crutches for a few weeks after surgery. Mr Leman has been told that there is a 90% success rate. CURRENT SITUATION Mr Leman has ongoing problems. The pain that he felt in his left calf following the incident in 18/11/13 has to a large part resolved although the area is still slightly tender. He is aware of persisting thickening of the Achilles tendon just above the heel. He thinks that that was present before the incident on 18/11/13 and may have been there since the original injury. He gets aching in the Achilles tendon which comes on from time to time. When going up steps, he feels discomfort."
2. Dr Millons' opinion is set out on page 5 of his report as follows: "OPINION Mr Leman is clearly having problems with his left Achilles tendon. On the history that he gives, he appears to have had non-insertional Achilles tendonitis going back to a work incident sometime late in 2012. He did see Dr O'Sullivan at the time and had an injection into the tendon. He has had some ongoing discomfort in the tendon in the months thereafter. That would suggest that there was a chronic tendonitis flowing from that earlier incident. In the incident on 18/11/13, Mr Leman slipped and fell, went over on his left ankle and he was taken with severe pain in the calf. There was ultrasound evidence of damage to the distal medial gastrocnemius and it appears that he tore that muscle in that particular incident. With the passage of time and appropriate treatment, symptoms from here have mostly settled down. The area is only minimally tender. He has been left with some thickening and swelling of the Achilles tendon as a legacy of the longstanding work related issue. He has undergone some fairly vigorous stretching physiotherapy which may have caused a further tear of the gastrocnemius along the way but that was relatively short lived. In the light of persisting difficulties with the Achilles tendon demonstrated radiologically, it is reasonable that he proceed to the surgery proposed by Dr Rao with the aim of lessening his symptoms. He will need to be in a moonboot and up on crutches for a few weeks after surgery. That will then need to be followed with some physiotherapy."
3. Dr Millons differentiates between these two injuries and notes in relation to the injury on 18 November 2013: "Attributability to the injury of 18 November 2013 The injury that day appears to have torn his left medial gastrocnemius which has just about recovered. His main problem is with chronic tendonitis which seems to have had its origin in the incident in 2012. I am not party to any papers in regard to that. In consideration of the ultrasound report dated 22 November 2013, provide your opinion on any episode of aggravation of any pre-existing condition I believe that that incident caused a tear of the medial gastrocnemius. It does not particularly appear to have caused any significant aggravation of the longstanding Achilles tendonitis which had been place [sic] for something more than 12 months prior to that time. If the worker's condition is not related to his employment injury/ies, what do you consider it is related to? Not applicable. His Achilles tendon problem reflects the incident in 2012."
4. Subsequent to this report, Coal Mine Insurance Pty Ltd wrote to the plaintiff's general practitioner as follows: "This is to confirm that Coal Mines Insurance has approved surgery proposed by Dr Rao. Below is a summary of feedback from Independent Exam with Dr David Millons. - Diagnosis: Chronic non-insertional left Achilles tendonitis since an incident in 2012. Torn medial left gastrocnemius as a result of the incident on 18/11/13. That has mostly resolved. He has been left with chronic tendonitis. - Prognosis: is guarded. In the light of the longevity of his symptoms, it would be appropriate that he proceed to the surgical procedure prescribed by Dr Rao in an attempt to improve the condition of his left leg, improve his mobility and improve his work capacity. - Treatment: Dr Rao's operation would seem the most appropriate way to take things forward from here. Ongoing physiotherapy in the absence of surgery would seem to hold little prospects of improving his situation. - Attributability to the injury of 18 November 2013: The injury that day appears to have torn his left medial gastrocnemius which has just about recovered. His main problem is with chronic tendonitis which seems to have had its origin in the incident in 2012. Please note any treatment recommendations for torn medial left gastrocnemius should be noted for claim B526001. Achille [sic] injury is on claim B526210."
5. Dr Millons' opinion could not be clearer. He sees no connection between the muscle tear resulting from the injury the subject of these proceedings and the plaintiff's previous Achilles tendon problems.

Dr Bodel

1. Dr Bodel saw the plaintiff on 23 September 2016 and noted that he had seen him a decade earlier, in March 2006, for a back injury. He saw the plaintiff for the following injuries: 1. Achilles tendonitis and a partial rupture of the Achilles tendon of the left ankle - 18 November 2013; and 2. Consequential aggravation of longstanding arthritic change in the left knee.
2. According to what Dr Bodel was told, "X-rays and ultrasound were done and he was told that he had a partial rupture of the Achilles tendon and Achilles tendonitis. He was treated conservatively with physiotherapy and medication".
3. It is immediately apparent that Dr Bodel has not been informed of the injury to the Achilles tendon in 2012. Dr Bodel went on to note that the plaintiff developed what he called an awkward gait pattern and that while recovering from the poor outcome of the surgery on his left ankle for the Achilles tendon problem, his left knee deteriorated rapidly and he had to have a total knee replacement in November 2014. He notes that the knee problem was never accepted as work-related (page 3 of his report).
4. Dr Bodel was provided with an injury claim form for 18 November 2013 which he says confirms that "there was a left Achilles and calf muscle strain and that is consistent with the history I have been given".
5. Dr Bodel's report is clearly based on a misunderstanding of the medical evidence, as is clear from his outline of the material he was given. Had he been provided with the report of Dr Millons, he would have picked up these erroneous instructions immediately.
6. Accordingly, the value of Dr Bodel's report is substantially undermined.

Physiotherapy reports

1. While caution should be exercised when considering reports from physiotherapists, the plaintiff's physiotherapist provided a report dated 27 November 2013 which similarly differentiated between the plaintiff's Achilles tendon strain and the muscle strain he suffered (Exhibit A page 116; report dated 27 November 2013). He considered that the plaintiff's left medial gastrocnemius muscle strain "would typically take 16 to 21 days to recover", and possibly less in a younger worker. He also notes the pre-existing nature of the Achilles tendon injury, although noting that the plaintiff said that the injury had strained both his calf and Achilles tendon. As to the latter, I prefer to accept the evidence of Dr Millons.

Dr Machart

1. Dr Machart provided two reports dated 29 November 2016 and 3 March 2017 and was cross-examined (T 190 ff).
2. In both reports Dr Machart stated that the plaintiff suffered from a well-documented pre-existing condition and the chronic Achilles tendonitis. He stated in his report of 3 March 2017: "The incident on 18 November 2013 did not cause additional tendo-Achilles injury or need for surgery. The incident caused a calf muscle tear from which Mr Leman has recovered. The opinion that ipsilateral (same leg) ankle pathology (related or not to the injury) caused deterioration of knee OA does not withstand medical scrutiny. Painful foot or ankle caused less weight bearing demands on the knee, not more."
3. Dr Machart adhered to these views in cross-examination, at one stage saying, in response to Mr Hart's assumptions, that "I actually don't agree with any of it" (T 198).

Dr Watson

1. Dr Watson, an orthopaedic surgeon, provided a report dated 17 October 2014 dealing with the plaintiff's knee. He described the plaintiff as having a previous history of knee arthroscopies unrelated to his present employment (Exhibit O page 231) and that the plaintiff currently had a degenerative left knee which was confirmed on investigations. He stated at page 4 of his report: "2. Diagnosis and clinical findings on examination The diagnosis is varus degenerative left knee with a fixed flexion deformity with limited flexion and extension. It is directly related to constitutional pathology and directly related to his previous arthroscopies that date back to 1998 having undergone arthroscopies with Dr Young, Dr Berton and Dr Pincweski [sic]. 3. Is the reported injury consistent with the stated cause? I do not believe it is directly related to the incident of 13 November 2013 when he slipped on a wet ground in a car park at the Harwick Coal Mine when he was employed with Trans Pacific. I note that he had symptoms in his left tendo Achilles on 13 June 2014. 4. Please comment on the causation of symptoms and the relationship between employment to the onset of the current symptoms, as no frank incident has been reported. I believe his symptoms in his left knee are directly related to constitutional pathology and not related to the incident of 13 November 2013. He does have constitutional degenerative changes in his left knee and he does warrant a total knee replacement, that is not related to the incident of 13 November 2013. 5. Are the symptoms complained of a mere manifestation of a pre-existing deteriorating condition? If so, please explain. Yes, I believe he does have a degenerative left knee which is constitutional, pre-existing and pre-dated this incident and is a manifestation of this pre-existing pathology. 6. Did the surgery precipitate, aggravate or accelerate a pre-existing or deteriorating condition beyond normal progression? If so, please explain. No, I do not believe it has had an aggravation or acceleration. The patient has had symptoms around his left tendo Achilles and I believe his ongoing symptoms are the natural progression of constitutional pathology which pre-dated the incident. 7. Is there any pre-existing condition? If so, please comment on any episode of aggravation and if in your opinion that aggravation has now ceased or is likely to cease. Yes, he has degenerative changes in his left knee. I note he has had previous arthroscopies undertaken by three separate Orthopaedic Surgeons dating back to 1998. I do not believe there was an aggravation of this knee as a result of slipping when he experienced symptoms around his left ankle."

Conclusions concerning medical evidence

1. It is not in dispute that the plaintiff had longstanding problems with his knees and that he injured his Achilles tendon the year prior to the incident the subject of these proceedings. The question is whether one or the other or both of those conditions was or were exacerbated as a result of the fall.
2. I would be satisfied that there is no connection between these injuries, largely because of the report of Dr Millons in relation to the lack of relationship between the tear in the plaintiff's muscle and his pre-existing Achilles tendon, and by Dr Watson in relation to the lack of connection between the plaintiff's knee injury and the slip and fall the subject of these proceedings. Accordingly, if I were to award damages, it would be for the sums set out in the defendant's schedule of damages, with one exception, namely non-economic loss.
3. In those circumstances, the only past and future out-of-pockets to be awarded would be those identified by the defendant, as these are the past and future out-of-pocket expenses relating to the treatment of the plaintiff's torn muscle. I note that these revised out-of-pocket expenses were the subject of amendment for the submissions on 3 May 2017 and that an additional sum of $100 for Fox v Wood was added. These figures do not appear to have been mathematically disputed by the plaintiff.
4. In those circumstances, I would similarly not have awarded any allowance for future home care.
5. The net sum would also need to be reduced to take into account my findings as to 85% contributory negligence.
6. Having made these observations I now set out the parties' schedules of damages.

Damages

1. The plaintiff provided an Amended Schedule of Damages as follows (Exhibit X): D.O.B. 10.01.54 D.O.I. 18.11.13 Current age 61 Life factor (24 years) 737 Economic loss factor (6 years) 271 Week since D.O.I. 180 General Damages 30% of MEC [sic - NEC] $139,000 Economic loss A.W.E.'s at D.O.I. As per plaintiff's payment summaries, payment period 15.08.12 to 30.06.13 A.W.E.'s with the Scott (BulkTrans). $2,755.00 gross, $2,130 net. Last pay period to 01.12.13 with Scott Note: last day of work 18.11.13 Gross YTD earnings $63,258.00 Taxation deducted YTD $23,003.00 A.W.E.'s of $2,013.00 net As per plaintiff's pay advice Payment period 11.11.2013 to 17.11.2013 Allow A.W.E.'s in Chandler (Daracon) employment $888.00 gross, $692.00 net Total A.W.E.'s at D.O.I. $2,642.00 net Allow comparable wages ("CW") of Mark Markham's (As per his pay period 10.03.14 to 16.03.14) Allow CW of $1,592.00 gross, $1,210.00 net Add Chandler earnings to comparable $1,210.00 + $629.00 = $1,839.00 Past Economic loss From D.O.I. to date Allow total incapacity $1,839.00 net per week for 180 weeks - $331,020 $294,631 Less net earnings between 18.11.13 and 13.06.14 (Dr Rao operation) - $36,389 Total past economic loss - $294,631.00 Past superannuation $32,410 Allow 11% of net past loss Fox v Wood From Coal Mine Insurance ("CMI") claim number B526210 - $11,402.00 $11,402 From CMI claim number B526001 - $ NIL Future economic loss Allow total incapacity $1,840.00 net per week Factor 271 $373,980 Less 25% for vicissitudes 1,840.00 x 271 - 25% Future superannuation $43,793 Allow 11.71% of net future loss Past out of pockets Left ankle: CMI claim number B526210 - $40,341.39 $83,985.73 CMI claim number B526001 - $1,297.55 Left knee HIC Charge (as at 4.4.17) - $3,808.89 Left knee HCF Charge (letter 6.8.16) - $38,537.90 Future out of pockets Weekly recurrent: Medications/analgesics - $20 GP review - $20 Hydrotherapy - $15 Orthopaedic review - $20 Pain specialist - $20 Travel - $20 Total weekly recurrent $115.00 Factor 737 - $84,755 Christian Byrnes Ex C pages 78, 108-110 $100,836 One-off out of pockets: Occupational therapy - $350 Physiotherapy - $900 Psychology - $2,856 Podiatrist - $650 Pain management - $8,000 Redeployment assistance - $3,325

Subtotal - $16,081 Past care and services Nil Not pressed, under the threshold of Civil Liability Act Future care and services Christian Byrnes Ex C page 106

Allow $150.14 per week $82,989.89 Life Factor 737 150.14 x 737 - $110,653.18 Allow 75% - $82,989.89 Equipment and technology

As per Christian Byrnes $3,685 Allow $5 per week (Life factor 737) $5 x 737 Total $1,166,712.62

1. A claim for past care and services of $50,460 was abandoned during closing submissions.
2. In the course of submissions on 3 May 2017, Mr Hart gave an estimate for Fox v Wood of $11,402 and amended his out-of-pocket expenses to $83,985.73 for past out-of-pockets and $100,836 for future out-of-pockets.
3. The defendant provided a schedule of damages on the basis that the only injury of significance sustained by the plaintiff in the incident on 18 November 2013 was a tear in his gastrocnemius muscle which, according to medical reports, recovered in between three to four months. During that period of time he continued to work for Chandler McLeod (his work with Scott Corporation having come to an end when the plaintiff was terminated at about the time of the incident). The defendant has not provided me with any alternative schedule of damages in relation to the claims put forward by the plaintiff.
4. The defendant provided an Amended Schedule of Damages as follows: Explanatory Note: The defendant's amended schedule of damages is based on the evidence which demonstrates that the only injury of significance sustained by the plaintiff in the incident on 18 November 2013 was a tear of his gastrocnemius muscle, which according to those treating him recovered within 4 months (and most likely within 3 months). During that period he continued to work with Chandler Macleod (his work with Scott Corporation having come to an end when that company's contract with the defendant was terminated at about the time of the incident on 18 November 2013). Any subsequent pain and suffering, inability to work and incursion of medical expenses arose from his chronic pre-existing Achilles tendinosis and degenerative knee conditions. Non-economic loss (15%) $6,000 Past out-of-pocket expenses $1,297.55 Future out-of-pocket expenses Nil Past economic loss (1 week at $1,500) $1,500 Future economic loss Nil Domestic care (past and future) Nil Fox v Wood $100 [This item was added during final submission: see transcript of 3 May 2017.] Total $8,897.55

1. I set out some brief observations as to quantum, noting that if damages were awarded, they should be reduced by 85% for contributory negligence.

Non-economic loss

1. I am satisfied that the plaintiff suffered a muscle tear of some severity, but which resolved in a matter of months as is set out in the reports of the physiotherapist. I have rejected the submission that there is any contribution from this accident to the plaintiff's subsequent Achilles tendon and knee surgery.
2. In those circumstances, I do not see how the plaintiff can achieve damages above the threshold. He has suffered an injury from which he has completely recovered. I would not award non-economic loss.

Past and future economic loss

1. The plaintiff claims past and future economic loss as set out in the schedule above.

The plaintiff's employment

1. The plaintiff was a long-term worker at mine sites as a truck driver. At the time of his injury, he had been employed by Scott Corporation as a coal haulage truck driver, and was earning $2,013 net per week. He also had concurrent employment as a truck driver through Chandler McLeod (although he was hired out to Daracon Group). In the week of his injury the plaintiff earned $629 net per week in that position.
2. The plaintiff continued at work for some months after the accident and claims total economic incapacity from 14 June 2014 onwards.

A late change to the particulars of economic loss

1. The plaintiff's claim for economic loss was initially predicated as being a claim on the open labour market. During the hearing the plaintiff made an application to amend the statement of particulars in accordance with MFI 7 on the basis that he lost the opportunity to work for MMG Skilled Group and Program Group carrying out similar contractual labour hire coal haulage duties at the operation of the defendant and other coal operations in the Hunter Valley. The plaintiff also sought to rely upon comparable wage records for persons who had carried out such work, and called a fellow employee who had gone onto this program.
2. I did not permit the amendment of the particulars as requested. The circumstances where a late amendment of this nature will be permitted during a hearing, where the defendant submits that this new evidence cannot be made, would need to be compelling. There was no explanation proffered for the delay in bringing such a claim (as to which see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175). Applications of this kind are particularly difficult when made in circuit courts, where there is limited time available for hearings, and where the proceedings have been carefully case managed by the Registrar to ensure that proceedings are ready to commence in the specially fixed circuit sittings which are conducted in country courts.

Findings concerning past and future economic loss

1. There is no doubt that the plaintiff has problems with his Achilles tendon and knee replacement surgeries. He will probably require further knee surgery in the future in relation to the other knee. Again, this is a problem of long standing and unrelated to the fall the subject of these proceedings.
2. The plaintiff has worked all his life in heavy labour and driving jobs. He has limited education and skills. Returning to the work force in anything other than temporary and/or part time work will be difficult. However, none of those injuries are related to the injuries the subject of this accident.
3. The defendant allowed only for one week, to reflect the amount of time the plaintiff actually had off from work. That results in a payment of $1,500 for past economic loss, which is the sum that I would have awarded.

Future home care

1. I have read the report of the occupational therapist. Many of the claims are excessive, and as much is acknowledged by the withdrawal of the claim for past home care. There has been no attempt to break down those claims in relation to the knee replacement or the Achilles tendon injury; everything is sheeted home to the defendant. A reduction of these claims by 50% of the kind Mr Hart appeared to concede would take the claim slightly below the threshold, for future as well as past, in relation to voluntary assistance. Evidence of the plaintiff using commercial services in the future consisted essentially of his statements to that effect.
2. The plaintiff gave evidence that he was in fact able to do some work around the home, including car maintenance and some gardening (T 67 - 68). This is contrary to the picture painted by the occupational therapist's report of a plaintiff with little or no ability to perform household tasks.
3. In addition, there has been no or no sufficient allowance for the natural consequences of the ageing process: Metaxoulis v McDonalds Ltd [2015] NSWCA 95 at [81] (reduction of 40%).
4. Fundamentally, however, my findings as to the plaintiff's full recovery from the muscle tear mean that I would not make any allowance for future home care in any event.

Past and future out-of-pocket expenses

1. Conformably with my findings as to the limited nature of the plaintiff's injury, I would only allow for those sums set out by the defendant in its schedule of damages.
2. On the final day of the hearing, there was an application by the plaintiff to tender further documents in relation to quantum and causation. I next set out my reasons for refusing that application.

Application to reopen

1. These proceedings were listed for hearing in the March Newcastle circuit sittings, with an estimate of three days. The hearing could have been completed in that time, but had to be adjourned because the plaintiff could not provide a number of disbursements including out of pockets and Fox v Wood. The proceedings were accordingly stood over part heard to the Sydney registry for 3 May 2017 to enable the parties to exchange revised schedules of damages in relation to these and other issues (including a reduction of future home care in accordance with Metaxoulis v McDonalds Ltd).
2. At the commencement of the hearing in Newcastle, the plaintiff's counsel had complained about not having letters of instruction to the defendant's doctors (T 3 and 15). On the third day of the hearing, Mr Hart was provided with the letter to Dr Machart, who had been retained by the defendant (T 249) but said that he was still unable to obtain the letters from Coal Mines Insurance Pty Ltd, the plaintiff's employer, who had obtained reports from Dr Watson and Dr Millons.
3. I note that other correspondence from Coal Mines Insurance Pty Ltd to doctors (such as the fax to Dr Debelak from Coal Mines Insurance Pty Ltd appearing at page 204).
4. The problem was that these were documents which had been sought under subpoena in June 2016, and it would appear that no further action had been taken when these documents were not provided.
5. The issue was discussed at T 249: "HART: Before your Honour adjourns, one of the things that we should put into your Honour's exhibits, and we've asked for these before, are the relevant referring letters and attachments that were sent to, or the ones that we don't know about, the qualifying doctors. The ones that were given to Dr Watson and Dr Millons we've asked from Coal Mines Insurance. HER HONOUR: You're asking for the solicitor's letters to the experts? HART: We've asked for them. They've been hanging around. I think you've provided your qualifying letter. I just want to have the qualifying letters into the bundle so that your Honour is across whatever assumptions, whatever documents were with them because, as you might appreciate, the doctors have given evidence based on material provided. We've been chasing some instructing letters. If I could just reserve the position of‑‑ HER HONOUR: Mr Hart, which referral letters to which doctors do you want? HART: Dr Watson, Dr Millons, Dr Machart for the defendant. HER HONOUR: Have you provided any of those? TALINTYRE: I don't know. It's the first I've heard of the issue. HART: That's not true. TALINTYRE: I certainly can't produce the letters to Dr Watson and Dr Millons because they were engaged by Coal Mines Insurance, not my client. HER HONOUR: There we are. That's the short answer. There's nothing to produce for those two. What about Dr Machart? TALINTYRE: I'm not sure if my instructing solicitor has a copy of that letter with her. No notice was given that it was required as far as I'm aware. HART: I raised it with my friend some time ago. TALINTYRE: I don't recall it, I apologise. HER HONOUR: Dr Machart was here. You could have ask him. HART: I ask him "I'm assuming that you had documents provided to you by the instructing solicitor". You'll I'm asking, and it's only fair, is if they could please provide a copy of the instructing letter to Dr Machart. That would be something that I would ask your Honour to have in the bundle. That's all I'm saying. HER HONOUR: If you want to ask your opponent to produce it. The trouble is I think their answer is that they don't have it here. HART: Yes. That possibly will become available and I just want the reserve the plaintiff's position on it. That's all. HER HONOUR: I'm sure that Mr Talintyre's instructing solicitor won't mind having a look over lunchtime, but if it's not here by 2 o'clock, I think under the circumstances I will have to proceed without it. The answer to the other two doctors is they weren't retained by these people." (T 249-250)
6. At T 252 it is noted that the letter of instruction to Dr Machart was produced and marked Exhibit 5. Mr Hart then commenced addressing.
7. It was at this stage that the parties raised the problems with the missing figures for out of pockets. Towards the end of his submissions I noted that there was a blank space beside the words "Past out-of-pockets" in the plaintiff's schedule of damages and at T 270 I asked: "HER HONOUR: You passed [sic: probably "your past"] out of pockets, says blank, what does that mean? HART: That's the issue with Coal Mines Insurance. We haven't clarified that. That will have to stay open. If your Honour was prepared to reserve on the basis that certain‑‑ HER HONOUR: I am not prepared to reserve on that basis. What I propose to do, I propose to hear final submissions and I will stand it over for further directions, because I'm not going to leave issues like passed out of pockets and Fox v Wood to be determined in circumstances where I've had to reserve and I'm expected to hand down a judgment. HART: Yes, your Honour, but‑‑ HER HONOUR: I'm going to reserve when all the evidence is in. HART: Like the matter of Barrett, your Honour, he's on Workers Compensation now. HER HONOUR: Mr Hart, I don't care about that. The thing is I'm not going to reserve until all the evidence is in and all the submissions are in. I'm not going to do it. So that's final. No judge is obliged to reserve in circumstances where they haven't heard certain evidence. It creates any number of problems. Has it occurred to you that then you need to make an application to reopen the case? HART: But, your Honour, can I just say something, please? HER HONOUR: No, you can't. HART: Please. Please, I beg you. HER HONOUR: I've told you what I'm going to do. HART: He is on weekly payments, your Honour‑‑ HER HONOUR: Mr Hart, I don't care what he's on. I'm telling you I am not going to reserve in situations where it's technically necessary to reopen the case. I am going to tanned it over for further directions so that you can send me whatever it is you've agreed on. If you can't agree, you can come back. I'm not going to do it. It is stupid, Mr Hart. It creates all manner of problems. Judges are supposed to reserve and hand down judgments in two months. I don't want to find a month from now you're still wrangling with these people who haven't provided you this on the last day of the hearing. I'm not going to do it and that's final, Mr Hart. HART: I accept that." (T 270-271)
8. Mr Talintyre completed most of his address but said at T 289: "Your Honour, I can't deal with out of pockets, because we don't have the plaintiff's case on that. I've put the submissions I want to make about economic loss and I don't know that there's any other area of damages that your Honour needs submissions from me on. HER HONOUR: All right. HART: Can I just‑‑ HER HONOUR: What? HART: Just in reply, very briefly, your Honour, very briefly‑‑ HER HONOUR: How can you rely when you haven't addressed these other issues? HART: Sorry, I thought Mr Talintyre has finished. HER HONOUR: He has finished. What I'm saying is what's the point of having a reply‑‑ HART: Because I need to ‑ while it's clear in your mind, I need to deal with a couple of issues that are fundamental to the case and you need to see this information, your Honour. HER HONOUR: Why don't you give me a note? HART: Because it will only take me five minutes. Please allow me. I beg you. HER HONOUR: You can have five minutes. HART: Thank you, your Honour. There was a criticism, a major criticism of the plaintiff's case on causation on the basis that his Achilles problem (1) wasn't an injury that occurred on 18 November 2013, your Honour, p 293, Develak's WorkCover certificate says, "Left ankle, Achilles...not operated on". The criticism of him from the physiotherapy reports at p 116, if you read it and study it, it said the following ‑ this is on 27 November, referred by Dr Develak, this is the doctor that saw him "Thank you for...Achilles tendon strain", which is, obviously, a mistake, "He was provided...his Achilles symptoms". There is no doubt that was a dual injury, a dual injury for which there is a continuing complaint of significant ongoing symptoms. When Dr Millons sees him for the WorkCover insurer, those two injuries were clearly in his mind, they were clearly part of the documents given to Dr Millons because Dr Develak was the treating doctor for the injury that is complained. There is no mystery about it. For that to be, if you like, isolated as a‑‑ HER HONOUR: That's all right. Is that your point? HART: To isolate the soft tissue‑‑ HER HONOUR: Is that it? HART: I'm just saying one more thing. To isolate it as a soft tissue calf strain for a closed period‑‑ HER HONOUR: Yes. I get your drift. HART: Thank you. That's it. HER HONOUR: We need to relist this matter because apart from the fact that it's now ten past, I can't ‑ you need to resolve this issue of past out‑of‑pockets. HART: Yes. We will try and deal with that. HER HONOUR: And future out‑of‑pockets. HART: Yes. Can I just say something about that? HER HONOUR: No. I'm putting it in the directions. I need to stand the matter over part heard to enable the parties to determine Fox v Wood, past out‑of‑pocket and future out‑of‑pocket expenses. DISCUSSION AS TO TIMETABLE I ask the parties to provide me with amended damages schedules. Is that possible? HART: Yes. TALINTYRE: Taking into account the out‑of‑pockets? HER HONOUR: Yes. In other words, what you do is just give me amended schedules. The parties are to provide amended schedules of damages by Thursday, 27 April. Mr Hart, you can amend your schedule of damages so it says, "30%" instead of "40%", takes out the past home care. Do you think you can do me a favour and add things up? HART: I will do that. In the covering correspondence, I will just point out the evidence on which the plaintiff relies in the material relating‑‑ HER HONOUR: Whatever else you put in your submissions is a matter for you. If your opponent has any objection, I'm sure he will tell me. If you take the view that you would rather tell me twice than having make a mistake, then I'm not troubled by that. HART: No. It's to do with the future out‑of‑pockets. Your Honour asked me and I ran out of time to identify them. I'm just going to put some brief notes of references that deal with that. That's all I'll do. ADJOURNED PART HEARD TO WEDNESDAY 3 MAY 2017" (T 289-291)
9. On 3 May 2017, without prior notice to the Court, Mr Hart brought an application to tender a large number of file notes from Coal Mines Insurance set out in an affidavit of Mr Raymond Edward Blissett sworn 27 April 2017 (MFI 13). While some of these (namely those set out in Exhibit U) were not the subject of objection, there was an objection to the balance by the defendant on the basis of prejudice, as the doctors in question had given their evidence and the parties had closed their case and addressed, subject only to the past out-of-pockets and Fox v Wood issues which had caused me to stand the proceedings over to 3 May 2017.
10. I should first note that Mr Hart submitted that at all relevant times he had reserved his position and that he had never closed his case. He said that it was "unfair to the plaintiff" (T 301) and contrary to Makita Australia Pty Ltd v Sprowles to refuse to permit this step, and that the plaintiff had been put to great inconvenience by the unfair and disjointed way the court case had been run (T 301-302). The disjointed nature of the case arose from the interposing (principally during the plaintiff's evidence) of medical witnesses in order to suit the convenience of the doctors who had had to travel to Newcastle to be cross-examined.
11. While it is correct to say that I did not formally insist on the plaintiff closing his case (or, for that matter, insist that the defendant do the same) I made it clear to Mr Hart that it was necessary, if the plaintiff wished to tender material not currently available, for him to seek leave to reopen his case: see my statements to this effect at T 270. This issue was, however, only raised a matter of days before the 3 May 2017 adjourned hearing date.
12. Mr Hart initially argued that he had sought, and been granted, leave to adduce further evidence after the submissions of both parties, which an examination of the transcript shows was clearly not the case. I refused to accept that argument for the reasons set out in the transcript. He argued in the alternative that he should be permitted to reopen his case to tender the substantial bundle of material attached to the affidavit of his instructing solicitor, and I now set out my reasons for refusing that leave.
13. The principles for reopening a case and recalling witnesses or seeking leave to adduce further evidence are helpfully set out in Reid v Brett [2005] VSC 18 at [41]. The relevant principles governing the exercise of discretionary power to reopen a case to admit further evidence where the hearing has concluded but judgment has not been delivered may be summarised as follows: 1. the further evidence is not merely admissible or even relevant, but so material that the interests of justice require its submission; 2. the further evidence, if accepted, would most probably affect the result of the case; 3. the further evidence could not by reasonable diligence have been discovered earlier; and 4. no prejudice would ensure to the other party by reason of the late admission of the further evidence.
14. I have also had regard to the principles set out by the High Court in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266-267, these being referred to by counsel for the defendant in his own submissions.
15. Mr Hart set out in his submissions the basis upon which he asserted this evidence was necessary on the basis of "fairness". However, that is not the test. I frankly doubt whether the letters of instruction from Coal Mines Insurance to medical practitioners would have told the doctors what to find or otherwise directed their attention away from the plaintiff's medical condition.
16. This is confirmed by the fact that the defendant's letter to Dr Machart, which was able to be provided during the hearing because the defendant's solicitors were the authors of that letter, played no part at all in any of the plaintiff's submissions. I consider that the documents the plaintiff now sought to tender would have met a similar fate.
17. Even if the content of these letters of instruction was of the materiality claimed by the plaintiff, the plaintiff's solicitors had had plenty of time to obtain it, having issued a subpoena in mid-2016 which had resulted in the production of a wide range of documents from Coal Mine Insurance, such as the letter from Coal Mines Insurance to Dr Debelak of 8 May 2014.
18. The prejudice to the defendant of being handed a bundle of documents after the conclusion of submissions which are asserted to be relevant to the case is substantial. In addition, it was implicit in Mr Hart's submissions that not only did he seek to tender such documents, but he proposed to address me at some length as to their contents, and how these documents in some way indicated that I should not accept the opinions of the medical practitioners whose reports had gone into evidence without objection.
19. The provisions of ss 56-62 Civil Procedure Act 2005 (NSW), the desirability of finality to litigation and the need for proportionality in relation to costs issues are all issues of relevance. In addition, these are documents relevant at best to peripheral issues as to causation and quantum, not significant documents going to issues of liability, as well as being documents which could and should have been obtained under subpoena in the same way that other (and similar) documents from the plaintiff's employer had been obtained.
20. Accordingly, it was for these reasons that I refused the plaintiff's application to reopen.

Costs

1. At the request of the parties I have reserved the issue of costs.

Orders 1. Judgment for the defendant. 2. Costs reserved. 3. Liberty to restore in relation to costs. 4. Exhibits retained for 28 days.

Amendments 25 May 2017 - Setting out issues with CaseLaw publishing rectified. 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: 25 May 2017