Pietrobelli v Jewell Family Nominees Pty Ltd

Background

1. The plaintiff tendered the aforementioned evidentiary statements and was subject to cross examination at the hearing.
2. The plaintiff was born in Brisbane and lived with her natural mother until the age of 9 after which time she was placed into various care institutions. Whilst in care she was subject to physical and sexual abuse.
3. The plaintiff married her first husband, Robert Coulson, at the age of 15 and they had four children together. The plaintiff's first husband Robert died when the plaintiff was about 20 years of age.
4. The plaintiff completed her schooling in or about 1991. She met her husband, Joshua, in about 1994. Together they had five children, one of whom, Naomi, died soon after her birth in early 2001.
5. The plaintiff commenced study as an assistant in nursing at the age of about 21 years.
6. She worked intermittently in aged care between caring for her children. She later worked in disability services.
7. Between 2006 and 2008, the plaintiff conducted a home cleaning business, cleaning residential and commercial properties.
8. In 2009, the plaintiff commenced work as a disability care worker for the Disability Trust. She worked as a carer/respite support person in group homes around the Illawarra region, generally casually or part time work. Around that same time, she also worked as a casual callout nursing assistant with Starz Nursing Agency in the High Care Unit.
9. In approximately 2010, the plaintiff commenced work with the University of Wollongong in the Graduate School of Medicine as an Indigenous Community Engagement Officer. She ceased work at the university in August 2013.
10. In about 2014, the plaintiff established a day care centre at Albion Park, named Dreamtime Family Day Care Centre. The centre was approved for four children a day and was open 10-12 hours each day. That business closed on 7 January 2016, due to the plaintiff's ill health, having experienced nausea, headaches and anxiety. The plaintiff's pre-accident medical issues are dealt with in significantly more detail below, however around this time the plaintiff came under the care of Dr Carol Ting, endocrinologist.
11. She was looking at obtaining work in the childcare industry or as a disability support worker.
12. At that time the plaintiff resided with her Mr Pietrobelli, her daughter Josephine (then aged 20 years), son Anthony (then aged 18 years) and Bethany (then aged 15 years). Her other daughter, Karina, was no longer living at home. At the time of the incident the plaintiff was the principal carer for her family.
13. Up to the time of the incident the plaintiff was responsible for cleaning, vacuuming, cooking, washing, ironing, school transport, shopping and the like. Mr Pietrobelli worked long hours and provided only minimal assistance throughout the home. The children did provide some assistance.
14. In her evidentiary statement dated 8 May 2020, the plaintiff provided the following description of previous health conditions: 25. As stated at the time of the subject accident I was in good health but I had experienced some earlier problems including: a. Whilst working with the University of Wollongong I was bullied and I suffered some anxiety which led me to cease that employment. I had counselling. b. I had some turns which I describe as stroke-like symptoms when I was 18 and 35. I had a short stay in hospital on each occasion. I do not recall where I was living when I had my first incident but for the second incident I was treated at Wollongong Hospital. c. I had treatment for what I believe to be problems with my pituitary gland in November/December 2015. I was suffering from severe headache and nausea which indeed led me to cease work in January 2016. I was referred to Dr Carol Ting, Endocrinologist. I underwent certain tests and was prescribed medication although medication ceased in about February 2016. d. As a result of the headaches I was referred for an MRI scan of my brain. I underwent the MRI on 13 November 2015 and I understand the results were normal. e. In late 2015 or early 2016 I had ultrasounds on my breasts which identified tumours. I underwent a biopsy and the tumours were found to be benign. f. I experienced some depression following the death of my child Naomi. I also struggled when my daughter Karina left home when she was 16 years of age.
15. In her evidentiary statement of 13 October 2020, the plaintiff identified that she had accepted a position with Wollongong Hospital as a Senior Aboriginal Health Worker in palliative care. The job was 20 hours per week, and she commenced the position on the 7 October 2020 and was still in the position at the time of the hearing of this matter.
16. I will later discuss the pre-incident health, post incident injuries and various considerations concerning quantum later in this judgment. At this juncture, I will consider closely the plaintiff's evidence as to the incident and various issues as to her credit raised by the defendant both in that respect and in relation to her case on damages.

The Fall

1. At approximately 4:00pm the plaintiff left the upstairs party room and commenced her descent of the stairs. Access to the party room was only via the stairs.
2. At paragraphs 29 and 30 of her evidentiary statement of 8 May 2020, the plaintiff stated: 29. We then went upstairs were there was party food and so on for the children. Access to the upstairs area was by way of a set of stairs which were of metal construction but covered in carpet. At about 4pm I left the upstairs party room and commenced my descent. The treads on the stairs were narrow. When I was going up the stairs I could put the toe of my foot in through the tread but going down I could not do that. As I descended I was holding the handrail. I paused. I turned my head and I said to the others "Be careful. You can't get your foot properly on the stairs." 30. I went down another step or two (2) and I then fell. I couldn't stop my fall. I remember going down and hitting my head. I landed amidst chairs, against the small makeshift wall at the bottom of the stairs. (emphasis in original)
3. When asked about whether she had experienced dizziness prior to July 2016, the plaintiff responded that she was not dizzy at the time of the fall. That exchange is extracted below (T46.42): Q. Before July 2016 when you had the fall down the staircase, you had suffered problems of dizziness and nausea, correct? A. I wasn't dizzy when I fell, I wasn't dizzy any time near that period of time.
4. The plaintiff's evidence was that she was wearing flat summer sandals at the time of the incident (T179.11). She described the sandals as being "strapped around my ankle and strapped across my ... top of my foot" (T179.21). That is extracted below: Q. Do you remember what footwear you were wearing at the time? A. I had sandals on. Flat sandals. Flat summer sandals. Q. Did they have an open back so that they could as it were flap away from your foot at the back generally, or were they sort of tied to your foot so that they couldn't move? A. No, they're proper sandals, like proper tied to my foot. Q. Do they have a buckle, do you remember the sandals you were wearing at the time? A. I sort of remember, I had brown sandals, they were very flat shoes, they weren't high shoes, they were summer shoes and they were strapped around my ankle and strapped across my - across different places across my, what do you say, top of my foot.

After the Fall

1. It was submitted by Mr Hooke SC, with whom Mr Smith appeared for the plaintiff, that the plaintiff's version of the circumstances of the incident is corroborated by the histories noted in the ambulance and hospital records. The defendant submitted, that the plaintiff's evidence in relation to her health leading up to the incident was "unreliable" and that no "significant weight" should be placed on contemporaneous ambulance and hospital records. Those ambulance and hospital records will be discussed later in this judgment. For present purposes I will briefly consider the plaintiff's evidence.
2. When the plaintiff was asked in cross-examination about the records the following exchange took place (T176.35): Q. Mrs Pietrobelli, I am suggesting to you that what is recorded there, "Patient unsure how she fell", reflects your position after the accident, do you accept that? A. No, I think it reflects what the nurse is writing. Q. Likewise the suggestion that "right foot tripped and rolled and patient fell down stairs", that likewise reflects what the nurse is writing, correct? A. Sorry? Q. What is in the first line there, "right foot tripped and rolled and patient fell down stairs", do you see that? A. Coming down, is that the narrow staircase? Q. Yes, "right foot tripped and rolled"? A. Tripped and rolled and I fell down the stairs. The nurse wrote that. I don't - I can't put it in exact detail. If you get me to think about the staircase and the way I fell, I can explain it, but the words she's using aren't mine. Q. You don't describe yourself as having tripped, do you? A. On the staircase? Q. Yes? You didn't trip on anything, did you? A. I fell. I fell hard. Q. Yes, but it's different to, for instance, when you tripped on the furniture at home, the tripping over an object that gets in the way and you trip over it, but this wasn't a trip, was it? A. No, it wasn't. Q. Likewise rolled, there's nothing that you've described that was rolling, was it? A. It's completely different, it's just ruined everything actually this fall, it's really, really hurt me and I've been in a lot of pain from it, and it's not anything like tripping on a piece of furniture at home. Q. If you go back to 261, I think that's the same account, so let me take you to that, and then I'll take you to - at 261 do you see the first three lines of summary of care, do you see that? A. It says, presents fall down the stairs and the third line's forward, is that it? Q. Yes. So read those three lines? A. Okay. Can I have a minute to do it please? Q. Yes. A. I can't even take in what it's saying, I'm sorry, but I just - can you read it out for me? Q. It's saying: "Today was at a party and coming down narrow staircase. Right foot tripped and rolled and patient fell down stairs. About ten stairs approximately two to 3 metres in height. Patient unsure how she fell, thinks landed on right side then slid forward until hit wall at bottom of stairs." That I think is the same as the account I had just taken you to previously, do you recall that? A. I don't recall that but I know that I was in hospital. I'm sorry, but. Q. If you go to page 267-- A. One of my daughters might have been at the hospital having conversation with a nurse too, I don't know, is that in there? Maybe they were having that conversation.

The Evidence of Mr Pietrobelli

1. As earlier mentioned, Mr Pietrobelli provided an evidentiary statement. Mr Pietrobelli was also the subject of cross examination at the hearing.
2. In summary, Mr Pietrobelli gave the following evidence in relation to the incident: 1. He went up and down the stairs on a number of occasions, to enable him to go outside to smoke cigarettes. 2. Mr Pietrobelli described the stairs and surrounding area in the following terms: I had to be careful on the stairs because they were narrow and the lighting was very poor. The area was dimly lit. There was a light at the top of the stairs but it was not activated (not switched on). 1. Mr Pietrobelli did not witness the plaintiff's fall. He believes he was outside with Mr Laurent Douet having a cigarette at the time. Someone informed him that the plaintiff had had a fall. He then went inside and observed the plaintiff lying on the floor at the bottom of the stairs.
3. Mr Pietrobelli was cross examined at length about the lighting around the stairs.
4. He confirmed that the light above the stairs was not active. That is extracted below (T205.11): Q. And you say - did you notice at that time that there was a problem with the lighting, or do you not remember? A. I used the stair multiple times at some point, yeah. I - it was evident it was not well lit. Q. When you say not well lit, it was dimly lit. Is that your evidence? A. There was - yeah, it was dimly lit, yeah. Q. And you recall that there was a light, don't you? A. There was ambient lighting. The light for the staircase was there, but it wasn't active. Q. And you say that light was turned off, do you? A. Well, it wasn't - yeah, it wasn't on. Q. And you noticed that, did you? A. Yeah.
5. He was questioned as to why the lack of lighting was not recorded in an incident report completed by Mr Jewell. Mr Pietrobelli confirmed that he had not written any of the document, although he conceded that he had signed it. He gave the following evidence (T207.03): That - I didn't write any of that. I signed it, yeah, but I - and to be perfectly honest, when I signed it, I wasn't paying attention. I was in between trying to care for Narelle.
6. Mr Pietrobelli did not accept the proposition that he would have written in the incident report if he had thought that the stairs were unsafe because they were dark. That exchange is extracted below (T207.27): Q. Right, and I want to suggest to you that if the stairs had been - did you - if the stairs had been - if you thought that the stairs were unsafe because they were dark, I want to suggest to you that you would have written that upon this form. Do you accept that? A. No.

The Evidence of Laurent Douet

1. Mr Douet's evidence in chief was to the effect that he had attended the premises on many occasions prior to the date of the incident, (he estimated on perhaps 12-15 separate occasions). On those occasions he had taken his children and had only ever attended birthday parties in the two party rooms that were located downstairs. He was unaware that there was a third party room upstairs.
2. Mr Douet's made enquiries with the defendant about booking a party room for his daughter, Caitlin's party. He was advised that the two downstairs party rooms were booked out but there was an upstairs party room that was available.
3. Mr Douet, his wife and daughter arrived at the premises around midday on 2 July 2016, to set up for the party.
4. In his Evidentiary Statement, Mr Douet described the party room as "not aired out and had a very stale and musty smell ... it looked and smelled like a storage room".
5. Mr Douet described the area generally as being "quite dull/ dark". His evidence was that there were no lights on the stairs and that the stairwell was "quite dark".
6. In relation to the stairs, Mr Douet's evidence in chief was as follows: I found the subject stairs difficult to use, particularly going down the stairs. Going up the stairs I could slide my toe underneath the next tread, coming down the stairs was very awkward and only part of my foot was on the stair tread. I had to walk in a crab-like fashion to descend the stairs. By that I mean I was required to place my feet at an angle to secure my footing on each tread to descend the stairs.
7. Mr Douet did not witness the plaintiff's fall. He was outside with Mr Pietrobelli when they were informed that the plaintiff had fallen.
8. In cross examination, it was suggested to Mr Douet that his observation of the staircase being in dim was only in relation to where he found the plaintiff, at the bottom of the stairs. Mr Douet disagreed. He stated (T226.50): No, they were dark because we used those staircases for the two hours we were there up and down them numerous times.
9. It was also positively put to Mr Douet that the light switch was already on (T227.20); a proposition that he rejected.

The Evidence of Rhiannon Douet

1. Ms Douet's evidence in chief was that she was following the plaintiff as the plaintiff began descending the stairs. Ms Douet recalled that the plaintiff was holding onto the handrail and moving slowly down the stairs with her daughter Bethany. She could not recall precisely which step the plaintiff was on when the plaintiff fell, but stated that the plaintiff had gone down perhaps one third of the way and then fell to the bottom. Ms Douet did not recall the plaintiff saying anything before or during the fall.
2. Ms Douet expressed the view that the stairway was quite dark, and she did not recall that there was any light illuminating the pathway of the stairs. The premises generally looked dark.
3. Ms Douet observed that the stairs were of metal tread with carpet on them. She described the stairs as being awkward to walk down as they were narrow. In order to get down the stairs she stated that she had to turn her feet sideways at an angle so that they were fully on the tread. In doing this she was able to have enough footing on the tread to go down safely.
4. Ms Douet had been to the premises about three or four occasions prior to the incident. She had never been to the upstairs party room prior to day of the incident and did not know that it was used by the public. She believed that the upstairs area was a storage room.
5. In cross-examination, the following exchange took place (T231.01): Q. Similarly, if I suggest to you that there was an artificial light at the top of the stairs that was switched on, your answer would be, I would not know, correct? A. It was dark, so I would say no to at the top of the steps. Q. You accept that there may have been light but it just wasn't very effective for where you were standing, correct? A. All I can tell you is that it was dark.

The Evidence of Mark Jewell

1. I consider that the plaintiff's analysis in written submissions as to Mr Jewell's evidence to be both fair, accurate and appropriately fixed upon the inadequacies of his evidence. That analysis substantially underpins what follows. Overall, my observations of Mr Jewell and the following analysis results in a conclusion that he was an unsatisfactory witness.
2. Mr Jewell's evidence in chief was contained in his Evidentiary Statement and was subject to cross examination at the hearing.
3. Mr Jewell's evidence was that in the event of an incident or injury at the centre, an incident report would be completed by himself or staff working at the centre. A formal incident reporting form was not employed but rather a written note.
4. In relation to the lighting, his evidence was that there was a separate light fitting situated at the top of the relevant stairs, and that those lights were turned on if the upstairs party room was being used. There was a switch at the top and at the bottom of the stairs.
5. In relation to the events on the day of the incident, Mr Jewell was riding his bicycle when he received a call from an employee, Francene Dewes ("Ms Dewes"), who advised him of the plaintiff's fall. Mr Jewell then attended to the premises and spoke to Mr Pietrobelli. While Mr Jewell was talking to Mr Pietrobelli, Mr Jewell stated he observed the plaintiff walking out of the premises unassisted.
6. An ambulance was initially called but then cancelled. A second ambulance was then called again. Mr Jewell then made a handwritten incident report which was subsequently signed by both himself and Mr Pietrobelli.
7. In cross-examination Mr Jewell gave evidence that on a typical Saturday his wife and daughters would work at the premises, and they would send employees from the cake shop to help out. On the day of the incident, however, Mr Jewell's wife and daughters were not working.
8. When asked who was managing the premises on the day of the incident, Mr Jewell stated that it was one of the girls from the cake shop and that they would float the staff in between as required. He nominated an employee by the name of Frances or Francene, who no longer worked with them.
9. Mr Jewell also confirmed that he was not present at the time of the incident. He did not believe that he had been to the premises earlier that day but could not recall.

JONES v DUNKELL

1. The plaintiff submitted there was no explanation given by the defendant for its failure to call Ms Dewes, or any other staff members working on the premises on the day of the incident, and the plaintiff therefore invited the Court to draw a Jones v Dunkel inference (of the kind in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8) that the uncalled evidence would not have assisted the defendant.
2. The defendant submitted that there was no cross examination to properly establish the matters necessary for the Court to draw a Jones v Dunkel inference, despite what was submitted by the plaintiff. It was submitted that the difficulty with the plaintiff's submission, as a matter of law, was twofold: 1. It is not enough, to show that Ms Dewes was an employee of the defendant. The plaintiff would need to establish that the defendant still had some involvement with the employee, namely, that she was still employed by the defendant. 2. The defendant was not asked whether Ms Dewes was still employed by the defendant; they were never asked.
3. It was ultimately submitted that, there was simply no scope for a Jones v Dunkel inference and, even if there was, it does not go anywhere because there is no evidence of any problems, difficulties, falls, knowledge of risks and Jones v Dunkel does not permit the Court to conclude that the evidence would have been that there were previous falls or that there were previous incidents or knowledge of unsafeness. Mr Jewell gave evidence that there were staff employed in the cake shop, who were running the business on the day of the plaintiff's incident. Those employees were responsible for all aspects of the operation of the enterprise, including management, and the implementation of the alleged system of turning on the lights above the stairs which the plaintiff fell. Presumably, they were also responsible for setting up the upstairs party room. Their identity was within the knowledge of the defendant, and, in particular, Mr Jewell.
4. In my view those witnesses, and in particular, Ms Dewes plainly could have given evidence of the extent of the use of the upstairs party room, the setting up of it, the status of the lights above the stairs, and whether they were switched on at the time of the incident. They may also have been able to give evidence in relation to other incidents involving the stairs although that much is clear.

EXPERT REPORTS

1. As earlier identified, there were a number of expert reports tendered to the Court in the form of both individual and joint reports.
2. I will consider both individual reports and the joint reports in turn below, noting again that the individual reports produced by the experts were tendered as background to the criticisms contained in the joint reports but were ultimately superseded in effect by the joint reports.

Primary Report of John Dimopoulos

1. Mr Dimopoulos attended the premises on 15 December 2016, to undertake a view of the premises and to take various measurements and photographs. He was accompanied by the plaintiff at the inspection.
2. Mr Dimopoulos graduated from Swinburne University in 1990, with a Bachelor's Degree in Mechanical Engineering, with Honours, and completed courses in failure analysis and Occupational Health and Safety.
3. Mr Dimopoulos is a professional consulting engineer and is qualified to give expert opinions on the functioning of machines and structures, including the actions and effects of forces and movements. He is also qualified to give expert opinions in matters to do with kinematics and dynamics. He has experience in investigations of slips and falls involving stairways and steps, in the context of litigated personal injuries claims and has also been a contributing member of Australian Standards Committee DB/96- Slip resistance of flooring surfaces.
4. Mr Dimopoulos prepared his report on a set of assumed facts which included the following: 1. As to the plaintiff, Mr Dimopoulos stated: 4.2 … [The plaintiff] is 5'8" (173cm) tall and she weighed about 118 kg at the relevant time. She told me that she has (and had) good vision, and that she did not need to wear glasses. 4.3 Prior to suffering the injuries discussed in this claim, she believes herself to have been in good health, enjoying full and pain-free mobility in her back. 4.4 [The plaintiff] told me that in the hours immediately before the incident, she had not consumed alcohol, medication or drugs that might otherwise have affected her gait, judgement, balance or perception. She had not been prone to fainting spells. 1. In relation to the incident Mr Dimopoulos stated: 4.7 At approximately 4pm [the plaintiff] left the party room and was descending the only stairway leading from the party room. [The plaintiff] said she had only taken two or three steps down the stairway when her foot slipped off the stair tread causing her to fall down the stairway, and to crash into a stack of folded chairs located at the bottom of the landing. … 4.9 [The plaintiff] was not hurrying at the time she lost her footing, and she was taking care to step down carefully, holding onto the handrail with her left hand. 4.10 At the time, [the plaintiff] was wearing a pair of strap-on sandals that were in good condition and well fitting.

Report of Mark Dohrmann

1. Mark Dohrmann, prepared a report dated 16 September 2020. This report was prepared at the request of the plaintiff.
2. Mr Dohrmann is a professional consulting engineer, with additional post-graduate qualifications in ergonomics. He has practised for approximately forty-five years as a safety advisor, specialising in the identification and prevention of strain injuries. He is qualified to give expert opinions in matters to do with trips, slips and falls and has prepared reports in over two thousand litigated matters involving slips, trips and falls.
3. Mr Dohrmann prepared his report based on the briefing material that was supplied and did not attend the site.
4. Mr Dohrmann concluded at 7.6 of his report: 7.6 The foregoing allows a concluded opinion that the stairs were unsafe due to their non-complying going dimensions (too short by a considerable margin, and consecutive goings irregular, outside the allowed range).
5. Mr Dohrmann was asked to respond to three questions, I will turn to each question in turn below.
6. Mr Dohrmann was firstly asked about the presence of the handrail and the coefficient of the carpet, and their contribution to the incident. His response is extracted below: … [The handrail] use would reduce any tendency (if it was there) to unsteadiness or uncertainty of footing. However, if at the start of the fall she did not have (or could not retain) a firm grip on the handrail, it is of no further use. … If the fall was initiated instead as a mis-step (due to the short goings), then the friction value becomes less central. We do not take issue with a conclusion that the flat section of carpet fulfilled non-slip requirements. It does not affect my opinions about the stairs.
7. Mr Dohrmann was then asked whether on the balance of probabilities the plaintiff's fall would have likely been avoided had the flight had consistent goings of no less than 240mm, to which he responded: Yes (noting that the minimum regulated going length is not 240mm, but 250mm). if the goings had complied, [the plaintiff] could have stepped on to each tread without sole "overhand" at the nosing; further, she would not have to deal with a flight which had unusual dimensions (short goings), and she would not have been surprised unintentionally by the agreed irregularities in consecutive goings.

Report of Dr McIntosh

1. Dr Andrew McIntosh prepared a Biomechanics and Ergonomics Report dated, 29 May 2019. This report was prepared at the request of the defendant.
2. Dr McIntosh has a qualification as a Doctor of Philosophy. In his career he has applied designed standards and regulations to assist in the design and development of safe and functional work systems. He has also researched in the biomechanical and ergonomic issues related to slips, trips and falls as well as the biomechanics of human movement.
3. Under the heading "Plaintiff's particular attributes and stair descent" Dr McIntosh outlined: 78. The Plaintiff's foot length was estimated to be approximately 26cm. 79. Considering the 'going dimension' and approximate length of the Plaintiff's foot, a proportion of the Plaintiff's forefoot would overhang the tread. 80. In general, the forefoot (interior surface in area of metatarsal heads) will make initial contact with the tread. High forces can be applied through the forefoot and the contact area is likely to be greater than observed in a heel strike during level walking. 81. At initial contact the heel is raised. During weight acceptance, the heel is lowered. 82. In addition to the step-by-step strategy described below, the Plaintiff could have placed her feet in slightly more external rotation (splayed) posture to bring the forefoot onto the tread, if this was an issue for her.
4. Also, under this heading Dr McIntosh indicated that the plaintiff's obesity and pre-medical conditions would have been a risk factor in the plaintiff's fall: 84. In my opinion, on balance, 1. The Plaintiff's obesity and potential leg conditions were risk factors for falling while descending the stairs. 2. Dizziness is also a risk factor for falling while descending stairs. 85. In general, obesity places higher strength demands on the musculoskeletal system and results in compensatory gait mechanisms. Obesity may contribute to a loss of control and fall, because it will increase the muscular demand to control safely the downward motion of the body's centre of mass during stair descent…Whether obesity itself is a primary risk factor for falling is unclear; although much of this research focusses on an older age group than the Plaintiff. 86. It is plausible that as a result of her obesity and/or knee pain, the Plaintiff was not able to support her body weight and her gip, knee or ankle became unstable and she lost balance and fell. 1. Muscle weakness is a known risk factor in falls; and 2. Greater knee extensor strength (normalised to body mass) assists in recover from a slip initiation. 3. Relative to body mass, the Plaintiff would have had low knee extensor strength.

Reports of Professor Stephen Dain

1. As earlier identified, Professor Stephen Dain prepared two lighting reports at the request of the defendant in these proceedings, namely, the Dain Report and the Supplementary Dain Report.
2. Professor Dain is a registered optometrist with specific research interest relating to occupational and environmental optometry. He has previously provided reports related to both vision and lighting in both occupational and road accidents.

Report of Professor Dain

1. Professor Dain attended the premises on Friday 3 April 2020, from 4.25pm to 5.15pm (around this time the sun was in the same position as on the day of the incident).
2. Professor Dain observed that the premises had been changed and observed it was different to the time of the incident.
3. Professor Dain noted as to the lights at the top of the stairs at 7.6 of his report: 7.6 The light appears to be fairly typical bay lighting with a spun of aluminium mirror and probably, a high-intensity discharge source. At the time of my visit, these had been replaced with what looked like LED lighting. The lights were not switched on at the time of my visit.
4. From the photographs and description of the stair lights, Professor Dain identified that Phillips 100W spotlights were the most likely lights used at the time of the incident.
5. Professor Dane identified that the major contribution to the lighting of the stairs would have been from the stair lights located at the top of the stairs. That is extracted below: 7.13 The major contribution to the lighting of the stairs at the time would have been from the lights on the wall at the top of the stairs. There would have been some contribution from the high bay fittings, mainly in front of the stairs, and some contribution from the daylight entering through the main doors by reflection from the walls and roof, but not directly from the door.
6. Professor Dain identified that there was no way to determine the contribution of lighting in the rest of the premises. However, he found it possible to model the illuminance on the stairs at the time of the incident as follows: 7.14 Given the way in which the situation has changed, there is no way of measuring or knowing the contribution of the lighting in the rest of the premises. However, given that the major contribution would have come from the lights on the wall by the top of the stairs and having identified the type of light, it is possible to model the illuminance on the stairs at the time of the incident. 7.15 Given the way in which the situation has changed, there is no way of measuring or knowing the contribution except for the direct lighting on the stairs, since the type and locations are known. Therefore, I have constructed a model for the direct lighting at the time.
7. Professor Dain calculated the illuminances of each step of the stairs, in tabular form as follows: Image 6- Calculated illuminances at each step of the stairs

Supplementary Report of Professor Dain

1. Professor Dain in his supplementary report was instructed to revise the modelling of light levels on the stairs that was presented in his report on the basis that the lights in the fitting were compact fluorescent lights. This was on the basis of the photograph provided in Dr Long's Report. That photo is extracted below: Image 7- Photo from report of Dr Jennifer Long
2. On that basis, Professor Dain stated (at 4.4-4.6) in his supplementary report as follows: 4.4 From research samples, I retrieved a fitting that looks similar to the one depicted in the photograph. By observing the size of the CFL relative to the fitting, an estimate of the size and, hence, the wattage may be made. 4.5 I retrieved two CFL samples of apparently the same tube diameter from the CFLs tested for the publication Performance of 'energy efficient' compact fluorescent lamps - Clinical and Experimental Optometry, 93(2), pp. 66-76 Yuen, G.S.C, Sproul, A.B, and Dain, S.J., 2010 (attached at Appendix 1). These were marked as equivalent to the 75W incandescent lamps at the time. Only 75W equivalent CFLs were sampled in this study. One is daylight and the other is warm white, but they are different wattages. 4.6 I obtained a new claimed 75W equivalent warm white CFL and two new claimed 100W equivalents, one daylight and one warm white. …
3. Professor Dain calculated the level of illuminances at each step on the stairs with the variation of fluorescent lights. That table is extracted below: Image 8- Calculated illuminances at each step on the stairs
4. Professor Dain then noted that the calculation does not include light reflected from the surrounds, most notably the wall. As a consequence, the illuminances are an underestimation. This would be more the case with these sources than with the 100W spot lights originally measured and modelled because the CFLs lack the directional effect of the mirror in the spotlight and more light would be incident on and reflected from the wall. Closer to the bottom of the stairs, it was noted, that there would be increasing contribution of lighting from the other sources and natural light through the open roller door.
5. Professor Dain concluded that in the vicinity of the step where the accident occurred (assumed step 3), the modelling complies with Australian and New Zealand Standard AS/NZS 1680.0 ("AS/NZS 1680.0") (minimum 20 lx) with all the CFLs measured.

Report of Dr Jennifer Long

1. Dr Jennifer Long prepared a lighting report dated 9 September 2020. Dr Long also participated in the Lighting Conclave Report which will be discussed below. Dr Long was not called at the hearing.
2. Dr Long is a registered optometrist, Certified Professional Ergonomist and Certified Generalist OHS Professional. Dr Long's has a Bachelor of Optometry (Honours Class 1), Master of Safety Science and PhD, all obtained from the University of New South Wales. Dr Long has also completed a 12 month "Principles of Lighting" course at TAFE Plus, NSW in 2005.
3. Dr Long's area of expertise is visual ergonomics, that is, the interaction between vision and the environment.
4. Dr Long noted at heading five under "Investigations" that she did not conduct a site assessment as she understood "that the site has been refurbished to accommodate new tenants". The following changes were noted: The skylight has been restored- at the time of the accident it was painted black. The artificial lighting has been replaced with new lamps and luminaires. The walls adjacent to the stairs have been painted a different colour.
5. Dr Long also noted that she did not conduct any testing of the lamps to mathematically model the illuminance on the stairs.
6. Dr Long was asked to respond to three questions sent in the letter of instruction. Those questions are extracted below: 6.1 What were the relevant lighting codes or standards that applied at the time of the plaintiff's accident relevant to the subject stairs/stairwell? 6.2 Did the lighting in the stairwell meet the required standard? If so, on what basis? If not, why not? Please describe any deficiencies in the lighting. 6.3 Please comment on the report of Professor Stephen Dain. In particular, please specify whether you agree with the opinion expressed within that report and if not, why not? If so, on what basis?
7. I will deal with question 6.2 and 6.3 in turn below.
8. Firstly, in response to question 6.2, Dr Long concluded that she was unable to make a judgment about compliance based on the measurements provided by Dr Dimopoulos, for the following reasons: Mr Dimopolous' results are not sufficiently accurate to make a judgment (sic) about compliance with the standards. Item 5 of Mr Dimopolous' report states that the phone recorded 0 lux for light meter readings 9 lux or less, and the phone recorded 30 lux for light meter readings of 20 lux. It is questionable whether the light meter application on Mr Dimopolous' (sic) mobile phone has the same accuracy as a calibrated light meter because it is probably not cosine corrected, that is, not optically corrected to detect light from multiple directions.

Lighting Conclave Report

1. Dr Jennifer Long, Professor Stephen Dain and Mr John Dimopoulos prepared the Lighting Conclave Report, dated 22 October 2020. Dr Jennifer Long and Professor Stephen Dain were not required for cross-examination at the hearing.
2. The experts were asked three questions, each will be considered in turn below.
3. Firstly, the experts were asked about the codes and standards applicable to lighting at the premises. The experts identified a total of four codes and standards that applied in relation to lighting at the premises, they are listed below: 1. The BCA 2010, Volume 1, Section F, Part 4.4(b). 2. AS/NZS 1680.0:2009 Interior lighting Part 0: Safe movement. 3. AS/NZS 1680.1:2016 Interior and workplace lighting Part 1: General principles and recommendations. 4. AS/NZS 1680.2.1:2008, interior and workplace lighting Part 2.1: Specific applications - circulation spaces and other general areas.
4. Secondly, the experts were asked to consider the likely level of illuminance in and around the subject stair area that the plaintiff would have encountered in two parts, namely, if the lights were on and if the lights were off. In the joint report, the following answer was given: 1. If the lights were on the experts agreed that the illuminance levels would have been at least those reported in the modelling reports reported by Professor Dain in his two reports, namely, a minimum of 20 lux. The illuminance provided in the modelling did not include other lighting in the vicinity, which would add to the actual illuminance in an unpredictable way. 2. If the lights were off, the experts agreed that the level of illuminance was unknown and unknowable due to insufficient detail about the contribution of other lighting on the stairs, be it natural or artificial.
5. Finally, the experts were then asked to consider whether the lighting in and around the subject area was compliant with the relevant code or standards.
6. In relation to AS/NZS 1680.0 with the lights on, the experts found: 1. With the lights on, the experts agreed that in the vicinity of step number 3 on the stairs, there was a least 20 lux from the spotlights or the compact, fluorescent lamps according to the calculations supplied by Professor Dain in his reports. 2. With the lights on, over the whole stairway, the experts referenced the report of Professor Dain, dated 27 May 2020, which showed that there was at least 20 lux on all of the stairs. The compact fluorescent modelling in Professor Dain's report dated 20 October 2020 shows that there was less than 20 lux on some of the stairs. The experts agreed that they could not know whether other lighting in the vicinity contributed additional illumination that may have resulted in compliance with the standard.

Architectural Conclave Report

1. Mr John Dimopoulos, Dr John Cooke and Mr Mark Bullen prepared the Architectural Conclave Report. Dr John Cooke and Mr Mark Bullen were not required for cross-examination at hearing in relation to their joint report.
2. The authors were asked a set of five questions. Those are considered in turn below.
3. Firstly, the authors were asked to identify any relevant codes or standards that applied to the stairs as at the time of the plaintiff's incident. Those are listed below: 1. The BCA 2010 cll D2.13 (Goings and Risers). D2.16 (Balustrades or barriers) and D2.17 (Handrails) which apply by statutory force. 2. Australian Standard Handbook HB 197:1999 An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials. 3. Australian/New Zealand Standard AS/NZS 4586-1999 Slip resistance classification of new pedestrian surface materials ("AS/NZS 4586-1999"); and 4. Australian Standard AS 4663-2013 Slip resistance measurement of existing pedestrian surfaces ("AS 4663-2013").
4. The experts agreed that it appeared, based on the dimensions to which the stairs are constructed, that the stairs were designed to comply with AS 1657-1992 Fixed platforms, walkways, stairways and ladders - Design, construction and installation ("AS 1657").
5. The experts agreed that the standard AS 1657 did not apply to the stairs at the time of the incident but rather applied to the previous use of the premises, namely, a motor mechanic's workshop, if access was only to a non-habitable room (BCA cl D2.18).
6. Secondly, the experts were asked whether the stairs were compliant to the relevant standards identified above.
7. The experts agreed that the stairs complied with cl D2.13 of the BCA, in respect of: 1. The individual riser heights 2. The stair quantity 3. The number of rises in the flight.
8. However, the authors agreed that the stairway did not comply with clause D2.13 of the BCA in that: 1. The goings, were below the minimum dimension of 250 millimetres required by cl D2.13(a)(ii) 2. The goings and rises were not consistent throughout the flight as required by cl D2.13(a)(iii)
9. Overall, the experts agreed that the stairway did not comply with clause D2.13 of BCA 2010. It was noted that the answer to this question was dealing purely with the stair flight and not the handrail and balustrade (which will be discussed with respect to the third question below). Further, the opinion did not cover any of the artificial lighting requirements set out in the BCA 2010.

Ergonomic Conclave Report

1. Mr Mark Dohrmann, Dr Andrew McIntosh and Mr John Dimopoulos prepared the Ergonomic Conclave Report, dated 26 October 2020. The authors of that report were required for cross-examination and gave concurrent evidence.
2. I will first turn to the Ergonomic Conclave Report before turning to the concurrent evidence. The experts were asked 11 questions, I will consider questions, 3, 4, 5, 6, 7, 8, 9 and 11, in turn below.
3. The experts were asked at question 3to describe the possible mechanisms by which the plaintiff fell down the stairs. Mr Dimopoulos (with whom Mr Dohrmann agreed) stated that there were a number of possible mechanisms, including: 1. Trip- where the trailing leg gets caught on the step as it is coming through down to the next step. 2. Slip- where the leading foot slips as it lands on the horizontal section of the tread. 3. Overstep/slip - where the foot lands past the nosing, causing the foot to slip down the front of the step.
4. Mr Dimopoulos noted: The above mechanism can be explained by human factors, by step geometry and/or by inconsistency in step geometry. One of the most common mechanisms is an overstep/slip as described above, which is typically triggered due to short and irregular sized goings.
5. Dr McIntosh disagreed with the observation of Mr Dimopoulos that "one of the most common mechanisms is an overstep/slip…which is typically triggered due to short and irregular sized goings", due to the statement being "vague and not specific".
6. Dr McIntosh placed reliance on the six possible mechanisms identified in his report as being possible cause of the plaintiff's fall down the stairs (I will later turn to those mechanisms). Those six possible mechanisms were divided into two categories: loss of stable basis support on stance via five possible mechanisms and secondly a trip on the descending leg. The former mechanisms are extracted below: 1. Loss of stable basis support on stance via leg: a) Overstep (see paragraph 101). b) Loss of neuromuscular control/balance. c) Pain/impairment. d) Insufficient strength/knee giving way. e) Distraction (turning around to talk to someone). 2. Trip on descending limb
7. Dr McIntosh also identified that the plaintiff's obesity was a risk factor for falling and may have initiated her fall or prevented her from recovering once her stability was perturbed.

Overview of Central Disputes Between Experts

1. After reviewing the evidence of the experts, it is clear there are three central features of the disagreement between Dr McIntosh and the opinions of Mr Dimopoulos and Mr Dohrmann. They are as follows: 1. Whether the Court should conclude that the existence of a stair pattern with irregular risers and undersized goings, in both cases contrary to the requirements of the BCA should result in a conclusion that there is a higher probability of an overstep resulting in a slip and fall than stairs complaint with the BCA. In other words, whilst there is an acceptance that an overstep is a possible basis for the fall in question whether there was a greater probability of fall on these stairs than stairs that ae complaint. 2. Whether the mechanisms identified by Dr McIntosh for the fall down the stairs are of equal probability. The counterpoint was whether an overstep being one of the six mechanisms represented a greater probability for the fall than the other mechanisms, assuming they can be proven to have existed at the time. 3. Whether the defendant should have taken the precautions referred to in question 5 in addition to existing measures of a handrail and carpet treads over the stairs.
2. It may be observed that there was not a significant difference between the experts as to the answer to question 7.
3. These issues will be discussed in greater detail after turning to my findings of credit.

Qualifications of the Experts

1. Various issues were raised about the qualifications of the experts to express opinions about the ergonomic considerations arising in relation to the stairs or other biomechanical considerations.
2. I will turn to those considerations momentarily but will first deal with the manner that Dr McIntosh and Mr Dohrmann approached the issue of qualifications. Unusually. Dr McIntosh in his report embarked a critique of Mr Dimopoulos' qualifications in his report. Similarly, Mr Dohrmann embarked upon a critique of Dr McIntosh's qualifications during concurrent evidence in an apparent rebuke of Dr McIntosh having challenged Mr Dimopoulos' qualifications.
3. Whilst these approaches may be permissible in certain circumstances, in the present case, the impression is clearly created that both Dr McIntosh and Mr Dohrmann were inclined to advocate for the cause for whom they gave evidence, beyond a mere insistence, in Dr McIntosh'a case, in the maintenance of his case hypothesis (although in Mr Dohrmann's case the evidence seemed to be principally argued in favour of Mr Dimopoulos's qualification).
4. I have earlier set out the respective qualifications and expertise of the respective experts. In my view, Mr Dimopoulos is well qualified to express the opinions that he has in his report and the Ergonomic Conclave Report (and his own report). Whilst Dr McIntosh endeavoured to suggest that Mr Dimopoulos's qualifications to apply design standards and regulations to assist in the design and the development of safe and functional workplaces and work systems as well as the study of biomechanics of human movement including walking on the flat, ramps and stairs were limited. It appears to me, without repeating my earlier analysis, that the attacks should be rejected because: 1. Mr Dimopoulos is a professional consulting engineer with a Bachelor's Degree in Mechanical Engineering, with Honours. He was qualified to give expert opinions on the functioning of machines and structures, including the actions and effects of forces and movements. He has experience in investigations of slips and falls involving stairways and steps, in the context of litigated personal injuries claims. 2. Mr Dohrmann is also well qualified to provide an expert opinion in this matter. I highlight in this regard his forty-five year experience as a safety advisor, specialising in the identification and prevention of strain injuries, combined with his preparation of reports in two thousand litigated matters involving slips, trips and falls.

Credit of the Experts

1. I will firstly turn to the submissions of the parties in relation to the credit of the experts before turning to my findings.
2. The plaintiff submitted with some force that the opinions of Mr Dohrmann and Mr Dimopoulos would be preferred over that of Dr McIntosh for following reasons: 1. Dr McIntosh evidence had examples of him acting as an advocate for the defendant. Reference was made again to his evidence in the witness box where he described Mr Dimopoulos as having said that these stairs had missing steps and she was going down blindfold in the pitch dark (T356.7) as follows: HOOK: And that, for the reasons Mr Dimopoulos identified in answer to Mr Cheshire, is a significant factor, isn't it, in terms of the risk of overstep and falls? WITNESS MCINTOSH: In the scenario that Mr Dimopoulos had put in his - I can't remember which report it was in - because there's a number of them. The one that I mainly focused on, as I said - there was the overlay of multiple factors which would have precluded a person from being able to visualise the stairs and to be able to adjust to those plus the risk that even if they did put their foot on the going, that the coefficient of friction wouldn't have supported them. So, it created a situation where it was almost as if someone was sort of walking down in the dark blindfolded with, you know, stairs missing and variation. I'll put it to you that-- HOOK: I'm sorry, stairs missing, where does that come from, Dr McIntosh? WITNESS MCINTOSH: Well, I'm saying that's-- HOOK: Where does that come from? WITNESS MCINTOSH: That - I'm exaggerating. That's the-- HOOK: Yes. WITNESS MCINTOSH: I said that's the impression I got from reading the report was that (sic) it was this disaster area with all these multiple factors. 1. The fact that Dr McIntosh was unwilling to "obdurate refusal to concede the bleeding obvious does him no credit". Further, reliance was placed on Dr McIntosh responses in concurrent evidence, whereby, he was unable to reach a conclusion on certain issues by responding "I can't say", or I will not opine whether measures put to him during his evidence would have made a difference or was a cause of this injury, this incident. An example is extracted below: HOOK: In the absence of evidence of a knee giving way, or dizziness, or something of that kind, would you then accept that the failings of these stairs on the probabilities - not as a matter of scientific certainty - on the probabilities made a material contribution to this fall? WITNESS MCINTOSH: No, because the reason I can't accept that is that I accept what you're saying that there is no evidence of loss of knee control or pain. I accept that. What I don't accept that there - is there - that there's actually any evidence to substitute for that. There's no evidence of her saying, "I felt my foot roll across the edge of the treat. I thought the step would be there. It wasn't there". I haven't been given any evidence like that. And, so, because there's an absence of any evidence to replace that, I can't agree with that.

Dr McIntosh

1. I will commence my discussion of the credit experts, commencing with Dr McIntosh.
2. Central to Dr McIntosh's evidence was that there was number of equally plausible mechanism which could have caused the plaintiff's fall. However, this position was not maintained throughout his evidence and as a result his evidence was inconsistent. When Dr McIntosh was pressed during concurrent evidence to opine purely based on likelihoods the more likely reason for the plaintiff falling, he opined that the more likely reason was obesity and a history of falls (T363.23). HOOK: Dr McIntosh, given the inability of science to give an empirical answer to cause as you would have it, do you allow that in this case, the known failings of this staircase probably, as a matter of commonsense and human experience, made a contribution to this fall? WITNESS MCINTOSH: No, the problem I have with that is that the plaintiff had a number of risk factors which are known risk factors for falls, and it's not possible to scientifically apportion a weighting to those factors. The fall could have occurred entirely because, say, for example, the plaintiff's knee gave way unrelated at all to the stair dimensions. The fall could have occurred because as she put her - let's say her right foot down on one of the treads and began to lower her body weight, her speed of movement was too high for her to be able to control herself, and with the added mass because she was obese, that made it more difficult for her to control herself, and she's continued to fall, and, as I've said in my report, it's a plausible explanation as well that there was an overstep, and in an overstep, what happens is that the foot begins to roll over the edge of the stair so that it's almost vertical, and the person can't adjust their balance, and they lose balance, and they may fall. They may be able to right themselves and correct that using the balustrade, or they might fall, but there's no scientific way on the basis of the information for saying "this is more likely than the others". If you just went on likelihoods, I would say that the more likely reason for someone falling would be obesity and if they had a history of falls because it seems as though that if you have a history of falls, that there's an increasing likelihood that you're going to fall, but I don't know whether this person had fallen before or not.
3. I agree with the plaintiff that Dr McIntosh often engaged in periods of advocacy throughout concurrent evidence and failed to make appropriate concession. The illustration provided by the plaintiff from (T356.7) of the transcript is an example of Dr McIntosh engaging in advocacy. That is extracted below: HOOK: And that, for the reasons Mr Dimopoulos identified in answer to Mr Cheshire, is a significant factor, isn't it, in terms of the risk of overstep and falls? WITNESS MCINTOSH: In the scenario that Mr Dimopoulos had put in his - I can't remember which report it was in - because there's a number of them. The one that I mainly focused on, as I said - there was the overlay of multiple factors which would have precluded a person from being able to visualise the stairs and to be able to adjust to those plus the risk that even if they did put their foot on the going, that the coefficient of friction wouldn't have supported them. So, it created a situation where it was almost as if someone was sort of walking down in the dark blindfolded with, you know, stairs missing and variation. I'll put it to you that-- HOOK: I'm sorry, stairs missing, where does that come from, Dr McIntosh? WITNESS MCINTOSH: Well, I'm saying that's-- HOOK: Where does that come from? WITNESS MCINTOSH: That - I'm exaggerating. That's the -

Mr Dohrmann

1. In concurrent evidence Mr Dohrmann conceded that he had discussed the matter with Mr Dimopoulos, however, had not identified any such consultation in his report: CHESHIRE: You spoke to him about this precise matter in the lead-up to your report, is that right? WITNESS DOHRMANN: Yes, I did.
2. Mr Dohrmann was also asked whether he considered the comment to Dr McIntosh that "he would be wise to be cautious with criticism" was appropriate, his response is extracted below (T328.47): CHESHIRE: In the third line you say to Dr McIntosh, "He would be wise to be cautious with criticism"? WITNESS DOHRMANN: Yes. CHESHIRE: Do you consider that an appropriate thing to say? WITNESS DOHRMANN: Difficult to answer. I - can't say whether that's appropriate or not. I thought it appropriate to include because it's part, again, of a response to fairly stringent criticism of John Dimopoulos and what he had to say. CHESHIRE: Isn't that for Mr Dimopoulos to defend himself? WITNESS DOHRMANN: I'm not sure that it was. I think my report, this report that we're dealing with at the moment, came very late in the piece. I was asked to respond to this report of Mr McIntosh and had done so. I recalled that it was - apart from the forthcoming conclave, it was not guaranteed an opportunity for Mr Dimopoulos to respond, so I took that job. CHESHIRE: You would say you took that job. You responded on his behalf; is that right? WITNESS DOHRMANN: You can say that, yes. CHESHIRE: That wasn't part of your role as an expert in this matter, was it? WITNESS DOHRMANN: It was. I was given instructions - well, I was given instructions to respond to the report, and part of the report was this attack, and I have responded to it. That's all I can say. CHESHIRE: But you say that you took the role of responding on behalf of you and Mr Dimopoulos; is that right? WITNESS DOHRMANN: No, I've responded to criticisms made of Mr Dimopoulos full stop.It was put to Mr Dohrmann that his report was effectively prepared as a joint report by Mr Dimopolous and himself. Specific reference was made to paragraph 8.1 of his report whereby it was stated that "we do not take issue". When asked what was meant by "we" the following exchange took place (T330.29): CHESHIRE: Do you see the next word "we do not take issue"? WITNESS DOHRMANN: Yes. CHESHIRE: Who is the we? WITNESS DOHRMANN: We is I, me, alone. CHESHIRE: Well, in which case, why have you used the word "we"? WITNESS DOHRMANN: It's a bad habit I've got. CHESHIRE: I suggest to you you used the word "we" because you were intending to say, effectively, Dohrmann Consulting being you and Mr Dimopoulos, correct? WITNESS DOHRMANN: No, no. The report is mine and mine alone. As I say, it is a habit I've been picked up on - not in courts, but elsewhere - for using what's amusingly called the royal we.

Mr Dimopoulos

1. Lastly, I turn to the evidence of Mr Dimopoulos. I agree with the defendant that Mr Dimopoulos did base his report of an incorrect assumption that the incident occurred on the third step. Although, it is important to note that this assumption was based was based off the information provided to him before preparing his report as well as his expertise (T323.38): CHESHIRE: On the assumption, Mr Dimopoulos, that you had, that she had gone down either two or three steps, equally well on that assumption the distance of the going, the width of the going could have been 225 millimetres, correct? WITNESS DIMOPOULOS: That is correct. CHESHIRE: Why did you choose the third step when you came to the joint report rather than the second step? WITNESS DIMOPOULOS: It's just more likely that the incident would have occurred on the third step, given its dimension.
2. Although, Mr Dimopoulos based his assumptions on the plaintiff falling when descending from step 2 to step 3, which I will later find to be incorrect, it does not ultimately impact his credibility for two reasons. Firstly, this assumption was based on the information that was provided to him, whereby he was asked to look at the second and third stair, it is not completely out of conformity what the ultimate conclusion of the plaintiff's evidence. Secondly, his opinion as to where she fell was based off his expertise and experience upon which I have found to be extensive. As such, I do not consider that his credibility is negatively impacted and therefore, for the reasons which I have earlier discussed and outlined, I find that Mr Dimopoulos was a witness of credit.
3. I agree with the plaintiff that Mr Dimopoulos did his best to assist the Court and was candid to admit where he may have made an error, an example of this is extracted below (T325.19): CHESHIRE: But what follows, 215, is greater than 5 millimetres, correct? WITNESS DIMOPOULOS: Maybe I've made an error there, yes. CHESHIRE: Right. So you accept that on the sixth step you've made an error, correct? WITNESS DIMOPOULOS: It's possible, yes.
4. Mr Dimopoulos accepted that there were other possible scenarios for the plaintiffs fall other than it being an overstep: CHESHIRE: One can have a simple - a trip, or a stumble, correct? WITNESS DIMOPOULOS: The trip can occur either due to the individual or, again, to an inconsistency in the going dimensions. So, the consistency of the going dimensions, again, are important in trip incidences as well. CHESHIRE: You approached this case on the basis of the plaintiff - of an assumption, effectively, that the plaintiff overstepped, and that caused her to slip, correct? WITNESS DIMOPOULOS: Based on the measurements and what I saw at the view, yes. CHESHIRE: But you didn't, for instance, consider alternative scenarios such as whether the plaintiff simply lost her balance, correct? WITNESS DIMOPOULOS: She may have lost her balance. CHESHIRE: She may have had a dizziness episode, correct? WITNESS DIMOPOULOS: She may have, yes. CHESHIRE: Or she may have been turning to talk to somebody and just leant forward and fallen down the stairs, correct? WITNESS DIMOPOULOS: Well, yes, that's all possible, yes.

Conclusion- Ergonomic Conclave Report

1. After reviewing the expert's evidence in the Ergonomic Conclave Report the following conclusions can be made.
2. In relation to possible mechanisms by which the plaintiff fell the experts agreed that overstep, slip and trip were possible mechanisms. However, Dr McIntosh listed an additional four possible mechanisms, namely, loss of neuromuscular control/balance, pain/impairment insufficient strength/knee giving way, and distraction, as equally possible causes of the plaintiff's fall.
3. As to the most likely cause of the fall Mr Dimopoulos and Mr Dohrmann opined in his evidence that on the balance of probabilities that the most likely cause of the plaintiff's fall was an overstep, as a result of the undersized and inconsistent goings. Mr McIntosh was unable to say on the balance of probabilities if one of the possible mechanisms identified in his report was more likely to have been the cause of the plaintiff's fall as "there is no scientific method available that can be applied [in] this particular case that can say one of those factors is more likely that not to have caused this particular fall". However, Dr McIntosh did venture at one juncture that obesity was a probable cause.
4. In relation to descending the stairs the experts agreed that in normal stair descent, most people will descend stairs with some part of their foot beyond the front of each step. That may be distinguished from an overstep as earlier defined.
5. As to the risk posed by the stairs, both Mr Dimopoulos and Mr Dohrmann opined that the stairs posed a risk of harm on the basis that the undersized goings and the irregular risers and going as previously described increased the risk of an overstep. For his part, Dr McIntosh was only prepared to concede that the likelihood of overstepping was likely to be slightly elevated with the stairs where the fall occurred in comparison to BCA compliant stairs. I will return to the basis for that opinion momentarily.
6. In relation to the action that could have been taken by the defendant in response to the risk of harm the experts agreed with Mr Dimopoulos opinion that the defendant ought to have ensured that the steps were compliant with BCA, as well as preventing the access to the stairs.
7. Dr McIntosh was of the view that one response the defendant could have taken in general would be complying with the BCA. He expressed, however, the view that a more reasonable action the defendant could have taken would have been to provide some sort of warning signs or advisory signs and a contrast strip on the tread edge. He did not explain why compliance with the law was not a reasonable expectation.

FINDINGS OF FACT

1. There were five issues in relation to findings of fact in these proceedings, they are as follows: 1. Whether the party room was set up 2. Where the fall occurred on the stairs 3. Whether the light was on 4. Whether the plaintiff was holding the handrail 5. Did the plaintiff satisfy her pleaded case on the balance of probabilities?
2. I will address these issues in turn below.

Use of the Party Room

1. An issue at the hearing was whether the party room was set up on the day of the incident and whether the room was used as a party room prior to the incident.
2. The defendant submitted that the party room was used and used regularly, relying, in this respect, on the evidence of Mr Jewell, whereby he submitted that "50,000" patrons would have used the stairs at last once. It was submitted that even though witnesses sought to say, it was not set up, and that it had a damp and musty smell was a musty smelling room, does not result in the conclusion that the room was not used.
3. In Mr Doeut's evidentiary statement he described the room in the following terms "not aired out and had a very stale and musty smell ... it looked and smelled like a storage room".
4. In the development application before the Court there was no plans for the second level of the premises.
5. I do not accept the evidence of Mr Jewell that at least about 50,000 had used the stairs whilst the defendant had leased the premises prior to the plaintiff's fall. Mr Jewell's basis for this estimate was that there were 10-15 parties per week at the premises and then assumed only five of those parties utilised the upstairs party room, with 15-20 children and an equal number of adults. As it was conceded by Mr Jewell in cross examination, he was unable to locate any records as to the bookings that they made at any particular point in time (T258.33):
6. Further, when it was suggested to Mr Jewell that on 2 July 2016, when the Douet family arrived for the party, all the tables and chairs in that upstairs room were stacked in the corner his response was (T267.35):
7. Mr Jewell conceded that a stale, musty, unventilated room with no furniture set up but rather furniture stacked and stored in the corner was not the picture of a party room (T268.45). Further, Mr Jewell conceded that if a party room had been booked and the people arrived on time for the party and that it was not set up, the defendant's system, such as it was, had failed (T269.09).
8. Overall, I find that the party room was not set up on the day of the party, other than some tables and chairs set up but with furniture stacked and stored in the corner. This view is consistent with the evidence of Mr Douet and Ms Douet that the upstairs room was not set up as a party room at the time of the arrival and the Douet family had to set up the room themselves.

Handrail

1. The direct evidence before the Court on this issue was from the plaintiff herself and the evidence of Ms Douet.
2. The plaintiff's evidence was that she was holding onto the handrail at the stairs at the time of incident. This was also supported by the evidence of Ms Douet who stated that "I recall [the plaintiff] was holding onto the handrail and moving slowly down the stairs with her daughter Bethany".
3. No other evidence was before the Court in relation to this issue. I have not found that plaintiff to be an unreliable witness.
4. As such, I accept that the plaintiff was holding onto the handrail when descending the stairs. I will turn then to the issue of lighting.

Stairway Light: Switched on or off

1. As earlier identified, an issue in these proceedings was whether the lights were on at the time of the incident. The plaintiff submitted that at the time of the incident the light above the relevant staircase was not activated and that, in the circumstances there was simply no available evidence to find that the lights above the relevant staircase were on at the time of the incident.
2. The defendant submitted that the Court should find the two floodlights hanging from the ceiling of the premises were on at the time of the incident and that the two roller doors at the front and the two roller doors at the back of the centre were open at the time of the incident; and that the lights situated at the top of the stairs were on.
3. Further, the defendant submitted that the plaintiff cannot prove that inadequate lighting was the cause of the plaintiff's fall. It was submitted that the plaintiff did not, in her evidence, raise an issue with the lighting. Reference was made to the plaintiff turning to those behind her to warn them was indicative of the plaintiff seeing what was going on and making a note to herself.
4. I will turn to the evidence on this issue.
5. The plaintiff in her evidentiary statement stated that "there was no light on the stairs". Mr Pietrobelli described the stairs in his evidentiary statement "I had to be careful on the stairs because they were narrow and the lighting was very poor. The area was very dimly lit".
6. Mr Douet described the premises as "quite dull/dark" and "I cannot recall whether there were lights there that were not turned on or if there was no lights there at all (on the stairs) but in any event the stairwell was quite dark".
7. Rhiannon Douet in her evidentiary statement "the stairs were quite dark and I do not recall there was any light illuminating the pathway of the stairs. The premises were generally dark".
8. Mr Jewell agreed with the proposition that, if the lights over the stairs were on, it would not be a reasonable description that the area of the stairs was dark. Further, Mr Jewell conceded that if the lights over the stairs were not on when party guests arrived to go to the upstairs room, that the defendant's system in relation to the lighting, such as it was, had failed.
9. As earlier identified, Mr Jewell was not at the premises at the time of the incident and the defendant chose not to call staff who were present on the day of the incident. Given the evidence was, therefore, directly that the light over the stairs were off or confirmatory of the same, I find that on the balance of probabilities, that the lights above the stairs were not on at the time of the incident.

Where the fall occurred

1. The plaintiff submitted that the incident occurred between steps 2 and 4 on the stairs. This submission was advanced based on the plaintiff's recollection of the incident, whereby, she stated she went down a "few" steps before turning around to warn others and then went down another "step or two" before falling.
2. However, the plaintiff in closing submissions stated that there was common ground the fall was between steps 4 and 6. That submission was as follows: Your Honour, all of that dovetails with the table to which our learned friend took your Honour once again at p 1115 of the Court book and your Honour, it's fair to say, I think, that there's a reasonable commonality between the parties that this lady came to grief somewhere from step 4 to step 6. When your Honour looks at that sequence of stairs, and I don't want to fall into the same trap of artificial analysis of minutiae within the overall environment that we say the defendant has but, if your Honour looks at the step down from step 4 to step 5, it's a significant change. Step 5 to step 6 is not a significant change, but each of them is just over 200 millimetres which is 20% shorter, 2 inches shorter than the minimum going permitted under the building code but that's not all, of course, because the risings are impermissibly inconsistent as well, so that's why we say, you can't just do as the defendant would have your Honour do and look only at the goings, say, okay, well these goings are only a millimetre different between 5 and 6, so we can put the goings to one side. It doesn't work that way. The going are part of the staircase and the rises are inadequate and the consistency is lacking; so all three dimensions fail. It's not a matter of saying, this one or these two; every single dimension that was required to be observed under the building code was a fail; it's one thing on which the experts all agree and it's not to over‑state the position, in our submission, to describe the stairs as inherently dangerous.
3. The defendant submitted that the Court was not able to assess at what point on the stairs the plaintiff fell, other than it was at least 4 to 6 steps down from the top and on the top half of the stairs. In closing submissions, the defendant mentioned that possibility, but suggested steps five or six was the area that looks most likely where the fall occurred.

Conclusion: re location on the stairs at the time of the fall

1. On the basis that Ms Doeut was one or two steps into her descent of the stairs and Bethany was one or two steps in front of her, the range of steps where Bethany was standing was steps 2 to 4 at the time of the fall. Given Bethany's disability it may be expected she was close to her mother and, hence, one step behind. This would place the plaintiff at the time of the fall at step 5.
2. On the aforementioned analysis, the parties estimate of the plaintiff stepping somewhere between steps 4 and 6 at the time of the fall would seem appropriate with the most likely being step 5. I will consider liability on that basis.

Did the plaintiff make out her pleaded case as to slipping off the stair tread on the balance of probabilities?

1. In relation to this issue, the plaintiff approached the issue of the cause of the plaintiff's fall through the prism of causation. The defendant focussed their attention to answering whether there was proof of a slip by overstep and dealt with the issue of causation separately. I propose to deal with this question in the manner adopted by the defendant, that is to examine where the Court may conclude on the balance of probabilities there was a step in the nature of an overstep at the time of the fall before examining the question of breach of duty and causation.
2. The relevant pleading was set out earlier but for convenience I repeat it below: 6. At approximately 4:00pm on 2 July 2016, the plaintiff left the upstairs party room and was descending the stairway when her foot slipped off a stair tread, causing her to fall down the stairway, and thereby sustain injury, loss and damage. At the time of the plaintiff's fall, the light in the stairwell was switched off. (emphasis added)
3. Given the submissions of the parties on this question it is first necessary to address the question, is there direct evidence of an overstep?
4. The plaintiff submitted that there was direct evidence as to how the plaintiff fell coming from the plaintiff herself and that the cause was an overstep, whereby, the plaintiff's foot landed past the nosing, causing her foot to slide down the front of the step.
5. The defendant submitted that the Court should find that the plaintiff has failed to establish on the balance of probabilities her pleaded case, namely, that she slipped off the stair tread. It was submitted that the only direct evidence on how the plaintiff fell was from the plaintiff herself, which, the defendant submitted was "silent on the actual mechanism of the accident" and her other accounts referring to knowing how she fell and that it was a slip off a stair should be given no weight in the circumstances of her evidence.
6. Putting aside contemporaneous medical records to which I will turn next, the submissions of the defendant in this respect must be accepted.
7. The plaintiff's evidentiary statement is silent as to the mechanism of her fall.
8. There is direct evidence of the plaintiff descending the stairs and pausing to identify that the stairs at the top of the stairs were too small for her to fit her foot, causing her to turn her foot side ways.

Conclusion

1. The question arises then whether upon the balance of probabilities, it may be a definite and reasonable inference that there is a greater degree of likelihood that the plaintiff fell as a result of a slip occasioned by an overstep.
2. A logical starting point to identify whether such an inference can be drawn is to examine the contention of the defendant, founded as it is in large part on the evidence of Dr McIntosh, that there are conflicting inferences of at least equal degrees of probability such that no conclusion may be reached as to the mechanism of the fall down the stairs by the plaintiff and that any finding that there was an overstep was mere conjecture.
3. As mentioned, Dr McIntosh divided his attention between five categories of mechanism with respect to his first proposition that there could have been loss of a stable support basis for the "stance leg", as well as dealing with a second proposition that there was a trip on descending limb. As to the second of those propositions, it was not put to the plaintiff as a result of tripping on her descending leg. Nowhere in the plaintiff's evidence does it say that she tripped whilst descending the stairs. The contemporaneous medical records do in part refer to trips but they may be given little weight, in this respect, for the reasons I have earlier given above.
4. Returning to the first proposition (or group of mechanisms) identified by Dr McIntosh, the first mechanism after overstep, is loss of neuromuscular control/balance, reliance in that respect was placed on the reports of Dr Watson and Dr Ting, and, in particular, references to spontaneous dizziness, nausea and migraines and unexplained falls in the two weeks prior to the incident. It was submitted that the plaintiff had a history of dizziness and falls.
5. I will deal with this mechanism, loss of neuromuscular control/balance, in detail in the section of the judgment following liability, dealing with pre-injury medical conditions. However, the probability of a fall based on these factors is in my view significantly diminished by the conclusion that I later make, that the headaches, nausea, migraines and dizziness experienced by the plaintiff in the days and weeks leading up to the accident and, most relevantly, on the day of the incident were not of the nature that it would have affected her either at all or in a significant way. I agree with the plaintiff that the ambulance and hospital records taken shortly after the incident are relevant in this respect. They record that the plaintiff was not suffering from dizziness, weakness, or loss of sensation or consciousness.

DUTY OF CARE

1. The Civil Liability Act 2002 (NSW) ("the Act") governs questions of breach of duty and causation, leaving the question of the identification and scope of the duty a matter to be determined according to common law principles: Mamo v Surace (2014) 86 NSWLR 275; [2014] NSWCA 58 at [48] per McColl JA (Ward JA and Tobias AJA agreeing).
2. It was not in dispute that the defendant, as the occupier of the premises, owed a duty under the general law to take reasonable care to avoid a foreseeable risk of injury to the plaintiff: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 at 487.
3. The obligation was to exercise reasonable care to prevent injury to an entrant who used reasonable care for her own safety, as will be discussed further in relation to breach of duty below: Roads and Traffic Authority of New South Wales v Dederer 234 CLR 330; [2007] HCA 42 ("Dederer") at [45], per Gummow J; Laresu Pty Ltd v Clark [2010] NSWCA 180 at [38], (per Macfarlan JA with whom Tobias JA and Handley AJA agreed).
4. The response required to satisfy any duty to take reasonable care does not become more onerous if it is known or ought to be known that what is reasonably required may not be sufficient to prevent all foreseeable occurrences which may cause injury. That is because the duty is to exercise reasonable care, not "to prevent potential harm": Dederer at [18], [43], [51] to [56].
5. What constitutes the exercise of reasonable care will depend on the circumstances of the particular case: Wilkinson v Law Courts Ltd [2011] NSWCA 196 ("Wilkinson") at [32], (per Heydon JA with whom Meagher JA and Rolfe AJA agreed).
6. The defendant submitted that: 1. any person using stairs may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety: Stannus v Graham (1994) Aust Torts Rpts 82-293 at 61,566 col a.2; Wilkinson at [32]. 2. If the plaintiff's evidence that she was unable to place her feet on the stairs is accepted, the Court should find that she failed to take reasonable care for her own safety. Dr McIntosh described a number of available primary stair descent strategies that were available to the plaintiff (but that she did not use) to reduce the likelihood of a fall, noting her obesity (Ex 1 p1698). Those available strategies become even more relevant in circumstances where the plaintiff was plainly aware of the issues, she was having using the stairs (to the extent that she warned others) and was able to turn her feet sideways to remain on the stairs. On that basis the Court should find that the defendant did not owe the plaintiff a duty of care in the circumstances and her claim should fail.

Section 5B and 5C

1. Although they appear under the heading "Duty of Care" ss 5B and 5C of the Act are "evidently directed to questions of breach of duty": Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [13]; see also Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 ("Grills") at [93] (per Beazley P and Gleeson JA).
2. The question of breach is governed by s 5B of the Act. The relevant sections of the Act are set out in Pt 1A Div 2 and extracted below: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk
3. It has been repeatedly stated that identification of the relevant risk of harm is critical for a proper evaluation of breach of duty under the Act, because it enables assessment as to whether that risk was "foreseeable", for the purposes of s 5B(1)(a) of the Act, whether it was "not insignificant" for the purposes of s 5B(1)(b), and whether the defendant failed to take reasonable precautions in response for the purposes of s 5B(1)(c): see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151; Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 at [35]; United Church of Australia Property Trust (NSW) v Miller [2015] NSWCA 320 at [106]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 ("Mooney")at [52] - [54] citing Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; Dederer.

Section 5B(1)(a)

1. The requirement that a risk of harm be foreseeable is generally regarded as undemanding: Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44; [2005] HCA 15 at [33] and [54].
2. The defendant does not dispute that the risk of harm of injury was foreseeable for the purposes of s 5B(1)(a).
3. I find the requirements of s 5B(1)(a) are satisfied.

Section 5B(1)(b)

1. Section 5B(1)(b), of the Act requires that the risk must be "not insignificant".
2. The inquiry required by that provision primarily involves an assessment of the probability of the occurrence of the risk. This must also be judged from the perspective of a reasonable person in the defendant's position, and in prospect not retrospect: Benic v State of New South Wales [2010] NSWSC 1039 per Garling J at [93] and [101] citing Stojan (No 9) Pty Ltd v Kenway (2009) 210 LGERA 90; [2009] NSWCA 364 at [136] per McColl JA.
3. In South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 ("South Sydney Junior Rugby League Club") at [89], the Court of Appeal (per Basten JA with Macfarlan JA and Simpson JA agreeing) confirmed that obviousness of the risk, its likelihood of occurrence, and the seriousness of its consequences are factors relevant to the assessment: citing with approval in Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140] (per Beazley ACJ with McColl JA and Meagher JA agreeing).
4. The defendant submitted that Mr Jewell's evidence was that approximately 50,000 people would have used the subject stairs, including adults and children of various ages over the period that he conducted the business from the premises. In that time, there were no incidents involving the stairs, apart from the plaintiff's fall (Ex 1 p96 at [21]). He explained how he arrived at that calculation during his evidence (T253:24-32). Although he was challenged on how he calculated that figure, it was never put to him that the figure was inaccurate or exaggerated (rather the focus of the cross-examination was the plaintiff's proposition that the upstairs room was rarely used for parties -see T258:46-49) and his evidence in terms of the number of patrons who had used the stairs without incident prior to the plaintiff's fall should be accepted.
5. The defendant further submitted that even if that figure was an overestimation, the fact that the upstairs area had been used for a considerable length of time, possibly the entire 10 years during the duration of the lease of the premises without incident, is a highly determinative factor.
6. The plaintiff submitted that the risk of harm falling down a stairway with inconsistent risings and goings and undersized goings, must, by its very nature, be significant, notwithstanding the absence of any produced record of previous incidents.

Section 5B(1)(c) (and ss 5B(2) and 5C)

1. To establish breach of duty under s 5B(1)(c) of the Act, the plaintiff has the onus of demonstrating that a reasonable person in the defendant's position would have taken those particular precautions in response to the risk of harm.
2. Prior to reaching a conclusion as to s 5B(1)(c), as part of that evaluative process, the Court must evaluate each specified precaution against the mandatory considerations in s 5B(2) and s 5C of the Act: Bunnings Group Ltd v Giudice [2018] NSWCA 144 at [38] (Leeming JA, White JA and Emmett AJA agreeing). The Court must also assess the cumulative effect of the various precautions deemed reasonable: Weber v Greater Hume Shire Council [2019] NSWCA 74 at [197] (per Basten JA with Gleeson JA and Sackville AJA agreeing).
3. The Court must turn to the second part of the enquiry posed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, 47-48 now enacted under s 5B(1)(c)), namely, what a reasonable person in the position of the defendant would do by way of response to the risk. As Ipp JA said in Waverley Council v Ferreira [2005] NSWCA 418 at [47] (per Ipp JA with Spigelman CJ and Tobias JA agreeing), s 5B(1) was adopted to emphasise to trial courts the distinct nature of these steps.
4. In Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103, Meagher JA observed at [54]: 54. In assessing what reasonableness requires in response to a particular risk of harm, the reasonable person in the occupier's position is entitled to take into account "with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety": per Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74; a passage cited with approval in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45] fn 69 (Gummow J); [2007] HCA 42. The weight to be given to that expectation is in each case a matter for factual judgment: Thompson v Woolworths (Q'land) Pty Limited (2005) 221 CLR 234 at [35]; [2005] HCA 19; and the matters to be considered include the "obviousness of [the] risk, and the remoteness of the likelihood that other people will fail to observe and avoid it" (at [36]). The Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) continued (at [37]): The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.

The Defendant's Submissions

1. As to the precautions, the defendant's submission as to the rebuilding of the stairs is as follows: 1. The terms of the defendant's lease have a direct bearing on whether a reasonable person in the defendant's position would have rebuilt the stairs: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [101] per Sackville JA (with whom McColl JA agreed). 2. Under the lease, the landlord was required to fix structural defects (Ex 1 p109 at clause 7.1.1) and the tenant could not make any structural alterations to the property without the landlord's consent in writing (Ex 1 p110 at clause 7.6; Ex 1 p116 at clause 16, Annexure C) However, the lessee could apply for the lessor's consent if the alteration was to render the leased premises suitable for the lessee, in order to comply with the requirements of the authorities (Ex 1 p116 at clause 17, Annexure C). 3. The Court would not find that a reasonable person in the defendant's position would have rebuilt the stairs because: 1. First, there is no evidence that Mr Jewell was aware of the non-compliance with the BCA, nor that he should have been. 2. Second, Mr Jewell's evidence of the absence of any complaints or issues with the stairs is relevant to s 5B(2)(a), of the Act (the probability that the harm would occur if care were not taken). 3. Third, there is no evidence that establishes what the cost of undertaking such steps would have been, in order to determine the burden of taking the precaution against the risk of harm in terms of s 5B(2)(c), if the Act (T352:25-28). The Court can, however, take judicial notice of the fact that it would not be an insignificant cost to rebuild a set of 16 stairs constructed from steel, covered in carpet and which has a handrail positioned along the length of the stairway. It is also apparent that extensive associated demolition/construction would more than likely have been required, having regard to the manner in which the stairs are attached to the landing and the wall (see the photographs at Ex 1 p1112 -1113).
2. As to preventing access to the stairs, the defendant submitted as follows: 81. The Court would not find that a reasonable person in the defendant's position would have prevented access to the Stairs. 82. As above, there is no evidence that Mr Jewell was aware of the non-compliance with the BCA, nor that he should have been. 83. As above, Mr Jewell's evidence of the absence of any complaints or issues with the Stairs is relevant to s 5B(2)(a), CLA. 84. The plaintiff has therefore not established any basis upon which a reasonable person in the defendant's position would have prevented access to the Stairs.

Conclusions

1. At the outset of considering this issue, it is necessary to revisit some of aspects of the Ergonomic Conclave Report. In considering what actions the defendant could have taken in response to risks posed by the stairs to person descending the stairs, all experts considered that an available action was to ensure was to ensure compliance with the BCA. Both Mr Dimopoulos and Mr Dohrmann considered that a particular option was preventing or restricting access to the staircase. Dr McIntosh considered that a more reasonable action to restrict compliance was to erect warnings signs, advisory signs or contrast strip on the tread edge (to which Mr Dohrmann agreed to).
2. Further, and having regard to their opinions as to the dangers posed by the stairs, both Mr Dimopoulous and Mr Dohrmann agreed that two of the steps referred to in question 5 in the Ergonomic Conclave Report were open and could have been taken by the defendant, namely, rebuilding the staircase and preventing access to the staircase. Mr Dimopoulos referred to these steps as the preferred methods. He also noted that reducing the irregularity in the step going dimensions would also reduce the risk. He opined that the installing proprietary nosing would reduce the risk of an overstep by increasing visibility.
3. As I previously mentioned, Dr McIntosh disagreed that the steps referred to in question 5, namely, rebuilding the staircase, preventing access to the staircase and installing proprietary nosing product, should be taken unless there was an increase in stair usage, seemingly contradictory to the defendant's contention as to relatively high levels of the use of the stairs. I have earlier dealt with the deficiencies in his evidence, however, in this respect I note that in answering question 5 he drew attention to his response to question 6. Question 6 primarily went to the question of any elevated risk arising from stairs which were not compliant with the BCA, to which he conceded that the risk of an overstep was slightly elevated with the stairs at the premises, in comparison with stairs compliant with the BCA. This once again highlights the inconsistency of his evidence and as I have earlier found his evidence was unreliable.
4. A further preliminary consideration is the plaintiff's submissions, as to the application of s 5B(2) in this case, which I consider have considerable force are summarised below.

Rebuilding the Stairs

1. Mr Dimopoulos and Mr Dohrmann considered as I have noted above, that an appropriate step to be taken with respect to the noncompliance of the stairs with the BCA and the risk of harm posed by the stairs, would be the rebuilding of the stairs. Dr McIntosh's rejection of that approach is based a flawed premise that the likelihood of overstepping only slightly elevated the risk of the fall. In any event, the opinion he expressed in his answer to question 7 would seem to indicate that he considered an available step for the defendant is the rebuilding of the stairs, albeit that a more reasonable action in his view involves other measures he identified in that answer.
2. In addition to the foregoing discussion, in my view, the bases for the defendant's contention that the taking of this precaution is not reasonable (as opposed to not available) must fail for the following reasons: 1. While the Court may have regard to the terms of the defendant's lease, I do not consider that, when properly understood the lease provides real assistance to the defendant's case. 2. It is clear that the defendant required the landlord's consent to make structural alterations (cl 7.6 and Annexure C, cl 16(a)). However, the tenant may apply for such consent where it is required to comply with the requirements of authorities which, in my view, must include compliance with the standards imposed by the BCA. No such application was made by the defendant. 3. Further, the lease required the landlord to fix "structural defects". That term is not defined in the lease and neither party addressed its meaning. However, there would seem to be a reasonable basis for concluding that the obligation in cl 7.1.1 to fix structural defects may extend to defective staircases. As was stated in WD Duncan and Christensen, Commercial Leases in Australia (Thomas Reuters, 8th ed, 2017), at 288: The repair of a flight to stairs has been held to be a structural repair. I do not venture to consider whether a staircase which is non-compliant with the BCA is defect for the purpose of the clause because, in any event, the landlord may have only withheld consent to alterations unreasonably (see cl 7.6). A refusal by the landlord to a request by the defendant to alter the stairs to comply with the BCA would, in my view, be unreasonable. 1. As to the proposition that there was no evidence that Mr Jewell was aware of non-compliance or that he should have been the defendant is confronted with two real difficulties As I have observed, even casual patrons attending on the day of the incident were quickly able to make observations as to deficiencies in the stairs. Their observations in that respect were unchallenged and accordingly there can be no doubt that the defendant ought to be aware of a risk of harm. Further, I agree with the submission of the plaintiff it is not necessary for the defendant to be aware that the stairs did not comply with the BCA; its obligation was to protect entrants to the premises it occupied for profit from risks of harm arising from the scope and content of its duty. 2. I have earlier adversely dealt with Mr Jewell's evidence as to the absence of complaints with respect to the stairs. 3. The Court was asked to take judicial notice that the rebuilding of the stairs would be a not insignificant cost, including demolition and construction work. Mr Dimopoulos was asked questions as to this consideration in his concurrent evidence. He stated that it would not be difficult to build a stair that complies. However, he accepted that his expertise did not extend to the cost of doing so. As to the burden of this precaution, I do not consider it is appropriate to take judicial notice of the costs of rebuilding the stairs, as a steel or other structure, although I will proceed on the basis that the costs in not minor. The evidence as to the financial position of the defendant at the time is not sufficient to make further observations. Further that assessment needs to be balance against the significant danger posed by the stairs.

Restricting Access to the Stairs

1. I have earlier dealt with the preponderance of expert opinion that I have accepted as to restricting access to the stairs. I would note additionally that Dr McIntosh's rejection of this step contained a caveat that his view may change if different circumstance arose such as the expansion of the business, with consequential increase in stair usage. That opinion does sit entirely comfortably with the submissions advanced by the defendant to the effect that the probability of harm is low because of the high incidence of use and absence of complaints or issues. In any event, Dr McIntosh stated in question 8 that the plaintiff's fall could have been prevented by limiting access to the stairs because all risk of falling would have been eliminated.
2. As to the defendant's submission, that there was no evidence that Mr Jewell was aware of the non-compliance with the BCA or that he should have been, I note that the same conclusion must be reached here, as with respect to the measure of rebuilding the stairs. The same applies with respect to an absence of complaints or issues in relation to the stairs.
3. Senior Counsel for the defendant submitted that theoretically, if the stairs were "unsafe" then access ought to have been prevented, such that the failure to do so may represent a breach. However, he added a further contention in two parts. The first was the absence of evidence of harm over extended use. That contention has a factual premise dependent upon Mr Jewell's evidence which I have rejected, absent corroborative evidence, of which there is none, in this respect. Rather, there is contradictory evidence which included the condition which the Douet family found the party room upon attending the party room on the day of the incident. The second submission made by senior counsel does not sit entirely comfortably with the first as he described the use of the upstairs party room as being for use as an "overflow". He suggested that there was some potential financial loss occasioned by the closing of the access of that room, but there is no evidence to that fact.

Proprietary Nosing

1. I accept the submission of the defendant that the plaintiff has not established a breach with respect to proprietary nosing for two reasons. First, the architectural experts agreed that there was compliance with the applicable codes of proprietary nosing given that there was carpet on the treads of the stairs which provided a non-slip surface. Secondly, Mr Dimopoulos expressed the view that the proprietary nosing was unnecessary. Even though it may have improved safety in his view, it would not have been an adequate measure in itself to address the risks, having regard to the undersized goings and irregularity in the risers and goings.

Overall Conclusion: Breach

1. In the circumstances, I consider that the plaintiff has to the requisite standard has established a breach of duty for the purposes of s 5B(1)(c) by establishing the defendant had failed to take the precautions of either rebuilding the stairs or preventing or restricting access to the stairs. In the circumstances, I have concluded that a reasonable person in the defendant's position would have taken those two precautions.

Section 5D

1. The question of causation is governed by s 5D of the Act. The relevant sections of that Act are set out in Pt 1A Div 3 and extracted below: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
2. The application of the Act requires the plaintiff to establish factual causation and scope of liability. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E of the of the Act.
3. The traditional approach to the question of causation requires a determination of a question of fact, namely, what was the cause of a particular occurrence: Fitzgerald v Penn (1954) 91 CLR 268; Stapley v Gypsum Mines Ltd [1953] AC 663; [1953] 2 All ER 478 (at 681). This factual determination is generally described as the "but for" test or "causa sine qua non".

The Defendant's submissions

1. The defendant's submissions proceeded upon the assumption that, without admissions, the plaintiff fell as a result of "slipping off the stair tread."
2. From the starting point, the defendant submitted: 1. Common sense dictates (and the defendant accepts) that, if access had been prevented to the stairs, the plaintiff's fall would not have occurred. However, there is no basis upon which the Court could find that a reasonable person in the defendant's position would have prevented access to the stairs. 2. The question of causation should be addressed in terms of the precautions. 3. At the outset it should be noted that Mr Dimopoulos' opinion in respect of causation was based on an incorrect assumption that the plaintiff fell on the third step (T323:18-36). 4. As to rebuilding the stairs, the defendant made the following submissions: 1. In order to determine whether a different size going would have prevented the plaintiff's accident on the basis it was an "overstep slip" (see 1338:29-49), Mr Dohrmann agreed that it is necessary to: 1. analyse the point of the foot at which when her body is moving forward it will tip forward; 2. know the angle of her body in relation to her foot; 3. know the momentum at which she was moving down and placing their foot; 4. know the angle at which she put her foot down; 5. know the type of shoes and in particular the size of heel she was wearing; and 6. know where she put her foot on the stair (337:7-49). 1. Those factors were also accepted as being relevant to a determination of causation by Mr Dimopoulos (340:39-44). He also accepted that in analysing causation arising out of the size of the going dimension, it would be necessary to analyse the "tipping point" (as it was described during cross-examination) to determine whether a different sized going would have made any difference (T343:20-35; T344:6-12). 2. Whilst the defendant accepted that causation is not to be determined on the basis of scientific certainty, but on the balance of probabilities (see Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 at [138] citing Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 ("Seltsam") at [143]) the Court still has to be satisfied in the present case that if whichever step on which the plaintiff overstepped (which of course presents its own difficulties given the state of the evidence as to where she fell, as discussed above) had been compliant with the BCA, she would not have fallen. 3. The defendant submitted that the plaintiff has failed to discharge her onus in relation to causation. 4. Dr McIntosh also explained during his oral evidence why, at least in relation to stair descent, an expectation of regularity (as had been relied upon by Mr Dimopoulos in forming his conclusions in the joint report - see for example Ex 1 p1746 at [Ql]) was not as important as when walking on a flat surface (see 354:6-22). His evidence in that regard was unchallenged and should be accepted. 5. The irregularities in the area in which the plaintiff is likely to have fallen are far less than the 20mm that existed at the third step where Mr Dimopoulos assumed that the plaintiff fell (but which was clearly not made out on the evidence) (see Ex 1 p1115 at [S.10]). There was no analysis in the evidence of the effect of different and lesser differences upon the risks involved in descent, save that Mr Dimopoulos accepted that a smaller difference reduced the risk of injury (T345:16-31) and, for instance, a difference of 1mm would play no role (T344:32-47). 6. As noted above, there are a number of equally plausible reasons for the plaintiff's fall. Dr McIntosh addressed those matters in the joint report (Ex 1 p1748 at [Q3]). 7. Having regard to the entirety of the experts and in particular the ergonomic experts, the plaintiff has failed to establish on the balance of probabilities that the particular dimensions of the step at the point where she fell were causative of her accident. 1. As to the installing of proprietary nosing product, the defendant submitted: 1. At no point did the plaintiff give any evidence to the effect that she was unable to see where to place her feet on the Stairs due to the level of lighting. 2. Despite his opinion in the joint report, Mr Dimopoulos conceded during his evidence that, even if a proprietary nosing strip had been installed, it would not have made any difference to the plaintiff's accident on its own (T351:34-36). His opinion in that regard is fatal to the plaintiff's case on causation in respect of that precaution. 3. Further, in the event that the Court finds that the lights above the stairs were not turned on at the time of the plaintiff's fall, there is no evidence upon which the Court could find that, if the lights had been turned on (and therefore complied with the relevant standards as per Professor Dain's opinion and the joint report of the lighting experts), the plaintiff's fall would have been prevented. Although Mr Dohrmann touched upon that issue during his evidence (T352:35-37) that evidence is not sufficient to discharge the plaintiff's onus. In this regard, it is of particular note that the plaintiff herself made no complaint about the lighting at the time or indeed in her evidence. 1. As to ss 5F, 5H and 5I of Act, the plaintiff submitted in response to the defendant's pleadings as follows: 1. Section 5F deals with "obvious risk". For a risk to be an "obvious risk" as defined, the risk must have been obvious to a reasonable person in the position of the plaintiff. Whilst the plaintiff was aware that the stairs were narrow as she commenced the descent, causing her to give a warning to those behind her, it could not be said that the inconsistencies in the risings and goings of the staircase and the smaller going dimension would be obvious to a person commencing the descent of the stairs. The plaintiff submitted therefore that the risk was not an "obvious risk" as defined by s 5F. 2. If the Court were to accept that the risk was an obvious risk, notwithstanding the above submission, s 5H merely excuses the defendant from a duty to warn the plaintiff of such obvious risk. It does not speak to the balance of the duty of care. 3. Section 5I provides that a defendant is not liable in negligence for harm suffered by a plaintiff as a result of the materialisation of an inherent risk. "Inherent risk" is defined as a "risk of something occurring that cannot be avoided by the exercise of a reasonable care and skill". Noting that the defendant had a number of precautions available to it that would have prevented the subject accident, there can be no basis for any finding that the risk could have been avoided by the exercise of reasonable care and skill and therefore for the defendant's reliance on s 5I of the Act must fail.

Conclusion

1. The causation issue in this matter, may be described as the question of whether the negligence of the defendant, vis-à-vis, the breaches of duty were a necessary condition of the occurrence of the harm. That issue requires a wholly retrospective analysis and concerns a question of fact. Causation will be established if the evidence justifies, in the light of the requirements of s 5D, a finding or inference of probable causal connection between the breach of duty and the harm suffered.
2. Causation is not established merely because a tortious act increased the risk of injury. However, the relationship between the risk and causation must necessarily be considered; the risk in that sense referring relevantly a danger or the chance of loss. A statistical correlation between the occurrence of one event and the subsequent occurrence of another does not establish factual causation for the purposes of s 5D, even where the first event increases the probability of the second.
3. However, if the association between the two events is shown to have a causal explanation, then a conclusion to factual causation may be open if the first event has at least been a contributing cause to the second. An inference of causal connection may be reached, on the balance of probabilities, after the event, even if a statistical correlational between the two events rises no more than a mere possibility.
4. The Court may have regard to the probabilities in all the circumstances of the one event having a causal connection to the other: Seltsam at [143].
5. In the present matter, and having regard to these aforementioned principles, I consider that the requisite causal connection has been established based upon the following considerations (which are cumulative upon those earlier provided with respect to the question of whether the plaintiff had established her pleading as to an overstep): 1. For the reasons earlier given the plaintiff has established, on the balance of probabilities, that the plaintiff slipped on a step within the range of steps 4 to 6. It should be noted, in that respect, that, whilst the plaintiff did not give direct evidence of the plaintiff slipping off the step, her evidence does establish, directly, the difficulties occasioned with her descent occasioned by, the narrowness of the goings. 2. Mr Dimopoulos opined that based on the undersize of the going at step 3, namely, 205mm and that the going was irregular/smaller than the previous step then on the balance of probabilities it is more likely that the mechanism operating in relation to the plaintiff's fall was overstep/slip. He opined that the overstep was likely triggered primarily by the deficiencies in step 3. Mr Dohrmann agreed with Mr Dimopoulos. I have earlier rejected Dr McIntosh's evidence, in this respect, and in particular his five other mechanisms being of equal probability of causing the fall. 3. The experts were asked whether if the actions referred to in question 7 were taken would such actions have, more likely than not, prevented the plaintiff's fall. The experts were asked to consider that question on the balance of probabilities. The actions in question included the stairs being required to be compliant with the BCA, by rebuilding the stairs or preventing access to the stairs. Mr Dohrmann and Mr Dimopoulos gave any affirmative answer to that question. No contrary view was expressed by Dr McIntosh. 4. The defendant advanced a submission that Mr Dohrmann, with Mr Dimopoulos concurring had agreed that in order to determine whether a different sized going would have prevented the plaintiff's accident on the basis that it was an overstep, it was necessary to consider various biomechanics of the position and movement of the plaintiff's foot and her footwear in order to opine upon causation. It was necessary, it was suggested, to analyse the tipping point. However, as I have previously discussed, this was a misstatement of the evidence Mr Dohrmann and Mr Dimopolos whose evidence remained steadfastly consistent with the evidence that they gave in the aforementioned answers to questions. Whilst conceding that the methodology as to the assessment of the likelihood of an overstep proffered by Mr Dohrmann may be used in applicable cases in the assessment of the existence or otherwise of an overstep, Dr Dimopoulos and Mr Dohrmann did not alter their view as to causation in this case and eschewed that scientific or mathematical precision were required to make an assessment of causation having regard to the architectural and ergonomic features of the stairs, and their experience and studies to the likelihood of an overstep. To those factors may be added evidence of the circumstances of the fall itself (including the apparent difficulties presented by the stairs) and common human experience. I have found them to be witnesses of credit with the relevant expertise and qualifications to pass upon those issues. 5. Whilst the factor of undersized goings and the factor of irregular risers and goings are often jointly discussed in the expert reports, it was not suggested in that expert evidence that non-compliance in both of those areas was necessarily required to be approached cumulatively, in order for the abovementioned conclusions of Mr Dimopolous and Mr Dohrmann to be reached. Certainly, the BCA was framed in that way. The parties in their submissions were consistent with that approach. 6. Mr Dimopoulos approached his conclusions upon the basis of the plaintiff stepping onto step 3. The Court has, however, accepted the submissions of the parties that the plaintiff fell in the range of 4 to 6 and most likely step 5. However, it was not suggested by the defendant that the Court could not draw an inference as to causation by applying the logic of Mr Dimopoulos' analysis (and Mr Dohrmann's) as to step 3 to steps 4, 5 and 6. 7. It may be readily concluded, so far as the undersized goings are concerned, that steps 4, 5 and 6 exhibited that same characteristics as discussed by Mr Dimopoulos with respect to step 3. That is so for two reasons. The first is that each step is less than the minimum 250mm required under the BCA. The second is that the dimensions of those stairs represent a significantly greater departure from the standard than step 3. In that case, there was a 25mm departure from the minimum about which Mr Dimopoulos stated was significant because it was five times the maximum allowable variation. Step 4 is about six times the maximum allowable variation. Step 5 and step 6 are over 8 times the maximum allowable variation. Those, the goings are nearly 20% less than the minimum going requirement under the BCA. Mr Dimopoulos observed that variation of level was very significant and that for step 3 a variation of 25mm as it was five times the maximum allowable variation and was accordingly significant. That variation could not, according to Mr Dimopoulos, be described by the word "only", as there was only a variation of 25mm. This is an important observation, as it concerned both an irregularity and also non-compliance with BCA. 8. With respect to irregular risers and goings the defendant advanced number of propositions. The first was that irregularity was much more common at the top of the stairs and become a lot less irregular as the stairs descended. The second was that the plaintiff had stepped off a shorter onto a longer step which, Mr Dimopoulos agreed reduced the risk of an overstep. Thirdly, some of the variations in steps were miniscule such as between steps 5 and 6. 9. It is true that Mr Dimopoulos concession would apply to a step from step 3 to step 4, so far as the variation in the size of the goings were concerned because there is a step from a smaller to a larger going. However, what was overlooked in the defendant's contention and not raised with Mr Dimopoulos in concurrent evidence was that the movement between step 3 and step 4 involved a in the descent of the stairs involved irregular patterns both with risers and goings across the top 6 steps of the stairs. That irregularity is no less than the irregularity which senior counsel for the defendant accepted existed with respect to steps 1 to 3 and described in the following way (T387.17): one could understand why that would throw you off It might also be noted that there is a significant variation in slope moving between steps 3 and 4. 1. Step 5 also represents an irregular stair pattern which has the plaintiff moving from a larger going at step 4 to a smaller step (step 5). Step 6 departs from the pattern of the variation beyond the 5mm maximum allowable variation and indeed, as the defendant submitted represents only a 1mm variation. However, as Mr Hooke SC properly pointed out, Mr Dimopoulos' evidence was that the irregular pattern needed to be understood more broadly as creating the confusion across the range of stairs under consideration. People descended stairs with an expectation of regularity and not the irregularity which is found in steps 1 to 6. 2. Whilst the plaintiff also relied upon the light being turned off as a basis for negligence that position seemed to evaporate as the matter proceeded. However, in my view, lighting is a factor relevant to causation because it contributes to an understanding as to the likelihood of the plaintiff mis stepping as opposed to some other cause. The experts in the Ergonomic Conclave Report, touched on the issue of lighting through the prism of proprietary nosing. Mr Dimopoulos opined that, whilst the installation of proprietary nosing is not a requirement under the BCA, he noted that "it just helps improve safety" as proprietary nosing may increase the visibility for an individual to be able to position their foot. However, when pressed in concurrent evidence about whether the installation of proprietary nosing would have prevented the plaintiff's fall, he opined that due to the undersized goings and inconsistent risings and goings, the nosing would not be an adequate measure in and of itself. Mr Dohrmann was also asked in concurrent evidence about proprietary nosing, where he agreed with the view of Mr Dimopoulos. However, he added that the nosing of the stairs generally has two functions: first limitation on friction and slipping and secondly, with visibility. He stated that proprietary nosing becomes more useful as the going become irregular "for the reason of the extra vision it gives the descending person".

Overall Conclusion

1. It follows that the defendant is liable in negligence for any injuries, loss or damage occasioned to the plaintiff arising out of the incident.

CONTRIBUTORY NEGLIGENCE

1. Section 5R of the Act provides that the principles applicable in determining whether a person has been negligent are also applicable in determining contributory negligence. The standard of care required is that of a reasonable person in the plaintiff's position and is also to be determined on the basis of what the plaintiff knew or ought to have known at the time. As the terms of s 5R(2)(b) make clear, actual knowledge has a part to play in the assessment of contributory negligence.
2. In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529, another case of contributory negligence, the High Court said (at 532-533): The making of an apportionment as between a plaintiff and a defendant of the respective shares in the responsibility for the damage involves a comparison of both culpability, i.e.. of the degree of departure from the standard of care of the reasonable man and the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
3. In McNeilly v Imbree [2007] NSWCA 156; (2007) 47 MVR 536 at [106], Basten JA said of the "just and equitable" test, where used in assessing contributory negligence: 106. The test of apportionment, based upon what is "just and equitable", undoubtedly requires an evaluative judgment of an imprecise kind, permitting the trial judge a reasonably broad range within which any particular finding will not be open to challenge: see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492….
4. As Basten JA observed in Council of the City of Greater Taree v Wells [2010] NSWCA 147: 107. The assessment of the plaintiff's conduct involves a quite different exercise. A critical difference between the assessment of negligence and the assessment of contributory negligence is that the purpose of the latter assessment is to allow for an apportionment of responsibility for the injury by a reduction in the damages recoverable by the plaintiff "to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage": Law Reform (Miscellaneous Provisions) Act 1965 {NSW}, s 9(1). That is a different exercise from the determination of whether or not the defendant has been negligent."

Conclusion: Liability

1. As I have earlier found, the mechanism of the plaintiff's fall was by an overstep which was caused by the inconsistencies in the stairs confronting the plaintiff as she was descending the stairs, namely, the irregular rising and going dimensions. An equivalent factor was the shorter goings of the stairs than provided for by the BCA. As a result, I do not find that the plaintiff contributed to the cause of fall and I agree with the submission of advanced by the plaintiff that the plaintiff was not in a position to be able to adapt her gait to ensure that she was able to safely descend the stairs. The sideways movement was not the optimal means of descending, but it was identified by Mr McIntosh as an option. Overall, I find accept the submission advanced by senior counsel for the plaintiff as summarised above.
2. I did consider, in this context, the proposition advanced by Dr McIntosh that the plaintiff's obesity was a risk factor in preventing her from recovering once she slipped. However, I do not consider that if this conclusion were accepted, it would follow that a finding of contributory negligence should be made. Further, I do not find that her immobility or obesity caused her to take a sideways movement down the stairs.
3. In the circumstances, I do not consider there should be a deduction for contributory negligence.

General

1. The submissions of the parties in relation to the issue of damages fell into three broad categories. The first is the plaintiff's pre-existing physical and psychological conditions. The second is the injuries that the plaintiff suffered as a result of the fall. The third are damages concerning future matters.
2. Separating the issues in this way is helpful in assessing damages. As Deane, Gaudron and McHugh JJ explained in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642-3; [1990] HCA 20 ("Malec"): When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle (1970) AC 166, at p 174; Davies v. Taylor (1974) AC 207, at pp 212, 219; McIntosh v. Williams (1979) 2 NSWLR 543, at pp 550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.

Headaches, nausea, migraines and dizziness

1. The defendant made submissions, drawn from medical records leading up to the accident, that the defendant was suffering from headaches, nausea, migraines and dizziness before the accident. A number of reports were relied upon in further support of this submission which I will discuss below.
2. First, the report of endocrinologist, Dr Carol Ting, dated 17 February 2016, (Ex 1 at pp 3902 - 3905) made the following notes: Pain killers mainly for headache, also for pain under left arm, she can cope with the latter[.] Headaches started Nov 2015, sudden onset, never previously suffered from headaches. Frontal region, feels like pressure band around the front of her head. If she lays on her stomach, gets instance headache at back of head, lower aspect of head, excruciating. Occurs day and night. Headaches getting worse last 3-4 weeks/ MRI found sinusitis. Not seen Neurologist or ENT surgeon. Also had severe nausea started Dec 2015, getting worse last six weeks. Feels like vomiting, if lies down in dark room with cold cloth, nauseae relived [sic]. Nauseae [sic] comes in bouts, each time lasts half-one day, or can last a few hours, intermittently can be fine for a few hours. … Blood pressure, usually low, she feels it has gotten worse last few weeks because she has been dizzy, however dizziness sounds more like vertigo. Dizziness started about four weeks ago, feels like room is moving, every few days, spontaneous, son has had to catch her to prevent her form falling at shops, only one near fall. Once was sitting on toilet and she wondered whether the room was moving because the floor looked as if it was bopping up and down. Other times, has been able to lean against [sic] and sit down or lie odwn before she falls.
3. The report of Dr Ting noted that one of the main symptoms that was observed of the plaintiff was that she had "Severe Headaches started Nov 2015. No previous headaches[.] Frontal and like tight band. Continuous [sic]. Four weeks ago needed to start Endone for this, which she continues now" (emphasis in original). Her report recommended, amongst other things, that the plaintiff stop Metformin and Broimocriptine.
4. Secondly, the patient summary at the Illawarra Aboriginal Medical Service records that the plaintiff had a consultation with general medical practitioner, Dr John Watson, on 15 March 2016. The notes recorded (Ex 1 at p 3427): 15/03/2016 migraine headache "probable migranouse episodes x3 last few weeks with fluorescent golden moving objects then sleep then nausea and headache (emphasis in original)

Back Pain

1. The defendant also drew on medical evidence about the plaintiff's back pain which is discussed below in nine parts.
2. First, the records of Wollongong Hospital recorded that, on 12 and 13 October 1998 (Ex 1 at p 2560-2561.), the plaintiff had "generalised aches and pains, particularly low back pain". That pain was described by the plaintiff as "persistent back pain".
3. Secondly, Dr M Tut noted, on 11 June 2010 (Ex 1 at p 687), that the plaintiff had "[r]ecent back pain. Had previous back injury with disc disease". The reason for that contact was described as "Low back pain - Mechanical". Dr Tut noted a "Fit certificate [was] issued".
4. Thirdly, the Patient Medical History of Dapto Medical & Dental Centre record that on 2 April 2012 that the plaintiff "[s]lipped and fell down and hurt her lower back[.] Sore stiff[.] … PH [Patient history] of low back pain" (Ex 1 at p 3851).
5. Fourthly, the plaintiff visited Dr N Khosa on 19 February 2013 (Ex 1 at p 683) for "Low back pain - Mechanical". The record stated "HAS HAD LOWER BACK PAIN- NOT ABLE TO SLEEP AT NIGHT, KNOWN TO HAVE LOW BACK PROBLEKS [sic]". The record indicated that the plaintiff was issued with analgesia and non-steroidal anti-inflammatory drugs (NSAID).
6. Fifthly, the plaintiff visited Dr Muhammad Arif on 27 June 2013. The records indicated that the plaintiff "[w]as lifting chess of draws and sprained lower back. p/h [Patient history] of lbp [lower back pain] over 4 years" (Ex 1 at p 680). When asked about this in cross-examination, the plaintiff explained that this back pain was associated with her pregnancy and moving furniture (T93:12-22).
7. Sixthly, the plaintiff sought dietary advice regarding her weight from clinical dietician Aida Haghi. Ms Haghi created a Nutrition Care Plan for the plaintiff on 13 May 2014 (Ex 1 at p765). Under the title "Assessment", Ms Haghi notes that the plaintiff's "[c]urrent physical activity is very minimal outside ADLs due [to] sore back".
8. Seventhly, the plaintiff visited Dr Nimalka Selvarajah on 20 January 2015 (Ex 1 at p 3838). The reason for contact was "back pain". It was recorded, under the heading "History", that the plaintiff had "intermittent lower back pain few mnths [sic] - previous injury". Under the heading "Examination", it was recorded that the plaintiff had a "tender lower back - tender movements".

Stiffness and Swelling

1. The defendant also drew on medical evidence about the stiffness and swelling in the plaintiff's legs and feet before the accident in five parts.
2. First, the plaintiff visited Dr Solomon Nwanze on 22 November 2015 (Ex 1 at p 3836). The record of this visit states that the plaintiff [h]as left leg pain and swelling".
3. Secondly, the plaintiff had a consultation with general medical practitioner Rowena Ivers on 23 November 2015. The record of the consultation stated "Leg was swollen last night, has form for scan today". In cross-examination, the plaintiff accepted that in November 2015, she was suffering from swelling in her limbs (T110:5-8).
4. Thirdly, in the letter from Dr Ting to Dr John Watson, dated 17 February 2016 (Ex 1 at p 3902), she stated that the plaintiff's "[l]egs also keep getting stiff. Swelling left leg."
5. Fourthly, the plaintiff visited Dr John Watson on 11 March 2016 in which he recorded "aching legs" and "stiff legs".
6. Fifthly, in a letter from Dr Watson to Dr Ting, dated 15 March 2016 (Ex 1 at pp 3455 - 3456), it stated "I have asked her [the plaintiff] to start iron tablets for her lowish iron level (normal Haemoglobin) and i [sic] have ordered Magnesium level and ESR, CRP, ANA for aching stiff legs".

Consideration

1. The defendant's attack on the plaintiff's pre-accident medical condition was two-fold. The first attack went to the plaintiff's credit insofar that she had claimed in her oral testimony (extracted above) that she had been feeling "very well" in the five or six months leading up to the accident. The second attack went to damages in the sense that there is a possibility that the plaintiff would have suffered the same injuries independently of the tortious conduct at some future time (see Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 and also Civil Liability Act 2002 (NSW) s 13).
2. Overall, the submissions of the parties relating to the plaintiff experiencing headaches, migraines, dizziness and nausea were detailed, comprehensive and helpful. It is clear, however, that the plaintiff's testimony that she had been feeling "very well" in the five or six months leading up to the accident, in the sense that she was healthy and there were very few visits to medical professionals, cannot be accepted. The medical evidence elaborated above shows, at least two to six months before the accident, she was suffering from chronic headaches, migraines, dizziness and nausea. The report of Dr Ting, in particular, stated that the plaintiff, at certain times, was "unable to function" and was referred to a neurologist as a matter of priority. The plaintiff, in her written submissions, appears to accept, properly in my view, that the likelihood is that "she had not been free of headaches for the five or six months she believed" (Plaintiff's Outline of Submissions, dated and filed 29 January 2021, at p 39 [215]).
3. The task becomes more difficult when one needs to turn to whether the headaches, migraines, dizziness and nausea continued, and were active, in the month leading to the accident and on the day of the accident.
4. It can be readily observed that the lack of reference to headaches, migraines, dizziness and nausea in medical and clinical notes after 2 June 2016, and the plaintiff's application for full-time work, are consistent with the notion that she had a fast recovery and the impact of the sickness had been reduced or had disappeared. This may be more readily explained by the plaintiff's use of medication directed at these illnesses. The evidence of the plaintiff, her husband and their daughter are consistent generally with the notion that she had at least some recovery, especially about the plaintiff's ability to carry out her usual domestic tasks.

Evidence of Injuries sustained by the accident

1. After the accident, the plaintiff was admitted to Shellharbour Hospital on 2 and 3 July 2016. She was admitted to Wollongong Hospital on 4 July 2016 and remained there until 13 July 2016. Upon discharge, she was admitted to the Port Kembla rehabilitation clinic.
2. Neurologists, Associate Prof Paul Darveniza and Dr Grant Walker, took part in a conclave on 19 October 2020 (Ex 1 at p1065ff). The joint conclave report states: 1. The plaintiff suffered a mechanical injury to the spine and developed a subsequent DVT in the right leg that was 'probably related to the accident'; 2. The duration of those injuries 'should have been days to weeks'. Her treatment 'should be rest and analgesia with subsequent recuperation and possibly a course of anti-coagulants'; 3. The injuries gave rise to a need for attendant care services, but this has to be determined by an appropriate psychiatrist and rehabilitation physician; 4. The injuries had not resulted in a reduction in the plaintiff's capacity to perform pre-accident employment duties. There had been no reduction in the plaintiff's future capacity for work; 5. There were no neurological injuries sustained in the accident; and 6. The plaintiff was not suffering from ongoing disabilities arising from the injuries.
3. Dr Stephen Buckley and Dr Phillipa Harvey-Sutton took part in a conclave on 21 October 2020 (Ex 1 at pp 1053ff). The joint conclave report states: 1. The plaintiff sustained, as a result of the accident, a continuing somatic symptom disorder, which used to be known as a pain disorder. This injury has continued ever since the accident; 2. A continuing somatic symptom disorder manifests as mobility disabilities; 3. In relation to attendant care services, Dr Buckley identified a need for one hour per day, seven days per week of a personal care assistant in relation to the plaintiff's impaired mobility. Dr Harvey-Sutton stated that the plaintiff may require podiatry assistance, a bath board and a handheld shower but does not believe that the plaintiff has needed attendant care services since at most 2020; 4. The doctors had no reason to disagree with the treatment recommended by psychiatrist Associate Professor Phillips and deferred to the psychiatric opinion in that regard; 5. The plaintiff will require accommodation with flat access including to the bathroom and shower; 6. In relation to the reduction in the plaintiff's capacity to perform pre-accident employment duties, it was noted that the plaintiff's work history was intermittent and variable and, therefore, it was difficult to assess whether her capacity had been reduced; 7. In relation to future capacity, Dr Buckley was of the view that the plaintiff was unemployable on the open employment market unless her psychiatric treatment is successful. Dr Harvey-Sutton noted that the plaintiff has returned to work for three days per week as a community support worker, Aboriginal health worker and disability service officer, and expressed the opinion that, after about 12 months, could graduate to four days per week and subsequently five days per week. 8. In relation to the reduction in the plaintiff's capacity to perform her pre-accident employment duties, Dr Buckley believed that the combination of the plaintiff's psychological impairment, mobility impairment, somatic syndrome together with dependencies on narcotic and other analgesics makes her unemployable on the open employment market. Dr Buckley noted that the plaintiff may be able to return to work if the psychiatric treatment is successful, but the likelihood of success is low. Dr Harvey-Sutton noted that the plaintiff had not worked for some six months immediately before the time of the accident. 9. The plaintiff would require gratuitous assistance in the future. Dr Buckley advises an additional requirement of three hours per week of handyman assistance and five hours per week of housekeeping assistance. Dr Harvey-Sutton considered that the plaintiff would require three hours per week of cleaning and an additional 0.62 hours per week for spring cleaning. Dr Harvey-Sutton also considered that the plaintiff would be able to do her own meal preparation and laundry with the aids advised by the occupational therapists.

1. Ms Zeman made no allowance for transport on the basis of the plaintiff's demonstrated capacity to transport herself in her local and extended community. Ms Scott made an allowance for 2 hours per week for transport assistance, likely to be provided on a gratuitous basis. This is because the plaintiff has recorded a decreased tolerance for driving distances longer than 30 minutes, experienced fluctuating levels of widespread pain and continued to take medication that affected her vision and level of alertness. 2. Ms Zeman made no allowance for shopping given that the plaintiff had demonstrated an ability to complete shopping based on surveillance footage and utilised internet shopping. Ms Scott agreed that the client has a reported and demonstrated ability to complete incidental shopping and would utilise internet shopping. It appears that there would be a delivery fee of $11 per week. Ms Scott makes an allowance for monthly car cleaning at $10.75 per week. 3. Ms Zeman made no allowance for care for others given that the plaintiff's children are young adults and are all independent with personal care. Ms Zeman believed that the care relating to supervision and prompting of the plaintiff's daughter Bethany was not outside the plaintiff's functional capacity and that she had maintained the capacity to be able to support her daughter's needs in this regard. Ms Scott assessed the care of the plaintiff's daughter Bethany at 7.5 hours per week to be considered in the instance that NDIS funding ceased. Bethany is diagnosed with Autism Spectrum Disorder, Oppositional Defiance Disorder and Sensory Processing Disorder. Ms Scott noted that Bethany continued to require supervision and prompting to complete personal ADLs and contribute to some domestic tasks. Ms Scott explained that Bethany may require physical assistance to wash thoroughly, manage menstruation and be physically guided and redirected when she was oppositional and her behaviours are elevated. The plaintiff was not able to provide this level of assistance because it may involve prolonged periods of standing, unsupported postures and low reach. Ms Scott explained that one hour of daily assistance (0.5 hours in the morning and 0.5 hours in the evening) was required to assist Bethany with preparing for the day, completing personal care tasks and getting ready for bed. She recommended a further 0.5 hours to ensure that Bethany can contribute to domestic tasks such as making her bed daily, putting away laundry and cleaning her room. 4. The commercial services should be based on NDIS gazetted rates at $50.20 per hour for house cleaning and household activities and $49.30 per hour for house and yard maintenance. 5. The plaintiff did have a reasonable need for occupational therapy or/and occupational aids in the future arising from the injuries sustained in the accident. 6. The plaintiff did have a reasonable requirement for a period of intensive occupational therapy intervention to facilitate her adaptation. This was necessary over 12 hours at a rate of $193.99 per hour, which was the NDIS gazetted rate. 7. The plaintiff required aids listed in the table on pages 1096 and 1097 of Exhibit 1.

Surveillance Evidence

1. The defendant submitted that the plaintiff's pain was focused and that the plaintiff had overstated the effect and extent of her injuries during her evidence. The defendant placed reliance on the plaintiff's description of her "foot drop" after being shown surveillance footage. I will turn to the plaintiff's evidence in that respect.
2. The plaintiff was questioned by the defendant as to surveillance footage which the defendant submitted showed the plaintiff being able to walk lifting her leg off the ground. The plaintiff in her evidence conceded that there has been "a couple of little times" where the plaintiff has lifted her leg but followed that concession with identifying she had "foot drop". The plaintiff described "foot drop" in the following terms "with foot drop, you can actually lift your leg and drag as well", which she stated she had. When pressed about being able to lift her leg off the ground, the plaintiff responded, "it's very rare that I can get my foot up at all". The plaintiff denied the suggestion advanced by the defendant that based on the surveillance footage she was able to walk lifting her leg off the ground.
3. Having reviewed the surveillance footage I do not accept that it establishes that the plaintiff overstated the effect and extent of her injuries in her evidence. Whilst there are only minimal signs of the plaintiff dragging her foot in the surveillance footage, I accept her evidence that the incidence of that condition varies and that the surveillance footage may not be a reliable means of demonstrating the veracity of her account.
4. It should also be noted that my overall view of the evidence during the course of the giving of her evidence was that she genuinely suffered some real impairment.
5. It follows that I reject the submissions of the defendant with respect to the surveillance footage. My counterpart finding is that the surveillance footage is not such that would warrant adverse credit findings as to the plaintiff.

Consideration

1. From the totality of the evidence, including the numerous matters put by counsel for the defendant to the plaintiff in cross-examination, it is clear that the plaintiff had, before the accident, a history of medical complications of both a physical and psychiatric nature. These medical issues became so prevalent approximately six months before the accident that she ceased her University employment.
2. As I discussed above, the evidence demonstrates that the plaintiff sought the assistance of various medical professionals and received care. As Dr Martin accepted in his oral testimony, the plaintiff had insight when experiencing psychological distress to seek out help and treatment, which was a positive prognosticator (T303.06). From this help, her conditions had improved substantially in the month before the accident. This is most clearly indicated by the evidence of her family members in her ability to perform more domestic duties; in her self-confidence to apply for employment again; and in the reports of Associate Prof Phillips that the plaintiff had worked hard to minimise the presence and impact of her symptoms and had been relatively well (see also T293.05ff). In particular, Dr Martin acknowledged that the fact that the plaintiff got herself off heroin within approximately one year was a significant positive prognosticator (T303.04).
3. In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, Mason P explained the defendant's onus in relation to pre-existing conditions as follows: 6. The onus of proof that a defendant must discharge when alleging that a plaintiff's pre-existing condition was a contributing factor to his or her injury arising from the negligent act or omission in question is that explained in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. Nothing in those cases imposes an onus on the defendant to prove that a pre-existing condition had made a material contribution to the plaintiff's injury. 7. The onus of proof a defendant has to discharge according to Watts v Rake and Purkess v Crittenden is subject to the principles expressed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 when the circumstances involved include hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. Malec v JC Hutton Pty Ltd indicates that the court is required to evaluate possibilities in these circumstances and is not concerned with proof on a balance of probabilities. This means that a pre-existing condition proved to have possible, not probable, on-going harmful consequences to a plaintiff cannot be disregarded by the court.

Past out-of-pocket expenses

1. Exhibit 13 is a schedule of the plaintiff's out-of-pocket expenses for medical expenses that shows (in summary): Item Charge Medicare Out of Pocket Doctor's Visits $7944.15 $7534.05 $410.10 Medication $1089.00 $0.00 $1089.00 Equipment and Adjustments (including modification of motor vehicle, electric wheelchair, motorised scooter and repairs) $6229.89 $0.00 $6229.89 TOTAL $15,263.94 $7,545.05 $7,718.89

1. The plaintiff submitted that past out of pocket expenses should be awarded in the sum of $15,264 plus interest (Plaintiff's Outline of Submissions at [281], [283]). However, the plaintiff noted, in the Amended Statement of Particulars, that part of her medical expenses have been claimed/paid by Medicare.
2. In addition, the Amended Statement of Particulars recorded that it was necessary to carry out modifications to the plaintiff's home prior to her discharge from hospital. Those modifications included a ramp leading to the back door and some grab rails in the home for her security. The cost of these modifications was approximately $500.
3. The onus lies on the defendant to set out why each of these sums should not be included, as it is not for the Court to try to disentangle them: Dybka v McKenzie [2002] NSWCA 171 at [13(b)].
4. The defendant submitted that some reduction should be made for past medical expenses to reflect the likelihood that at least some of them would have been required in any event given the pre-existing and ongoing issues unrelated to the accident (Defendant's Outline of Closing Submissions at [151]). As I have noted above, the plaintiff's condition was improving before the accident and I consider that the likelihood that the plaintiff would need regular medical treatment to be low. Furthermore, Dr Buckley, Dr Harvey Sutton, Associate Prof Darvenia and Dr Walker (at Exhibit 1 on pages 1055 and 1066) commented on the reasonableness and appropriateness on the treatment to date.
5. In my view, the plaintiff should be entitled to the out of pocket expenses for the doctor's visits and 15% for the likelihood that she would have continued to have doctor's visits had the accident not occurred. This would come to an amount of $348.59.
6. I am satisfied that the plaintiff should receive the amount in full for medication that relates to her physical injuries. I am also satisfied that the plaintiff should also receive the amount less 40% for medication that relates to her psychological condition.
7. I am satisfied that the plaintiff should receive the sums for equipment and adjustments and house modifications in full because they relate to her physical injuries. This would come to $6729.89.
8. Interest should also be added to the above amounts. I note the defendant has not objected to the method of calculating interest suggested by the plaintiff in her Outline of Submissions at [282].

Future out-of-pocket expenses

1. In the Plaintiff's Outline of Submissions, it appears that the plaintiff abandoned the claim for general treatment expenses.
2. In relation to future treatment, there was some agreement between Dr Martin and Associate Prof Phillips regarding the ongoing psychiatric treatment. The closing submissions of the plaintiff and defendant had placed the allowance at $26,720 (Plaintiff's Outline of Submissions at [288]) and $24,819.16 (Defendant's outline of Closing Submissions at [158]), respectively.
3. To the extent that there is any dispute as to the amounts claimed, I consider that the plaintiff should be given 12 hours of occupational therapy intervention for the reasons given by Ms Scott and Ms Zeman. As I have preferred Associate Prof Phillips' views as to the plaintiff's psychological condition, to the extent of any conflict, I would favour the psychotherapeutic approach favoured by Associate Professor Phillips. As noted above, the total amount should be reduced by 40% for pre-existing and ongoing symptoms.

Equipment needs

1. In relation to the home modifications, the plaintiff sought $100,000 in the Amended Statement of Particulars. It appears that the plaintiff no longer presses that amount. The plaintiff appears, in MFI 5, to now advance claims for flooring, kitchen and a dish drawer with a total cost of $47,306. To the extent that these claims reflect the view of Dr Buckley and Dr Harvey Sutton regarding the need for flat access to accommodation, including bathroom and a shower, they should be accepted and paid in full.
2. I also gratefully adopt the recommendations of the Ms Scott and Ms Zeman on pages 1096 and 1097 of Exhibit 1. I am satisfied they are reasonable aids and the amount should be paid in full. The plaintiff submitted that this amount equates to $10,062.36. It does not appear that this is contested and it thus should be accepted.
3. In the Plaintiff's Outline of Submissions, it appears that the plaintiff abandons the buffer claim of $30,000 for further home and vehicle modifications.

Past Economic Loss and Superannuation

1. In the weeks leading up to the accident, the plaintiff made an application for a full-time disability support worker role at Ribbonwood Centre. The plaintiff claims the position was for a contract between 1 August 2016 and 1 September 2017 and claims that she would have earned $820 per week net.
2. I am not satisfied on the evidence before me that she had been actually offered the role. The highest she expressed was that she was the "main candidate" and they needed "someone to start soon" (T108:32-44). I am also required to take into account her pre-existing medical conditions (Amond v Al Batat (2009) 54 MVR 167 at [22]-[28]) and note my findings that she was on a path to recovery. Although it does appear that the plaintiff was willing to do full-time work, I consider that there is a possibility that she may have sought flexible working by way of a reduction or adjustment as to her working hours while she was still recovering. In my view, I am satisfied that this job being offered to the plaintiff and her accepting it was the most likely future circumstances but for the injury. However, I assess the likelihood that at 60%. Therefore, this amount comes to $27,552. As discussed above, I also reduce the amount by 15% to account for the plaintiff's pre-existing psychological injuries, which comes to $23,419.20.
3. In October 2018, the plaintiff claims she was offered a full-time role with the Aboriginal Medical Service but was unable to accept that position knowing she could not cope with full-time employment. She instead accepted a three-day role at Waminda. Here, she received a salary of $604 net per week plus salary. She claims the loss of 2 days of work for 17 weeks, which comes to $427 per week.
4. The plaintiff's evidence was that she did not have a copy of her application form, did not recall the rate of pay and the telephone call that she received may have been asking her back for a second interview (T160:19-49; T161:1-6). In these circumstances, I am not satisfied that the plaintiff's work in a full-time role at the Aboriginal Medical Centre was the most likely future circumstances but for the injury.
5. From 15 March 2019 to 5 October 2020, the plaintiff was unable to work in any capacity and claims a loss of $1031 net per week. It appears to me that the plaintiff is claiming the loss of capacity for the equivalent of a full-time role over the 81 weeks at the rate of pay at Waminda.

Future Economic Loss

1. As noted above, the plaintiff commenced work with NSW Health for three days per week. She claims that but for her injuries and disabilities she could work full time and claims the loss of $400 per week until age 70.
2. Section 13 of the Act states: 13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
3. As noted above, some experts favoured the view that the plaintiff could recover and return to full-time work. To avoid repetition, I summarise, at a high-level view, the various expert opinions as follows. Dr Harvey-Sutton noted that the plaintiff could graduate to four days per week and then to five days per week in the near future. Dr Buckley believed that the plaintiff was unemployable on the open unemployment market unless her psychiatric treatment is successful. However, Dr Martin believed that the plaintiff's reduction in capacity to perform pre-accident employment duties reflects physical impairment as opposed to psychiatric morbidity. Associate Prof Phillips believed that the plaintiff's capacity to undertake future work will be affected by persistent depressive disorder and a somatic symptom disorder but was optimistic that she could return to some form of useful employment in the future.
4. As Associate Prof Phillips noted, that the plaintiff appeared to be highly motivated to return to the workforce. The plaintiff has been able to successfully return to the workforce in part-time work for three days per week. I accept the evidence of Associate Prof Phillips: I think she had difficulties coping and I think her difficulties in coping reasonably can be sheeted back to her terrible childhood, and - but I think in the circumstances, and I'm talking from years and years of psychiatric practice, in the circumstance she has tried extremely hard to get above these symptoms. I don't move away from the symptoms, I accept them, and they are symptoms which have been serious enough to disrupt parts of her life, but as a trier this woman is a real hero.

Past Domestic Assistance

1. In relation to hospital-based care, the Ms Zeman and Ms Scott agreed that members of the plaintiff's family kindly provided her with support. I consider that the hospital-based care provided by the plaintiff's family, except when they brought in personal items from home and personal support, are the kind of services that can be provided by hospital staff. However, as Ms Scott alluded, hospitals do have limited staffing and are not always being able to provide timely assistance but the provision such services in this case is quite unclear. I accept the defendant's submissions as to the initial review.
2. Previously, it has been said that visits by a person to a hospitalised relative are compensable if the visits are reasonably necessary to meet the plaintiffs physical and/or emotional needs: Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54. However, in Wormleaton v Thomas & Coffey Limited (No 4) [2015] NSWSC 260 ("Wormleaton"), it was conceded by the plaintiff that no such services were recoverable during the plaintiff's hospitalisation, having regard to the decision in Nicholson v Nicholson (1994) 35 NSWLR 308 ("Nicholson") at [322]. In Nicholson, the Court of Appeal affirmed the trial judge's decision which had held that the plaintiff's sister in providing comfort to the plaintiff whilst he was in hospital was not providing "services" within the meaning of s 72, Motor Accidents Act and was therefore not compensable. In Wormleaton, the defendants also challenged a claim for emotional support relying on CSR Limited v Eddy; 226 CLR 1; [2005] HCA 64, a case concerning the common law rather than the statutory modifications of the Griffiths v Kerkemeyer principle. Campbell J said: [132] In Eddy the majority (Gleeson CJ, Gummow and Heydon JJ), admittedly in overruling the decision in Sullivan v Gordon (1999) 47 NSWLR 319, accepted an argument 'Griffiths v Kerkemeyer damages are awarded to plaintiffs to compensate them for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, not to compensate them for the cost of services which because of their incapacity they cannot render to others' (Emphasis added). I accept that emotional support is not a 'service' that one is capable of rendering to oneself. I appreciate that the definition of attendant care services in s 15 extends to 'services that aim to alleviate the consequences of an injury' but it is difficult categorise the provision of emotional support, as the provision of such a service. [133] The reasoning of the occupational therapists expressed in their report related to Mr Wormleaton 'psychological decompensation'; the emotional support of one hour per day was directed to the maintenance of his psychological state. [134] People are social being beings and most of us appreciate the company of family, friends and colleagues. But the benefits we derive from that society is not a service provided by those others to us. Nor can we, as I have said, provide that support to ourselves."

Future Domestic Assistance

1. Both Ms Zeman and Ms Scott agree that the plaintiff has a reasonable requirement for future care arising from her injuries. Consistent with the views of Ms Zeman and Ms Scott, I am satisfied that it is reasonable, having regard to the period of time and existing rehabilitation efforts, that the plaintiff will require future care indefinitely in the future.
2. Having regard to the very detailed and helpful reports of Ms Zeman and Ms Scott, I believe it is reasonable for there to be assistance for meal preparation (2.5 hours per week), internal residential maintenance (2 hours per week), heavy internal residential maintenance (2 hours per week), laundry (2 hours per week), bedroom maintenance (0.13 hours per week), lawn and garden maintenance (0.75 hours per week) and transport (1.5 hours per week).
3. Ms Scott and Ms Zeman agreed at the NDIS gazetted rates of $50.20 per hour for house cleaning and household activities and $49.30 per hour for house and yard maintenance. These are also the rates sought by the plaintiff. However, it appears to me that at least some of the services, including meal preparation, have been provided by members of the plaintiff's family to date and will continue in the future. Of course, there is the possibility, given the age of the plaintiff's children, that they may, over time, move out of home and no longer provide services to the plaintiff. It falls on the plaintiff to establish that there is a need for commercial care and that gratuitous care was not available: Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [21]. The willingness and ability of others is a relevant consideration: Miller v Galderisi [2009] NSWCA 353 ("Galderisi ") at [21]. The plaintiff has not met its evidential onus of satisfying the Court that commercial services would be required. It can be assumed that the plaintiff's children may, given the plaintiff's health, be more willing to provide assistance and services, even if they move out of home. For these reasons, this amount should be calculated at the rate for gratuitous attendant care services according to ss 15(4)-(5) of the Act. For completeness, I am satisfied of the requirements in ss 15(2)-(3) of that Act to award damages of this nature.

Non-economic Loss

1. As found earlier in this judgment, the incident had a major negative impact on the plaintiff including on her family, personal relationships, ability to work, ability to carry out pre-accident domestic tasks and recreational activities and created the need for ongoing treatment. I am satisfied, on the balance of probabilities, that the plaintiff will have to live with the impact of the injuries for the remainder of her natural life. As the experts noted, her prognosis was poor although she had some recovery and been able to work part-time, albeit with varying degrees of difficulty.
2. The defendant submitted that the plaintiff overstated the effect and extent of her post-accident injuries and downplayed the effect of the pre-existing and continuing headaches (at [146] and [149]). For the reasons stated above, I do not accept the defendant's submission in that respect. In particular, I refer to my findings as to the plaintiff's credit and her suffering headaches.
3. The plaintiff submitted that an appropriate award of damages for non-economic loss would be 50% of the most extreme case. The defendant submitted that the appropriate award of damages for non-economic loss, having regard to the exaggeration of pain, capacity to travel for vacations, ability to drive to work and pre-existing psychological issues, would be 25%. I have also found that there were some pre-existing issues but not to the degree asserted by the defendant. My rejection of the submission partly reflected in the above reasons.
4. In the above circumstances, and having regard, in particular, to the plaintiff's recovery to date and her ability to work and perform some domestic duties, I am of the view that the appropriate assessment of non-economic loss in relation to the effect of the incident is 35% of the most extreme case. Pursuant to s 16(3) of the Act, the damages for non-economic loss, as a proportion of the maximum amount that may be awarded for non-economic loss (see Civil Liability (Non-economic Loss) Order 2010), is 35%.

Care of Others

1. The plaintiff claimed that she was entitled to damages for her loss of capacity to provide domestic services to others pursuant to section 15B of the Act.
2. The plaintiff premised this argument upon medical evidence in relation to Bethany. It was correctly submitted that Bethany suffered a number of serious medical conditions including autistic spectrum disorder, epilepsy, global development delay, generalised anxiety disorder and oppositional defiance disorder. It was submitted that Bethany required day-to-day care, supervision and support in her activities of daily life.
3. The plaintiff contended that Bethany had received care from a commercial carer which was funded through NDIS, but that the support was no longer received by Bethany because of difficult experiences that Bethany had with support workers in the past.
4. The plaintiff made a very substantial claim in this respect, predicated upon a need for seven and a half hours a week for care in conformity with Ms Scott's opinion. On that basis, total past domestic care was calculated at $55,369 and future care was calculated at the gratuitous rate of $33.31 per hour by 931.7 giving a total of $232,762. Accordingly, the total claim for past and future care under section 15B was $288,131.
5. The provisions of section 15B have been the subject of recent discussion in Piatti v ACN 000 246 542 Pty Ltd [2020] NSWCA 368. At [42] - [46] of the judgment of McCallum JA (with whom Simpson AJA agreed); the following description of the provision was provided: 42. It may be noted that, in each case (that is for both existing dependants and unborn children), the time at which the definition must be met is at the time the liability in respect of which the claim is made arises. 43. The substantive enactment is subs (2), which provides: (2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that- (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of "dependants" in subsection (1)--the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants-- (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. 44. The logic of the section is to provide that damages may be awarded for "any" loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied of four conditions. There is nothing in the language or structure of the section to suggest that, if the court is satisfied as to those four conditions, there is any upper limit on the damages that may be awarded. On the contrary, the section allows an award of damages for "any loss of capacity". The word "any" must be allowed to do its work. 45. In accordance with ordinary principles of assessment of damages, the loss of capacity would be assessed by the court at the time of judgment and would extend to both past and future loss as at that time. There is nothing in the language of the section to suggest that this particular head of damages was intended to be frozen at an earlier point in time. With respect, the respondents' submissions on this issue confuse conditions of recovery with the notion of a cap on the quantum of damages that may be recovered. Again, the word "any" in the opening words of subs (2) militates against the respondents' construction. 46. The four conditions as to which the court must be satisfied may be seen to serve two primary purposes: to exclude opportunistic claims and to impose something in the nature of a threshold of seriousness before damages may be awarded. However, to reiterate, there is nothing in the statutory text to suggest the existence of an upper limit or cap on the amount that may be awarded in cases where the four conditions are met.

Other Matters

1. The defendant submitted that I should have regard to the fact that one of the plaintiff's daughters currently receives a carers allowance for looking after the plaintiff (T91:35-36).
2. The Court of Appeal stated in Gordon at [130] (referring to Galderisi) that "to award damages to enable the plaintiff to pay for assistance at commercial rates, which his wife continued to receive a pension for that very purpose, would amount to unjust enrichment, and be contrary to principle". The Court of Appeal also stated (at [131]) that, even if the pension was received before the plaintiff's injury and had nothing to do with the plaintiff's injury, this was not a basis that the carer will continue to render the services gratuitously once the plaintiff has funds.
3. In Campton v Centennial Newstan Pty Ltd (No 2) [2014] NSWSC 1799 ("Campton v Centennial Newstan") at [773], Hall J deducted the carer's pension from the plaintiff's award for past personal care in accordance with the principles in Gordon.
4. I will respectfully apply the approach in Gordon and Campton v Centennial Newstan. If the allowance was paid because of the plaintiff's injury, the support of the allowance means that at least some of the services were not rendered gratuitously and were being paid for, although not by the plaintiff. I agree that the amount of the carers allowance should be deducted in accordance with the principles stated in Gordon and Campton v Centennial Newstan. It is unclear on the evidence presently before me the precise amount of the allowance and duration of which it has been paid. This much will be addressed in the orders made below for full disposition of this matter.

CONCLUSION

1. In all the circumstances, there should be judgment for the plaintiff. I will make orders to that effect.
2. I conclude that the defendant is liable for injuries, loss or damage occasioned to the plaintiff arising out of the incident. I have found that there should be no deduction for contributory negligence.
3. Further, I have determined the damages should be awarded to the plaintiff in accordance with the detailed findings as to damages contained in the section of my judgment dealing with that topic.
4. The plaintiff shall be required to bring in Short Minutes of Order reflecting the judgment of the Court. The question of interest and costs will be reserved.

ORDERS

1. For these reasons, I make the following orders: 1. Judgment for the plaintiff. 2. The plaintiff shall file and serve Short Minutes of Order reflecting this judgment within 14 days of the delivery of the judgment. If the parties are unable to agree on the Short Minutes of Order, they shall each file submissions, limited to five pages, on the issues in contention with my Associate by email within a further 14 days. If an oral hearing is sought, in addition to their written submissions, they may approach my Associate to schedule such a hearing. 3. Costs and interest are reserved.

Amendments 08 June 2022 - Typographical amendment at [641] Addition of heading and following four paragraphs from [687] 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: 08 June 2022