Reynolds v City of Sydney Council

The layout of the street

1. Morehead Street in Waterloo runs roughly north to south. The plaintiff, his wife and adult son live in a rented Housing Commission townhouse on the eastern side of Morehead Street. It is a busy street and the part of the road adjacent to the kerbs on both sides is often fully occupied by parked cars. Outside the plaintiff's townhouse is a concrete footpath, then a nature strip, then a stone kerb, then a gutter and then a roadway. On the nature strip at the time of the accident was a very large paperbark tree which was growing adjacent to the kerb. Some of the tree had grown out over the kerb. The roots of the tree had pushed the kerb outwards and upwards. The roots of the tree ran along and protruded from the ground on the southern side of the tree. The evidence was that the roots protruded about 70mm above the level of the ground.
2. In January 2014 the defendant carried out work to regrade the gutter outside the plaintiff's home, as water was pooling in the gutter. The defendant also undertook repairs to the kerb located at the base of the tree and to the side of the tree.
3. The kerb stones to the south of the tree had been lifted by the roots of the tree. In January 2014 the defendant replaced kerb stones immediately adjacent to the tree, but did not replace kerb stones to the south of the tree. Instead, new concrete was laid on top of the existing irregular kerb stones. This concrete was white in colour, whereas the kerb stones were a darker natural stone colour. There are two areas of fresh concrete laid by the defendant. Immediately to the south of the tree, and adjacent to where the roots of the tree protruded from the ground on the nature strip, was a length of new white concrete which was not measured by any of the experts, but which appears from photographs including PX2, to be about two to three feet long. About two to three feet further to the south was another smaller strip of fresh concrete, below which was a stormwater pipe. This smaller strip of concrete played no part in the accident, on any version of events.
4. The width of the kerb, and thus the width of the top of the kerb stone was 250mm. The evidence was that this is a standard width for a kerb stone.
5. At about the halfway point on the longer strip of new white concrete, was a ridge which ran east-west and thus across the kerb stone. The ridge was not gradual, and can best be seen in the photograph PX3, and in figure 16 in the report of the plaintiff's expert Mr Grieve dated 17 November 2017 (which is behind tab 2 in Exhibit PX4). To the north of the ridge the kerb is higher and to the south of the ridge the kerb is lower.
6. The plaintiff's case at trial was that in attempting to cross from his house to the roadway, he stepped with his right foot upon this ridge, lost his balance and fell forward, landing on his left foot on the roadway and suffering a fracture of the left foot. The defendant's case was that the court could not be satisfied that this was the point where the plaintiff stepped onto the kerb. That submission came about because there was evidence that the plaintiff had earlier indicated a different point on the kerb where he stepped off towards the roadway.

The plaintiff's version of the accident

1. The plaintiff is 50 years old. He left high school in 1982 having finished Year 9. He then worked at various labouring jobs until he started with Leichhardt Council in 1999. At the time of the accident his job involved working from 3.00am to 11.00am cleaning up street rubbish. He has changed his job since the accident to now drive the truck into which the rubbish collected by workers is tossed.
2. The evidence which the plaintiff gave about how the accident occurred, as well as his evidence about his medical issues, was not particularly clear. I formed the impression that the plaintiff was trying to do his best, but his memory of both the accident and of medical matters was not accurate. He was a person who by nature is not good at giving verbal descriptions of events. Many times he demonstrated what happened in the accident by body movements and by indicating with his hands how his feet were placed and what happened to his feet when he fell. Fortunately all those matters were clarified and put on the transcript by counsel.
3. The accident happened on the Wednesday before Easter in 2014. The plaintiff gave no evidence as to the time of day of the accident, but it was after he had returned from work at the Council, where he finished at 11.00am. A friend who was a neighbour asked to borrow a car cleaning product, which the plaintiff kept in the boot of his car. His car was parked outside his townhouse, on the eastern side of Morehead Street.
4. The plaintiff gave evidence that he left his house and walked across the concrete footpath onto the grass verge. He stepped over the tree root, put his foot onto the kerb and that is when he fell forward. He was aware that the kerb was quite high at that point. He indicated in his evidence-in-chief that he put his right foot onto the top of the kerb at the point where there is the ridge previously described. Thus where he put his foot was not a level part of the kerb but had a significant north-south slope upon it. He said that he did not often walk across that area of the nature strip, as not only was there the tree root, but people left dog droppings and smashed bottles there. He said that there was no space that day to walk in front of his car so that he did walk straight across the nature strip, across the tree root and towards the boot of his car which was adjacent. The plaintiff said that when he put his foot on the kerb it rolled and he then fell forwards putting his left foot down, which landed below on the road. He fell over.
5. In cross-examination the plaintiff said that he had observed the large tree outside his property and the extensive root system which protruded from the ground. He said that he probably had walked around the base of the tree before, but he could not particularly remember it. He said that he had probably parked his car near the base of the tree in the past. Prior to April 2014 he had seen that the kerbing had been lifted because of the root system of the tree. It was higher outside his property than it was further down the street to the south. He said that there were many substantial trees of this kind in Morehead Street, but they were further away in the street.
6. In cross-examination the plaintiff agreed that after the defendant did its repair work in January 2014 "it was plain to see that the kerbing sloped gradually towards the tree as shown in PX2". He said that he had not noticed that the kerbing itself was uneven and that the kerbing outside his townhouse was higher than at other locations such as the townhouse next door.
7. In cross-examination the plaintiff said that he could see the large roots of the tree as he approached the kerb and he was conscious of stepping over those roots as he was walking towards the boot of his car. He gave a demonstration with his hands as to how he placed his right foot down. He indicated with his right hand that the front of his foot was pointing upwards and that when he stepped forward, the foot rolled to the right and he fell forward. He said that he was not looking down at the kerb, he was looking at the tree root so that he didn't fall on it. He put his foot on the kerb and that is when he lost his balance and fell.
8. Before concluding the summary of the cross-examination of the plaintiff on the topic of the accident, it is necessary to recite some matters arising from the two expert reports of Mr Grieve, engineer, tendered by the plaintiff.
9. To produce his first report dated 27 July 2017, Mr Grieve inspected the site on 22 May 2017 and 13 June 2017 with the plaintiff. He also inspected the site on 24 July 2017 without the plaintiff. As part of that report he included a number of photographs. The first photograph annexed to the report, on page 10, was a photograph taken looking north, from a position on the roadway adjacent to the eastern kerb. The photograph looked along the line of the kerb towards the tree which can be seen in the top of the photograph. The caption to that photograph is as follows: "Figure 1 Photographs taken by the plaintiff on 1 May 2013. Accident site arrowed. Height of root at accident site is estimated at 70mm."
10. The ridge upon which the plaintiff says he stepped and fell can be discerned in the longer area of white concrete topping the kerb stones. The arrow in the photograph points, not to the ridge, but to a point on the kerb well north of the ridge, towards the tree.
11. The second photograph, which is on page 11 of the report, also has an arrow pointing to the accident site. Again, the arrow points to an area towards the northern end of the concrete topping of the kerb stone, nearer to the tree and not at the halfway point where the ridge exists.
12. Neither the report nor the evidence discloses whether it was Mr Grieve or the plaintiff himself who put the arrow on the photograph. Whatever be the case, the indication by the arrows on the two photographs on pages 10 and 11 of that first report, as to the site of the accident, can only have come from the plaintiff.
13. The fourth photograph, which is on the top of page 13 of the report, shows a tape measure measuring the height of the root "at accident site". Again, this is not at the ridge where the plaintiff said he fell, but is to the north of that ridge nearer to the tree.
14. To produce his second report, dated 17 November 2017, Mr Grieve inspected the site on 13 November 2017 in the company of the plaintiff and the plaintiff's solicitor. This inspection was seven days after the Amended Statement of Claim was filed.
15. On page 3 of the report Mr Grieve said: "According to my photographs 15 and 16 to the north of the accident site there was a high point in the sandstone and the surface of the sand and cement then ramps down to the south to the accident site and then further to the south there is a further ramp to the straight section approximately 500mm long."
16. Photographs 15 and 16 are to be found in Appendix C to the report. These show the ridge upon which the plaintiff gave evidence that he stepped and fell. However, the paragraph recited above suggests that the accident site was to the north of that ridge. This is in accordance with the photographs with arrows attached to the first report.
17. Appendix C also contains three photographs with a foot partially resting on a kerb stone. Figure 1 is said to be: "Photos taken by Anthony Grieve on 13 November 2017. Plaintiff's foot at accident site." The foot shown in the photograph Figure 1 is not standing on the ridge where the plaintiff gave evidence that he fell. The ridge can be seen, but the foot is, as the photograph is oriented, above the ridge in the photograph i.e. to the north of the ridge. Figure 2 shows the foot in the same position, to the north of the ridge. So does Figure 3.
18. There was no evidence as to how those photographs came to be taken or whose foot is shown in the photographs. However, Mr Grieve is clearly conveying, both by the caption to the photographs, and by the paragraph recited above, that he was informed, for the purposes of his second report, that the plaintiff's foot came down onto the kerb stone not at the ridge but to the north of it.
19. As previously recited, the two reports of Mr Grieve were tendered in the plaintiff's case. It is important to note that the plaintiff's solicitor attended the inspection that led to the second report. If there was any error in the mind of Mr Grieve as to where the plaintiff stepped onto the kerb, one would have expected that solicitor to correct such error during the inspection, or, after the report had been obtained, to go back to Mr Grieve and say that he had misunderstood his instructions. Instead, the reports were tendered without any such actions having been taken.
20. It is necessary to return to the cross-examination in relation to these photographs, which clearly show the plaintiff stepping onto the kerb not on the ridge but at a different point to the north where there was no ridge, although the cross fall of the kerb was uneven at that point.
21. The cross-examination in relation to these photographs was as follows (at T42/8-41): CHEN "Q. You had several meetings on site with Mr Grieve did you not? A. Yes. Q. You understood that in consequence of those meetings that he would prepare some reports for use in your case against the council? A. Yes. Q. You had a conversation with him, did you not, telling him where the accident occurred? A. Yes, I did. Q. And he took a number of photographs of that location as directed by you. Isn't that so? A. Where I had the accident, yes. Q. You showed him, did you not, where the accident occurred? A. Yes. Q. I take it you were careful and considered in doing so? A. Yes. Q. You were accurate in doing so. Is that right? A. Yes. Q. Mr Grieve took a number of photographs showing where your foot was. Isn't that so? A. Yes. Q. That is a considered and accurate version of how you say your foot came into contact with the curbing in this area when you had your fall. Is that right? A. Yes."
22. In final submissions, Senior Counsel for the plaintiff submitted that it was "unfair" that the plaintiff was not directly confronted with the photographs, in the sense that Senior Counsel for the defendant should have put them in front of him, and pointed out to him that he had given a different version of the accident on prior occasions in dealing with Mr Grieve. I reject that submission. It might have had some force if these photographs were in the possession of the defendant, or came from a defendant's report, but when the photos and the reports were tendered in evidence for the plaintiff, I see no unfairness in Senior Counsel for the defendant cross-examining the plaintiff in the manner he did, and leaving the issue at that. There was no objection taken to these questions, and no re-examination on the issue.
23. Further, Senior Counsel for the defendant in final submissions put as his primary submission that the court could simply not be satisfied as to what point on the kerb the accident occurred. The basis for this submission was the contrast between the point identified by the plaintiff in his oral evidence, and the point identified by the plaintiff on prior occasions to Mr Grieve. When the photographs showing a different accident site came into evidence having been tendered for the plaintiff, I do not think that fairness required that they be specifically put before the plaintiff in cross-examination. The discrepancy between the oral evidence given by the plaintiff as to the accident site, and what, I infer, he had told Mr Grieve on prior occasions, was plain to see and it could not be said that in any way the plaintiff or his representatives were taken by surprise by the final submission that the court could not be satisfied that the accident happened when the plaintiff stepped on the ridge, causing his ankle to roll and causing him to lose is balance.
24. There was re-examination concerning the location of the accident. Once again, the plaintiff demonstrated by hand movements that he put his right heel down with his toes in the air after stepping over the tree root and that was when his foot rolled to the right and he fell forward. He said that he lost his balance "because it's uneven and it's not straight". I took this to be a further reference to the plaintiff's evidence-in-chief that he stepped upon the ridge shown in PX3. Anyone stepping onto that ridge walking from east to west could well have rolled their ankle, but the logical inference is that such a person would have rolled their foot to the left and not to the right.

Findings on liability

1. I do not accept the plaintiff's oral evidence that the accident occurred at the point on the top of the kerb where there is an east-west ridge upon which he stepped.
2. My first reason for rejecting that evidence is that moving from east to west, a person who stepped on that ridge would have the right-hand side of their foot on the higher part of the kerb and the left-hand side of their foot on the lower part of the kerb. If they were not conscious of the ridge, and put weight on their foot, their foot would logically roll to the left and not to the right, as the plaintiff said. I do not understand how the foot could, in effect, roll uphill against gravity.
3. Senior Counsel for the plaintiff in final submissions put forward a theory that the plaintiff was walking across the nature strip on an angle, and thus put his foot on an angle upon the top of the kerb. However, the plaintiff did not say that, and for that reason I reject that submission.
4. The second reason for rejecting the plaintiff's evidence as to where the accident occurred, lies with the photographs and the indication of the accident site given by the plaintiff to Mr Grieve on more than one occasion. Mr Grieve attended the site with the plaintiff more than once, in order to produce his first and second reports. The visit to the site which resulted in the second report also included attendance by the plaintiff's solicitor. It is clear beyond argument that the photographs, together with arrows on photos in the first report, show the accident site to the north of the ridge and closer to the tree. If Mr Grieve had misapprehended the instructions given to him by the plaintiff as to where the accident occurred, these reports would have been referred by his solicitor back to Mr Grieve with a request that he correct the reports, and produce new reports based upon the plaintiff's version that he stepped upon the ridge, and not to the north of the ridge. That was never done.
5. I find that the plaintiff informed Mr Grieve, at the inspections which resulted in the first and the second reports, that he stepped on the top of the kerb to the north of the ridge and not upon the ridge.
6. It was submitted by Senior Counsel for the defendant that in the light of those matters the court could not be satisfied as to where the accident occurred. I am satisfied, on the balance of probabilities, that the accident occurred at the point on the kerb indicated by the plaintiff to Mr Grieve and clearly set out in the photographs attached to the first and second reports by Mr Grieve. This is a point to the north of the ridge, closer to the tree. At that point the roots of the tree had encroached upon the nature strip and were standing above the ground. The plaintiff gave evidence, which was not challenged, that he had to step over the protruding tree roots to step onto the kerb, and this evidence also supports my finding that the accident happened closer to the tree and not upon the ridge.
7. Having made that finding, it is necessary that I making findings about the physical state of the kerb at the point where the plaintiff stepped onto the kerb and fell forward. I find that at that point the kerb had been topped by fresh concrete laid by the defendant in January 2014.
8. In his report dated 19 November 2017, Mr Grieve set out the detail of his examination of the top of the kerb at the point indicated to him by the plaintiff, as to where the right foot was placed on the kerb before the fall. That is the point at which I have found as a fact that the accident occurred.
9. Mr Grieve conducted measurements of the cross fall in the direction of the plaintiff's travel from east to west. He said: "A spirit level with an electronic readout of the slope was placed on the top of the kerb to determine the cross fall in the direction of the plaintiff's travel. Readings of 12.8%, 11.2%, 12.9%, 13%, were noted. This was equivalent to a 23mm gap at the western end below a horizontal spirit level. The western edge was approximately 4-6mm below the straight edge. There were also dips in the surface of the top of the kerb of several millimetres generally."
10. Mr Grieve attached several photographs of the spirit level placed across the kerb at the point where the plaintiff indicated that he stepped. These were Figures 4, 5, 6, 7, 8, 9 and 10 in Appendix C to his second report. It can be plainly seen from these photographs that the cross fall of the kerb was one which fell from east to west, so that a person putting their foot on the top of the kerb aiming to step onto the roadway would have their foot pointing slightly downwards.
11. However, it is not apparent from any of those photographs, or from the report of Mr Grieve, that there were any serious dips or irregularities in the cross fall of the kerb. Rather, there was a gradual downward slope of the cross fall from the eastern side towards the western side and the road.
12. It is to be noted that the plaintiff did not say that he put his foot down flat and pitched forward because the front of his foot dropped down below the level. His evidence was that his ankle rolled to the right. It is hard to understand how this occurred, if the cross fall had any role whatsoever to play in the plaintiff losing his balance. The foot and the ankle would have rolled forward, by a few millimetres downwards, if the cross fall gradient caused him to lose balance.
13. I find as a fact that while at the point where the plaintiff stepped onto the top of the kerb there was a downward gradient of the cross fall, that this was a gradual slope and further that it played no part in the plaintiff losing his balance.
14. I make the further finding of fact that the plaintiff did not step upon the protruding tree roots. He said that he was aware of the roots and that he stepped over them to avoid them. It was not a part of the plaintiff's case that he had tripped on the roots or stepped on the roots and lost his balance. On his version he had stepped over and thus cleared the tree roots, putting his foot on the top of the kerb. I find as a fact that the plaintiff did not step or trip upon the protruding tree roots.

Civil Liability Act 2002

1. The court must deal with the following liability issues under the Civil Liability Act 2002 (NSW) (CLA).
2. The court must make findings as to the nature of the duty of care, if any, the defendant owes to the plaintiff, the extent of the duty, breach and damage. This is because the "constituent elements of the tort of negligence - duty, breach and damage - considered seriatim, progressively increases the specificity of the inquiry into how the incident occurred and the way in which damage was sustained": Neindorf v Junkovic [2005] HCA 75.
3. The court must find the facts and "draw from them the inference of fact whether or not the defendant had been negligent": Benmax v Austin Motor Co Limited [1955] AC 370 at 373-374.

Duty of Care

1. The defendant Council owed a duty to take reasonable care that its repairs did not create a foreseeable risk of harm to a class of persons, including pedestrians such as the plaintiff - Brodie v Singleton Shire Council (2001) 206 CLR 512 at [150]. Such duty is owed to pedestrians exercising reasonable care for their own safety - Brodie at [163].
2. A pedestrian has no expectation that the surface of a footpath will be smooth or lack imperfections or defects because pedestrians are in a position of advantage "as they can protect themselves from uneven surfaces of footpaths by keeping a proper lookout for the purpose of taking care for their own safety" - Rallis v Pang [2003] NSWCA 202 at [21]. The same principle must surely apply to kerbs. The duty is not to prevent or eliminate obvious hazards or hazards that could possibly be an occasion of harm - Hastings Shire Council v Giese [2003] NSWCA 178 at [15-21].
3. In paragraph 3C of the Amended Statement of Claim, the plaintiff pleaded that the defendant had created a risk of harm to pedestrians because: "(a) There was only a distance between the tree root and the edge of the kerb of approximately 250mm on which a pedestrian negotiating the tree root could place one's foot (the narrow kerb) and/or (b) The creation of a ridge (which was not readily visible to a pedestrian) which it knew or ought to have known provided no adequate and secure footing for a pedestrian crossing the nature strip and negotiating the 385mm gutter (the risk of harm)."
4. In relation to paragraph 3C(a) there was only a 250mm width of the kerb on which a pedestrian could place their foot after stepping over the tree root. That seems to have played no part in the accident, because the plaintiff himself knew that he was stepping over the tree root and had to then put his foot upon the kerb, which was a standard width 250mm.
5. In relation to paragraph 3C(b), it is the case that the defendant did create the ridge which ran east-west and which resulted in two different levels and a steep slope between them on the top of the kerb. However, on the factual findings I have made, that ridge played no part in the accident.
6. The defendant submitted that the appropriate risk of harm in this case was that of "a person walking across the nature strip tripping or stumbling on the eastern edge of the kerb". I accept that submission and find that that is the risk of harm against which the defendant had to take reasonable precautions.

Breach of duty of care

1. Foreseeability of risk of injury is not determinative of breach of duty of care: Francis v Lewis [2003] NSWCA 152 at [40]. The obligation is that of reasonable care. Its duty is not to make the location as safe as "reasonable care and skill on the part of anyone can": Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [92]. It is not an insurer: Kocis v SE Dickens Pty Limited [1998] 3 VR 408 at 429. What constitutes the exercise of reasonable care depends on the circumstances of each case: Wilkinson v Law Courts Limited [2001] NSWCA 196 at [32].
2. The question whether the defendant breached its duty of care to the plaintiff is governed by Section 5B of the CLA which provides: "(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."
3. Section 5B can be seen to reflect the common law as to the standard of care (that is, the measure of the discharge of the duty of care) applicable which is what, if anything, a reasonable person in the defendant's position would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662-663; Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 at [488]; Neindorf v Junkovic at [8].
4. Section 5C of the CLA is also relevant, in particular, s 5C(b) which provides that "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".
5. I am not satisfied that the risk of a person crossing the nature strip, the tree root and the kerb at this point resulted in a foreseeable risk of which the defendant ought to have known. This is particularly so when the person who tripped and fell was a local in the area who was familiar with the existence of the tree, the tree roots and the kerb, and who was crossing the area in no particular hurry in daylight.
6. I also find that the risk of a person crossing and stumbling at that point was insignificant. No previous concerns have been raised about this area, a matter recorded in the report of Inspector Blazquez, which I admitted into evidence with certain limitations (as part of Exhibit DX9). The kerb and its condition and surrounds could be seen by the plaintiff and there was no significant risk of injury.
7. I have recited the reasonable precautions which the plaintiff pleaded in paragraph 6 of the Amended Statement of Claim. Particulars (a) and (b) are matters of generality which are unhelpful and can be ignored.
8. Particular (c) involves an allegation that the defendant failed to remove the tree root so as to present a flat surface to a pedestrian of sufficient width. There was no need however to remove the tree root, when the plaintiff knew it was there and made his own assessment that he could step over it and onto the top of the kerb without a problem.
9. Particular (d) alleges that the defendant should have ensured that any change of height of the pedestrian surface of the kerb stones was accommodated by a gradual and shallow gradient. I find that this was not a reasonable precaution which needed to be taken in any event. The cross fall of the part of the kerb where the plaintiff stepped was a gradual decline from east to west which did not present any risk to the plaintiff. Further, to require a local council to make the top of every kerb perfectly level would impose an unduly onerous burden, a matter which can be taken into account under s 5B(2)(c) of the CLA.
10. I find that the defendant was not negligent. For that reason, there will be judgment for the defendant.

Causation

1. Section 5D(1) of the CLA provides: "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 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 , the effect of Section 5D(1)(a) was stated thus: "The determination of factual causation under Section 5D(1)(a) is a statutory statement of the 'but for' test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence. … Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W."
3. Section 5E of the CLA provides: "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."
4. In order to establish that the harm the plaintiff suffered was referrable to the negligence of the defendant (if I had found that there was negligence), the plaintiff has to prove, on the balance of probabilities, two discrete yet interrelated propositions: first, that there was some undesirable or unsafe condition of the top of the kerb where the plaintiff put his foot on the kerb; and secondly, that the presence of the kerb in that state caused his injury: Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [112]. It is for the plaintiff to show, positively and to the civil standard of proof, that if the precaution had been taken, then the injury would not have been suffered: Bunnings Group Limited v Giudice [2018] NSWCA 144 at [43]. I have already found that while the cross fall of the kerb at the point where the plaintiff put his foot was not perfectly level and straight, that that played no part in causing the plaintiff to lose his balance.
5. I have already found that there was no negligence on the part of the defendant. However, for more abundant caution I also find that if there was any negligence, it was not a necessary condition of the occurrence of the harm and that factual causation is not made out - s 5D(1)(a) CLA. For that reason also, there will be judgment for the defendant.

Contributory negligence

1. Contributory negligence does not arise, as I have found no negligence on the part of the defendant. However, had I found negligence, I would have adjudged the defendant to be one-third to blame for the fall and the injuries. While the area was shaded, it was an area familiar to the plaintiff. He knew the tree root was there and stepped over it and by doing so he knew that he was stepping onto a piece of kerb which was less in width than the length of his shoe.
2. Further, there is no reason why, if it was difficult to get down from the kerb to the roadway at that point, the plaintiff could not have simply walked a very short distance down the road, outside his neighbour's house, where he could have walked across a flat nature strip, unimpeded by any tree roots, and stepped off a kerb of normal height. It was the plaintiff's choice to take the route that he did.

Theoretical assessment of damages

1. I have found that the plaintiff has failed in his claim against the defendant. However, if there should be a successful appeal against that finding, I will record my assessment of damages.
2. The plaintiff tendered two reports from Dr Higgs, orthopaedic consultant. Dr Higgs saw the plaintiff on 2 September 2015 and on 4 October 2017. He recorded that the plaintiff had three operations on his left foot. On 9 May 2014 there was an open reduction and internal fixation surgical procedure performed by Dr Gupta. He performed a screw and Kirschner wire stabilization procedure. There was a second operation by Dr Gupta on 12 June 2014 when the wires and two of the bone screws were removed. There was a third operation by Dr Gupta on 24 July 2014 when the remaining bone screws were removed. There was a prolonged period of physiotherapy. For many months the plaintiff was non-weight bearing and wore an air cast device for support of his injured left foot. Dr Higgs noted that since the last operation there had been no treatment except for prescriptions for Panadeine Forte medication for pain relief.
3. Dr Higgs noted that the plaintiff still has pain in his foot which ranges in severity. He frequently limps and suffers from more severe pain in the morning and muscle cramps. There was stiffness and restriction of movement in the left ankle. Dr Higgs observed the plaintiff to walk with a left-sided antalgic limping derangement of gait. He found some minor muscle atrophy in the lower left leg, which was also tender to palpation near the ankle.
4. The formal diagnosis was a complex fracture of the Lisfrancs tarso-metatarsal joint region of the left foot. Dr Higgs thought that there would be ongoing impairment of the function of the left foot with a significant restriction of motion and stiffness.
5. Dr Higgs thought that the plaintiff "may" need further surgery, in the form of an arthrodesis, at some indeterminate time in the future. This would be necessary if the plaintiff suffered severe pain or the premature onset of post-traumatic degenerative osteoarthritis. It was impossible to predict if or when such surgery would be required. The cost of it would be $20,000 in today's money. Dr Higgs also recommended the provision of $1,000 per annum for prescription of pain relief medication. Dr Higgs offered no view about domestic assistance.
6. The opinion of Dr Higgs, and the matters recorded by him, corroborate the evidence of the plaintiff in regard to his pains and problems stemming from the fall.
7. Non-economic loss has to be assessed as a percentage of a most extreme case under s 16 of the CLA. For the plaintiff it was submitted that the award should be 33% of a most extreme case. For the defendant it was submitted that the award should be in the range of 25% to 28%.
8. The plaintiff is 50 years of age and will not improve. He may get worse but he may stay the same. He certainly has a significant impairment which causes him to limp, and which gives him ongoing pains and problems. He is fortunate that he has been able to transfer in his employment to a less physical job than he was doing at the time of his fall. I assess non-economic loss at 30% of a most extreme case, which would result in a figure of $146,000.
9. The parties agreed that the appropriate figure for past out-of-pocket expenses is $17,910.13.
10. For future out-of-pocket expenses, the plaintiff submitted that an allowance should be made for the prospect of a future arthrodesis, as well as future pain relief. I am of the view that it would be appropriate to make some allowance for the prospect of an arthrodesis, but given that it may not happen, and given that if it happens it will be a long time in the future, I would allow $5,000.
11. As to pain medication, I accept the submission for the defendant that the plaintiff gave no evidence as to the frequency with which he takes such medication or the cost. Further, it emerged in cross-examination that the plaintiff had been taking Panadeine Forte for other conditions even before the fall, and that he had taken the pain reliever Lyrica for a painful shoulder. In my view the appropriate figure for future medication is $5,000.
12. The total which I would have awarded for future out-of-pocket expenses is therefore $10,000.
13. The plaintiff put his claim for past economic loss in two alternative ways. The first was to say that he had used up his annual leave entitlements, part of his long service leave entitlements, his sick leave and his sick leave safety net, which meant that he was paid his normal way (without overtime) for all of the time off work. The defendant submitted that his only loss was therefore a loss of overtime which on its calculations amounted to $1,487.50, plus superannuation of about $150.
14. I reject the defendant's submission. While the defendant concedes loss of overtime, it seems to me that the plaintiff has lost the monetary value of his annual leave, his long service leave and his sick leave safety net (these being sick days which he could accumulate for future years). If the plaintiff had not been injured, he would have retained these entitlements. In relation to annual leave and long service leave, these entitlements would have meant that he could have taken future days off work but been paid for those days. In the case of the sick leave safety net, he would have a "bank" of additional sick days which he could use in the future. The plaintiff is only 50 years of age and would have at least 15 years until a normal retirement. He has a number of health problems, but chief among them is that he is a smoker and he is asthmatic. It is likely that he will need time off work in future for sick days, but he has used up the sick leave safety net days.
15. In relation to the standard sick leave which was used, the value of which was $5,093.45 gross, I accept the defendant's submission that there is no loss relevant to these days. It would be otherwise if the plaintiff had given evidence that in the 12 months after he returned to work he was off sick but could not take paid sick days because he had used them up during his convalescence from his fall. However, that evidence was not given. Those normal sick days expire year by year and have no value to a worker, unless they are used.
16. I accept the defendant's submission that the mathematical calculation of that first alternative for past economic loss is flawed, in that all of the figures set out are gross and not nett of tax.
17. The second way in which the plaintiff put his case for past economic loss was to say that he was off work for 19 weeks at the rate of $886.60 nett per week, a total of $16,845. To this the plaintiff added superannuation of $1,856. This is a conventional approach to the calculation of past economic loss, but it does not take account of the paid sick days which reduced the loss suffered by the plaintiff. The total of the two figures put forward by the plaintiff is $18,701. I assess past economic loss at $18,000.
18. For the future, the plaintiff claimed $100,000 as a cushion, or in the alternative a higher figure on the basis that he would have to stop work five years early if he suffered from post-traumatic arthritis. The plaintiff's calculation on this scenario was $112,700, but the defendant corrected that to be $114,426.23.
19. As already recited, the plaintiff was a person who had limited formal education and who had always worked in a physical job. As I have already remarked, it is fortunate for him that he has been able to transfer his employment from the task of picking up rubbish and throwing it in the truck, to that of driving the truck itself. I do not doubt that with his limp and his pains and stiffness, he could no longer do his old job which involved so much walking.
20. Clearly if the plaintiff were to lose his present employment as a driver he would be at an enormous disadvantage on the open labour market. I am of the view that $100,000 as a cushion is the appropriate amount. To my mind this figure also takes into account the prospect, the chances of which are not known, that he may need to stop work early if he develops post-traumatic arthritis. Then again, the entire purpose of an arthrodesis is to reduce or eliminate pain by fusing the bones. If he had an arthrodesis he may well have a greater capacity to work than he presently does. For all of the above reasons my assessment of future economic loss is $100,000. This includes superannuation.
21. The plaintiff made a claim for past and future gratuitous attendant care services, which have been provided in the past by his wife. By s 15(3) of the CLA, no damages for such services are to be awarded unless the services are provided for at least six hours per week and for a period of at least six consecutive months.
22. This claim fails, because while there were more than six hours per week of services provided to the plaintiff for the 19 weeks he was off work, during which time he was non-weight bearing, the level of services provided since his return to work falls below the six hours per week threshold.
23. The plaintiff gave evidence that before his accident he used to perform some of the domestic chores in the household. He did vacuuming, washing, tidied the backyard and out the front and cleaned the bathrooms. His evidence was that he spent around six hours per week doing these chores. Unless his capacity to do all of that work was completely destroyed, the services to replace what the plaintiff used to do will necessarily fall below six hours per week.
24. The plaintiff was asked in-chief whether he had returned to these domestic chores. He said that he could do vacuuming of flat areas such as the lounge room, but he could not do the stairs because he was not comfortable. He gave no evidence that he could no longer do the other pre-accident chores such as washing, hanging the clothes out and some cleaning of the bathrooms. He was doing six hours of domestic chores per week before the accident and now it would seem that he has returned to doing all of those pre-accident chores except that his vacuuming is restricted to flat surfaces and he cannot do the stairs.
25. The plaintiff's wife gave evidence that she now spends about eight hours a week doing domestic chores, but cross-examination revealed that this estimate of eight hours, which was not broken down in any way in-chief, included many tasks that she had been doing before the accident such as shopping.
26. The claim for gratuitous attendant care services therefore fails because it does not overcome the threshold.
27. In the alternative, it was submitted that the plaintiff should have an award for paid care in the future. Firstly, there was no evidence from any medical person or occupational therapist to suggest that the plaintiff could not do chores such as vacuuming the stairs. It is highly unlikely that this married couple would in future get a paid cleaner in just to vacuum the stairs, being the only task which the plaintiff gave evidence that he could no longer do. I find that the probabilities are that for the future the plaintiff's wife will continue to pick up that chore, which the plaintiff can no longer perform, on his evidence.
28. Even if the plaintiff had been successful, there would have been no award for future paid domestic assistance.
29. My theoretical assessment of the plaintiff's damages, had he been successful against the defendant, is as follows: HEAD OF DAMAGES AMOUNT Non-economic loss $146,000.00 Past out-of-pocket expenses $17,910.13 Future out-of-pocket expenses $10,000.00 Past economic loss $18,000.00 Future loss of earning capacity $100,000.00 Domestic assistance NIL TOTAL $291,910.13

Conclusion

1. The plaintiff has failed in his negligence claim against the defendant. There will be judgment for the defendant.
2. My orders are: 1. Judgment for the defendant against the plaintiff. 2. Order the plaintiff to pay the defendant's costs. 3. Grant leave to the parties to approach my Associate within 7 days if any different costs order is sought.

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: 14 November 2018