Salman v Hornsby Shire Council

Lay evidence

1. Ms Salmon said that she attended Lessing Park to attend a family barbecue. She said that she had not been at this particular park previously. She arrived at 1pm. There was no issue identified about any inclement weather. There were about 10 attendees at this family gathering, with 5 or 6 children (all young - no one above the age of 5) with adults.
2. Ms Salmon explained that she went to walk with a cousin around the park. She recalled making her way back to the rest of the party and her and her cousin's paths diverged. Ms Salman said that she noticed that a nephew of hers was at one of the swings in the playground area of the park. She wanted to push her nephew.
3. In her evidence in chief, she said that to get to the swings, she was walking on the mulch or barky area of the playground. She stepped up on the spongy rubbery surface but as she did so she rolled her right ankle outwards. In order to try to recover her balance, she then put her left foot down to catch her balance, but then she rolled her left ankle as well. She lost her balance altogether and fell forward, flat on her face (on the bark) and she remained on the ground. This occurred at about 2pm. She said that after initial she looked back and saw a big dip in the rubbery surface (meaning it was not 'even ground') and believed that it was because of the big dip that her ankle rolled.
4. A photograph of the approximate location was taken by her husband, about two weeks later. The photograph became Exhibit A1. On that version of the photograph, Ms Salmon identified the direction that she was walking (towards the swing) the approximate place where she recalled placing her right foot and where her nephew was. Although the photo was taken (by her husband) two weeks after the accident, Ms Salman explained that when identifying the point where she had stepped off, she had worked backwards, from where she fell and she said she was close to a ledge where her face landed.
5. That photograph is as follows:
6. In this photograph, Ms Salman marked various places as follows: 1. the 'x' at the top of the photo, on the blue swing, was where Ms Salman's nephew was located; 2. the 'x' to the left of the person's right foot (looking at the photo) was approximately where she said she placed her right foot; 3. the arrow at the bottom of the photo (in the centre looking at the photo) was the direction that Ms Salman said she was travelling as she approached the swing.
7. Under cross-examination, Ms Salman was referred to Exhibit A1 (and other photos within Exhibit A, which generally showed the same area) and materially said that:

• She had previously been to parks featuring a section allocated for play equipment with a spongy under-surface, along with bark chips.
• As she was walking towards her nephew, she was aware of the rubbery surface underneath the swing coming into view, and was aware that this particular surface was a continuation of the area filled with bark (or mulch). She was aware that there was bark all around.
• As she was walking she was focussed upon her nephew (who was being pushed by a friend of a cousin of hers). She was walking at a regular pace.
• She agreed that the reason she rolled her ankle was because she was not keeping attention on where she walking, but rather because she was focussing her attention on her nephew and her cousin's friend.
• She said she did not trip and any documented suggestions that she had tripped were incorrect. She also said that she did not slip.
• Children had been running around and kicking up bark.
• She agreed that nobody else suffered any fall (in her presence).
• She agreed that as she approached the swing, she anticipated a change of surface, to the soft 'spongy' surface.
• She agreed that as she was placing her right foot on to the spongy surface, she was not looking at the surface.
• She agreed that the spongy surface was not likely to provide as firm a footing as the pathway upon which she had earlier been walking with her cousin.
• She agreed that had she thought about it, she would have taken care since she was unfamiliar with the area and was walking onto a spongy surface, with children having kicked bark in the area.
• She acknowledged that there were no discrete areas (one for the spongy surface, the other for the bark).
• She accepted that it was obvious that there were two different surfaces, between the surface she had been walking on and the surface she was about to walk on.
• with particular reference to the photo in Exhibit A indicating a phone at an angle, she accepted that it indicated a height differential, between the spongy surface and the bark and agreed that if she took a proper look, she would have noticed the height differential;
• she said she assumed that the surface between the bark(y) area and the spongy surface would be level, even if there was a spongy area actually underneath the bark area; but realised now that her assumption was incorrect.
• She said that if she had noticed how uneven the surface was, she would have looked at where she placed her footing.

Expert evidence

1. Ms Salman relied upon a report from Mr Denis Cauduro. That report (Exhibit D), with his CV (Exhibit E), was (generally) admitted over the objection of the Council: Salman v Hornsby Shire Council [2023] NSWDC 506. My reasons in that judgment describe the structure of the report and that part of my reasons is incorporated now.
2. Mr Cauduro's opinions, in section 5 of his report, may be summarised as follows: 1. There was information available to the Council to know that there were potential trip and fall hazards; 2. The soft fall/bark chip area was unsafe and a risk to health as it was not maintained in accordance with Australian Standards. 3. There was a significant risk of a potentially injurious trip or fall; 4. Reasonable preventative measures that could have been implemented included: regular inspections of the playground area; topping up the compacted bark chip area to ensure it is level with the soft fall area; barricading the swing area until maintenance work was completed (and assessed as being safe); and displaying notices prominently in the area about the need for a higher than usual level of care. 5. If the surface area of the soft fall area had met maintenance standards, consistent with the Australian Standards, or a proper risk assessment in accordance with WHS Regulations, it is unlikely that the plaintiff would have tripped and lost her balance.
3. In AS/NZS 4486:1:1997 (reproduced at p 11 of Mr Cauduro's report), at paragraph 8.3, reference was made to the need for inspection and maintenance and specifically a reference to the frequency of inspections. At sub-paragraph 8.3.2, there were different levels of frequency of inspections. Much of this addressed concerns about wear and tear of the surface. But reference was made also to 'routine' inspections. In this regard, it was said that "Routine inspections may be necessary each day for loose fill surfacing…"
4. On page 14 of Mr Cauduro's report, there is a sort of audit checklist. Question 3 in the 'Area Checkpoints' was as follows: "Is the area free from any tripping hazards (tree roots, remains of removed equipment, fallen tree branches, uneven surfacing)?"
5. In AS 4685.0:2017 (reproduced at pp 16-21 of Mr Cauduro's report) some requirements are identified as follows: 1. Sub-paragraph 7.1.1 (titled 'Trip hazards') Surfacing should be free of trip hazards. 2. Paragraph 7.3 provided that "The impact absorbing capabilities of any type of loose-fill will depend on the material type and depth. Loose-fill is extremely susceptible to scuffing and displacement, which may result in material becoming too shallow to provide the required impact attenuation. Loose-fill shall therefore be regularly inspected, and topped up as necessary, in order to ensure the correct material is maintained… In addition, these surfaces require maintenance tasks, such as raking, de-compaction and the removal of litter, sticks, syringes or other potential hazards." (emphasis supplied) 3. Paragraph 8.5 referred to the need for regularity of inspections of the surface area for playground equipment. The paragraph set out different types of protection. Most materially (as it seems to me) was a need for 'routine visual inspections' resulting from 'wear and tear, vandalism or weather conditions.' It was indicated (8.5.3(b)) that one of the checks of hazardous situations included 'loose-fill surfacing levels that are at inadequate level' and another was 'damage to unitary surfacing.' For 'operational inspections' (8.5.4), suggested checks included 'Any protrusions and sharp edges.' 4. Paragraph 8.6 concerned maintenance. It was suggested that a program for maintenance should include raking and topping up loose-fill impact-attenuating surfacing if there is insufficient material or if it is compacted. (emphasis supplied) 5. Appendix B (styled 'Playground Safety Checklist') provided further detailed information. Under section B3, it was suggested that questions that should be included when conducting comprehensive questions included "Is the surface free of any trip hazards".
6. Mr Cauduro was cross-examined. In the course of that cross-examination, he said that he understood that the plaintiff had either "tripped" or "rolled" off the edge. Counsel for the Council suggested that nowhere in his report did Mr Cauduro indicate his assumption that Ms Salman had rolled over. Therefore, it was suggested that his opinions were based upon a false assumption. But Mr Cauduro maintained that when he spoke to Ms Salman she had told him that she tripped on the edge.
7. Mr Cauduro was referred to photograph 1 of his report (a smaller version of one of the photographs in Exhibit A). He said he recognised a sharp edge falling away at a sharp angle (albeit one less than 90 degrees), in the sense that it fell away at a steep angle. Mr Cauduro referred to other photographs in his report (numbered 2, 3 and 5) indicating an angle of 21 degrees. It was put to him that the level of degree in the angle he had observed could not have been the same when the accident occurred 16 months before but Mr Cauduro did not agree.
8. In re-examination on this photo, Mr Cauduro said he had inspected the area depicted in the photo and in particular where the mulch or bark area abutted the blue artificial surface. He contrasted the height differential in photographs 3 and 4 of his report (photos which he, incidentally, had taken).
9. Photograph 2 (another photo within Exhibit A) in his report indicated that there was no level surface between the mulch area and the artificial surface. In re-examination, he said that when he performed his own inspection on 23 June 2022 (and with reference to photographs 3 and 4), the height distance between the spongy surface and the mulch surface could be as much from 25mm to 75mm.
10. Mr Cauduro reiterated his view that the surface underneath the play swings should be completely level with the surface underneath the mulch.
11. In answer to questions by me, Mr Cauduro said that (a) what was under the mulch was more mulch, which could vary in depth (he cited a range of 200mm to 450mm) where the further away the mulch was from the playground equipment, the less deep it needed to be and (b) the mulch area of the playground performed exactly the same function as the blue artificial surface: both were intended to soften the fall of children. The expert effectively indicated that the blue artificial surface provided more effective protection than the mulch.

Facts emerging from the documentary evidence

1. In this part of my treatment of the evidence, I refer to the evidence cited by the parties; having indicated early during the trial to Counsel that they should not assume that I will have regard to evidence that they did not draw to my attention. There was little disagreement, as between the parties, as to the following facts and where there was disagreement, I will indicate the scope of and address it. 1. The playground was upgraded in 2018, reaching practical completion on 28 September 2018 (Exhibit L). 2. Between 15 October 2018 and 27 October 2021, the Council had received certain "requests" from users of Lessing Park. The Council's responses to those requests are indicated in the same document (Exhibit 1). Counsel for the Council submitted that Ms Salman's notification of her complaint was the first of its kind. 3. Between 25 October 2018 and 20 March 2019, Furness Landscaping performed maintenance (Exhibit O). The headings for the rows on these logs included: "Mowed lawns," 'Trimmed Edges," "Watering," "Sprayed or Removed Weed," "Checked Stakes," "Plants replaced," "Litter Removed." Nothing was specifically said about the condition of the mulch/bark surface or the 'wet pour' blue spongy surface. 4. Work order maintenance records (Exhibits Q and 7) for the Council commenced on 20 May 2019 and ended on 3 June 2021. There were 23 in number. The common narration for each work order was as follows: "Inspection, amenities, garden maintenance, playground equipment check of PA - Lessing Street Park…" 1. Internal email communications (Exhibit J) indicated that from 21 March 2019 to 4 June 2021, for the Lessing Street Playground, indicated only four instances of (paid) work, concerning disparate maintenance tasks (bubbler repairs, broken toilet plunger, fence repairs, removal of a dumped lounge)(emphasis supplied). I agree with Counsel for the plaintiff's submission that this evidence appeared to be more focussed on the condition of the playground than the Work order maintenance records (although those plainly did also cover the playground as part of the maintenance for the Park overall). 2. There were two 'Comprehensive Inspection Reports' by Playfix Pty Ltd (Exhibits M & N). Counsel for the Council later submitted that given that Ms Salman did not "trip," these records were irrelevant to the claim she made. 1. the report of 10 July 2020 (under the heading 'Undersurface') stated "The undersurface material needs to be built to the level of the wet pour rubber to eliminate any trip points created by the low level of the undersurfacing material … The undersurface material needs to be built up to the level of the wet pour rubber to eliminate any trip points created by the low level of the undersurfacing material."(emphasis supplied) 2. the report of 18 November 2020 stated (under the heading 'Undersurface') exactly the same thing as which had been stated under the corresponding section of the 10 July 2020 report. 1. Other playground areas in parks within the same municipality had the same, or at least a single consistent surface underneath and approaching the playground equipment (Exhibit H1-H3).

How the accident occurred

1. I found that Ms Salman was a creditable witness. Moreover, it was not suggested that her evidence was unreliable in any material way. Counsel for the Council accepted that she was honest. She made certain concessions against her interests (in hindsight) as to what she should have done. Perhaps there were differences in accounts recorded by medical practitioners, but those practitioners did not purport to transcribe a verbatim account of what she told each of them and that may be explicable by the ever present possibility of miscommunication.
2. The Council offered no alternative view as to how the accident could have occurred. Ms Salman was not seriously challenged on her account: indeed, for its forensic purposes, the Council relied upon its correctness (to weaken the effect of the evidence of Mr Cauduro - the plaintiff's liability expert - who assumed that there was a trip). Contrary to the defendant's submission, in the circumstances, I decline to draw any Jones v Dunkel inference against the plaintiff for omitting to call other family members, or onlookers present.
3. I also do not invest the same significance as the Council does as to the difference between Ms Salman stepping up on the spongy surface and stepping on the spongy surface. As the part of the transcript referred to at paragraph 10.3 of the defendant's closing submissions (MFI 8) indicated, Ms Salman actually used both words: she said she took a step "up on that spongy rubber surface."
4. But contrary to the Council's submission, although she knew she was moving from the mulch surface to the wet pour surface, I do not find that she was aware, at the time that she placed her right foot on the spongy surface, that she was placing it 'up.' That is to say, she did not know that there was a height differential between the mulch and the wet pour. I accept her evidence that she assumed it was level. When she said in her evidence that she was placing it 'up and on' the sloped part of the wet pour surface, she was reconstructing what had occurred, with the benefit of hindsight; ie in the appreciation (developed subsequent to her fall) that she had stepped 'up.' I find that it was only after she looked back, after her fall, that she noticed that there was a dip. Although she said it was a 'big dip,' in my view there was an element of exaggeration, but do not regard that as materially impairing her reliability.
5. I find that after walking with her cousin, she approached the playground equipment upon which the child was playing, from an angle. From there, she placed her right foot on the slope part of the spongy or 'wet pour' surface. In the course of doing so, her right ankle rolled outward (and not inward). I agree with the plaintiff's Counsel's submission that this was consistent with basic notions of physics. From there, she lost balance and instinctively placed her left foot down. That rolled as well and she fell over and hit her face.
6. I consider it more probable than not that at the time that she fell, there was a difference in level between the mulch area and top of the wet pour surface where the slope started downward. That, it appeared to me to be, was common ground: indeed, the Council seemed to posit that the differential was obvious or was such as to make the risk of falling obvious. Quite what the quantum of the height differential actually was on the date of the accident is unnecessary to specifically determine. I consider it probable that there was some displaced mulch/bark over the wet pour area, but some part of it was not.

Duty of care and scope of duty

1. The Council admitted on the pleadings that it was responsible for the care, control, construction, erection, inspection, management, maintenance and repair of the Lessing Playground, located inside Lessing Park. As indicated, it denied it owed any duty of care, but, alternatively, if it did, that was limited that which was owed as the 'local authority' for the park.
2. Ordinarily, in cases of occupier liability, a duty is owed to exercise reasonable care so that the premises are safe for pedestrians and other users1.
3. As explained in its Counsel's final submissions, the Council disputed duty of care on the sole premise that Ms Salman did not keep a proper lookout. It relied upon the observation of Callinan J in Ghantous v Hawkesbury City Council (2001) 206 CLR 512 (at [355]) to support the contention that the occupier's duty of care only extended to entrants looking after their own interests. However, as Ms Salman's counsel submitted, with reference to observations of the plurality in Brodie v Singleton (2001) 206 CLR 512 at [163], not only should some allowance be made to inadvertence, but some dangers may not readily be perceived, inter alia, because of the nature of the danger, or the surrounding area.
4. Further, to paraphrase what the High Court said in Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 at [37], if an unfulfilled expectation that people take care for their own safety was conclusive against liability in every case, there would be little room for the doctrine of contributory negligence.
5. Whilst I accept that the Council could proceed on a premise that entrants like Ms Salman will take reasonable steps for her own safety, I interpret that as an entitlement to use that as a generally workable hypothesis. It did not absolve it of a duty. This was a children's playground area: an area of fun (especially for the children) and perhaps an area for delight (especially for carers of children or even on-lookers). The expectation of entrants taking reasonable care for their safety had to be viewed in that context. It was not the case of her walking across mulch to an artificial wet pour surface in the general park but in the more specific context of a playground. I accept Ms Salman's contention that on the day in question, although there was a height differential between the spongy surface and the mulch - something she said she was unaware about at the relevant time - it was not readily discernible. I also find if, in retrospect, she should have looked down at a point when she was crossing one surface to another, and discovered that there was a height differential, this does not disqualify her from a finding that the Council owed her a duty of care. The duty can extend not only to persons looking where they were going, but those who might be distracted or inattentive. In this case, Ms Salman was not going to the swing simply for the sake of it, but was going there to accompany a child (her nephew) on the swing. Her focus was on that child and, in that sense, she was distracted or inattentive. As I say, that did not disentitle her from receiving from an effective occupier of land the exercise of reasonable care.
6. I find, therefore that the Council did owe Ms Salman a duty of care to take reasonable care to avoid a foreseeable risk of injury.

Risk of harm

1. Ms Salman identified the risk of harm as the risk of a person falling and suffering injury whilst traversing the soft-fall surface surrounding the Playground.
2. The Council identified the risk of harm differently. It characterised the risk as being that pedestrians walking within Lessing Park might fall on uneven ground near the playground. Nevertheless, in his submissions, Counsel for the Council did not vigorously contest Ms Salman's characterisation.
3. The characterisation of the risk should not be unduly narrow [1] , but nor in my view, should it be too general.
4. In my view, the risk of harm is appropriately identified as the risk of someone, in the course of walking between the mulch/bark surfaced area and the artificial ('spongy') surfaced area in the playground, falling and sustaining injury.

Obvious risk

1. In Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454, in reference to an analogous provision to s 5H (in that case s 5L), the plurality (at [110]) observed that the risk should be characterised at the same level of generality as the risk is characterised in the course of assessing whether the defendant has breached a duty of care (ie under s 5B). But as was observed by Leeming JA (Payne and White JJA agreeing) in Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103 at [72], 'obviousness' is considered from the perspective of the plaintiff prior to the incident occurring.
2. It has also been observed that because s 5H of the Civil Liability Act 2002 (NSW) ('CL Act') cuts across the scope of the duty of care, it should be addressed after consideration of the issues of duty and scope of duty and before considering breach. With respect, I agree with McColl JA (Macfarlan JA and Beech-Jones J agreeing) in Schultz v McCormack [2015] NSWCA 330 at [85], that conceptually, this issue should be considered after the risk of harm is identified and before other matters in ss 5B and 5C of the CL Act.
3. 'Obvious risk' is defined in s 5F(1). The matters set out in s 5F(2)-(4) aid in the interpretation of the determination in s 5F(1). Also relevant in this regard is the presumption in the Council's favour under s 5G(1).
4. In Fallas v Mourlos (2006) 65 NSWLR 418, Basten JA (at [154]) emphasised that one looks at the circumstances and awareness of the plaintiff's position at a time when she had reasonable opportunity to avoid the risk, ie to modify her course of conduct. That observation was adopted and applied in another decision of the Court of Appeal relied upon by the Council, being Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161 at [48]-[49].
5. The Council submitted that the difference in the levels, as between the spongy wet-pour surface and the mulch surface, was obvious. The Council drew the Court's attention to the Court of Appeal's decision in Bruce v Apex Software Pty Ltd t/as Lak Ellen Aged Care [2018] NSWCA 330 ("Bruce"), where a person who tripped outside the entrance of an aged care facility failed to establish a 'not insigificant' risk of harm in a height differential between the edge of a concrete slab bordered by brick pavers, given its obviousness and the remoteness of the likelihood that a pedestrian would fail to observe and account for it. But the Court of Appeal added, in what might be regarded as an anterior finding, that the risk was 'obvious,' for the purposes of s 5F.
6. In my view, Bruce is distinguishable. The height difference and effective gap as between the two surfaces was not obvious. The height differential between concrete slab and brick paver was fixed. Here it was variable depending on how much mulch had been displaced. Another point of distinction is that unlike the occupier in Bruce, who had called evidence of regular inspections of the walkway where the accident fell, the Council's evidence in this case was, in comparison, inadequate to establishing that any careful consideration had been given to the risks associated from walking from across one surface to another in the playground area.
7. Counsel for Ms Salman argued that the risk was not obvious. The entirety of the wet pour surface was of the same colour. This included the sloped edge of the surface. Counsel referred the Court to the photographs in Exhibit A1 and A more generally.
8. In what I am about to say, I am conscious as to warnings about the use of photographs by trial judges as explained in Blacktown City Council v Hocking [2008] NSWCA 144. I propose using them in the sense of supporting, or supplementing, Ms Salman's (fundamentally unchallenged) testimonial evidence. The photographs admitted in evidence did not indicate any manifestly discernible difference in the height of the blue coloured, spongy, 'wet pour' surface at the point when it 'abutted' the mulch surface area.
9. Counsel for the plaintiff effectively suggested that it was only with a particular forensic or deliberative approach was it likely that a reasonable person walking across one surface to the other would have discerned the height differential. I agree with the plaintiff's submission. Particularly in relation to Exhibit A1, from the perspective of a reasonable person in the plaintiff's position, the height differential was not pronounced from the perspective of a reasonable person in her position (noting the plaintiff's evidence of where she had approached from) and such differential, which did not appear uniform, was obscured by the bark/mulch which actually appeared on the spongy surface. I am cognisant that the amount of mulch would likely vary at different times for a multitude of reasons, but given the time of the day and time of the year when the incident occurred, I consider it likely to the point of inevitable that there would have been something like the cross-over on to some of the spongy surface that is depicted (if not necessarily to the same degree) in the photos in Exhibit A1 and other photos (taken by Mr Salman) within 2 weeks depicted in Exhibit A.
10. Unlike a step, there was no rigid indication or bright-line as between where the mulch surface stopped and where the slope of spongy surface began. This was apparent also from some of the photos within Exhibit G. I disagree that the Court cannot place weight upon those photographs even though there is no indication as to precisely when they were taken (which I infer was recent, for the purposes of the hearing) and in what circumstances. They were the subject of (unqualified) visual representation by the Council on its website and it was open for the Council to give evidence that what was depicted in that photo was not a depiction of the layout (including the different surfaces in the vicinity of the children's playground) as at the date of the accident.
11. Although there was no single bright-line or demarcation between mulch area and wet pour area, it is apparent from Exhibit A1, that on a very elementary view of where the spongy surface stopped and where the mulch started, that this was a very short distance from the playground equipment upon which children (such as Ms Salman's nephew) were playing. Because of that short distance, it was likely that a reasonable person in Ms Salman's position, approaching the swing, and moving across the different surfaces, could be distracted by the proximity of a child on the swing so that the reasonable person would be less attentive to the differences between those surfaces, including relevantly the possibility of an unevenness between them. In this way, there was very little time for that reasonable person to react, by exercising greater care in moving from one surface to the other.
12. I accept Ms Salman's evidence that she was unaware that there was a height differential between the two surfaces at the time she fell (as distinct from what she subsequently learnt). She was unaware that there was a risk that in moving from one surface to another that she would fall. That being so, the presumption in s 5G does not assist the Council.
13. The defence of obvious risk, and the concomitant modification of the scope of the duty, fails. It is therefore open to Ms Salman to rely upon a failure to warn of the risk in her case on breach.

Whether the risk of harm was foreseeable and 'not insignificant'

1. The Council's primary position in relation to breach is that a plaintiff taking reasonable care for her own safety would have noticed of her own accord the obvious differences between the surfaces such as to make it apparent that they were not completely level.
2. That position, it appears to me, is no different in substance to the submission made in relation to the defence of obvious risk. That is not surprising since, as Leeming JA also said in Menz at [72], obviousness of risk imports a consideration of foreseeability. As indicated, I disagree that the risk was obvious.
3. For the purposes of s 5B(1)(a)-(b) of the CL Act, I find that the risk of harm was both foreseeable and not insignificant. It was foreseeable because of the frequent height differentials between the spongy surface and the mulch surface into which users might place their feet; which were apt to be exacerbated by displacement of the mulch by users (by children but also by adults) of the mulch.
4. Further, the playground was intended for use by not just persons of Ms Salman's condition and circumstances. It obviously was to be frequented by children (conceivably including some very young children who were only just able to walk or run) and adults, but also by persons with different physical conditions.
5. It was also 'not insignificant.' It was more than far-fetched but did not need to be so high as to be substantial or 'significant.' The surfaces from the mulch area to the spongy wet pour area were uneven, or to use the Council's word, undulating, but not obviously so. There was a slope to the wet pour area, which, I find was likely to have been partly obscured by the displaced mulch which appeared on the wet pour area. Because of the not obvious differential in level, the risk that a user might lose balance by placing the foot on the slope on a different surface after having been on another surface elevates the risk beyond the designation of far-fetched or fanciful. This particular accident occurred at a busy time of the day and still in (although towards the end of) summer. I infer that it was warm and there were likely to be many people in the park. In those circumstances, there was likely to be even more mulch on and about the wet pour spongy surface and thereby likely to obscure the slope on the wet pour area.

Absence of reasonable precautions being taken?

1. For a plaintiff to succeed, she must make out the requirement in s 5B(1)(c) that "in the circumstances, a reasonable person in the person's position would have taken those precautions".
2. A significant factual dispute concerned whether or not the Council was 'on notice' of the risk through the Comprehensive Inspection Reports. Ms Salman argued that Council had knowledge (actual or constructive) of the undersurface material being low and needing to be replenished and take steps to rectify that problem. The Council argued that Exhibits M and N had to be seen in the context of Playfix being only concerned about the risk of users of the playground 'tripping.' Since Ms Salman disavowed the notion that she tripped, this evidence was irrelevant.
3. I do not agree with the Council's submission. For one thing, there is no objective indication that when Playfix reported on their inspections, and specifically noted the problems with undersurfacing, they were doing so through the narrow prism of alerting Council only to a mere 'tripping' hazard. I consider that the Council's interpretation to be too literal and narrow. Although Playfix used the word 'tripping,' I do not think that that this could reasonably be taken by Council to exclude other similar hazards, of the kind that materialised, such as losing balance upon stepping on the slope on the wet pour surface. Playfix could not reasonably be understood as limiting the way in which the undersurfacing might manifest or present a particular risk of harm at all. Its point was that the lower the level of the undersurfacing, the higher was the likely degree of a height differential between the wet pour surface and the mulch area in general. This was recognised in the statement of Playfix that the undersurface "needs to be built up to the level of the wet pour rubber" surface.
4. Counsel for the defendant described Ms Salman's submissions as inappropriately being directed to the elimination of risk, rather than reasonable precautions to respond to the risk. He submitted that there was no expert evidence to support the precautions which Ms Salman said should have been taken. Even Mr Cauduro did not go so far as to cite them. In particular, Mr Cauduro did not suggest that it was negligent to use mulch across part of the softfall area. Using the combination of wet pour surface as the Council did in this instance, in combination with mulch, did not amount to negligent design or construction either. A necessary consequence of that combination was that there would have to be a slope from the wet pour to the mulch somewhere. He cited regular maintenance work being performed.
5. In her pleading (at paragraph 14), Ms Salman pleaded a plethora of asserted particulars of negligence. For present purposes, it is sufficient to refer to the following (although there were variations on the same complaint in other particulars substantially to the same effect):

• "failure to repair the height differential (being the area where the artificial surface met the surrounding surface made up of mulch/bark), and other dangerous sections of the Park, in a timely fashion or at all" (particular (l))
• "failure to highlight the floor surface where the artificial surface met the surrounding floor surface made up of bark/mulch" (particular (u))

1. Asked during the course of closing submissions to identify what specific precautions the Council should reasonably have taken, Counsel for Ms Salman settled upon the following: 1. The Council should have extended the 'wet pour' (blue spongy surface) across all of the soft-fall section covering the playground (ie subsuming the mulch part of that area); 2. The Council should have highlighted the height differential. This the Council could have achieved if it painted the slope section of the wet pour area; 3. The Council should have responded to reports received about the low level of the mulch by replenishing the mulch.
2. Counsel for Ms Salman also submitted, with regard to s 5B(2)(a)-(d) that: 1. The probability of personal injury was high if someone fell when traversing the soft fall floor surface of the playground. 2. The burden of taking precautions to avoid the risk of harm was slight: it merely required the undersurface of the soft fall area to be replenished and/or properly maintained or subject to adequate risk assessment. Such measures were not likely to be expensive. 3. Council should have constructed the soft area entirely of wet pour material, as it had done at other parks in its municipality (depicted in Exhibit H1-H3). 4. The accident did not arise from a socially useful, but risky activity, but rather from hazards associated with different surfaces upon which children (and others) would traverse in order to get to and from the playground equipment in the park.
3. I generally accept these submissions. I do not, however, agree with the third dot point.
4. I would add, with reference to s 5B(2)(b) that although the surfaces on the playground were designed to cushion the worst effects of falls (especially, but not exclusively, for children from playground equipment), if a person fell on to the surface, there was a real possibility of serious personal injury. In relation to s 5B(2)(c), Ms Salman's submissions were directed to the precaution of replenishment. Her Counsel did not refer to the financial burden of another of the precautions which he submitted Council should have taken, concerning the painting of the slope area of the wet pour. But that is a matter which, in my view, was within the peculiar knowledge of the Council. It did not give evidence of the costs of undertaking the precautions which Ms Salman referred to, for the purpose of suggesting it was prohibitive or disproportionate to the risk of entrants to the playground falling.
5. As s 5B(2) makes clear, the various matters in (a)-(d) need to be considered, but they are not exhaustive (hence the words 'amongst other relevant things').
6. In Venues NSW v Kane [2023] NSWCA 192, the New South Wales Court of Appeal recently emphasised (at [66]-[67]) that included within matters requiring consideration under s 5B(2) were the obvious nature of the dangers, albeit in the context of stairs. I accept that it was obvious that the two surfaces were different in texture. One was relatively solid; the other was inherently loose. The colour of the surfaces was different. But as I explained earlier, I do not regard it as obvious for persons walking across both surfaces that one would be more elevated, in height, in comparison to another.

Causation

1. Properly construed [2] , the factual element of causation under s 5D(1) of the CL Act, Ms Salman [3] must prove that she would not have suffered the harm she did but for the Council's negligence. It is for the plaintiff to establish 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].
2. In Tabet v Gett (2010) 240 CLR 537 Kiefel J observed that: "All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm. "More probable" means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty."
3. Ms Salman's Counsel submitted that had Council undertaken the measures that he had submitted should have been undertaken, Ms Salman would not have stepped onto the sloped surface and fallen and suffered the foreseeable consequences of injury.
4. The Council submitted that what befell Ms Salman was not caused by any negligence by the Council. The cause of her loss of balance and fall to the ground was her failure to take care for her own safety. This submission does not directly grapple with the causal consequences of findings (contrary to the Council's position) that there was negligence; although it is plainly relevant to the Council's case on contributory negligence.
5. As to the first of my findings of a failure to take reasonable precautions, had the Council taken the precautions of inspecting and thereafter replenishing the mulch so as so as to at least cover the sloped part of the wet pour, I find that it is likely that Ms Salman would not have lost her balance. That is so because of the effective levelling out of the two different surfaces. She would not have stepped on the sloped part of the wet pour surface area. Instead, she would have stepped on to the mulch (the surface she had hitherto been walking on) or on to the top of the wet pour surface area which (if the precautions had been taken) was not sloped but which was level with the mulch.
6. As to the second of my findings, a differently painted surface on the slope of the wet pour would prominently have brought to the attention of an entrant to the playground the risk. Put another way, it would have made the risk of falling after contact with the slope of the wet pour obvious. A reasonable person exercising care for their safety would likely have noticed the slope on the wet pour. I consider that it is more probable than not that on the day of the accident, a stark difference in colour between the sloped part of the wet pour and the balance of the wet pour would have illuminated the slope on the wet pour and disabused Ms Salman of her assumption that there was an evenness in surface between the wet pour and the mulch. Ms Salman was not in any rush to approach the playground equipment, even if she was distracted. There was enough time between her decision to approach the playground equipment after seeing her nephew on the swing and the point where she noticed the different surfaces she needed to cross to approach the swing: mulch to wet pour surface for her to have also noticed the distinct colour of the slope on the wet pour surface and the top of it.
7. I find that factual causation is established under s 5D(1)(a).
8. The Council did not suggest that if I was against it on factual causation, the scope of the liability element was not satisfied. In my view, s 5D(1)(b) is also satisfied.

Contributory negligence

1. The Council ambitiously argued (with reference to s 5S) that if, contrary to its primary position, breach of duty was established, then Ms Salman's contributory negligence was such that the Court should determine that it any damages award she received should be reduced to zero.
2. Ms Salman argued that she did take reasonable care for her safety even if there was momentary inadvertence when she looked up at her nephew on the swing and thus was distracted from noticing the hazard underneath her feet when she crossed from the mulch on to the wet pour surface. She was entitled to assume, as she did, that the two surfaces were level.
3. I proceed on the premise that the purpose underlying s 5R(1) is that the standard of care in determining negligence and contributory negligence is the same. That can in practice involve consideration of distinctive characteristics of the plaintiff: in this context, an adult walking to and from equipment in a children's playground would, I think, be held to a different standard of care to a 5 year old boy.
4. Ms Salman knew that in her approach to the equipment in the playground, she was walking on surfaces that had a different texture and colour. She accepted, under cross-examination, that if she had not concentrated upon the nephew that she was looking towards, but instead looked down, she would have realised that her assumption about a level surface between the mulch that she had been walking on and the slope of wet pour upon which he placed her right foot was erroneous.
5. Although she had her nephew in her sight, this was not a sudden development. She had been walking for a period (in the company of another). She was not suddenly distracted in a way that precluded her from keeping a 'lookout.' No one called out to her. She was a mature woman. She was attending this park for the first time.
6. A reasonable person in her position (and with her characteristics) would have known that when crossing from one surface to the other, the surfaces could be uneven in some way even if the layout appeared to suggest an evenness in the surfaces. If that was so, there was a foreseeable and not insignificant risk that she might lose balance and fall. The risk was elevated by the mere circumstance that she was aware she was walking across two different surfaces: one which was patently more secure than the other given the looseness of the mulch surface. That same reasonable person would have known that if she fell she was likely to injure herself and quite possibly severely. It was not burdensome for her to take a quick look to verify the assumption that she had made.
7. In my opinion, by failing to take that precaution of checking and verifying that assumption, Ms Salman was contributorily negligent.
8. This then brings me to the process of apportionment under s 10 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW). Commonly courts consider the considerations of the relative importance of the relative acts in causing the damage and also culpability.
9. Contrary to the Council's bold submission, this is not an appropriate case for a discount of anything like what it proposes. The Council was on actual notice of a problem, about three months before the accident, with the inadequate height of the mulch and did nothing of substance about it. The Council was on notice (either actual or constructive) of industry requirements indicating an intention that there was to be a levelling of the surfaces in children's playgrounds. Council had the means of distributing through its ratepayers the costs for the maintenance and upkeep of those surfaces. Although I have not regarded it as negligent for it to have chosen the combination of undersurface, as I have found, that choice by Council was apt to create the risk of a fall which materialised, given the likelihood that the attention of users of the playground were likely to be focussed on the playground equipment.
10. Ms Salman's assumption, although I have determined it to be unreasonable in the circumstances, was not completely atypical. When induced by an attraction in a public park to approach a certain point (playground equipment) for a particular recreational purpose, it is not uncommon for users of the park to be distracted from looking out for their footing.
11. In my view, the appropriate discount to damages is 15%.

Plaintiff's background: pre-accident

1. What follows in this section is the plaintiff's background, which is taken from Ms Salman's chronology, as set out in the following table (Exhibit C). None of this was challenged when Ms Salman gave evidence.
2. On 9 August 1988, the plaintiff was born in Karachi, Pakistan. On 29 January 1989, she moved to Australia when she was only about 6 months old.

Post-accident treatment of injuries

1. It is not in dispute that after the accident, on 28 February 2021, Ms Salman attended Dr Tun (treating General Practitioner) reporting fall earlier that day and was using crutches. She was prescribed Panadeine Forte and provided a referral to have imaging performed on the lower right leg. The next day, she presented to Westmead Hospital following the subject accident, following the identification of an undisplaced distal tibia and fibular fracture of the right lower limb.
2. On 3 March 2021, the plaintiff underwent an open reduction internal fixation of the left ankle performed by Dr Andrew Kanawati (Consultant Orthopaedic Surgeon).
3. On 17 March 2021, she consulted with Dr Andrew Kanawati (being 2 weeks post-accident), whereby he noted left ankle fracture was treated by way of open reduction and internal fixation, whilst right ankle fracture of the distal fibular which already had hardware in situ was treated by removing the old plate and screws and fixing the acute fracture and replating with a lateral locking plate.
4. On 1 April 2021, Ms Salman consulted with Ms Prachi Vagadia of Mount Druitt Physio. At the time she was wearing a CAM boot and was experiencing pain near her calf muscle along with a restriction of movement near her toes.
5. She had two consultations with Dr Tun on 6 and 8 April 2021.
6. On 28 April 2021, she consulted again with Dr Kanawati. The same day, an X-ray performed by Dr Michael Reeve acknowledged that there was widening of the first and second intermetatarsal space to 2.8 mm and bony fragment consistent with a Lisfranc of the left foot.
7. On 21 August 2021, she consulted with Dr Datt.

Injuries and disabilities

1. In the joint report of the expert (orthopaedic surgeon) conclave (Exhibit 6) dated 2 August 2023, Doctors Bodel and Rowe agreed in the following diagnoses in respect of injuries and disabilities sustained as a result of the accident: fractured right ankle, strained left ankle and a strained lower back.
2. They added that the left ankle and lower back had virtually resolved. Their joint prognosis for the right ankle was the belated development of osteoarthritis.
3. As to her disabilities, the experts also agree that there is on-going aggravation of osteoarthritis in the right ankle which had originated in the initial fracture in 2012.
4. Further, they agreed that she will continue to suffer on-going pain and stiffness and that there were no other factors contributing to those disabilities.
5. I accept that evidence and find accordingly.

Past out of pockets

1. In their joint report, Doctors Bodel and Rowe agreed that Ms Salman's receipt of open reduction at internal fixation as well as rehabilitation constituted reasonable treatment.
2. Past out of pocket expenses were agreed. After taking into account Medicare payments, the parties agreed that the sum should be $2011.95.

Future out of pockets

1. Doctors Bodel and Rowe agree that Ms Salman may require removal of the two screws in the shorter term and, in the longer term, may require an ankle arthrodesis (or replacement treatment) of the osteoarthritis.
2. As to the former, they estimated the cost of between $4,000 and $5,000. Ms Salman said that she was willing to undertake surgery to remove screws.
3. As to the latter, they estimated the cost of an ankle arthrodesis to be between $20,000 to $25,000. Ms Salman also indicated her willingness to undertake this surgery.
4. Ms Salman submitted that future out of pockets should be assessed at the sum of $62,541. The Council submitted that it should be no more than $10,000.
5. I accept Ms Salman's Counsel's submissions that the Court can assume that it is likely that Ms Salman will suffer intermittent pain and discomfort in her right and left ankle and lower back.
6. I also accept her Counsel's submissions, and find as another assumption, that in the future, she will receive recommendations to undertake the two forms of surgical treatment indicated by Doctors Bodel and Rowe and that she would wish to act on those recommendations. These findings have spin off effects also on the assessment for future economic loss and future care and assistance.
7. Ms Salman talked about continuing pain. This was consistent also with the expectations of Doctors Bodel and Rowe.
8. George said that she always appeared in pain, and tended to limp around. He referred to applying 'Deep Heat' to the right ankle and her lower back.
9. I find that allowance should therefore also be made for future pain relief.
10. Making these assumptions as I have, and allowing for vicissitudes, I make allowance for future out of pocket expenses in the sum of $35,000.

Non-economic loss

1. Ms Salman perceived that mood swings and pain associated with her Bipolar had escalated since the accident, impacting her marriage.
2. Her husband, George, corroborated this evidence. He said that since the accident they argued a lot more, that she was very moody, scared and angry. Prior to the accident, he described her as being outgoing and energetic. She used to enjoy dancing and walking. Now she sometimes struggled to get out of bed. Ms Salman said that she was trying to receive the assistance of a psychologist, but did not elaborate on this to any degree.
3. Before the accident, George described the relationship with his wife as very good. He said that they had 'broken up' at least three times; the last occasion being only a couple of months ago.
4. She indicated that in the period after the accident, she had significantly gained weight. But, in cross-examination, it was pointed out to her that she carried the same weight (120kg) when she saw Dr Giurgis, both before the accident (9 October 2019) and after the accident (18 August 2021). Ms Salman indicated that she had tried to lose weight prior to the accident and that the accident had prevented her from pursuing that particular endeavour.
5. Prior to the accident, she had loved to dance, and engage in walking (bush-walking or scenic, or at zoos). She said she could no longer undertake these activities.
6. Apart from the aspect of weight gain, Ms Salman (and her husband) were not challenged on this evidence.
7. Ms Salman submitted that this head of loss should be assessed on a basis of a 35% of a most extreme case (which would yield the sum of $246,500). With reference to s 17A of the CL Act, her Counsel referred me to the decision of Russell SC DCJ in Reynolds v City of Sydney Council [2018] NSWDC 334 where a plaintiff of a similar age to Ms Salman who was injured in similar circumstances received a (contingent) assessment of 30% of a most extreme case. But her Counsel also indicated that it was likely that further pain and suffering and reduced amenities is likely to follow from the assumed additional instances of surgical treatment that Ms Salman would likely receive.
8. Although I expect that Ms Salman may be inconvenienced by further surgery, I think allowance must be made for the prospect that there will be benefits for her in undertaking the surgery including the prospect of greater amenity than what she currently experiences, or what she would likely continue to experience if she did not undertake the future surgery.
9. The Council assessed her as being at 21% of a most extreme case (which would yield the sum of $28,000.
10. I assess the MEC at 30%.

Loss of income and earning capacity

1. Prior to the accident, as indicated in the Chronology (Exhibit C), Ms Salman's educational and employment history were as follows: 2000 Completed primary school at Our Lady of Rosery, Wyoming (Located on the Central Coast of NSW). 2006 Completed high school at Terrigal High (located on the Central Coast). 2007-2008 Associate degree in communication design at Billy Blue College of Design (located in North Sydney) 2009 Worked as a Sales Assistant at Optus. 2010 - 2012 Worked as a Manager at Kwik Kopy, Terrigal November 2013 Quit employment and back packed around South America for a month. 2016 Certificate II in makeup artistry - Obtained from 'AMA' 2018 Certificate II in travel and tourism 2018 Employed with Schawk Australia Pty Limited in pre-press design/project management/print management. NB; earning approximately $60,000 plus super. November 2020 Diagnosed with bipolar.

Lay evidence

1. Ms Salman estimated that after leaving hospital, she wore a moon boot for 3 months. In that period she said she used crutches each day. She said she used a scooter for about 2 and a half months after leaving hospital.
2. The plaintiff said that she returned to work 7 weeks after the accident; although she said that she had worked from home a week before that return. She said she experienced difficulty after that return to work. For one thing, she had to drive a manual car. She said she generally felt pain from driving her manual car within the first 6 to 12 months of her return. She indicated that she needed to use a scooter at work to get around and she had to keep her leg up during the day. She said she felt a lot of pain at work and took painkillers, three times a week, and this contributed to drowsiness and a corresponding lack of focus. She did not believe she was as efficient as she was before the accident.
3. She said she tried to get physiotherapy, actually seeing one twice before a wave of COVID-19 spread which stopped that.
4. She was employed by Schawk (from 9 April 2019 to 23 July 2021) until, under threat of being terminated, she resigned. The last of the payment summaries in evidence (Exhibit AA) indicated gross payments of $65,487. For 6 weeks, that represents a sum of $7,556.00.
5. She received certain benefits as a payout. Ms Salman believed that she lost her position because of her employer's complaints about her absences owing to appointments relating to her injuries, which had placed pressure on team members. She was cross-examined about this, with reference to documents produced on subpoena by her former employer.
6. After she ceased work with Schawk, she was unemployed for a period of between 2 and a half to 3 months. She said she applied for 96 new positions.
7. She found work in August 2021 at the Yes Agency (part of the M&C Saatchi Group) as a Project Manager for the retail stores for Optus out at Macquarie Park. This involved her liaising with Optus' marketing team, who would brief her and she would brief her team of designers and animators to match the relevant brief and further liaising, back and forth, until product was approved and sent off to production. She estimated that the ratio of standing up to walking was 50:50. She had to manage teams, requiring her to be on the go, and walking across the Optus campus at Macquarie Park. She worked there until August 2023. She explained that it became challenging to work there due to her absences; although she acknowledged that they were not so much the result of her difficulties with her right foot ankle.
8. Her husband, George, suffered a severe heart attack on 1 January 2023. He has what is described as 'small vein disease,' and according to Ms Salman, requires a heart transplant. He has been left with a limited functional capacity in the heart.' He is out of work and has been told not to exert himself. He is currently applying for NDIS assistance. Ms Salman has stopped work to care for him.

Evidence of medical professionals and occupational therapists

Medical professionals

1. Doctors Bodel and Rowe agree that Ms Salman's injuries and disabilities have affected her capacity to work, but in the limited sense that she was off work for a period of 6 weeks. They also jointly consider (from their common perspective) that she has no resulting incapacity for her current employment.
2. Dr Alan Home is an occupational physician engaged by the Council. His report (29 September 2022) is Exhibit 3. One aspect of his report was commentary (in relation to Ms Salman's functional capacity) upon the views of Ms Bevan who, it will be shown, was an occupational therapist engaged by Ms Salman.
3. He noted that:

• Ms Salman had a standing and walking tolerance of up to 40 minutes;
• Ms Salman had a capacity of sitting up to an hour;
• there was no restriction in the motion of her left ankle, but there was mild restriction in the motion in the right ankle;
• she had a normal capacity for forward bending at the waist, with no restriction on trunk rotation;
• there was no restriction for driving tolerance;
• there was no restriction of grip or hand function (keyboard skills or writing skills).

1. Dr Home considered that Ms Salman was fit for full time work of a sedentary nature that she was currently undertaking. He opined that her major injury concerned the right fibular fracture, which had since united; although there were minor complaints at the left ankle and lower back. He considered however, that she would not be suitable for alternative work involving (vertical) climbing or climbing at unprotected heights.
2. Dr Home's prognosis was for a full recovery from minor residual symptoms in the left ankle and the lumbar spine. As to Ms Salman's right ankle, he anticipated that she would be left with some mild mechanical pain at the right ankle.

Reports of occupational therapists

1. Both sides adduced evidence from occupational therapists, who participated in a conclave but whose views fundamentally diverged. They gave their evidence in Court concurrently.
2. For Ms Salman, she relied upon occupational therapy and Activity Daily Living reports from Wendy Bevan (respectively, Exhibits BB and CC). The second of those reports is relevant to the claims for domestic care and assistance. Ms Bevan saw Ms Salman on 2 June 2022.
3. In the first of her reports, Ms Bevan opined that Ms Salman was functioning at a 'sedentary' level of demand with capacity for working part-time only. This was associated with her chronic lower back pain, but also because of her reduced tolerances in standing and walking and reduced capacity to lift, carry, bend, kneel, crouch and drive. The physical demand for the occupation of a graphics designer fell within the description of 'sedentary.' Ms Bevan identified a range of industries which were also beyond Ms Salman's physical capacity to sustain, for full or part-time work.
4. There were some sedentary occupations which Ms Bevan believed was possibly within her capacity, such as being a sales representative, but some of them required lifting and prolonged driving.
5. Overall, in her first report, Ms Bevan opined that notwithstanding her qualifications as a graphic design artist, she can no longer cope with full-time hours and needs to reduce her hours to manage her pain: being no more than 5 hours a day (25 hours a week).
6. For the Council, it relied upon an occupational therapist's report from Lisa Henderson. Ms Henderson saw Ms Salman on 5 September 2022 (Exhibit 8). This report addressed all of the topics of earning capacity, and past and future domestic care and assistance, in the course of which she also commented upon Ms Bevan's views on those subjects.
7. As to earning capacity, Ms Henderson observed that Ms Salman returned to work performing her pre-accident hours within 6 weeks after leaving hospital. According to Ms Henderson, Ms Salman referred to 'interpersonal conflict' with her supervisor. She returned for 4 weeks with her pre-accident employer, before ceasing work for reasons unrelated to her fall but rather 'workplace' issues. Sher thereafter obtained alternative full-time employment (at a higher salary) - partly home based - and has demonstrated her work capacity ever since. Ms Henderson considered that she was capable of maintaining work into the future.
8. Ms Bevan and Ms Henderson gave evidence concurrently, but most of it was directed to the issues concerning the claims for past and future domestic care and assistance, which I will address later in these reasons.

Submissions

1. In Counsel for Ms Salman's schedule of damages, the claim for past economic loss is $26,592. Associated with that is a claim for lost superannuation ($2,926).
2. For future economic loss, Ms Salman's claim is for a (buffer) sum of $200,000.
3. By its Counsel's schedule of damages, the Council made no allowance for past, or future, economic loss. But in closing submissions, this position was modified. Consistent with the evidence of Ms Henderson, Council accepted that at least allowance should be made for the period, in effect, of Ms Salman's recovery after she left hospital. An anterior implication, it seems to me, that she is entitled further to any loss of capacity in the period that she was in hospital.

Past loss

1. In my view, the past economic loss should be confined in the way that the Council suggests. This is consistent with the evidence of the orthopaedic surgeons, and Dr Rowe, and also Ms Henderson. Ms Salman had a discrete period (which I find was 6 weeks), where she could not work, but since then has exercised her earning capacity until August this year when she ceased work for reasons unrelated to the accident. She did not say that she had to reduce her working hours upon her return.
2. As to the future, the Council argued that but for the accident, the plaintiff's most likely circumstances were that she would likely go on working full time, as she had after her period of recovery and recuperation, through to early January 2023, when her husband became seriously ill. From August 2023 (when she stopped work), the Council submitted that this was unrelated to the accident and indeed, the circumstance of her husband's illness had served as a supervening event. Council argued further that the Court cannot make assumptions about her likely future return. No allowance should therefore be made for future loss of earning capacity.
3. Ms Salman's Counsel argued that for future economic loss, as he had with future care and assistance, that the Court should assume, first, that his client will undergo the two forms of surgical procedure anticipated by the orthopaedic surgeons. He took issue with the Council's point that Drs Bodel and Rowe had only countenanced the possibility of such procedures being necessary: it was pointed out the surgeons' evidence was in the context of a clear question which was based on likelihood of future treatment; not possibility (Exhibit 6). Counsel then indicated that it could be assumed that she will need periods of leave to enable her to recover from those forms of procedure which will mean that her work capacity will not be exercised. Counsel further invited the Court to assume that Ms Salman's mobility will decrease and likely mean that she will retire earlier. This was in spite of the circumstance that she had a largely sedentary occupation. Ms Salman also took issue with the Council's point about her decision to cease work to care for her husband. Her Counsel emphasised that Mr Salman was 14 years older than Ms Salman. It would be wrong to assume that she has taken a permanent decision not to return to the workforce. In view of the likelihood of recurring symptoms of pain, whilst managed, Counsel indicated that she might work up to the period slightly short of the age of 67.
4. As to the claims for future economic loss (and also future domestic assistance [4] ), s 13 of the CL Act, applies, as does the common law approach in Malec v JC Hutton [5] . I note further that although buffer sums are permitted, that does not relieve the Court of the need to state the assumptions it proceeds under [6] .
5. In particular, I assume that current state of unemployment to care for her husband as being only temporary and not permanent. But when she returns to work, and subject to her need for future periods out of work to recover from further surgery, the timing for return will be a matter of choice, or domestic circumstances, rather than as a consequence of the accident. She is presently only 35 years of age. I assume that she will have the capacity to work and is likely to for another 30 years. I accept that there will be similar periods off for other surgical procedures which I regard as being likely that she will undertake. There is no indication as to her promotional prospects.
6. Essentially, I adopt the Council's approach which is to recognise the prospect of future loss of earning capacity by reference to the periods for recovery the plaintiff will need after the two surgical procedures she is likely to undertake; although modified by the additional assumption that because of ongoing or intermittent symptoms, it is possible that she might retire sooner than she otherwise would. However, because of the sedentary nature of her work, and her skills and training. I assume further that as time goes on, given the current trajectory of work arrangements involving work away from home, she should be able to manage such pain symptoms as arise as she has done (to her credit) since this accident occurred I do not consider that the diminution in her work capacity is likely to be diminished very substantially.
7. I would allow a buffer of $50,000.

Lay evidence

1. Ms Salman said that after the accident, for a time, she received significant assistance from her husband. He helped with showering her (which involved the use of a shower chair) for 7-8 weeks, preparing meals and cleaning the house; as well as looking after the couple's two dogs and maintaining the house.
2. Ms Salman estimated that for the first month after her accident, George did everything. That ratio changed. Within 6 months, she estimated doing 25% of things around the house (generally short meals) and after a year, the domestic work was evenly divided. From December 2022, a month before her husband's illness, she estimated that George was providing assistance of about 2 hours' a day that he had not previously provided (ie before her accident) her.
3. As a result of George's illness, she estimates doing 95% of the work; but still has difficulties doing things like vacuuming, and mopping the floors. She said she cannot walk the dogs or hang out the washing, or carry things around the house. She says that they share the shopping.
4. Recently, the couple have moved. They now live at San Remo (a suburb in the Central Coast) in a sub-division. That has removed a need for mowing and gardening.

The reports

1. Ms Salman relies upon the second of Ms Bevan's reports (Exhibit CC), the expert considered that past gratuitous care and assistance rendered to her by George was reasonable and necessary, generally, for the period of her discharge from hospital (6 March 2021) to 2 June 2022 in relation to her within this period.
2. This was itemised as follows: 1. personal care tasks (showering, drying, undressing, dressing, mobilising to the toilet and generally) for 1.5 hours a day (10.5 hours a week) (this being for the discrete period 6 March 2021 to 6 May 2021) 2. for meal preparation (45 minutes each evening, or 5.25 hours a week); 3. for domestic chores (3 hours a week); 4. laundry and ironing (1 hour a week for 4 months, then 0.75 hours a week up to 2 June 2022); 5. gardening and mowing (1 hour a week); 6. shopping (1 hour a week); 7. transport (2 hours a week)
3. The rates for assistance are set out in the chart that appears in sub-paragraph 4.2.2 of Ms Bevan's report.
4. In her report for the Council, Ms Henderson agreed that allowances should be made for past personal care assistance and past domestic assistance, but in each respect, for much shorter periods than Ms Bevan had provided for. As to past personal care assistance, Ms Henderson used a period of 6 weeks. She made allowance in recognition of the need to transfer her to the shower and toilet, covering the CAM boot and drying and dressing. This was for 2 hours and 20 minutes a week which, for a period of 6 weeks, came to 14 hours.
5. As to past domestic assistance, she made allowances (for meal preparation, washing dishes, bathroom cleaning, floor cleaning, laundry, bedmaking, shopping, yard maintenance and transport) generally up to a period of 10 weeks but, in the case of bathroom cleaning and 'yard maintenance' made allowance for a period of 12 weeks. In all, for the period of 12 weeks, she allowed for 118 hours and 40 minutes.
6. Ms Salman relied upon Ms Bevan's opinions about Ms Salman's future care and assistance. These were depicted in the chart that appears at sub-paragraph 4.3.13 of her report, which also included commercial rates. The care activities and estimated weekly hours associated with those activities for which future care would be needed were identified as: 1. Meal preparation and provision (2 hours week); 2. Domestic chores (cleaning) (3 hours a week); 3. Laundry (0.75 hours a week); 4. Gardens (0.25 hours a week); 5. Lawn mowing and maintenance (1 hour a week); 6. Pet care (half an hour a week) 7. Shopping (a $15 home delivery fee);
7. For the Council, Ms Henderson made no allowance for future domestic assistance. This was based upon Ms Salman informing her that she had resumed all of her usual pre-accident domestic chores.

The concurrent evidence

1. Both Ms Bevan and Ms Henderson prepared their reports in 2022. Since then, the plaintiff's husband had become severely incapacitated and the couple had moved residence, and the orthopaedic surgeons had agreed that Ms Salman may require the removal of two screws in her foot and may require an ankle arthrodesis.
2. A consequence of the move to a different residence was that Ms Bevan agreed that she would amend her allowance for gardens and maintenance. Ms Henderson indicated that the size of the dwelling was irrelevant given her view about Ms Salman's current issues. So too was her position in relation to the significance of her husband's incapacity since January 2023.
3. As to the prospect of future surgery, Ms Bevan said that from her experience, it was still possible that she would have to manage osteoarthritis, but at any rate, she thought that removal of the screws would require her to have a period of 10 weeks' of additional recovery. Ms Henderson said that if the surgery was required, she would require assistance on par with what was reasonable for her after the accident. As to the second part of the inquiry, in relation to the prospective need for an arthrodesis, Ms Bevan appeared sceptical of the likely benefits of this: she was concerned that Ms Salman would not be able to flex her ankle and the possible level of her mobility; she could well continue to suffer on-going pain. Ms Henderson also indicated that if Ms Salman was to undergo the arthrodesis, Ms Bevan would similarly require a similar period of assistance as she needed after the subject accident.
4. Both experts were asked about the effect on their opinions if they assumed that Ms Salman has osteoarthritis with her right ankle. Ms Bevan said she thought that this circumstance indicated that Ms Salman would require assistance about the household. She cited the fact, as she understood it, that Ms Salman was in significant pain after working, and this would feed on to restrictions at home. She emphasised Ms Salman's weight-bearing capacity and what Dr Bodel had said on that issue. Osteoarthritis would only add to that difficulty. Ms Henderson did not consider that this result necessarily followed from the assumption; asserting that there were ways that she could remain functional. Ms Henderson (correctly) indicated that because of another procedure Ms Salman had undertaken, the plaintiff had lost weight at a certain point.
5. Ms Bevan was asked why she assumed that commercial assistance was necessary. She answered that although Ms Salman did not mention this to her, she assumed that she needed it because she otherwise unable to get it. Later, when Ms Henderson was asked about the matter, Ms Henderson said that if she required commercial assistance (upon the assumptions that she actually needed assistance and her husband could not provide it - assumptions which Ms Henderson chafed at) the 'commercial option' could be considered.
6. Ms Bevan was challenged about Dr Home's critique of her views (in answer to question 10 in Dr Home's report). Ms Bevan indicated that whilst she respected Dr Home's right to his opinion, she disagreed with his methodology, which she characterised as relying substantially upon evaluation of what Ms Salmon told her. Contrary to what was put to her, I did not regard this as transgressing her field of expertise: it was hardly unsurprising that an occupational therapist might use different methods to an occupational physician.
7. The experts differed even on the assumptions they drew upon for the length of time that Ms Salman wore a boot: Ms Bevan thought it was a period of 2 months (followed by her use of a crutch and scooter). Ms Henderson understood that the plaintiff had ceased using it after 4 weeks.

Submissions

1. Ms Salman claims a sum for this past care of $18,432, calculated on the basis of receiving gratuitous care for 6 hours a week from the date of the accident to 1 January 2023 (96 weeks), being the date that George suffered his serious heart injury. Implicit in the claim is the submission that she reached the threshold of s 15 of the CL Act. This was satisfied because of the additional care provided by the husband that would not have been provided to Ms Salman but for the injury in the period from the date of the accident to 31 December 2022.
2. The Council submitted no allowance should be made for past care and assistance. Counsel for the Counsel effectively submitted that the reports of both the occupational therapists had lost currency in the light of subsequent events. But in a move away from what was contained in the Council's schedule for damages, its Counsel suggested that subject to the threshold being reached, allowance might be made for past care. For the same reasons as were articulated in relation to future economic loss, no allowance should be given for future care and assistance.
3. For the future, Ms Salman claims a sum of $203,965 representing 4 hours a week for the rest of her life (with the multiplier of 980.6). The Council submits that no allowance should be made.
4. It was agreed between the parties that if allowance was made, $32 an hour was an appropriate rate.

Determination

1. For the past, I am satisfied on the basis of the evidence of both Ms Salman and her husband, that the threshold under s 15 is satisfied. The plaintiff's claimed amount is modest and I accept it.
2. As to the future claim (calculated on a commercial basis), I start by expressing my general preference for the evidence of Ms Henderson over Ms Bevan. First, I regarded Ms Bevan's concerns about the present restrictions and incapacities of Ms Salman did not accord with Ms Salman's actual experience. It was no fault of Ms Bevan that her reports were prepared 17 months prior to the hearing (Ms Henderson's report and Dr Home's report being 13 months before). But a striking factual circumstance is that Ms Salman has, by and large, been able to get by virtually with the entirety of domestic, household tasks since her husband became very severely restricted since 1 January 2023. Perhaps to some degree that that been aided by the smaller premises in which she and her husband both now live since Ms Bevan prepared her report. She minimised the significance of the circumstance that she had been capable of performing tasks single-handedly since January 2023 as being relevant only to assessing past care requirements.
3. Secondly, I considered that Ms Bevan was reluctant to depart from expressed views when presented with new facts that did not accord with those opinions. For example with the prospect of other surgical work on the right ankle, it struck me that Ms Bevan was very quick to assume not only that Ms Salman would actually willingly undertake such further surgical treatment as was recommended to her, but more pertinently, tended to discount the possibility that surgery would, in fact, be effective in alleviating pain and disability and thereby reduce her physical restrictions and increase her working capacity. If it was not for that prospect, it would be difficult to understand why Ms Salman would agree to submit to that additional surgical work. In fairness to her, Ms Bevan acknowledged that the change in residential premises meant that she would adjust her calculations on account of less need for maintenance of lawns, gardens or mowing.
4. But subject to that concession, I found it difficult to accept that the events, and information available, since she prepared her report was such that her opinions were unaltered. I found that there was a certain inflexibility to her views when, in the course of being asked questions by the Council's Counsel, she was presented with other information. Thus, she did not appear to modify her views about the significance of the circumstance that Ms Salman had undergone gastric sleeve procedure when commenting upon the probative significance of Ms Salman's weight-bearing capacity.
5. Thirdly, I am inclined to give greater weight to Ms Henderson's opinions which are more transparently based, than Ms Bevan's opinions, upon medical opinions of Drs Bodel, Rowe and Home.
6. Be that as it may, I find it is likely that there will be a need for future assistance. I place weight upon the evidence of the orthopaedic surgeons that there will be continuing disability in on-going pain and stiffness. As I indicated when considering future economic loss, there will also be discrete periods of dependence upon the provision of assistance whilst two surgical procedures are undertaken, as I expect will likely arise. I adopt the commercial rate agreed by the parties ($32 per hour). I am inclined to reduce however the number of hours per week from what the plaintiff claimed to two.
7. My calculations are 2 x $32 x 980.6 v 0.85 (for vicissitudes) = $53,345.

Summary on liability

1. To restate my findings: 1. The Council owed a duty of care to Ms Salman. 2. The Council's obvious risk defence, which if successful would have modified the scope of the duty, fails. 3. The Council was negligent. 4. Ms Salman was contributorily negligent. 5. The discount on damages is 15%.

Summary on quantum

1. My assessment of quantum, and in relation to future losses taking into account the vicissitudes, the quantum for each head of loss is as follows: Non-economic loss (30% of a MEC) 166,000 Past out of pocket expenses 2,012 Future out of pocket expenses 35,000 Past economic loss 7,556 Past loss of superannuation (11%) 831 Future economic loss: 50,000 Past domestic assistance 18,432 Future domestic assistance 53,345 Sub-total $333,176 (Less 15% deduction for contributory negligence $49,976) Total $283,200

Orders

1. The orders of the Court are: 1. Judgment for the plaintiff for the sum of $283,200. 2. The defendant is to pay the plaintiff's costs, as agreed or as assessed. 3. If either party wish to apply to vary order 2, it is to do so by filing a notice of motion with supporting affidavit within 14 days of these reasons.

Endnotes

1. Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488.
2. Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 at [67]
3. Strong v Woolworths Ltd (2012) 246 CLR 182
4. CL Act, s 5E
5. Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [128]
6. Avopiling at [137]

Amendments 30 November 2023 - Formatting amendment 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: 30 November 2023