Schneider v State of New South Wales

District Court of NSW|2008-11-19|Before: Mr P

For the reasons that follow I have found that at the time of the plaintiff's injury the external lighting within the school grounds did not illuminate the area where the plaintiff had fallen. I have also found that the school authorities knew and ought to have known in the months leading up to the plaintiff's injury, vandals had on a number of occasions been removing the covers of drainage pits within the school grounds. I have found that the defendant was in breach of the duty of care that was owed to the plaintiff and the defendant was therefore negligent. In arriving at that finding I have found that the plaintiff has satisfied the requirements of establishing foreseeability and causation as required by ss 5B and 5C of the Civil Liability Act 2002. I have found that the defendant has failed to demonstrate any contributory negligence on the part of the plaintiff. I have found for the purposes of s 151Z(2) of the Workers' Compensation Act 1987 that if the plaintiff's employer had been sued, the employer's responsibility for the plaintiff's injury would have been assessed at 35 per cent. I have assessed the plaintiff's damages at $1,204,371. Applying the calculus required by s 151Z(2) of the Workers' Compensation Act 1987 to that assessment, the assessment of the plaintiff's entitlement to damages is reduced to the amount of $782,841.

The following witnesses were called to give evidence on the issue of liability: (a) The plaintiff, Mrs Nadine Schneider;

(b) Mrs Barbara Coulthart, a former cleaner at the school and a work colleague and supervisor of the plaintiff;

(c) Mr Derek Garland, a general assistant and groundsman who was employed by the defendant to carry out maintenance work at the school;

(d) Mr Joseph Schneider, the father of the plaintiff;

(e) Mr Alan Andoni, the principal of the school at the time of the plaintiff's injury.

Bundles of medical reports were tendered as exhibits by each of the parties. No medical experts were called to give oral evidence. The parties also tendered photographs showing different perspectives of the scene where the plaintiff was injured.

In the ensuing paragraphs I have reviewed and set out the facts concerning the plaintiff's work history, her pre-injury health and her employment as a cleaner at the school as these matters provide a non-contentious and relevant background to the determination of the liability and damages issues.

The plaintiff was born in 1957. She was aged 48 years when she was injured and she was aged 51 years at the time of the hearing. She had left school when aged 16 years and shortly afterwards commenced full-time work as a receptionist for a pest control company. She later moved to New Zealand where she lived between 1989 and 1998. She had been married and she has two children who are now adults. Whilst in New Zealand she separated from her husband and following this she returned to Australia with her children to live near her parents on the central coast of NSW. Whilst in New Zealand she had trained as a diversional therapist working with the elderly and she pursued that line of work in a nursing home for about 5 years.

Shortly after her return to Australia the plaintiff undertook a TAFE course for 6 months as she wanted to continue to work in the care of the elderly. This gave her the qualification of assistant in nursing. She then obtained employment in a nursing home in Wyong where she worked for about a year until she left that employment because the work did not meet her expectations compared to her experience of such work in New Zealand. She then obtained full-time work as a receptionist for about one year at a local medical centre. She found the work in the medical centre stressful so she decided to leave in order to obtain work as a cleaner. At the beginning of 2005 she secured her pre-injury job as a school cleaner. She had been prompted to seek out that work because her father had worked as a cleaner at a local high school for many years.

Before her injury the plaintiff was in reasonably good physical health. She had however experienced significant periods of stress in her life. She found the experience of marital separation particularly stressful and difficult. In 1998 she underwent a tubal ligation which resulted in her experiencing a long period of adjustment to what proved to be a premature menopause at about age 41 years. She also experienced panic attacks in connection with her menopause and had a pre-injury tendency to anxiety and was vulnerable to the effects of stress. The plaintiff had a prior history of hand symptoms during pregnancy and later in menopause. On occasions she had experienced some episodes of numbness when she slept on her hands which did not cause lasting problems. She had no pre-existing problems with her hands that adversely affected her ability to work or to perform housework. The plaintiff was described by her work colleague Mrs Coulthart as being very friendly, easy to get along with and liking a laugh and a joke. That evidence was not challenged. The plaintiff's father said in evidence that the plaintiff enjoyed wellbeing and a good quality of life before her injury. His evidence left me with the impression that the plaintiff was a capable and independent person before her injury. That evidence was not challenged.

In January 2005, after the plaintiff had obtained work as a cleaner, she was initially assigned to work at a local high school. Later, after attending an afternoon induction seminar arranged by her employer in Newcastle, at which the plaintiff was taken through the employer's training manuals concerning the requirements of the work, she was assigned to work as a cleaner at the Toukley Public School. The seminar she attended dealt with the employer's requirements and procedures for the plaintiff to log on to work, the hours of work she was required to carry out and the nature of the cleaning duties she was required to perform. At that time she did not receive any particular training or orientation concerning the conditions that prevailed in the school grounds and the places within those grounds at which she was expected to carry out her duties.

The plaintiff's assigned working hours comprised a split shift arrangement to commence on weekdays at 5.00am and conclude at 8.30am and to then resume at 2.30pm and continue until 4.45pm. She was given a list of the duties she was expected to carry out. These duties included attending at the administration block of the school grounds first thing in the morning in order to sign on for work. She was then required to take her cleaning materials from a cleaner's cupboard or storeroom and to then proceed to work in various places from time to time assigned to her by her supervisor from within a group of buildings comprising the administration block and the classrooms of the school. The cleaning materials she was required to carry in the course of her work consisted of a vacuum cleaner back pack, a bucket, a mop, a broom as well as some cleaning materials and cleaning cloths. Her normal cleaning duties required that she carry out the tasks of vacuuming, dusting, wiping desks, mopping, cobwebbing and basic cleaning at the school.

The person assigned by the employer to supervise the plaintiff in the performance of her duties at the school was the senior cleaner on site, Mrs Barbara Coulthart, a co-employee. She showed the plaintiff around the site on the day she commenced work which was towards the end of the 2004/2005 school holidays. During the remainder of the January 2005 school holidays the plaintiff's cleaning duties at the school were initially carried out from 7.00am during daylight hours. However, once school term had commenced in February 2005, the plaintiff was required to start work at the designated time of 5.00am at which time it was still dark. The work system required, if the need arose, that the plaintiff should raise with her supervisor rather than with school authorities, any work-related issues of concern or that required repair or maintenance attention. The plaintiff was aware that there was a logbook for such matters to be recorded.

The plaintiff had no difficulties carrying out the work required of her before she was injured. The parties were agreed that the plaintiff's earnings for the period from 24 January 2005 until 30 June 2005 was at the rate of $400 net per week.

Description of the location where the plaintiff was injured

The location within the school grounds where the plaintiff was injured can be seen from the photographs that were tendered. Exhibit "B" shows both a general perspective and a close view of the drainage pit with the grate cover in situ. This was located in a concrete paved apron area adjacent to a small toilet block building. Exhibit "C" comprises two closer views of the drainage pit showing the covering grate having been removed - these two latter views provide a context and understanding to the plaintiff's description of how at the time of her injury, she stepped forward and fell into the uncovered drainage pit hole.

The defendant's Exhibit "3" reveals another view of the location of the drainage pit with the cover in situ. Relevantly, Exhibit "3" showed the location of a fluorescent light tube that was fitted under the eaves of the building comprising the toilet block. This was one of two such fittings on that building. I infer from the view of the building structure on which the fluorescent light was fitted as shown in Exhibit "B" and Exhibit "3" that the light fitting was above and to the left of the corner of the toilet block and, if it was illuminated during the hours of darkness, it was likely to project some light over the area where the drainage pit in question was located.

At about 5.10am on Thursday 24 February 2005 the plaintiff attended at the school premises in order to commence work on her usual early morning cleaning shift. After entering the grounds she went to the administration block to sign on for work. Shortly afterwards she picked up her work materials from where they had been stored and she then walked towards the classrooms in order to carry out her work. To do this, she described how she had to walk in darkness past the toilet block within the grounds. This was situated about 100m from the administration block. She said she was unaware of the location of the switches to illuminate the lighting in the area in question. She said she could not recall a light being on at the time of her injury. She recalled that in the year following her injury there was an automatic system which operated to turn on the lights in that area.

At about 5.15am on the day in question, shortly after she commenced work, the plaintiff walked past the area of the toilet block. The lights of the administration building had been previously switched on but at that time those lights were some distance away from the vicinity of where she was walking and where she came to be injured. I infer from her description this meant that the lights from the administration block did not project illumination into the area of the drainage pit so as to render the drainage pit visible. The plaintiff described how on the occasion in question she walked cautiously and without rushing. She said that she was afraid of the darkness and she said she was concerned about not being able to see in the darkness of the grounds.

She said she had walked in a normal manner across the paved area of the playground and she then proceeded to pass over the particular spot where she was injured. She said that as she did so she stepped forward and fell a short distance down and into an uncovered hole, finding herself knee-deep in leaves. She said that she had landed on her tailbone but that in the fall her arms had swung around and she had landed with her hands beside her in a backward position, having come into contact with the concrete surface surround of what I infer from her description was the concrete perimeter of the hole into which she had fallen. She said she found herself sitting on the ground with the vacuum cleaner back pack wedged into her neck. She described the fall as being a heavy one. She said she was aware that her hands were hurting.

When her evidence was tested on the issue of whether the area was lit, the plaintiff was adamant that at the time she was injured there was no lighting projected in the immediate vicinity of the toilet block area. She denied she could be mistaken about that issue. In cross-examination the plaintiff agreed that she did not ask her employer for a torch for use at this site before she was injured. She agreed that the employer had provided a torch for use at the site after she was injured. Significantly, the plaintiff agreed with the suggestion that if she had been provided with a torch and if it had been pointing in the right direction at the time it would have made a difference to her being injured. She agreed that her employer had required her to walk in the area where she was injured whilst that area was in darkness. She denied that she had been running at the time that she fell. No evidence was called to contradict her denial.

Survey of evidence concerning lighting and vandalism issues

The plaintiff's initial evidence on the lighting issue was that the area in which she fell was not lit and was in darkness. When the plaintiff's evidence on this issue was explored in cross-examination it became clear that whilst she was uncertain as to whether or not the lighting over the area she fell had been working during the short time she had been working at the school, she maintained that she was not mistaken in her own mind that the light in question was either not on or not working on the morning she fell into the uncovered drainage pit. She also recalled that when she returned to work several days after her injury the light in question was still not working. The plaintiff said that at the time she was injured she did not know that the covers of the drainage pit could come out of their locations. That evidence was not challenged in cross-examination.

Evidence of Mrs Coulthart - employed cleaner and plaintiff's work supervisor

Mrs Coulthart was employed by Tempo as a cleaner at Toukley Primary School between April 2004 until December 2005. In January 2005 the plaintiff was assigned to work with her at the school. She stated that at the time the plaintiff was injured the school was undergoing some renovations and access to the administration block was partly closed off as it had been condemned.

Mrs Coulthart's duties commenced at 4.45am when she accessed the temporary administration building in order to turn off the alarms. She recalled the plaintiff arriving for work at 5.00am. Mrs Coulthart described the existence of some external lights, some of which were not working. She described the area where the plaintiff was walking, and which was identified by other evidence to be a main thoroughfare within the school grounds. She described that area as having no external lights. She said that the plaintiff called out to her after she had fallen into the drainage pit. Mrs Coulthart then went and saw the open drain hole with the removed covering grate located beside it at the back of the toilet block as shown in the photographic exhibits.

Mrs Coulthart identified the light fitting shown in Exhibit "3" and stated that lighting was not working at the time of the plaintiff's injury. She was in no doubt that at the time of the plaintiff's injury those lights had never been activated, and had not been working for at least some months. She stated that this had been drawn to the attention of the deputy principal of the school and the general assistant employed at the school on a number of occasions from about the end of May 2004. She described being present at the school before the plaintiff's injury when a conversation took place on the subject of the lighting and on the subject of vandalism. The relevant conversation was between a relieving deputy principal and another employed cleaner in the following terms: "Q. What was said, do you know? A. He just said that it's really dark there and that I was worried about - you know, with the vandalism and the problems that we were happy (sic for having), what's the chances of getting it fixed and he said he'd look into it.

Q. What was the response? A. He'd look into it."

Mrs Coulthart gave evidence of other conversations about vandalism and the lighting that took place before the plaintiff's injury and in which attention was drawn to the state of the lighting: "Q. Did anything change after that? A. The GA had attempted on a number of occasions to get a few more lights to go but no. No, they never actually got fixed.

Q. Was it only one complaint that was made to this individual? A. I made a further complaint about four or five weeks later, that nothing had happened, they weren't fixed.

Q. To whom did you make that complaint? A. To Col, the deputy principal.

Q. And in what terms and what was said, to the best of your ability? A. I just said to him "Are we going to get anything done with those lights?" and he just said "Gee, that just reminds me." It was sort of like yeah, like he'd forgot.

Q. You didn't make an entry in a book at all? A. No, no.

Q. This individual, what was his status in the school did you understand? A. He was - he was a permanent teacher there but he was the relieving deputy principal at the time.

Q. Did you then with the passage of time speak to anybody else in a position of authority? A. Yes, then when he finished there was another teacher at the school, Murray, he then became the relieving deputy principal as well, took over the position and we mentioned it to him as well.

Q. When you say we, could you just tell me-- A. Chris - Chris and I.

Q. And were you present when that was done? A. Yes."

Mrs Coulthart's evidence was that despite such conversations nothing had been done to act upon the complaints concerning the lighting. She said that when Mr Andoni took over the position of deputy principal at the school in the last term of 2004 she also spoke to him about vandalism at the school and about the fact that the lights were not working. Her evidence in this regard was: "Q. Who do you understand Mr Andoni to be? A. He took over the deputy principal's position, it was at the end or the last term of 2004.

Q. And between that time and February 2005, did you ever speak to him yourself? A. Yes.

Q. On how many occasions? A. Quite a few, just on a regular basis whenever you could catch him in the playground or in a corridor, just wherever, just saying you know like "We have a lighting problem, we have a security problem here" and the school was at that stage in a terrible state with vandalism and it was very frightening.

Q. And what was his response when you said "We have a lighting problem"? A. He said "We'll get onto it."

Q. On how many occasions do you believe you would have spoken to him in that manner from the time he took over until February 2005? A. At least once - once a fortnight to once a month. Yeah, just depending on how - how much we could get hold of him, yeah.

Q. Sitting here today, is there any doubt in your mind as to the conversations you had with Mr Andoni? A. No, none whatsoever.

Q. And in addition to the lighting problem, you've spoken about vandalism. Was there ever a problem with the grates-- A. Always.

Q. What do you mean by that, madam? A. It was a constant problem that the children would come into the school grounds and remove the grates. They'd take them down to use them for skateboard ramps and all that sort of stuff. It was just something they'd take them out and sit them beside them. They'd take them out and stack them on top of one another or they'd take them down and sit them in the playground in the children's grass and playground area.

Q. In April 2004 to February 2005, from your own knowledge, can you tell the court on how many occasions grates would have been interfered with by means of being removed? A. I would say you'd have to say at least once a month. At least once a month."

Mrs Coulthart described how, at some time not long after the plaintiff's injury, a security representative of the Department of Education attended the school. Mrs Coulthart recalled being summoned by the principal to attend a meeting with the principal, the deputy principal and the teachers. At that meeting vandalism at the school was discussed and the suggestion was made to turn off the school lights at night to deter vandals. She stated that this suggestion was later implemented.

In cross-examination Mrs Coulthart stated that before the plaintiff's injury, that is from around May or June 2004, she had told her own supervisor from her employer's company of the problems with lighting and with vandalism at the Toukley Public School. She said she discussed with her supervisor the fact that all the lights, meaning the external lights at the school, were not working. She said she had raised these issues with her employer at least once if not twice before the plaintiff was injured. She stated that in response her employer took no action to deal with these hazards and gave no instructions as to how to deal with such hazards.

Mrs Coulthart agreed she had not made an entry in the general assistant's book before the plaintiff's injury concerning the removal of the drainage pit grate coverings by vandals. She agreed with the proposition that it was a highly hazardous activity to walk through the school grounds in darkness. She said that on several occasions before 24 February 2005 she had asked her employer, Tempo, for a torch but this had not been provided. In these circumstances she said that it was her own practice to open her mobile phone and to use it as a source of light so that she would not fall herself when she had to traverse the school grounds in darkness.

Mrs Coulthart stated that she used to speak to the principal Mr Andoni on various occasions about vandalism at the school in connection with clean up activity. Mrs Coulthart said that she had also spoken to the general assistant at the school, Mr Garland, about the effects of vandalism at the school and concerning the need to clean up the debris comprising smashed windows and doors.

Mrs Coulthart was unable to state whether the lighting in the area where the plaintiff fell was simply switched off or whether it was broken. She stated that when she saw the lights they appeared to be very dirty and dark and they looked old and disused. She could not say whether the power system to the building was inoperable or whether all that was needed was new light globes.

Mrs Coulthart emphatically denied the suggestion that she was mistaken in her evidence as to the state of the lighting in question. She denied the suggestion that those lights were in fact working at the time of the plaintiff's injury.

Mrs Coulthart stated that after the plaintiff's injury the lights were operated on a timing switch which was not accessible by her. Her evidence in this regard was: "WITNESS: It was a - a timing switch, I believe, that operated but you must remember that while we were at the school at that time, the school was under refurbishment construction and the main building that housed the electrical board was partially condemned with the exception of one section where you would walk in to turn the alarms off and the small section down one end which was used by the Aboriginal art. So that building was virtually out of bounds other than those two ends, to us anyway, because it was condemned for white ants."

Mrs Coulthart stated that subsequent to the plaintiff's fall she had herself suffered a fall at the school in darkness. In response to this fall her employer provided cleaners at the school with small penlight torches but these proved to be too difficult to use because the cleaners were required to carry too much other equipment.

Evidence of Mr Garland - general maintenance assistant and groundsman at the school

Mr Derek Garland was the general assistant and groundsman at the school. He had been employed at the school since 1995. His duties included working on the school grounds, carrying out minor maintenance work and providing general assistance as and when this was required. He described the system by which cleaners at the school communicated tasks to him that required attention. This was by writing in a book the details of tasks requiring attention. He said he could look at this book daily.

Mr Garland confirmed that there were problems with the drainage pit covers in the grounds in that these were at times removed by trespassers or vandals. He said it was his job to replace these drainage pit covers back into their correct position on such occasions. In answer to a question as to his knowledge of this problem occurring well before the plaintiff's injury, he agreed he was aware that this had occurred on about four or five occasions.

Mr Garland could not recall whether the lights outside the toilet block were working on the morning the plaintiff was injured. He could not recall Mrs Coulthart making general complaints to him about the lights in that area before the plaintiff was injured. He explained that the external lights were switched on and off by means of a sensor so that the lights came on when it was dark and went off when it became daylight. He also identified the existence of a master switch for the lights. He said this was located in a classroom block near where the plaintiff was injured. The settings on that master switch enabled the lights to be switched to either automatic or manual on or off operation. Mr Garland identified the possibility that the lights may not have worked for some time before the plaintiff's injury. He had no direct knowledge as to whether the lights had been coming on in the months before February 2005. He said he had no reason to attend the school after dark or before sunrise. His own working hours were between 7.00am and 3.30pm on weekdays. He said he checked the working of the lights by switching them on and off during the day on a haphazard basis. He said when this occurred the switch to the manual setting over-rode the sensors for the lights.

It was Mr Garland's job to replace light globes from time to time when they were out but the job of maintaining the lights and checking them to ascertain correct functioning was a task assigned to an independent maintenance contractor whose function was to attend the school on an annual basis. This was to inspect and to change all the lights that were not working. Mr Garland was unable to specifically indicate the time of the year when this maintenance activity occurred. Mr Garland conceded that his memory was poor as to whether Mrs Coulthart may or may not have made complaints to him. I infer from the context of his evidence that he was speaking about the state of operation of the external lights within the school grounds.

Mr Garland recalled that someone from the Department of Education had attended the school and had advised that the way to deal with vandalism at the school was to leave the lights off at night. He could not recall when that decision was made in relation to the timing of the plaintiff's injury in February 2005. The uncertainty of the timing of his recollection on the subject was summed up in the following extract from his evidence: "Q. After that event of the advice being given, were the lights then turned off at night? A. I don't think it ever happened. I'm not sure. I can't - I can't remember because the lights had to be on at night or at least in the morning for when the cleaners came in.

Q. And that was, as you understood it, to ensure the safety of the cleaners? A. So they could see where they were walking.

Q. Yes, because if the lights weren't working, obviously they would be exposed to serious risk of falling? A. Yes."

It appears from the foregoing answers that Mr Garland was unaware as to whether or not the playground lighting was in fact switched on in the mornings at the time when the plaintiff attended in darkness on the day the plaintiff was injured.

Mr Alan Andoni is the deputy principal of the Toukley Public School. He has held that position since October 2004. He stated that between October 2004 and 24 February 2005 nobody had reported to him that the light fittings on the eaves of the toilet block were not working. Similarly, he also stated that in that period nobody had reported to him that the covering grate of the drainage pit in Exhibit "C" had been removed. He said in the ordinary course, information concerning events such as the removal of the covering grates or the operation of the light fittings would not come to his attention as a matter of course. Mr Andoni also said that he would not know about day-to-day repairs carried out by the groundsman Mr Garland, however he said that if the repairs were major, they would have been carried out by contractors.

In contrast to Mrs Coulthart's evidence Mr Andoni said that in the period between October 2004 and 24 February 2005 he didn't receive any complaints that the lights in the area where the plaintiff fell were not functioning.

Mr Andoni described the toilet block as P block and identified another area as the RW toilet block situated about "6 metres, 5 metres from that area". From this evidence and from its context I infer "that area" to be a reference to the area where the plaintiff had fallen. In any event the distance of some 5 to 6 metres does not seem to be significant. Mr Andoni described the area where the plaintiff fell as being the main thoroughfare from the street to the school hall. Mr Andoni also acknowledged that at some time which was not identified in the evidence, he had been requested by the cleaners to leave the lights on. He said that after he was asked to do so he complied with that request, having previously been in the habit of turning the lights off manually as those lights were not on the automatic switch that affected the lighting fro the rest of the school. Presumably this was in order to save electricity costs.

Mr Andoni described the presence of about eight removable covering grates in the school grounds. He acknowledged that in the period October 2004 to February 2005 vandalism had occurred regularly within the school grounds. He described the targets of the vandals as being the breaking of windows and the removal of rails from garden fences for use in connection with skateboarding activities. He said that before 24 February 2005 he had never been informed, and did not know, that it was the practice of vandals to remove the covering grates of drainage pits of the kind shown in Exhibit "C". He acknowledged that if teachers or the groundsman had seen that such covering grates had been removed and needed to be replaced into position, he expected that they would have simply done so. He stated that the groundsman had overall responsibility for such matters.

Mr Andoni acknowledged that in the period leading up to the plaintiff's injury the school had a problem with vandalism on a very regular basis. He thought that this was more to do with the smashing of windows. He said no one had reported to him that there was a recurring problem concerning the removal of the covering grates of the drainage pits. He said that if this problem had occurred more than once he would have expected to have been informed about it. He made a distinction between the grates covering the drainage pits and a grille that was fitted to cover a disused sullage pit, the former being removable and the latter being welded down into position.

He denied having conversations with Mrs Coulthart regarding lighting problems within the school but he acknowledged having general conversations with her regarding vandalism at the school. He later qualified that evidence by stating that he had no memory of discussions concerning the lighting. He acknowledged that he had periodic conversations with cleaning supervisors concerning cleaning issues but said that the subject of lighting of the premises was not discussed.

About 3 years after the plaintiff's fall Mr Andoni was interviewed by an investigator on behalf of the defendant. Subsequently, on 11 November 2008, on the first day of the trial, he signed a statement that was admitted into evidence as Exhibit "L". Some of the content of that statement was expressed to have been based on his own knowledge. Other parts of the statement were expressed to have been based on assumptions as to what he understood would have been the actions of another principal and other deputy principals. These persons were not called to give evidence on the matters which Mr Andoni had assumed in his statement.

Exhibit "9" comprises photocopies of selected portions of the school maintenance book which provided a means of recording the date and job description of maintenance problems to be communicated to the groundsman for his remedial attention. The setting out of the book also provided for a notation of the contact name of the person reporting the problem. A column in the book was also reserved for the insertion of a date or initials to signify that a designated task had been completed. The exhibit comprises a very poor photocopy of the original and it contains many entries that are barely legible.

Between 24 March 2003 and 8 February 2005 the book contains some 20 discernable entries which concern various lighting and light switch problems. Of those entries, those more contemporaneous to the plaintiff's injury were dated 31 January 2005, 2 February 2005 and 8 February 2005. These concerned problems with fluorescent tubes. There were two lighting problems reported by the plaintiff on 8 February 2005 concerning a flickering tube at H 13 and lights not working properly in the G 18 area. These areas were not identified in the evidence. Significantly, the entry in the maintenance book for 25 February 2005, which was the day after the plaintiff's injury, stated: "2 out of 4 lights not working in class room. Can we get new fluoro bulbs?". There were no discernable entries concerning the external lighting.

Analysis of the evidence on the external lighting issue reveals a division of views into three groups. The position of the first group, comprising the plaintiff and Mrs Coulthart, was that the area where the plaintiff fell was not externally lit on the morning when the plaintiff was injured. Another position was that of Mr Garland. He did not know whether the external lights were working on that day. Mr Garland also conceded that the lights may not have been working for some time before the plaintiff's injury. The third position concerning the external lighting issue was that of Mr Andoni who stated that nobody had reported to him that the lights were not working before the plaintiff was injured. Further, Mr Andoni denied that in the period October 2004 and February 2005 he had received any complaints from Mrs Coulthart to the effect that the external lighting was not functioning. There was some doubt in the evidence of Mr Andoni as to whether he had in mind the same area as the other witnesses. In his statement Mr Andoni said: "10. I have not ever received any complaints from cleaners regarding the amount of lighting at and around the location of Mrs Schneider's fall. This is not in the area where Mrs Schneider allegedly fell.

I have received complaints regarding the RW toilet block. We addressed this problem immediately. The toilet lights are permanently on now."

Having considered the whole of the evidence on the issues concerning the state of the external lighting in the school grounds on the morning of the plaintiff's injury I prefer the evidence of the plaintiff and Mrs Coulthart to that of Mr Andoni and I find that the external lights were not operating to illuminate the area where the plaintiff fell. I have come to this view for a number of reasons.

First, Mr Andoni's evidence on the lighting issue is based on an assumption that was not the subject of evidence. It is apparent from the wording of Exhibit "L' that Mr Andoni has assumed that the previous principal, Ms Ingram, whom he had relieved for a time during her illness, and the previous deputy principal, Mr Murray, "would have" informed him if there had been a history of complaints from cleaners at the school concerning the adequacy of the lighting on the site. I consider this evidence to have a flawed foundation rendering it to be of no probative value because the persons who could have validated the matters implicitly assumed by Mr Andoni were not called to give evidence along the lines of the matters that he had assumed.

Secondly, I consider that Mrs Coulthart's evidence on the issue of there having been previous complaints over the state of the lighting was inherently credible and not glaringly improbable. It was entirely reasonable that as the cleaning supervisor, she would have had occasion and justification for complaining to the school authorities about the state of the lighting as a safety issue and it was also reasonable that she would also be present when another cleaner voiced his similar complaints to the school concerning the lighting problems as she had described in her evidence.

Thirdly, I consider Mr Andoni has confused the lighting issue by reference to complaints about lighting in the vicinity of the RW block within the grounds as distinct from the P block. I consider this to be so because he was not present when the plaintiff fell and in the absence of evidence of him later being shown precisely where the plaintiff had fallen, it has not been demonstrated that he was in a position to authoritatively deny the factual assertion concerning the location where the plaintiff had sustained her injury. In any event I consider that the difference in location between P block and the RW block, described by Mr Andoni to be some 5 or 6 metres, to be of only limited significance given the surrounding conditions of darkness. I did not understand Mr Andoni's evidence to indicate that the lighting at one block illuminated the area of the other.

Fourthly, I consider that Mr Andoni has confused the connection between the history of acknowledged complaints from the cleaners concerning lighting as was made by Mrs Coulthart and his understanding of the place where the plaintiff fell. I consider that confusion has influenced and rendered incorrect his understanding of the location of the where the plaintiff fell. Accordingly, I prefer Mrs Coulthart's evidence about the complaints she made to the school authorities, including to Mr Andoni and to his predecessors over the absent lighting in the area where the plaintiff fell.

Fifthly, although in paragraph 21 of Exhibit "L" Mr Andoni has stated that it had never been the policy of the school to turn off the lights for the toilet blocks in the evening, particularly since the premises were let out to other organisations, including for dancing lessons and, as his evidence also explained, for karate lessons, I consider that his understanding of the lighting policy was not borne out by his oral evidence. In his oral evidence he explained that he had previously made a habit of turning the lights off manually and had ceased doing so when asked by the cleaners not to do so. In these circumstances I am inclined to accept the evidence of the plaintiff and Mrs Coulthart when they say the lights were not on in the area in question in preference to Mr Andoni's evidence on his understanding of the state of the lighting, such evidence being based on his understanding of the policy rather than the fact of whether or not the lights were working at the time of the plaintiff's injury. In the context of his evidence I interpret Mr Andoni's reference to this lighting as the external lighting. In view of Mr Andoni's evidence concerning the past practice of switching off the lights I consider it more probable than not that Mr Andoni had in fact switched the external lights off at some time before the plaintiff's injury, as was explained by his evidence on this topic. In my view this explains why the premises were in darkness on the morning of the plaintiff's injury.

Sixthly, I am reinforced in my views as to the absence of lighting on the morning of the plaintiff's injury because Mr Garland confirmed the possibility this may have been the case when he agreed that the lights may not have been working for some time before the plaintiff's injury. This indicates that Mr Garland's evidence was not contradictory of the evidence of the plaintiff and Mrs Coulthart when they said the lights were not switched on when the plaintiff fell. I do not regard Mr Garland's evidence concerning the haphazard nature of the process of testing of the lights to be contradictory of this proposition either because the fact of his tests and the method of his testing would not have been necessarily inconsistent with Mr Andoni's evidence of switching off the lights. The opportunity for Mr Andoni to switch off the lights would have arisen at any time including in the evenings after the school had been used for other activities particularly since Mr Andoni said in his evidence that he had been at the school on such occasions.

Seventhly, I do not regard Mr Andoni's evidence that he did not recall complaints about the lighting not functioning in the period between October 2004 to February 2005 as being definitive of the issue because, as he confirmed, there were some 82 lights in the school and no records were tendered or evidence called as to the maintenance history of these lights. Without such evidence, in my view it is unlikely that his evidence on the lighting issue was likely to be accurate, particularly since he was only asked about these matters by an investigator some three years after the incident and his statement on the matter, which I consider to be the basis of his evidence, was only made on the first day of the trial.

Eighthly, I do not consider that because the groundsman's book makes no mention of complaints about lighting, this means that the evidence of Mrs Coulthart and the plaintiff should be discounted or not accepted on the lighting issue. The evidence did not suggest the groundsman's book to be a definitive log or record, it was simply a record.

I therefore find that shortly after 5.15am on 24 February 2005 when the plaintiff fell into the uncovered opening of a drainage pit in the school playground, she did so because the external lights in the area of the drainage pit were not operational. This meant that the plaintiff was required to walk in that area in darkness, which in turn led her to fall and sustain injury.

Issue 2 - Removal of covering grates of drainage pits

Analysis of the issue concerning the history of removal of the covering grates of the drainage pits by vandals does not reveal the same degree of division of views within the evidence as does the lighting issue. The area of dispute concerning the grate was not whether the covering grate had been removed in the area where the plaintiff had fallen, but whether the school authorities knew that similar episodes of removal of covering grates had occurred in the past. The plaintiff's evidence on this issue was non-contributory as there was no real issue that the particular grate had been removed, thus permitting her to fall. The evidence in common to Mrs Coulthart, Mr Garland and Mr Andoni was that there had been a significant history of vandal activity at the school and that this had been a recurring problem for some time. The area of difference in the evidence was one of detail. On the specific issue of vandalism involving the history of the removal of drainage pit grate covers, the difference in the evidence was polarised between the evidence of Mr Andoni on the one hand and Mrs Coulthart and Mr Garland on the other.

Both Mrs Coulthart and Mr Garland stated that there had been intermittent past vandal activity at the school and that this had involved removal of the covering grates of the drainage pits. Mrs Coulthart described this practice as a continuing problem where vandals would remove the grates and stack them for use in connection with skateboard activity. She stated that this had occurred approximately monthly. Mr Garland was in general agreement with this evidence in the sense that he agreed there were problems with vandals removing the drainage pit covers although he said that this had occurred on about 4 or 5 occasions before the plaintiff's injury. In contrast Mr Andoni's position concerning the grates was that although he agreed there was a problem with recurring vandalism on a regular basis, no one had reported to him that there was a problem with the grates being removed. Earlier, in his statement he said: "… we had not experienced any drain covers being removed by vandals ."

Having considered the whole of the evidence on the issue of the history of vandalism concerning the removal of covering grates of the drainage pits, I prefer the evidence of Mrs Coulthart and Mr Garland to that of Mr Andoni. I have come to this view for a number of reasons.

First, I consider that Mr Andoni's own awareness of the activities of vandals at the school concerning the removal of the drainage pit covers was necessarily limited because, as he said, it was the responsibility of the groundsman to deal with such matters, meaning that such matters would not normally come to his attention. I consider this to be the reason why at paragraph 7 of Exhibit "L" Mr Andoni stated that the school had not experienced any drain covers being removed by vandals. In my view Mr Andoni most probably gave that evidence because when such incidents came to the notice of the groundsman and the teachers they were likely to have been considered to be relatively minor matters and were probably given remedial attention on an as need basis by the groundsman responsible or by teachers, without the need to trouble Mr Andoni or to require the engagement of outside contractors to effect repairs or to incur expense that required the approval of Mr Andoni.

Secondly, I infer from the stated weekday work starting times of the cleaners, namely at 5.00am, and the starting time for the groundsman, namely at 7.00am, that they would most probably have commenced their duties well before Mr Andoni would have arrived at the school and therefore these persons were most probably in a better position than Mr Andoni to have personal knowledge of the fact of, and the incidence of, the disruptive activities of vandals in the school grounds.

Thirdly, I consider that Mrs Coulthart was in a better position than Mr Andoni, and for that matter Mr Garland, to have an awareness of the fact of, and the incidence of vandals removing the covers of drainage pits in the school grounds. I consider this to be so because she and her colleagues whom she supervised were more immediately and more directly affected by those activities than Mr Andoni. As the cleaning supervisor, Mrs Coulthart also had an interest in knowing these matters and ensuring that they were appropriately dealt with. It is for this reason that I consider that Mrs Coulthart was able to more authoritatively describe a greater frequency of occurrence of such incidents than was the impression conveyed by Mr Garland in his evidence. That said, in substance, I consider that there was no real issue between the evidence of Mrs Coulthart and Mr Garland as to whether or not there was a relevant history of removal of the covering grates of drainage pits by vandals.

Fourthly, the description given by Mr Garland of the practice of skateboarders removing and stacking the grates in order to use them as an adjunct to their skateboarding activities seems to me to be more plausible than Mr Andoni's description of his understanding of the practice of skateboarders removing fence railings for use in those activities.

Fifthly, I consider that in his evidence Mr Andoni has confused the issue of the actual location of the pit where the plaintiff fell. He described a welded down metal grille over a disused sullage pit located some distance away from where the plaintiff and Mrs Coulthart identified the location where the plaintiff fell. Since there is no evidence that suggests that Mr Andoni was shown the precise location of the fall I consider that the plaintiff and Mrs Coulthart were in a better position to identify this location than was Mr Andoni. There is no evidence to suggest that Mr Andoni had first hand knowledge of the location of the fall. I therefore prefer the evidence of the plaintiff and Mrs Coulthart as to the location of the fall and therefore, the identification by them of the particular open drainage pit where the plaintiff fell.

Sixthly, in connection with the activities of skateboarders, as is evident from paragraph 8 of Exhibit "L", Mr Andoni's source of information concerning these persons was hearsay from staff in the context of the skateboarders being "pests and using bad language rather than them being a physical threat". The quoted portion of Mr Andoni's statement indicates to me that the staff who reported the skateboarder's activities to him most probably did not inform him of the removed covering grates of the drainage pits, which explains his unawareness on the issue compared with the evidence of Mrs Coulthart and Mr Garland.

I therefore find that in the months leading up to the plaintiff's injury on 24 February 2005 there was a problem with vandalism at the school in that vandals made a periodic practice of removing the covering grates of drainage pits in order to stack those removed grates for use as an adjunct to skateboarding activities within the school grounds.

I also find that the fact that vandals had removed the covers of drainage pits from time to time was known by Mr Garland whose job it was to be concerned with maintenance and repair of matters to do with the school grounds. As the employee at the school who had the responsibility for dealing with such matters he knew that the removal of such covering grates could be a hazard within the playground. Confirmation of this view is found in his evidence that whenever he observed the removed grates, in accordance with his allocated responsibilities as was described and confirmed by Mr Andoni, he replaced the removed covering grates back into the correct position. This was doubtless because he understood that if drainage pits in the school grounds were left open without grates covering them they would constitute a hazard to those using the school playground, whether those persons were schoolchildren, members of school staff or the employees of outside contractors such as the plaintiff. This is especially so where this latter category of entrants had a legitimate reason for entering upon the grounds in the hours of darkness in order to perform the work for which they were employed.

Issue 3 - The existence, nature and content of the duty of care owed

There can be no issue that as occupier of the premises the defendant owed a general duty of care to entrants onto the premises. The defendant did not argue a contrary proposition. The scope and burden of the duty owed was to take reasonable care to prevent damage from unusual danger of which the occupier either knew or ought to have known, having regard all the circumstances : Papatonakis v Australian Telecommunications Commission & Anor [1985] HCA 3; (1985) 156 CLR 7.

The law concerning the content of the duty owed by an occupier of premises is well settled and requires that reasonable care be taken in all the circumstances in the face of a foreseeable risk : Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7 per the majority at [11] to [12]; (1987) 162 CLR 479 at p 488 following Hackshaw v Shaw [1984] HCA 84 per Deane J at [26]; (1984) 155 CLR 614 per Deane J at pp 662 - 663.

The circumstances that are relevant in this case include the fact that the defendant asserted and maintained a measure of control over the manner and circumstances in which the plaintiff entered upon the defendant's premises. The plaintiff entered onto the premises by an arrangement between the defendant and her employer in circumstances where the defendant had the knowledge and the expectation that she would do so. In such circumstances there is no room for entertaining any argument over a lack of proximity.

Issue 4 - Was there a relevant breach of the duty of care owed?

Before analysing the question of whether there has been a breach of duty of care it is necessary to determine whether the plaintiff has satisfied the statutory requirements for establishing the foreseeability of the harm suffered by the plaintiff.

The general law principle is that a risk of injury is foreseeable, as long as it is not far-fetched or fanciful, notwithstanding that it is more probable than not that it will not occur : Wyong Shire Council v Shirt [1980] HCA 12 per Mason J at [13]; (1980) 146 CLR 40 at 40 - 49. That statement requires consideration within the context of s 5B of the Civil Liability Act 2002.

I consider that circumstances in which an occupier knew or ought to have known that the episodic activities of vandals in which drainage pit covers are removed to leave such pits open, in combination with the known use of premises where this occurs, including access by cleaners in the hours of darkness, gives rise to foreseeable risk of harm by falling into an open drainage pit : s 5B(1)(a) of the Act.

I consider that the presence of an open and uncovered drainage pit on premises left in darkness where the occupier knows cleaners will walk within those premises indicates that the risk of harm arising in such circumstances is not insignificant : s 5B(1)(c) of the Act.

Following on from the foregoing considerations, I consider that a reasonable person in the position of the responsible employee of the defendant would have taken precautions against the risk of harm arising from such circumstances : s 5B(1)(c) of the Act.

Given that cleaners on the premises were likely to walk through unlit areas between the buildings in the school grounds where darkness would conceal any drainage pits left uncovered due to removal of covering grates, I consider that there was a high degree of probability that persons such as the plaintiff would be harmed by falling into an uncovered drainage pit and suffer serious injury : s 5B(2)(a) and (b) of the Act.

I consider that in the circumstances described there was a reasonable social utility in allowing cleaners access to school grounds outside normal school hours : s 5B(2)(d) of the Act. I also consider that the precautionary step of ensuring that the premises were not left in darkness when the cleaners arrived on the premises to start their work was in reality no burden : s 5C of the Act, and would have involved insignificant cost : s 5B(2)(c) of the Act. This is not an issue on which expert evidence is required for proof.

The plaintiff has argued that the defendant was in breach of the duty of care it owed to her with respect to the provision of safe access to the workplace, the provision of external lighting in the darkened areas of the school grounds and the non-fixing into place of the covering grate of the drainage pit to prevent its removal. The plaintiff has also argued that she has established the foreseeability issue that she is obliged to prove as is required by the Civil Liability Act 2002.

In contrast, the defendant has argued that as occupier of the premises it did not have a duty to inspect the premises for the purpose of discovering the presence of unsuspected defects : Stannus v Graham (1994) Aust Torts Reports 81-293 at 61,564 to 61,565.

The defendant has further argued that it did not know and ought not be taken to have known that the lighting was not working in the area where the plaintiff fell. The defendant has also argued that it did not know that the grate in that area had been removed. The defendant has submitted that the plaintiff has failed to show that the defendant knew or ought to have known of the risk to her consequent upon the absence of the covering grate at about the time of her injury and therefore submits that the plaintiff has failed to establish the issue of foreseeability as is required by s 5B of the Act.

In addition, the defendant argued that, in any event, the plaintiff knew of the risk of walking about the premises in darkness and she nevertheless elected to proceed notwithstanding that the area in question was not illuminated. In this regard the defendant draws attention to the common ground between the parties namely that it did not actually know that the grate had been removed or, alternatively expressed, the plaintiff has been unable to show that the defendant actually knew that the grate had been removed. The defendant consequently asserts that the plaintiff sustained injury because she chose to continue to proceed in the area that she knew was inadequately lit, and where, co-incidentally, the covering grate in question had been removed where it has not been shown that such removal was due to negligence on the part of the defendant.

In the ensuing paragraphs I sequentially examine the defendant's submissions on the issue of breach of duty of care.

Argued absence of a duty to inspect for unsuspected defects

In my view the defendant's submission based on the decision in Stannus v Graham to the effect there is no duty to inspect for unsuspected defects is flawed in its application to the facts of this case. In my view that decision cannot be said to be of universal application and must be subject to a consideration of particular factual circumstances which includes an occupier's actual or imputed knowledge of what activities have occurred and are likely to recur on the premises.

In this case the particular factual circumstances were that the defendant was on notice of the occurrence of episodic vandalism in which the covers of drainage pits were removed so as to cause a potential hazard to pedestrian traffic within the premises. This was a specific matter of which the defendant knew and, by reason of episodic recurrences, ought to have reasonably anticipated might recur, albeit on an unpredictable basis. In this regard the condition of the premises did not remain static and the details of the potential hazards was known to the groundsman, if not to others in authority. Further, the deputy principal at least knew of the potentially hazardous misuse of fence railings and graffiti.

In these circumstances, I consider that it was not appropriate or safe to leave the premises unlit during the hours of darkness and at times when the defendant could reasonably expect that cleaners would enter onto the premises and would be the first persons to be confronted by the effect of any overnight vandalism activity. In such circumstances, given that it was not practicable for someone to attend to inspect the premises each day before the cleaners arrived to do their work, at the very least the defendant should have ensured that the premises were adequately lit by external lighting, when the cleaners arrived. This could have been done by an automatic timer switch or the cleaners could have been given access to a conveniently placed switch. This would have enabled the cleaners to see and assess the state of the premises and the result of any vandalism activity that had occurred overnight before being placed at risk of injury from the residual effects of such vandalism activity.

Claim of no actual or implied knowledge of lighting not working

The defendant has submitted that it did not know and ought not be taken to have known that the external lighting was not working at the time of the plaintiff's injury. I do not accept that submission as being reasonable in the circumstances of this case. I have come to this view for a number of reasons which follow.

First, I accept the evidence of both the plaintiff and Mrs Coulthart to the effect that the lights over the area where the plaintiff fell were not operating on the morning the plaintiff was injured.

Secondly, I consider that the evidence of Mr Andoni provides a reasonable explanation as to why the lights in question were not operating on the morning of the plaintiff's injury. In this regard I accept Mr Andoni's evidence in which he explained that the external lights around the toilet block area were not left on the automatic master switch that affected or controlled the rest of the lights at the school. In my view this provides a reasonable and probable explanation for why the lighting was not on at the time of the plaintiff's fall.

I also accept Mr Andoni's explanation that he had been in the habit of manually turning off the toilet block lights until the occasion arose when he was asked by the cleaners to leave the external lights on. I infer that this request was made of Mr Andoni after the plaintiff had experienced her fall. In this regard I accept the evidence of Mrs Coulthart that she had previously made lighting requests of a relieving principal before Mr Andoni had assumed that role. In those requests she had asked that the issue of the absence of lighting in the area be addressed and I accept her evidence that for whatever reason, her requests were not acted upon.

I infer from the evidence of Mr Andoni that at the time he assumed the role of deputy principal, the practice in place at the school was to leave these lights manually switched off at night. I consider that such a practice was not a reasonable one in the circumstances because, as deputy principal at the time, Mr Andoni must have been aware or at least ought to have known about the starting times for cleaning roster times that were in operation at the school. Those rosters required that during school term the cleaning staff were contracted to start at 5.00am in the morning. In my view it must have been obvious to anyone in authority at the school, giving the matter reasonable consideration, that at the time the cleaners would arrive at the school in the early morning, a main thoroughfare within the school grounds would still be in darkness. In my view, in such circumstances, the decision to turn off the lighting in that area at night was not consistent with the exercise of reasonable care in the circumstances.

In my view it was also unreasonable for the occupier of the school, through the actions of the deputy principal, to permit a situation to arise whereby in order to gain access to the places at which they were required to work, the cleaning staff were required to walk through the school grounds in darkness. I consider this to be so because such circumstances could foreseeably give rise to a risk of injury from a number of potential causes, including bumping into obstacles left in the playground, whether due to the inadvertence of students or others, or due to the after hours activities of vandals. I consider this to be so especially where the school authorities, including Mr Andoni and the groundsman Mr Garland, were well aware of past disruptive and destructive activities of vandals on the premises over time and after normal school hours.

On the matter of the removal of the actual covering grate of the drainage pit into which the plaintiff fell, I accept the defendant's submission that it did not have any actual knowledge of the absence of that grate on this specific occasion before the plaintiff fell into the pit. I have come to this conclusion because no evidence has been adduced or any interrogatory tendered to suggest that the defendant had an actual awareness that this particular covering grate had been removed from its position of covering the pit over which it was normally housed.

Although I have found that the defendant had no actual knowledge that the grate in question had been removed, I reject the defendant's related submission that it should not be taken to have had imputed knowledge that a person in the position of the plaintiff would be at risk of injury caused by falling into an uncovered drainage pit left open by reason of the earlier removal of a covering grate. I have come to this conclusion for a number of reasons.

First, I find that there was a general awareness amongst those responsible for considering safety issues at the school, including the successive deputy principals and the groundsman, that there was a problem with vandalism at the school. There was common ground between Mrs Coulthart, Mr Garland and Mr Andoni concerning the fact that vandalism was a continuing problem at the school.

Secondly, it is clearly apparent from the entry at page 38 in the groundsman's book on 16 February 2005 some 7 days before the plaintiff's injury, that someone had written "Grill (sic) over big drain behind my demountable is missing … JOH". I infer from this entry that the persons responsible at the school were aware of the contemporaneous activities of vandals at the school.

Thirdly, I find that, in the months before the plaintiff's injury, Mrs Coulthart had drawn to the attention of the school authorities the issue of concern over vandalism at the school. I reject the defendant's argument to the effect that such a conclusion is not open on the evidence on account of the fact that the issue of vandalism was not relevantly noted in the groundsman's notebook, Exhibit "9". That submission takes no account of the entry in the book on 16 February 2005. In my view the groundsman's notebook was simply a means of communication with him. It was not the only means of communication with him. Also, I consider that it was not a definitive record of complaints. In my view it would be unreasonably onerous in this case to require proof of complaints by reference to corroboration in the groundsman's notebook. This is particularly so where the groundsman commenced his work duties in daylight hours at 7.00am at which time, when present, the evidence of vandalism would have been self evident on inspection of the school grounds and in such circumstances it was the duty of the groundsman to make inspections and to attend to any required remedial work. There was no evidence that the system of work required him to make a record of such matters either before or after remedying the situation. I consider that in such circumstances the requirement of corroboration of the fact that there had been vandalism by identifying confirmatory entries in the groundsman's notebook represents an unreasonably high counsel of perfection in this case.

Fourthly, the fact that Mr Andoni was unaware of the fact that there had been previous episodes of vandalism in the school grounds, at least 4 or 5 in number, in which the covering grates of drainage pits were removed so as to expose the pit openings below, does not mean that such events did not in fact occur. In this regard I accept the evidence of Mr Andoni that minor matters, which I find would include the removal and replacement of the covering grates of drainage pits, would not have necessarily have come to his attention. In arriving at this conclusion I accept Mr Andoni's evidence that the expectation at the school was that if a teacher or the groundsman had become aware of an uncovered drainage pit such staff members would have been expected to act prudently given the presence of primary school children and simply replace the grate into its correct position to cover the opened pit. I find this to be the case especially where the groundsman had overall responsibility concerning such matters. Whilst I accept as reasonable Mr Andoni's expectation that if the phenomenon of vandals removing the covering grates from drainage pits had occurred at the school on more numerous occasions than just once, this circumstance warranted that he be informed of the occurrences, the fact that Mr Andoni was not made aware of the occurrence of some 4 or 5 such instances does not necessarily indicate that removal of the drainage pit covers did not occur on more than one occasion. In this regard I accept the evidence of Mrs Coulthart and Mr Garland that such events occurred on multiple occasions, at least 4 or 5 in number, in the months before the plaintiff fell and suffered her injury.

In this regard, I find that the failure of school staff to communicate to Mr Andoni the fact of such multiple occurrences of removal of the covering grates by vandalism in itself represented a systemic failure to take reasonable care to ensure the safety of persons legitimately entering onto the premises in the hours of darkness. I find that Mr Andoni's expectation of wanting to be informed of such matters was a reasonable one and was obviously directed at the need for any such repeated occurrences to be considered and addressed in a prudent and preventive manner as would be required by proper risk management principles in order to anticipate and deal with the risk of injury to persons such as the plaintiff. The fact that he was not so informed does not detract from the argument that the school ought not be taken to have imputed knowledge of such matters, as I find it did.

I find that a simple and expedient way of managing the risk of injury due to the activities of vandals on the premises would have been to simply leave the external lights on in the areas of the school grounds where the cleaners were expected to walk when carrying out their duties. Alternatively, the lights could be set to switch on using a timer switch or the cleaners could have been given access to the manual switch. In either of those ways, in a systematic sense, if on arrival cleaners found the premises to be in darkness when they knew the lights were supposed to have been left on, they would then have been on notice that something was amiss and that it may be unsafe to proceed without first safely establishing a means of illuminating the intended pathway ahead. If the lights were found to have been left on or were capable of being switched on then there would be no true safety issue or at least no concealed danger because if the drainage pits had been left uncovered by vandals and the lights in the area were left on, the safety issue would have been self evident to the cleaners.

Conclusions on breach of duty of care and foreseeability

For the foregoing reasons I find that the defendant had relevantly breached the duty of care that it owed to the plaintiff as occupier of the school grounds. I also find that the plaintiff has satisfied the requirements for establishing the foreseeability of her injury within the meaning of s 5B of the Civil Liability Act 2002.

The general principles governing causation are set out in s 5D of the Act. The plaintiff bears the onus of establishing causation : s 5E of the Act.

The plaintiff has submitted that if the defendant had taken note of the longstanding risks and taken appropriate precautions the plaintiff's injury would not have occurred. The defendant's submissions did not engage with s 5D of the Act.

In my view the plaintiff has established factual causation within the terms of s 5D(1)(a) of the Act because I consider that it was most unlikely that the plaintiff would have been injured if the area where she fell had been illuminated. If the external lights had been on, whether they were left on overnight or placed on an automatic time switch set to turn on the lights shortly before 5.00am when the cleaners were due to arrive, matters not; if the area had been illuminated the plaintiff would have been in a position to see the uncovered drainage pit and she would most likely have avoided stepping forward into it to sustain the injuries she received. Alternatively, the same position would arise if the plaintiff or Mrs Coulthart had access to the manual switch that operated the external lights.

In these circumstances, foreseeability having been established according to the principles embodied in s 5B of the Act, I consider it to be appropriate that the scope of liability for the harm suffered by the plaintiff be extended to establish causation : s 5D(1)(b) of the Act. I came to this view because I consider that the plaintiff's injury could have been avoided if the school authorities had exercised reasonable care by ensuring the area in question was illuminated at the time the plaintiff was injured. The failure to take reasonable care has, in the relevant sense, caused the plaintiff's injury and it is therefore appropriate that the defendant should bear the responsibility for this event : s 5D(4) of the Act.

The defendant has submitted that the circumstances of the plaintiff's injury plainly indicate that there was a high degree of contributory negligence on her part because the plaintiff allegedly failed to take care for her own safety. In support of its submitted position the defendant points to the fact that the plaintiff knew that the area in which she was required to walk was in darkness and on her own understanding, it was inadequately illuminated. The defendant submitted that the fact that the plaintiff believed that a torch should have been provided to her and, notwithstanding this, she proceeded to walk through the area in question in darkness and claims this demonstrates a high degree of contributory negligence on her part.

The defence filed alleges contributory negligence on the plaintiff's part in the following respects: (a) Failing to maintain a proper lookout;

(b) Failing to have proper regard to her own safety;

(d) Failing to seek assistance from her fellow employees and supervisor;

(e) Failure to use portable lighting equipment such as a torch to access her place of work.

The defendant has submitted that particulars (c) and (d) of the pleaded particulars of contributory negligence have been made out.

The plaintiff submitted that a defence of contributory negligence had not been made out. In support of that position the plaintiff relied upon an analogy drawn from the decision in Tarabay v Liete [2008] NSWCA 259 at [49] to [55] per Basten JA where the lighting in that case was poor, far away and weak. It was submitted that the plaintiff was not contributorily negligent in adhering to the system of work that had been devised by her employer.

I do not accept the defendant's submission that there was contributory negligence on the part of the plaintiff for the following reasons.

First, although it is correct that the plaintiff knew she had to walk in darkness, apart from her evidence to the effect that she was frightened of the dark, she had no actual notice of anything being untoward or amiss within the premises that could have constituted a danger other than that the lights were not on in the area she was required to walk. In these circumstances, where she walked slowly and where she did not run, if there had been obstacles other than the uncovered drainage pit in front of her, such as a chair, a bench or other items concealed by darkness, I consider it likely that either she or the equipment she was carrying would have made some minor contact with any such obstacles in a low impact and non-injurious way.

Secondly, it has not been shown on the evidence that the plaintiff herself had any direct, or for that matter, imputed knowledge, of the presence of uncovered drainage pits in the playground. There was no evidence that suggested or tended to suggest that the plaintiff knew that such things were present in the playground and in the area over which she had to walk. Unlike the school authorities, the plaintiff was not shown to be in the position of being aware of the history of vandalism that made the presence of an open and uncovered drainage pit a reasonably foreseeable phenomenon.

Thirdly, in these circumstances, I consider that it could not be reasonably said that the plaintiff failed to maintain a proper lookout or that she failed to have due regard for her own safety, as has been alleged. This is so particularly since she was walking and not running. In my view, the activity of walking in the dark as required by her employer, of itself, does not amount to contributory negligence.

Fourthly, I consider the defendant's assertion that the plaintiff failed to ensure the provision of adequate lighting in the area in which she had to walk to be misplaced. This is because there was no evidence that the plaintiff was aware of the location and means of operation of the light switches for illuminating the area over which she had to walk. It may have been slightly different if the evidence disclosed that she had received instruction on such matters. Further, her employer had assigned to her the work task that required her to walk through the unlit area and this was something over which she could not assert any effective control by way of countermand or refusal. In these circumstances, in the work setting, she was entitled to assume, until the contrary was brought to her attention, that her employer had observed and had adequately discharged the non-delegable obligation it had to ensure that the plaintiff was provided with a safe system of work that was devised following an adequate assessment by the employer of the potential risks of injury that may have arisen from within the system of work adopted by the employer. The position might have been different if the evidence disclosed that the plaintiff had been informed and was aware of the location of the light switches that controlled the lights in the area in which she had to walk as well as being informed of the need to switch the external lights on before walking through the grounds.

Fifthly, when the plaintiff started walking to the area of the toilet block she walked from an area where there was some light into gradually increasing darkness as the projected lighting from the area from where she had set off had a diminishing field of projected illumination. In proceeding to walk forward in this manner, in the absence of notice of any problems ahead of her, I do not consider that the plaintiff had acted unreasonably in the circumstances, particularly in the absence of knowledge on her part of past problems with uncovered drainage pits.

Sixthly, I consider the suggestion that the plaintiff had failed to seek assistance from her fellow employee and supervisor, including by using a torch or portable lighting equipment, is untenable. I consider this to be so because there was no evidence that a torch was available to assist the plaintiff had she asked for such assistance. In fact the unchallenged evidence is to the opposite effect, namely that the plaintiff's supervisor, Mrs Coulthart had previously and fruitlessly requested of the employer that a torch be made available. Accordingly there is no indication that such a request to provide a torch, made by the plaintiff of her supervisor, would have been met with any different result to that obtained by Mrs Coulthart. Further, there is no evidence that the plaintiff had a mobile telephone available to her for use as a source of illumination in the manner that was described by Mrs Coulthart. Accordingly, I consider that there is no sound basis within the evidence to find that if the plaintiff had requested such assistance from Mrs Coulthart, that assistance in the form of portable lighting would have been forthcoming.

The defendant did not argue that the activity undertaken by the plaintiff involved "obvious risk" within the meaning of s 5F and s 5G of the Civil Liability Act 2002. In the absence of knowledge of the open drainage pit and in the absence of knowledge that such a phenomenon had occurred on the site in the past, I do not consider that it could be reasonably said that the plaintiff suffered harm due to an obvious risk within the meaning of those sections.

Following the above analysis, I have concluded that there has been no contributory negligence on the part of the plaintiff in this case. I have come to this view because the plaintiff was carrying out her work in the manner in which her employer instructed her to do so. She did not depart from those instructions and there was no scope for her, having regard to the equipment provided to her by her employer, to provide her own means of lighting the path by which she had to proceed within the grounds in order to carry out the work. Her options were either not to carry out the work because the employer had not provided her with a torch by which to light her path or to provide her own torch. The former proposition would have without doubt caused her problems with her continued employment. I find the latter proposition to be an unreasonable one in the industrial setting of an employer and employee relationship where the employee is required to from time to time access her workplace in darkness. Accordingly, I find that the defendant has failed to demonstrate contributory negligence on the part of the plaintiff. The plaintiff is therefore entitled to a verdict on the liability issues without discount for alleged contributory negligence.

Issue 7 - Employer's liability and s 151Z(2) issues

Defendant's submissions on employer's liability and s 151Z(2) issues

The defendant has highlighted the employer's non-delegable duty of care requiring it to take reasonable care for the safety of its employees to avoid exposing them to unnecessary risks of injury : Czatyrko v Edith Cowan University [2005] HCA 14 at [12]; (2005) 214 ALR 349 at p 353. The defendant has also pointed to the appropriately informed belief held by Mrs Coulthart that the area where the plaintiff was injured was inadequately lit and could be dangerous if the grates covering the drainage pits were displaced by vandals because the absence of lighting made the area hazardous in darkness. The defendant argued that in these circumstances the employer's obligation to devise an appropriate method by which to safeguard the plaintiff against exposure to unnecessary risks and to ensure that the plaintiff was provided with a safe system of work as well as a safe place at which to work also extended to the obligation to provide lighting if necessary. The defendant further argued that the employer had the obligation of dealing with any foreseeable risks of vandalism and claimed it was up to the employer and not the occupier to take steps to remedy the risk. In this regard the defendant relied upon an analogy drawn from the decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 where it was held that the liability of the occupier of land did not extend to taking reasonable care concerning an employee of a tenant of the occupier for the criminal behaviour of third parties on the land.

In reliance on s 151Z(2) of the Workers Compensation Act 1987 the defendant has argued that that if the plaintiff's employer had been sued it would have been found liable to the plaintiff because it: (a) failed to have proper regard for the safety of its employees;

(b) failed to provide adequate or proper supervision;

… (d) failed to provide adequate lighting for the plaintiff to perform her duties; (e) failed to provide safe means of access from and to the workplace; (f) failed to provide the plaintiff with adequate equipment to enable her to perform her work in the dark; (g) failed to carry out a proper site analysis of the work area.

The defendant has argued that all of these allegations have been made out on the evidence.

The defendant has submitted that since the plaintiff did not have the benefit of a certificate of whole person impairment of at least 15 per cent, by reason of s 151H of the Act this means that no contribution to the plaintiff's damages can be recovered from the employer. The defendant has therefore submitted that any award of damages due to the plaintiff must be reduced by the notional fault contribution of the employer. In this regard the defendant submits that had the employer properly discharged its duty of care the plaintiff would not have sustained her injury. Accordingly, the defendant has submitted that the employer's fault liability should be assessed at 100 per cent or, alternatively, the defendant's liability should be assessed at no more than 25 per cent.

Plaintiff's submissions on employer's liability and s 151Z(2) issues

In answer to the defendant's submissions concerning the nature and extent of fault on the part of the plaintiff's employer, the plaintiff has submitted that if the defendant had taken simple remedial measures to ensure that the area in question was adequately lit then the plaintiff would not have been injured. The plaintiff submits that the defendant maintained control over the lighting of the premises and was therefore in a position to easily take such measures. In this regard the plaintiff relies upon the decision in J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 per Campbell JA at [106] - [113] and argues that, where in that case reference was made by the Court of Appeal to the duty of care owed by the defendant, the present case has some similarities. In this regard the plaintiff argued that in apportioning responsibility for breaches by the occupier and by the employer, regard must be had to the inadequacy of the arrangements put in place by the occupier for the lighting of the premises when it was known to the occupier that the employer's cleaners would have to enter upon and traverse the school grounds in darkness.

The key allegations against the plaintiff's employer are the issues of adequate lighting, safe access, adequate equipment and appropriate site analysis. The general allegation concerning a claimed failure to have proper regard for the plaintiff's safety is subsumed in the other allegations and the allegation of inadequate supervision of the plaintiff is subsumed in the issue of site analysis. I will deal with these issues in the ensuing paragraphs.

The evidence does not permit a definitive view to be formed as to the extent to which the employer carried out a site analysis at the school or as to when such an analysis might have occurred in relation to the timing of the plaintiff's injury. I infer from the terms of Exhibit "8" being the agreement dated 27 January 1999 between the plaintiff's employer and the defendant that a site analysis was called for on the part of the employer and that some form of site analysis had in fact taken place because otherwise there would not have been a tender process leading to the agreement being executed.

The evidence discloses that the plaintiff's supervisor Mrs Coulthart was aware of the episodic activities of vandals on the premises in removing the covering grates of drainage pits. The evidence also discloses that the employer was also aware of inadequate lighting at the premises. Without avail, Mrs Coulthart had been requesting the employer to provide torches for use by the cleaners on the site. In view of this evidence and in the absence of expert evidence as to how a site analysis would have been conducted and with what result, it seems to me that from a lighting perspective there was little else the employer would have acquired in the form of information on safety issues of concern at the site by arranging a site analysis. Given that the vandalism on the premises occurred randomly rather than systemically, I consider that a site analysis would have contributed only limited information on how to best manage the risks posed by vandalism. Lighting was the key issue in this regard.

In my view it has been established through the evidence of Mrs Coulthart that there were serious safety issues of concern at the site regarding vandalism and lighting and that this was a matter that was known to the employer. I do not need to speculate on what else a site analysis would have achieved as it is clear that Mrs Coulthart had effectively communicated her safety concerns to the employer in sufficient detail to make the employer aware of the prevailing problems. On the evidence, it seems to me that a formal safety analysis, whatever that might have entailed, was unlikely to have achieved anything more of significance regarding employer awareness of employee safety issues.

I consider the defendant has made out the allegation that the plaintiff's employer failed to provide the plaintiff with adequate lighting for her to carry out her duties. I find that the defendant has established this allegation on several bases.

First, for some considerable time, it must have been clearly apparent to the employer through knowledge acquired by Mrs Coulthart, that the external lighting on the premises was inadequate and this required the plaintiff and other cleaners to walk in the grounds in darkness and to also transport cleaning equipment between buildings in darkness. This necessarily meant that because of the absence of illumination the area of the grounds which had to be walked over in this manner could not be adequately seen for the purpose of observing the presence of potential hazards to safety.

On any view this was an unsatisfactory arrangement and I consider that the employer adopted a system of work that was inherently unsafe in that it exposed the plaintiff to the unnecessary risk of injury from obstacles and hazards that were concealed by the surrounding darkness. I find this was particularly so since the employer, at least through Mrs Coulthart, knew of the past activities of vandals on the premises such that it was reasonably foreseeable to the employer that such removal of the covering grates of the drainage pits could recur at unpredictable times which made external lighting in the area an essential requirement for safety. In fact Mrs Coulthart had informed her own employment supervisor that the premises were a dangerous place to walk in the dark because of the history of removal of the grates, inadequate lighting and the further risk of being attacked in the dark. In my view such an arrangement was inherently unsafe and the employer's apparent inaction in the face of knowledge of the situation described by Mrs Coulthart amounted to a negligent failure to take reasonable care for the safety of its employees.

Secondly, assuming that there may have been a problem with leaving the external lights on overnight, or setting them to be switched on by an automatic timer before the cleaners started work, or even providing a movement sensor, I consider that the employer should have at least made arrangements with the defendant for the cleaning staff to have convenient and ready access to the appropriate light switches to ensure that external lighting within the grounds was readily available to be switched on as and when required.

In this regard I find that the defendant exercised control over these devices and their use - so much is apparent from clauses 13.2 and 13.3 of Exhibit "8" which comprises the access agreement. Those clauses provide: " 13.2 Economy The Contractor shall use no more power, water or gas than is reasonably necessary for the efficient cleaning of each Site and shall ensure that all electric lights, water and gas taps and appliances are turned off immediately after use.

(a) ensure that no thefts or unauthorised use of telephones, facsimile machines, modems, video recording equipment or any other equipment at any Site are carried out by Staff;

(b) ensure that any lost property found at any Site by Staff is delivered to the lost property section or Delegate at the Site where the property is found."

Clause 13.2 assumes that the contractor's employees would have access to the light switches. This turned out not to be the case in respect of the external lighting. Clause 13.3 is merely concerned with issues over security of items of property, not the provision of or adequacy of lighting. In my view, the evidence of Mr Andoni and the practice he had adopted in switching off the lighting at night, together with the terms of clause 13.2 of the agreement indicates the defendant retained a large measure of control over what happened on the premises.

Thirdly, in my view the evidence overwhelmingly establishes that in the circumstances where no adequate lighting was available to the cleaners, Mrs Coulthart had prudently and persistently requested of her employer that the cleaners be provided with torches to enable them to see where they were walking in the darkness yet these requests were not met with success or a satisfactory response. I consider that this amounted to an unreasonable failure on the employer's part to take care for the safety of employees such as to amount to a breach of duty of care on the part of the employer.

The question of whether or not the employer provided the plaintiff with a safe means of access to and from her workplace requires an analysis of what constituted her workplace.

The plaintiff was already at work at the time of her injury. This is clear from the fact that she had signed on to work and had collected the materials with which she had to carry out her work. Her supervisor had assigned to her a place at which she was to carry out her work, namely the classrooms at the lower end of the school grounds. She was on her way there when she was injured. It necessarily follows that when the plaintiff walked to the area that she had been assigned to clean she was gaining access to her workplace : J Blackwood & Son Steel & Metals Pty Ltd v Nichols & Anor [2007] NSWCA 157 per Tobias JA at [82] citing Australian Iron & Steel Pty Ltd v Luna [1969] HCA 66; (1969) 123 CLR 305.

When the plaintiff carried cleaning materials through the school playground in darkness, in circumstances where her employer knew there was a problem over inadequate external lighting and the ever-present risk of interference by vandals with the correct and safe placement of the drainage pit covers, this in my view indicates that she did not have safe access to her workplace. For this reason I consider that the allegation of unsafe access has been made out as against the employer.

Apportionment of responsibility between the occupier and the employer : s 151Z(2)

Since the plaintiff has not met the assessment threshold requirement of establishing she has been assessed as having a 15 per cent whole person impairment as specified by s 151H of the Act, s 151Z(2) requires that the extent of the employer's notional liability for the plaintiff's damages should be apportioned as between the defendant and the employer in order to form the basis for a commensurate reduction in the plaintiff's damages. In assessing the appropriate percentage to reflect the degree of culpability that should be sheeted home to the plaintiff's employer there are a number of matters that require consideration.

Notwithstanding the defendant's submissions, I consider that in Modbury Triangle the factual circumstances were somewhat different to the present case. In Modbury Triangle there was a criminal assault on a tenant of the occupier. Here the plaintiff was injured because of an unsafe condition of the premises due to the illicit activities of vandals co-extensive with the absence of lighting. It was the combination of these factors in this case that created the hazard to the plaintiff. The only similarity between the present case and Modbury Triangle is that each case involved injury to lawful entrants onto the premises. In this case the plaintiff does not seek to impose on the occupier a responsibility for the actions of third parties. Instead, liability is argued to arise from the failure of the defendant as occupier to have regard to the foreseeable risk of injury from potentially hazardous circumstances in conjunction with the state of lighting on the premises.

As has been submitted by the plaintiff, there are broad similarities between the relevant considerations in this case and the considerations outlined by Campbell JA in J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 at [106] - [113].

First, the direct cause of the plaintiff's fall was the fundamentally inadequate lighting arrangements which were controlled by the defendant whereby the external lights were switched off at night notwithstanding that it was known that the cleaning staff would arrive at the premises in darkness and would not have access to the switches that controlled the external lighting on the premises.

Secondly, although the absence of external lighting on the premises was known to the employer, as is plain from the repeated requests made by Mrs Coulthart for torches to be provided to the cleaners, it would appear from Mrs Coulthart's evidence that because of the need for the cleaners to carry their cleaning equipment in darkness, a hand held torch was not all that practical where the cleaning equipment had to be carried in addition to a torch. The convenience or appropriateness or otherwise of a device such as a miner's light was not explored in the evidence.

Thirdly, it follows that even if a torch had been made available to the plaintiff, this would not necessarily have alleviated the problem of the concealed hazard posed by the uncovered drainage pit because, as was alluded to by the plaintiff, the open drainage pit would only have been seen by her if the torch had been pointing at it specifically so as to reveal its presence. It must be remembered that a torch would not have provided generalised lighting over a wide area. Given Mrs Coulthart's description of the need to carry other equipment, I infer that it would have been uncertain as to whether the beam of illumination from a torch, if provided, would have necessarily revealed the hazard. This uncertainty would arise because of the inherent difficulty of maintaining the beam of light in a steady position whilst walking and at the same time carrying other awkward equipment.

Fourthly, the defendant, as occupier of the premises, already had the readily available means of avoiding the problem by having the external lights set on a timer switch or even on a manual switch that could easily have been made accessible to the cleaners. In this regard it is noteworthy that the defendant occupier had retained the relevant degree of control of the premises in order to be able to implement such an arrangement : Stevens v Broddribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16.

Since the plaintiff has established that the defendant was negligent, and the defendant has established that the employer, if sued, would have been likely to have been found to have been negligent, it remains to make an assessment of the respective responsibilities.

In the context of both sets of breaches of duty of care being causally significant to the plaintiff suffering injury by falling into the hole, I do not regard the respective culpabilities to be equal in their causative significance. In my view the defendant occupier should bear the greater share of responsibility because it ought to have been aware of the randomly episodic activities of vandals on the premises and ought to have been aware of the related phenomena of the removal of the drainage pit covers, and more importantly, because it had control over how the light switches for the external lights could be set or operated.

This, in combination with the decision to have the lights switched off manually at night set the scene for the plaintiff's injury. The simple step of having the lights on a timer switch would have effectively and largely diminished the risk of the plaintiff's injury and would not have been unduly burdensome or expensive for the defendant occupier. Had the area been illuminated by external lighting, the plaintiff would have been able to keep a proper lookout in the area where she fell, and she would have been able to readily detect and avoid the hazard.

Balanced against these failures by the defendant, the culpability of the employer was to fail to provide the plaintiff with a torch or to successfully exhort the defendant occupier to remedy the problem of absence of lighting. The provision of a torch may or may not have lowered the risk depending on whether the plaintiff had been able to hold it in such a way as to maintain illumination of the way ahead whilst at the same time safely holding and carrying the cleaning equipment she had to transport from one place to another within the grounds. The failure of the employer to obtain the co-operation of the defendant occupier to do something about the lighting is, in my view, of lesser significance in a culpability analysis because, ultimately, the employer could not have forced the occupier to make the desired safety decisions and implement solutions to the problem.

The state of the evidence does not permit a fuller analysis of the content and significance of any discussions that might have taken place between the employer and the defendant concerning the absence of external lighting on the premises with regard to the safety of the cleaning staff following the employer being made aware by Mrs Coulthart of the problems on the site.

In the circumstances I consider the relative causal culpability of the defendant occupier to be in the range 30 to 40 per cent. I therefore consider the appropriate apportionment of culpability with the employer to be in the mid-point of that range in the ratio of 35 per cent as against the plaintiff's employer to 65 per cent as against the defendant occupier.

Accordingly, giving effect to the foregoing fault calculation required by s 151Z(2) of the Act, this means that any assessment of the plaintiff's damages must be reduced by 35 per cent on account of the negligence of the plaintiff's employer who, if sued, would have been likely to have been held to have been liable to the plaintiff for her injuries.

When the plaintiff fell into the drainage pit she dropped the cleaning equipment she was carrying. She fell backwards heavily and as she did so her hands went behind her. In the course of these events she sustained gravel abrasions to both of her hands. She later experienced painful hands and wrists. As she landed into the drainage pit she landed on her tailbone and her back. She said she felt jarred and jolted. She injured her shoulders in the fall. She described her back as being quite sore, having sustained strains to the thoracic and lumbar spines. When she fell she felt the vacuum cleaner backpack that she was wearing had been wedged into her neck. She described herself as being quite shaken and she said she was shaking at the time. She found she could not complete her shift. Mrs Coulthart stated that after the plaintiff was injured an injury report book was filled out. She described having observed the plaintiff after her injury and saw that she had very red, rough grazed hands with a gravel rash type appearance.
On the day following the fall the plaintiff said she felt very sore, she had difficulty sitting because of back discomfort, she described neck pain and bruising developed in her wrists. She initially treated herself with rest and Panadol tablets. After seeing her general practitioner she returned to work after only one week of absence.

The plaintiff initially sought assistance from a general practitioner, Dr R Cooray at the Wyoming Medical Centre. The plaintiff saw Dr Cooray on 24 February 2005 and he certified her to be unfit to return to work until after 26 February 2005. He diagnosed lumbo-sacral contusion and thoraco-lumbar strain. He did not send her for x-rays or provide any active treatment or investigations. The plaintiff said she felt compelled to return to her work because she was in a new job. Although she continued to work, she continued to experience pain. She described ongoing pain in her neck and difficulty with using the vacuum cleaner.

The plaintiff took about a week off work. After returning to work in early March 2005 after a week of absence she experienced pain at the top of her neck, a feeling of pins and needles in her hands, numbness in her arms and pains in her elbows. She said that between March and September 2005 she experienced gradually increasing symptoms in her hands. These became swollen and numb. These symptoms were quite different to the occasional pre-injury experience the plaintiff had of pins and needles in her hands on waking after having slept on them, as those symptoms resolved on waking. She experienced a burning sensation in her neck. She said she was not handling her work well. At one stage the plaintiff thought she was having heart problems. These were investigated in a hospital admission on 30 May 2005 and were thought to be due to her anxiety. The plaintiff periodically consulted the Wyoming Medial Centre for these problems and was eventually sent for nerve conduction tests, which revealed her to be suffering from bilateral carpal tunnel syndrome. Her symptoms comprised numbness in both hands with decreased grip strength due to pain in the base of both thumbs. She also had pain in the region of both biceps muscles. Despite these difficulties the plaintiff continued on with her work until 20 November 2005.

At a glance

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Judgment (428 paragraphs)

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Cases Cited (37)