Selby v Bankstown City Council

Issues 3The defendant relied upon defences based on Pt 1A Div 4 and Pt 5 of the CL Act involving allegations of materialisation of an obvious risk, a denial of the negligence alleged and statutory protections available to public authorities, and in the alternative, contributory negligence. The plaintiff denied the availability of those claimed defences. The issues that arose for determination in these proceedings can be conveniently stated as follows: Issue 1 - Identification of the circumstances of the plaintiff's injury; Issue 2 - Whether the injury sustained by the plaintiff was due to the materialisation of an obvious risk; Issue 3 - Whether the defendant was in breach of the duty of care it owed to the plaintiff, and whether as a public utility, the defendant has defences available to it pursuant to Pt 5 of the CL Act; Issue 4 - Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent; Issue 5 - The assessment of the plaintiff's damages.

Factual findings 4In the paragraphs that follow, I set out my findings on the matters of fact that were variously either admitted, not admitted, or disputed.

The plaintiff's background circumstances 5The plaintiff was born in 1935. At the time of her accident she was in her 72nd year. She is a pensioner, having retired from the workforce at age 55 years in 1990. She had a background in clerical work. She has been widowed for 13 years. She has 5 independent adult children. Before the subject injury, she had been living independently, in relatively good health, without any restrictions in her mobility or in the use of her limbs. 6Previously, in 2000, the plaintiff had suffered a fall and had injured her back. She pursued a claim for compensation for that injury. That back injury has since stabilised. Before the accident which is the subject of these proceedings, she was independent in the management of her home, and with respect to the needs of daily living.

Circumstances of the accident 7On the afternoon of Monday 16 April 2009, the plaintiff was lawfully walking on the paved footpath of Howard Street adjacent to some shops at Padstow when the front edge of her left shoe came in contact with the raised edge of the paved surface of the footpath. She then tripped and stumbled forward for about a dozen steps. As she did so, she tried to save herself from falling, but was unable to do so, and she fell down onto the footpath. The surface of the footpath generally comprised a pattern of neatly laid cement paving blocks, over a wide area, as is shown in Exhibit "B" and Exhibit "1". The footwear worn by the plaintiff at the time was unremarkable and posed no special hazards: Exhibit "H".

Injuries 8As a result of the fall, the plaintiff fell onto her right shoulder, and then onto both knees. In those events she also hurt her nose, one of her cheeks (the evidence does not disclose which cheek), and her hands when she tried to break her fall. After the fall, she found herself on her hands and knees on the ground. She experienced immediate pain and swelling of the right shoulder with associated restriction of movement of that shoulder.

Medical treatment and assessments 9In the paragraphs that follow, as an aide to analysis, I have extracted a chronology of the plaintiff's medical and allied attendances that followed her fall. 10Following the accident, an ambulance arrived and took the plaintiff to Bankstown Hospital, emergency department. When she was examined at the hospital it was noted that she had a very swollen and painful right shoulder and she had an inability to abduct the right arm. X-rays revealed fractures to the right greater tuberosity of the humerus. A sling was supplied and the plaintiff was provided with analgesia. The discharge summary did not indicate any referrals for further management of the plaintiff's injuries. 11The medical reports tendered show that since the accident, the plaintiff had been under the care of a general practitioner, Dr Vu. No historical or treatment reports were tendered to indicate the dates of consultation with Dr Vu or any treatment he provided to the plaintiff. There is no evidence that either party had sought or requested a report from Dr Vu concerning his involvement in providing or managing the treatment of the plaintiff. 12On 22 April 2009, at the request of her general practitioner Dr Vu, the plaintiff was examined by Dr Jonathan Herald, a consultant orthopaedic surgeon. He identified her injuries as being marked bruising to the right shoulder, impaction of the (right) humerus, marked bruising to the region of the right patella, and a three part fracture of the neck of the (right) humerus with displacement of the greater tuberosity. He arranged CT scans to assess the degree of comminution of the humeral fractures. 13In either late May or early June 2009, the plaintiff was re-examined by Dr Herald, who noted that the plaintiff had decided not to proceed with surgical management of her fractures, and she had declined to undergo CT scanning. He noted that at 6 weeks post-injury the plaintiff had achieved an improving range of motion and strength but she still had a residual weakness in her shoulder, including when used at height or in conjunction with activity. At that time the fracture remained un-united, with a significant displaced fragment of the greater tuberosity. Apparently, the plaintiff later decided to have surgery to her right shoulder. 14Ultimately, on 15 July 2009, Dr Herald operated upon the plaintiff's mal-united right shoulder at Bankstown Hospital. The procedure entailed arthroscopy of the right shoulder, rotator cuff repair and ostectomy with acromioplasty and sub-acromial decompression. 15On 30 July 2009, the plaintiff was reviewed by Dr Herald two weeks following her surgery. He referred her for physiotherapy to begin strengthening exercises. At that stage the plaintiff was still using a sling for her right arm. 16On 27 August 2009, Dr Herald conducted a 6-week post operative review of the plaintiff. He suggested she cease using the sling and commence strengthening exercises in conjunction with physiotherapy and hydrotherapy. 17On 8 October 2009, Dr Herald examined the plaintiff 3 months post surgery. He noted significant improvements in her movements following physiotherapy and he suggested that she continue, adding hydrotherapy to the regime if possible. 18On 15 August 2011, at the request of her solicitors, the plaintiff was examined by Dr Thomas Clark, a consultant psychiatrist. He diagnosed her as suffering from chronic depression against a background of post-traumatic stress disorder. In his view, the plaintiff's chronic pains were debilitating for her, and have led to her suffering chronic depression. 19On 22 September 2011, at the request of the solicitor for the plaintiff, the plaintiff was assessed by Dr James Bodel, a consultant orthopaedic surgeon. At that time he recorded the plaintiff's current complaints as being pain, stiffness and restricted use of the right shoulder, and pain in both knees, with difficulty kneeling, squatting and climbing stairs. He regarded the plaintiff's complaints as being consistent with the injuries she had sustained, and he suggested conservative management and analgesic medication only. 20On 2 November 2011, at the request of her solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad accepted that the plaintiff's ongoing physical complaints were accident-related and expressed a guarded prognosis for those complaints. He suggested conservative treatment, and physiotherapy on an as needs basis. 21On 29 April 2012, the plaintiff was re-examined by Dr Herald. He concluded she may have a frozen shoulder and that she had reached a state of maximum medical improvement. Dr Herald referred the plaintiff for an MRI scan to ensure there were no underlying rotator cuff tears requiring surgical repair. 22On 3 May 3012, at the request of Dr Herald, the plaintiff underwent an ultrasound examination of her right shoulder. This was reported as revealing a full thickness tear of the supraspinatus tendon and degenerative changes in the sub-scapularis tendon and medial displacement of the long head of the biceps. 23On 10 May 2012 Dr Herald re-examined the plaintiff and advised her that the rotator cuff tear she had sustained in her accident had been repaired in the operation on 15 July 2012, but the repair had been unsuccessful. He recommended that a further arthroscopic repair be undertaken. 24On 17 July 2012, at the request of her solicitor, the plaintiff was re-examined by Dr Conrad. He noted the plaintiff was at that time on a waiting list for an arthroscopic rotator cuff repair. There was no indication when this might occur. Dr Conrad thought the plaintiff should have the contemplated surgery as soon as possible. He considered the plaintiff's prognosis to be guarded. 25On 17 July 2012, at the request of the solicitor for the plaintiff, Dr Conrad provided a separate and supplementary report in which he calculated the plaintiff had permanently lost 30 per cent of efficient use of her right arm above the elbow and had a 10 per cent permanent impairment in her neck. 26On 16 August 2012, at the request of the solicitor for the defendant, the plaintiff was examined by Dr ALG Smith, a consultant orthopaedic surgeon. He noted her ongoing complaints of restricted right shoulder movements, difficulties carrying out some of the tasks of daily living, and being unable to sleep on her right side. He also noted the plaintiff was on the waiting list for further surgery. He expressed the view that she was a very poor candidate for a re-attempt to repair the previously failed rotator cuff surgery due to her long term use of prednisone, which would cause her tissues to be less than satisfactory and vulnerable to tearing again. Dr Smith was unable to predict whether it was likely that there would be any improvement in the plaintiff's condition. Dr Smith thought the plaintiff should not require medication for the shoulder problem, and thought the best course for her was to have no treatment. 27On 21 August 2012, the plaintiff was re-assessed by Dr Bodel. He confirmed that the plaintiff's complaints of continuing pain and discomfort in the areas which were injured in the accident were as a consequence of the fall in question. He was discouraging of any future surgical treatment of the plaintiff's remaining shoulder problems and suggested analgesic medication and occasional physiotherapy as the means for managing the plaintiff's problems. 28On 4 September 2012, at the request of her solicitor, the plaintiff was re-examined by Dr Clark. He recorded a history from the plaintiff of ongoing complaints of intensified pain, restriction of movement, being housebound and difficulty sleeping. He re-iterated his earlier diagnosis of post-traumatic stress disorder, and added ensuing dysthymia. He recommended the plaintiff see a psychiatrist and have a trial of medication. 29On 7 September 2012, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Klaas Akkerman, a consultant psychiatrist. He considered the plaintiff's account of her problems did not warrant a psychiatric diagnosis as he felt that she did not suffer from a psychiatric condition. He went on to express his opinion that the plaintiff had no evidence of suffering post-traumatic stress disorder. He thought the prognosis for the future was good. 30On 5 December 2012, at the request of the solicitor for the plaintiff, Dr Akkerman provided a supplementary report in which he was asked to comment upon the report of Dr Clark dated 4 September 2012. Dr Akkerman commented that as Dr Clark's commentary did not describe observable facts, his opinion on his mental state examination of the plaintiff was of limited value. Dr Akkerman questioned the genuineness of the plaintiff's complaints of nightmares. 31A difference of opinion has arisen between Dr Clark and Dr Akkerman as to whether the plaintiff's complaints qualify for a psychiatric diagnosis. Unfortunately, neither of these experts were called to give oral evidence to assist the Court in resolving that difference of opinion.

Disabilities 32I am satisfied that the plaintiff gave truthful evidence about the extent of her injuries and her related complaints. I am therefore satisfied that I should accept her accounts of her injuries and their effects as summarised in the various medical reports that were tendered. Accordingly, in addition to the plaintiff's oral evidence, I propose to draw upon the medical reports for evidence of the plaintiff's post-injury difficulties, her treatment, and her ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. My findings on those matters follow. 33The plaintiff's knee, face and head injuries had cleared up not long after the accident, however, she has been left with persisting problems with her right shoulder. 34The plaintiff now cannot raise her right arm high enough to do her hair. She experiences a clicking sensation in the shoulder. She has pain and restriction in the movement of the shoulder. After carrying out extremes of shoulder movement, she experiences pain that can last for weeks. She cannot do her knitting any more, she has problems writing letters, and she is no longer able to hold heavier items such as a dinner set. She feels she has been left with about 30 per cent of the previous strength she had in her right arm. 35The plaintiff finds it difficult to use public transport because of her apprehension of the risk of being bumped and this has reduced her social outings, including attending the matches of her favourite football team. She cannot do her former housework. She has difficulty carrying her shopping. All of these matters have taken an emotional toll upon her. 36As a result of her injuries the plaintiff has suffered recurrent nightmares. She has also suffered difficulty sleeping because she finds she must assume a posture to avoid sleeping on her right side. She suffers from tearfulness and irritability due to her disabilities. Dr Akkerman suggested that the stereotypical nature of the plaintiff's complaints of nightmares raised a high index of suspicion that she was malingering on that issue. 37I do not accept Dr Akkerman's comment in that regard to detract from the validity of the plaintiff's complaints of nightmares, or as to the genuineness of her claim. To sustain an allegation of malingering, as suggested by Dr Akkerman, evidence of something more than a comment of that kind is required: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. To the contrary, I accept the plaintiff has given truthful evidence concerning her post-injury disabilities. That evidence was not implausible or inherently improbable.

Mitigation 38The defendant did not argue that the plaintiff had in any relevant way unreasonably failed to pursue mitigation of her claimed losses.

Issue 1 - Circumstances of the plaintiff's accident 39On the day of the accident the plaintiff was walking to the shops from the local RSL Club where she had been playing bingo and where she had lunch. She was intending to catch a bus from the shops in order to go home. She was walking in Howard Road towards the bus stop for that purpose. The plaintiff was familiar with the area where she had fallen. She had lived in the area since 1993. She knew the pavers in the area "were very bad in parts": T35.30 - T35.35. 40As the plaintiff walked past some shops she saw a number of children with bicycles. One was on a bike, the others had their bikes laying on the footpath. As she walked, she said she was looking to make sure she missed the bikes as she was intending to walk past them. 41In those events, the plaintiff felt her left foot, or more accurately, her left shoe, hit something as she walked. This caused her to stumble forward. She found she could not save herself from falling, and she then fell down. 42The plaintiff found she could not move. The proprietor of the nearby real estate agency, and his wife, came to her assistance. An ambulance was called and took her to Bankstown Hospital. Before she left the scene, she looked over to the spot where she had tripped, and she saw a raised paver. She described that paver as being raised. She thought the raise was by about an inch. 43The next morning she re-attended the scene together with her daughter Marcia, who took some photographs of the scene: Exhibits "1" and "2". It is difficult to interpret the extent of the raise in millimetres from the photographs alone: Angel v Hawkesbury Council [2008] NSWCA 130; Blacktown City Council v Hocking [2008] NSWCA 144. 44On the day following the plaintiff's fall, her daughter reported the incident to the Council. She also said that her daughter and someone from the Council had measured the raised paver in question. At that time she was unable to say what the measured differential of unevenness was between the various pavers. The plaintiff also attended the scene and met with a Council employee in order to point out the area where she had fallen. That Council officer measured the raise in the paver as being 3mm. 45With regard to the discrepancy between the plaintiff's estimate of the paver being raised by about an inch, and the measurement taken by the council employee, namely 3mm, I prefer and accept the measurement of 3mm. I do so because on any reasonable view, the plaintiff's estimate was from the context unlikely to be accurate, and the evidence of a 3mm raise was based upon a measured observation. 46The plaintiff said that about 4 months after the accident she saw workers replacing the pavers at the spot where she had fallen. 47Before the accident in question, the plaintiff had been using the footpath on an approximately weekly basis. She agreed that in the 10 years or so before her injury, she was aware that the pavers in the area had been slightly raised. She agreed that to avoid walking near the raised pavers, she used to take a path closer to the shops, as the pavers were more raised near the edge of the footpath. The plaintiff described her perception of the pavers in the area as having moved under her feet when she had walked on them in the past. 48Mr Colac stated that the pavers in question were replaced in 2010 to 2011 as part of a beautification programme for the area. The plaintiff's evidence of the timing of the pavers being replaced has to be read subject to that unchallenged evidence.

Issue 2 - Whether the risk was an obvious one 49The defendant pleaded a defence of materialisation of an obvious risk as defined in sections 5F and 5G of the CL Act. 50Section 5F of the CL Act provides: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 51Section 5G of the CL Act provides: 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 52Although those sections did not feature large in the defendant's submissions, as they were raised on the pleadings, and were not abandoned by the defendant, they need to be assessed. 53In my view, it is plain that a reasonable person in the position of the plaintiff, whilst keeping a proper lookout for her own safety, would have looked to see where she was placing her feet whilst walking on the footpath, and would have observed the obviously uneven and protruding paver edge on the footpath surface because of the very fact that the protrusion was visible and patent: s 5F(4) of the CL Act. 54I am reinforced in that view because the plaintiff has acknowledged she had previously been aware before her injury, that the pavers in the footpath "were very bad in parts", which indicates that the risk of tripping or falling due to the condition of the footpath was within her own, and common knowledge: s 5F(2) of the CL Act. 55The evidence given by the plaintiff to the effect that there were bikes on the footpath in the vicinity of where she tripped does not reasonably lead to a finding that the plaintiff's ability to see the unevenness of the pavers was somehow obscured. 56In my view, the plaintiff was in a position where she ought to have been able to see where she was placing her feet whilst walking and ought to have done so as she knew the pavers in the area were "bad" in parts. The bikes to which she made reference had not covered the raised edge. Were it otherwise, she would not have tripped on the edge of the paver. 57If the plaintiff had been keeping a proper lookout I consider that she would have seen the raised paver edge. I therefore consider the plaintiff should be presumed to have been aware of the risk of tripping on the pavers that "were very bad in parts": s 5G(1) of the CL Act. As the plaintiff was actually aware of that condition of the footpath, so described, the proviso within s 5G(1) of the CL Act concerning a claim of unawareness, does not apply. 58Accordingly, I consider that the defence of obvious risk has been made out. It is no answer to that defence for the plaintiff to argue she was distracted by the presence of bikes on the footpath. She still had the obligation to ensure she would not come to foreseeable harm from obvious risks, and should have done so by careful placement of her feet on the pavers. The raised paver was a foreseeable source of such harm because it was an obvious trip hazard and that hazard materialised in this instance: s 5I(1) of the CL Act.

Issue 3 - Alleged breach of the duty of care owed 59The plaintiff relied upon the following allegations of negligence: (a)Failing to take any or any adequate precautions for the plaintiff's safety; (b)Putting the plaintiff in a position of peril in the circumstances; (c)Failing to maintain or adequately maintain the said pavers; (d)Failing to heed repeated community and business complaints in respect to the unevenness of the said pavers; (e)Failing to erect suitable barriers so that pedestrians would not trip over those pavers; (f)Failing to warn or adequately warn the plaintiff that the said pavers were generally uneven and particularly uneven in the area where she tripped and fell. 60Those allegations can be summarised into a more unified formulation to the effect that the defendant failed to maintain the pavers on the footpath in a good and safe state that did not pose an unreasonable danger to pedestrians taking reasonable care for their own safety. 61At about 6.20pm on Friday, 17 April 2009, the plaintiff's daughter, Marcia Seebacher, emailed an officer of the Council with a completed incident report form, which provided a narrative of the aftermath of the plaintiff's fall, including a description of the assistance provided to the plaintiff until an ambulance arrived to take her to hospital: Exhibit "3". 62Significantly, in her covering email, Mrs Seebacher stated that the paver on which the plaintiff had tripped, incorporated a 3mm rise. I infer from that description that Mrs Seebacher had measured the protrusion height of the paver on which the plaintiff had tripped, and which she had photographed. 63The Council had already been placed on notice of the raised pavers and the characterisation of those raised pavers as a possible trip hazard, as the raised pavers in question had been the subject of some specific correspondence with the Council in January 2006: Exhibits "F" and "G". 64In that correspondence, on 6 January 2006, the Padstow Park Progress Association wrote to the Council to draw attention to a previous meeting at which the pavers in the footpath outside 65 and 63 Howard St, Padstow were apparently discussed: Exhibit "F". That letter drew attention to the fact that the pavers there were uneven, and in need of repair, noting that this state of the pavers was causing residents to trip. The Council was asked, whilst repairing the pavers in Howard St, to check on all the pavers in the shopping centre, as many were uneven. 65That letter was replied to on 10 January 2006, the reply advised that the request by the Padstow Park Progress Association had been referred to the Civic Roads Department of the Council to have the pavers adjusted to reduce trip hazards: Exhibit "G". 66The plaintiff tendered a document comprising a Council performance standard for repairs and interventions in response to reported footpath defects: Exhibit "C". That document stated that a 20mm step or misalignment of a footpath had an expected response time of 60 days where it was considered that the defect constituted a hazard to motorists or pedestrians. The standard required a compulsory intervention. Presumably more promptly than 60 days, in the case of misalignments greater than 40mm. The document referred to various response times of 60 days, 30 days and 14 days. The document also identified rated traffic scores of 1, 2, 3 and 4 respectively. The evidence did not explain those ratings. 67The evidence did not disclose whether the unevenness of the pavers, as at 6 January 2006, fell within any of the performance standards set out in Exhibit "C". There was no evidence of measurements of any raised portions. On the state of the evidence, it is not appropriate to draw any inference as to the height of any raised paver as at January 2006. 68Nevertheless, In view of Exhibits "F" and "G", the defendant cannot be heard to say that the plaintiff's trip and subsequent fall was not reasonably foreseeable according to the requirement of s 5B(1)(a) of the CL Act. 69Furthermore, as the defendant was on notice, as a result of the identified correspondence, that the pavers in the area constituted a potential trip hazard that required precautions to be taken (s 5B(1)(c) of CL Act; and see the Council's intervention protocol, Exhibit "C"), commonsense dictates that the presence of raised pavers within the footpath constituted a "not insignificant" risk of tripping: s 5B(1)(c) of the CL Act. 70Some of the matters relevant to determining whether a reasonable council would have taken precautions against the harm posed by the tripping hazard of raised pavers are set out in s 5B(2)(a)-(d) of the CL Act. In that regard, it seems clear that since, in 2006, residents were tripping on the pavers, that the probability of harm would be significant if precautions, such as levelling the pavers, were not taken: s 5B(2)(a). 71Serious harm is known to result from relatively simple occurrences, so no real issue arises under s 5B(2)(b) as to the potential for serious harm. There is a high social utility in Council providing attractive paved neighbourhood footpaths but this has to be considered in light of the cost to the defendant, a public utility: s 5B(2)(d) of the CL Act. 72Of particular relevance to the evaluative exercise required by s 5B is a consideration of the burden of taking precautions against the risk of occurrence of the harm: s 5B(2)(c). 73I consider that in applying the required prospective analysis of the risk of harm occurring by tripping on a 3mm raised footpath paver, it would be unreasonable to require that the defendant, a Council road authority, act to remove or otherwise minimise that risk by levelling the raise or otherwise eliminating the problem where the defendant had no specific or actual notice of the dangerous condition of the footpath posed by a 3mm rise in the paver: s 45 of the CL Act. 74The general burden on a council to inspect pavements in the absence of specific knowledge of a problem, and to require a council to remove an unevenness due to a 3mm rise in a paver, has to be considered in light of the staffing, financial and material resources available to the defendant, weighed against the risk of harm to persons such as the plaintiff who must be presumed to be acting with reasonable care for their own safety when using the footpath. 75Having regard to the fact that the rise in the paver was only 3mm, the probability of harm caused by persons such as the plaintiff tripping and injuring themselves must be seen to be very low: s 5B(2)(a) of the CL Act. 76One of the factors that must also be considered in a liability analysis is how the Council would have allocated it's resources if it had actually known of the raised paver or a "very bad" condition of the footpath. In that regard, Exhibit "C" provides some insight into priority of allocation of resources to remediate a problem. On a reasonable reading of that Exhibit, a 3mm raise would have been a relatively low priority. There was no evidence to suggest Exhibit "C" constituted an unreasonable standard for risk management. 77The question of allocation of the resources of a council must also be considered in the light of the statutory protection given to public authorities. In that regard, on the fact of this case, absent the defendant having actual notice of the risk in question here, namely the 3mm rise, I consider that a delay in allocating pro-active council inspection resources, which in turn might have delayed recognition of a 3mm raise in the level of a paver, or on a number of pavers for that matter, cannot be shown to have been an omission that no other public authority could properly consider to be a reasonable exercise of its footpath inspection and maintenance functions: s 43 of the CL Act. 78The plaintiff relied upon the notification to the defendant in 2006, of a hazardous condition of the footpath in the form of a tripping hazard for residents. I am not satisfied, on the evidence given in this case, that the risk of tripping on the footpath, as described in Exhibit "F", in January 2006, continued to apply from that time and until the time of the plaintiff's injury, on 16 April 2007. 79In that regard, the evidence of Mr Colac was relevant. He described the condition of the paver where the plaintiff tripped as being a raise of "A millimetre to 4 millimetres" or up to about 1cm: T26.29 - T26.42. He stated that after the plaintiff's fall, he had a look around and saw that there were a few pavers that were "sticking up slightly": T27.44. 80That evidence, which does not of itself bespeak an unsound or unsafe footpath condition, needs to be evaluated in the light of the guidance provided by the decided authorities. 81The fundamental principle is that local authorities are not to be regarded as the insurers for the absolute safety of users of footpaths: Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512, at [248], page 606. In that case, at [355], it was stated that: "The world was not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. ..." 82That statement aptly applies in this case, and it has been applied in many similar cases, some examples of which follow. 83It has been held that an uneven surface in a footpath to the extent of a height differential of 20mm is not an unexpected or unusual danger to a pedestrian in the Sydney metropolitan area who is taking reasonable care for her own safety: Burwood Council v Byrnes [2002] NSWCA 343, at [26] - [33]. 84In this case, the plaintiff was in the special position of advantage in knowing, on the basis of her own assessment, that the footpaths in the area were "very bad". In those circumstances, the plaintiff was in a good position to see and avoid imperfections on the surface on which she was walking: Richmond Valley Council v Standing [2002] NSWCA 359, at [55]. 85A modest differential height in a footpath (of 13mm in that case) does render it unsafe for a person taking ordinary care for their own safety: Roads and Traffic Authority v McGuiness [2002] NSWCA 210, at [38]. 86For the plaintiff to be in a position, in this litigation, to assert the defendant had actual or implied knowledge of the poor state of repair of the footpath, the circumstances relied upon for such notice must be particularised: Porter v Lachlan Shire Council [2006] NSWCA 126, at [41]. No such particulars have been provided. I do not consider either Exhibit "F" or Exhibit "G" to constitute such particulars. 87In this case, there was no evidence to suggest that attempts had been made to address or clarify that issue through discovery or interrogatories. 88The operation of s 45 of the CL Act is fundamental to the outcome of cases such as this: Council of the City of Liverpool v Turano [2008] NSWCA 270, at [181] - [191]. As in that case, here, there is no evidence of actual knowledge on the part of the defendant, as at the date of the plaintiff's accident, of the essential "basal facts that constituted the particular risk, the materialisation of which resulted in the harm." : Turano, at [191]. 89It is well settled that responsibility for a defect or hazard, whether in a road or a footpath, shifts to a defendant authority when it is shown that the authority has knowledge of the defect in question: Hastings Council v Giese [2003] NSWCA 178, at [22]; s 45 of the CL Act. 90I do not consider the correspondence to the Council comprising Exhibits "F" and "G" placed the Council on notice of the specific problem that was instrumental in the plaintiff's trip and fall. The timing was too distant from the event and there was insufficient surrounding evidence to enable a contrary conclusion to be drawn. 91On the evidence in this case, I find that the plaintiff is not in a position to defeat the immunity provided to the defendant by s 45(1) of the CL Act. I accept the defendant's submission in that regard, which must have the effect that the plaintiff has failed to establish a claim in negligence against the defendant.

Issue 4 - Alleged contributory negligence 92The defendant pleaded the following allegations of contributory negligence: (a)Failing to take due care in all the circumstances; (b)Failing to keep any adequate or proper lookout for her own safety; (c)Failing to have regard for the condition of the area; (d)Failing to keep any or any reasonable lookout. 93To allow for the possibility that I may be found to have been wrong in my assessment of the question of breach of duty of care on the part of the defendant, in accordance with convention, I propose to consider the issue of contributory negligence. 94In my assessment, for the reasons that follow, the defendant has made good its defence of contributory negligence. 95The plaintiff plainly failed to keep a proper lookout because she knew the pavers on the footpath "were very bad" yet she did not look to see where she was placing her feet when walking on that path. In doing so, she exposed herself to the risk of tripping on the uneven surface which posed a tripping hazard, thereby incurring the risk of falling and hurting herself. Her vision of the footpath, and the relevant raised paver, had not been in any way obscured. 96Furthermore, the plaintiff was aware of the uneven nature of the pathway in the area yet she took no discernable precautions in the face of such hazards. The argument to the effect that she was distracted by the presence of bikes at the scene which allegedly prevented her from seeing the raised paver edge does not derogate from the plaintiff's duty to take reasonable care for her own safety and to take care to observe where she was walking. 97She was not entitled to assume the area was hazard free as she knew the footpath pavers "were very bad". Accordingly, in my view, the defendant has shown that the plaintiff was contributorily negligent by reason of her own failures to have due regard for her own safety. In my view, the negligence of the plaintiff was a relevant cause of her injury. Otherwise she would not have stumbled, fallen, and injured herself. 98I therefore find that had the defendant been found liable to the plaintiff in negligence, the plaintiff would have had her damages reduced to reflect the finding that she had contributed to her injury by reason of her own contributory negligence. 99If I had been required to assess the extent of the plaintiff's contributory negligence, I would apportion at least 50 per cent responsibility to the plaintiff, as the causative significance of not looking where she placed her feet whilst walking on a pavement she knew was "bad" in parts, reflects a high degree of her own contribution to the injury sustained.

Issue 5 -Assessment of damages 100In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of the plaintiff's entitlement to damages.

Plaintiff's probable life span 101In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At age 78 years, the plaintiff has a probable median statistical life span of 12 remaining years.

Non-economic loss 102On behalf of the plaintiff it was initially submitted that the plaintiff's damages for non-economic loss should be assessed at $214,000, which is the equivalent of 40 per cent of a most extreme case according to the provisions of s 16 of the CL Act. 103In contrast, on behalf of the defendant it was submitted that those damages should be assessed under s 16 of the CL Act as being 20 per cent of a most extreme case, which equates to $16,000. 104In the course of final submissions, the plaintiff's contended assessment of non-economic loss was reduced to 30 per cent of a most extreme case, namely, $123,000. 105The maximum amount awardable pursuant to s 16 of the CL Act is presently $535,000. In my view, the plaintiff's injuries and disabilities, as outlined in paragraphs [7] and [29] - [31] above, when considered along with the plaintiff's age, call for an assessment at 28 per cent, namely, $75,000. In that regard, as the defendant pointed out, due allowance and proportion must be given to the plaintiff's advanced age: Reece v Reece [1994] NSWCA 259, at [5]- [10]. If the plaintiff had been entitled to a verdict in her favour, that amount would have been awarded to her for damages for non-economic loss.

Past domestic assistance 106On behalf of the plaintiff it was initially submitted that the plaintiff's award for damages for future domestic assistance should be assessed at $36,400, this being 7 hours per week at $25 per hour over 4 years from 16 April 2009 up until the time of the trial. 107Subsequently, in final submissions on behalf of the plaintiff, that claim was varied to $35,784, being 7 hours per week at $24 per hour for 213 weeks. 108In contrast, on behalf of the defendant, it was submitted that there should be no allowance of damages for past domestic assistance. 109The evidence of the plaintiff was to the effect that since her accident, she has been unable to attend to her usual household tasks and these tasks had to be taken on by others, gratuitously. The effect of the evidence of the plaintiff's daughters, Mrs Keats and Mrs Seebacher, was that this assistance was for between 6 to 8 hours per week, and was provided as a division of labour amongst the siblings. 110Against that evidence, the defendant pointed to the opinion of Dr Smith dated 22 May 2013 (Exhibit "9") to the effect that it was conceivable that the plaintiff could have required some assistance with domestic chores for the first 6 or 8 weeks following her injury. I discount Dr Smith's opinion because it is equivocal in its terms, and because his report is so sparse in its reasoning, and it does not on its face take into account the psychological factors described by Dr Clark, which I accept. 111Also against the claim for past domestic assistance, the defendant pointed to the evidence of Mrs Seebacher, in cross-examination at T92 to T94, to the effect that when she had visited the plaintiff from Townsville in 2012, she found the plaintiff's home to be in an untidy and unclean state. That evidence was relied upon for the argument that the claimed assistance could not have been provided to the extent described in the evidence in support of the claim. 112I do not accept that argument. It was not consistent with the evidence of Mrs Keats and the plaintiff which was to the contrary, and which I prefer, especially since the portion of Mrs Seebacher's evidence relied upon by the defendant related to a relatively short period of time, and was not necessarily indicative of the proposition advanced by the defendant that assistance was not being provided by the plaintiff's other children, as was claimed. 113In the Appendix to these reasons, the calculation of the value of 7 hours of care per week, costed at the rate specified by s 15 of the CL Act between 17 April 2009 and 4 April 2013, is quantified in the sum of $36,171. If the plaintiff had been entitled to a verdict that amount would have been awarded to her for the value of past domestic assistance.

Future domestic assistance 114On behalf of the plaintiff, a claim was initially made for future paid domestic assistance in the amount of $140,644, comprising 7 hours of assistance at the commercial rate of $40 per hour. 115In final submissions that claim was modified to an amount of $113,736, being 6 hours per week at $40 per hour over the plaintiff's statistical life span. In the alternative, on the assumption that the care was to continue to be provided to the plaintiff gratuitously, the claim was advanced in the sum of $75,300. 116In my view, once these proceedings are over, it is likely that the plaintiff will engage commercially paid assistance rather than rely upon family members, although those family members will undoubtedly continue to look in on the plaintiff from time to time. I consider that after the conclusion of these proceedings, when commercial assistance would be engaged once there were funds for that purpose, this will most probably be for fewer and more efficient hours than those presently applied by family members. 117In that regard, I consider that an allowance of 3 hours per week would be adequate and fair, recognising that at the plaintiff's advanced age, her children would take on more tasks to assist her, but those tasks would not be solely accident related. 118The projection of the value of 3 hours per week at $40 per hour, at 5 per cent over 12 years (x 473.9) yields the sum of $56,868. I consider that sum should be discounted on account of potential adverse vicissitudes which would be likely to apply as the plaintiff advances in her years, which is likely to increase the non-injury component of her need for assistance, and also reduce her accident related needs. I consider that a discount of 20 per cent is appropriate in this instance, yielding the sum of $45,594. 119If the plaintiff had been entitled to a verdict, I would have awarded that sum for future domestic assistance.

Future treatment 120On behalf of the plaintiff it was submitted that the plaintiff's award for damages for future treatment should be assessed in the buffer sum of $20,000. In contrast, on behalf of the defendant, it was submitted that those damages should be assessed in the buffer sum of $1000. The amount claimed on behalf of the plaintiff cannot be reasonably justified on the evidence. In my view, a reasonable buffer allowance for this head of damage to cover the cost of possible future medical and allied expenses would have been of the order of $2000. If the plaintiff would have been entitled to a verdict in her favour, that amount would have been awarded for future treatment.

Past out-of-pocket expenses 121In final submissions, on behalf of the plaintiff, the claim for past out-of-pocket expenses was abandoned. Therefore an allowance for such expenses does not arise.

Summary of damages assessment 122My assessment of the plaintiff's damages is summarised as follows: (a) Non economic loss $75,000 (b) Past domestic assistance $36,171 (c) Future domestic assistance $45,594 (d) Future treatment $2,000 (e) Past out-of-pocket expenses $Nil Total $158,765

Disposition 123The plaintiff has failed to make out her case against the defendant, and the defendant is therefore entitled to a verdict and judgment in its favour.

Costs 124As the defendant has been successful in the proceedings, it should have its costs paid by the plaintiff on the ordinary basis, unless otherwise ordered.

Orders 125I make the following orders: (1)Verdict and judgment for the defendant; (2)The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis unless otherwise ordered; (3)The exhibits may be returned; (4)Liberty to apply on 7 days notice if further orders are required. APPENDIX CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE CIVIL LIABILITY ACT 2002, s 15 (7 hours per week between 17 April 2009 and 16 April 2013) PERIOD WEEKS WEEKLY HOURLY AMOUNT FOR s.15 s.15 7 HOURS PER RATE RATE WEEK

1. 16.04.2009 to 15.05.2009 04.00 $946.40 $23.66 $662.48
2. 16.05.2009 to 21.08.2009 13.85 $939.00 $23.48 $2276.39
3. 22.08.2009 to 20.11.2009 12.85 $959.90 $23.99 $2157.90
4. 21.11.2009 to 19.02.2010 12.85 $969.40 $24.23 $2179.49
5. 20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $2225.36
6. 22.05.2010 to 20.08.2010 12.85 $986.90 $24.67 $2219.07
7. 21.08.2010 to 19.11.2010 12.85 $985.50 $24.63 $2215.47
8. 20.11.2010 to 18.02.2011 12.85 $996.40 $24.91 $2240.65
9. 19.02.2011 to 20.05.2011 12.85 $1025.90 $25.64 $2306.32
10. 21.05.2011 to 19.08.2012 12.85 $1026.00 $25.65 $2307.21
11. 20.08.2012 to 18.11.2011 12.85 $1027.10 $25.67 $2309.01
12. 19.11.2011 to 17.02.2012 12.85 $1016.30 $25.40 $2285.40
13. 18.02.2012 to 19.05.2012 12.85 $1054.70 $26.36 $2371.08
14. 20.05.2012 to 04.04.2013 45.57 $1054.50 $26.36 $8408.57 TOTAL $36,171.40

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2013