Shaw v Niru Construction Pty Ltd & Anor

The drainage easement

1. Mr Mahendran and his fellow registered proprietors wanted to develop the Austral Avenue property, by building a Duplex. But they had a problem. Their property sloped towards the Moree Avenue Property. It was not flat and the local council had indicated that it did not want storm water to enter onto the Austral Avenue Property since it might cause flooding. Mr Mahendran and the other proprietors of the Austral Avenue Property conceived the idea of obtaining a drainage easement on the Moree Avenue property.
2. On 9 January 2015, Mr Mahendran's solicitors applied to the Department of Housing (Parramatta), for such a drainage easement on the Moree Avenue property (Exhibit T).
3. On 24 April 2016, the NSW Land and Housing Corporation notified that formal approval had been given for the construction of an easement for water drainage on the Moree Avenue Property and the terms of that approval (Exhibit U). One of the requirements (cl 5(ix)) was that the surface of the easement site would be restored to a condition as similar as possible to that existing prior to the excavation work. Further, any damage caused to the Moree Avenue property was to be met by the proprietors of the Austral Avenue Property and rectified at their expense.
4. A registered transfer granting the easement (Exhibit V) identified Mr Mahendran as one of the transferees of the easement.
5. A subpoena to produce was issued to the second defendant, returnable in November 2020 (Exhibit W). The schedule called for a range of categories of documents and a bundle of documents was produced in response. The plaintiff relied upon the bundle for as much as was not produced as for what was. There was, for example, no investigation report conducted by the defendants, or witness statements by persons (such as employees or contractors) who performed the construction works. Nor was there any relevant logs indicating the days or dates upon which workers worked.
6. But as Counsel for the plaintiff pointed out in her closing submissions, at p 20 of Exhibit W, there was an email among the bundle of documents that was produced, indicating that there were problems that delayed the completion of the works through the summer of 2016-17. Ms Fitzpatrick, a witness called by the plaintiff, indicated that she was displeased with the delay.

The plaintiff's evidence

1. In his evidence, Mr Shaw said that he attended the Moree Avenue Property which was then being occupied by a friend, Ms Josephine Fitzpatrick, for the purpose of putting his aluminium boat trailer on to the driveway after he had been fishing. Mr Shaw was aware that construction works were being performed which had affected that property and had noticed certain areas barricaded, with certain witches' hats. A photograph demonstrating the witches' hats, taken in November 2016, approximately 2 months before the accident, was in evidence (Exhibit B).
2. The plaintiff's friend, Mr Glen Rochester, who was a truck driver, was driving the Holden station wagon to which the boat was attached. From a position behind the boat trailer, on the passenger side of the vehicle, Mr Shaw directed Mr Rochester's reversing of the boat trailer into the driveway; about 18 cm away from the side fence. His purpose was to ensure that the boat did not collide with a side wall. Mr Shaw explained that he had his back turned to the house, and was facing in the direction towards Moree Avenue, as he was walking back whilst the boat trailer was being reversed.
3. Mr Shaw said that the back of his left knee got stuck onto the top of a picket, and he fell over. Mr Shaw marked on a photograph of the place where he says the post was, when he fell over it, on the date of the accident (Exhibit C). Previously, through his solicitor, he had identified the area (Exhibits A and 12) which, to my observation, was not inconsistent with the area marked in Exhibit C. He said it was only then that he noticed the picket in the ground; which he recalled was knee high. It had not been barricaded, or surrounded by witch's hats; nor was its presence made more prominent by the use of a colour.
4. In cross-examination, Mr Shaw said that he fell backward, using his hand (or hands) to 'break' the fall. It was suggested that if this be right, then it was unlikely that the left knee would have actually had contact with the ground. Mr Shaw's answer to this proposition was somewhat vague.
5. It appears that Mr Shaw attributed the accident to 'fishing' to his physiotherapist, or at least the note suggests that this is how the physiotherapist interpreted what Mr Shaw had said (Exhibit 4).

Clinical notes of Westmead Hospital (Exhibit 2)

1. Mr Shaw said in cross-examination that he suffered a cut, generating the flow of some blood as a result of the fall. However, in these hospital notes, generated two days after the accident, he was recorded as saying that there was no perforation of his skin. The notes recorded that he had tripped over a steel rod and the rod had impaled the back of his knee. Curiously, the notes recorded that this happened at (his) 'home'. They also noted that he smoked 24 packs a year and (typically) had 8 beers each day. It was put to Mr Shaw in cross-examination that he had been drinking earlier in the day, whilst he was fishing. Mr Shaw initially said that he might have had a drink, before saying that he did not drink when on a boat.
2. Although the notes recorded Mr Shaw as 'living' at the property where he fell, this report of Mr Shaw was incorrect. Nevertheless, Mr Shaw accepted that in the month leading up to the accident (ie January 2017), he had been at the premises between one and three times. He acknowledged being aware of the works being carried out; even if he was not present when a trench had been dug.
3. Mr Shaw was aware of 'star pickets' being used: they were usually chest high and with a yellow top. The one he said he fell over was only a third of this length and had no yellow top on it.
4. Mr Shaw was closely cross-examined on whether he saw the object before he fell over it. He denied that he had seen it; saying that he had looked over the driveway and the area was clear. It was put to him that had he looked, he must have seen it. Mr Shaw denied that this was so.

Glen Rochester

1. Mr Rochester was a longstanding friend of Mr Shaw's. He said that on the date of the accident, he and Mr Shaw had set off (in Mr Shaw's Holden Commodore) for a fishing expedition from early in the morning in Sydney Harbour after launching from a ramp in Rydalmere. They were fishing for about 6 hours. In that time, Mr Rochester, who was driving the boat, estimated that the plaintiff had consumed one or perhaps two alcoholic drinks.
2. After the fishing was over, Mr Rochester drove the car back, with the boat trailer behind it, to the Moree Avenue property. Mr Rochester described reversing the car and trailer into the driveway of the property and recalled Mr Shaw assisting him to do so, with verbal instructions, on the rear, left passenger side. Suddenly, he heard Mr Shaw yell and scream. Mr Rochester got out of the motor vehicle to learn what had happened. He saw Mr Shaw on the ground, holding his leg, and heard him 'swear about the picket'. Mr Rochester noticed a metal post sticking up near the driveway, which was about knee height. He said that it had no colour cap on it and there was no barricade around it.
3. Mr Rochester recalled leaving the Moree Avenue property about 15 minutes or so to go to Mr Shaw's place. He recalled going into that place, but noticed that Mr Shaw did not accompany him. He was informed by someone that the plaintiff was lying in his room.
4. In cross-examination, Mr Rochester was challenged about his capacity to recall what had occurred and the extent of Mr Shaw's earlier drinking. As to the former, he indicated that it was a year or 18 months from the accident that he turned his mind to the events of the date of the accident. He was asked whether the occupant (tenant), Ms Fitzpatrick, who Mr Rochester was acquainted with, had turned floodlights on (he did not recall) or whether the lights on the car were on (he did not recall). He recalled that the incident occurred late in the afternoon and found it difficult to pinpoint, with precision, the level of the light. When he was assisting Mr Shaw after the incident, he acknowledged he was able to see the object.

Josephine Fitzpatrick

1. Ms Fitzpatrick was the tenant of the Moree Avenue property as at the date of the incident. She had been in a relationship with Mr Shaw for 12 months, but after that concluded, they had remained friends.
2. Ms Fitzpatrick gave evidence of hearing yelling and swearing in the front of her yard on the date of the incident. When she came out, she saw Mr Shaw holding his knee on the side of the driveway a 'few centimetres' from the side fence. She heard Mr Shaw say words to the effect "Who put the bloody pole there?" She did not know the answer to that. But she noticed the pole sticking out, recalling that it was knee-height.
3. Ms Fitzpatrick was unsurprisingly aware of the works being done which affected the front of the property she occupied. She did not believe that the works had actually been completed, having been told by one of the workers of the need for refill. She recalled what she described as 'metal star poles' being used in relation to such works and that some of them had yellow caps on the top of the poles. The choice of colour was intended to illuminate the poles. She did not see any yellow cap on the pole that she observed after Mr Shaw's incident; and nothing was put around the pole to prevent someone from touching it. She said she dispensed with the pole the next day.
4. In cross-examination, she was asked whether she had turned the floodlights on. She said she had no floodlight, but rather there was an automatic sensor-light in the relevant area. She did not, in fact, turn any light on. She recalled that it was "getting on" dark. When she was shown the photograph which is Exhibit B, she could not locate the pole being in the area where the incident occurred. Asked to estimate the distance between where the pole was and the (side) boundary fence, she could do no more than say that it was in the grassy area closer to the driveway.

Mr Stephen Payne

1. Mr Payne runs his own business as a plumber and gasfitter. He contracted with Niru Constructions to install the drainage easement. He gave evidence that for that purpose, he did not use metal star pickets. Accordingly, he did not use any star picket alongside the driveway in the Moree Avenue property.
2. In cross-examination, Mr Payne was referred to Exhibit B. He said that he did not recall when the works were finished. He said he did not leave the area alongside the metal fence in the condition depicted in the photograph. The area was left in the condition that he found it in to begin with. Mr Payne confirmed that his works were only performed alongside the fence, between the drive-way to the back of the Moree Avenue property. He estimated that the width of the trench that was dug was about 400mm.

Mr Mahendran

1. The second defendant gave evidence. He is an architect and builder by occupation. He had been in the building industry for about 20 years. He gave evidence of contracting Mr Chaloub to connect the drainage from the street (Moree Avenue) to the boundary of the Moree Avenue property. He said that Mr Chaloub had performed that work, rendered a bill and the bill was paid. Mr Mahendran clarified that some of the bill related to work regarding the property at Austral Avenue.
2. In cross-examination, Mr Mahendran said that Mr Chaloub had performed some work outside the Moree Avenue property, from the street kerb to the boundary of the property. Mr Mahendran said he thought that this work was performed in 2016.
3. Mr Mahendran was referred to Exhibit B. He identified the incomplete work cordoned-off (including a witch's hat and a metal post with a yellow cap), between the street kerb and the neighbouring property to the Moree Avenue property, as having been performed by Mr Chaloub. This was work which Mr Mahendran recalled being undertaken after Mr Payne had laid a pipe insider the property. The photograph depicted a star picket similar (though apparently not identical) to the one that the plaintiff says he fell over. The one in the photograph had a yellow cap on it and, over the objection of Counsel for the defendants, Mr Mahendran said he would have expected Mr Chaloub to put a yellow cap on any star picket he used in performing work for safety reasons.
4. Mr Mahendran accepted that given what was depicted in the photograph, further work needed to be undertaken in the Moree Avenue property, which he believed was done.
5. Mr Mahendran was also referred, in cross-examination, to one of the documents which he had produced on subpoena (Exhibit W - p 15 of the bundle which included the subpoena), which indicated that concrete had been poured in the Moree Avenue property on 12 January 2017 (approximately two weeks or so prior to Mr Shaw's accident). He accepted that further work would be needed after that. It was put to Mr Mahendran, but he denied, that for the progress of the further work within the Moree Avenue property, there would need to be a marking out of the area within the property. Mr Mahendran said he believed that the work had been done by Mr Payne.
6. Mr Mahendran accepted that he had received an email from Mr Chow, of the local council, on 31 March 2017 (post-accident).
7. Mr Mahendran accepted that his company had an obligation to keep the premises safe, but disputed that he held any personal obligation. The company had one other employee apart from himself and used a labour hire firm for his subcontractors; usually three in number. He did not supervise their work himself.
8. He accepted that if a star picket had been left on a driveway without a coloured cap on it, then this should not occur. When it was put to him that he could not be sure, given the infrequency with which he visited the Moree Avenue property, what the condition of the property was in at any given time, he trusted his workers, believing that they had cleaned up the site at the end of each day. He relied, specifically, on a supervisor, who he identified was Mr Dalmendran.

Credit

1. Although I thought he tried to do his best to give his evidence honestly, I did not regard Mr Shaw as being a very reliable witness. Mr Shaw himself said, more than once, that he had a bad memory. There were inconsistencies between his evidence and the contemporaneous clinical notes and even history he had supplied to his own orthopaedic surgeon. That, of itself, may partly be explicable because of the lapse of time between the incident and his giving evidence. As I have said, no evidence was adduced to indicate that his alcoholism impaired his capacity to give evidence. The problem ran deeper than the mere passage of time. His evidence was regularly punctuated by answers that he "didn't' remember" even to ostensibly straightforward questions such as whether he sustained a fracture to his ankle in late 2019. He gave multiple answers to the basic question of when he returned to work after sustaining his injury. Information he supplied to the hospital after the fall contained inaccuracies (such as his having lived at the premises where he fell).
2. All this being said, I consider that he tried his best to give his evidence honestly. He did not conceal that he was alcoholic. This conclusion was reinforced by the views expressed by both of the medico-legal experts engaged on behalf of the defendants, which rejected findings of exaggeration. The last conclusions about Mr Shaw's honesty are not wholly unqualified. I take into account, in circumstances elaborated below, the content of his tax returns prior to and after his accident which, collectively, are to his discredit.
3. In the circumstances, I scrutinise his evidence with particular care and, more significantly, with reference to the objective probabilities and contemporaneous documentation.
4. As to Ms Fitzpatrick, there was little challenge to her evidence and I considered that she was both credible and reliable.
5. As to Mr Rochester, on the core aspects of the description of the accident, I regarded his evidence as both credible and reliable even if his recollection of some incidental detail was not especially strong.
6. I accept that Mr Payne was a credible and reliable witness.
7. Generally, I considered that Mr Mahendran was a credible witness; however I formed the impression that on matters relating to his perception of his own responsibility for the condition of his site, his evidence was somewhat implausible and tailored to advance his interests.

Submissions

1. Counsel for the defendants submitted that it could be inferred that the metal post had been left on the Moree Avenue property by a subcontractor for the first defendant but questioned whether it should be. He submitted that no one knows who put it there or why it was put there or when it was put there. No inference could be drawn from any failure from the defendants to produce any report from an investigation. Although this was not the subject of evidence, Counsel for the defendants submitted (from the metaphorical 'Bar Table', the hearing being conducted remotely) that the first that the defendants knew about the claim was when they had been served with the writ just before the expiry of the limitation period. However, Counsel for the defendants ultimately acknowledged that in circumstances where no serious challenge was made to the evidence of Mr Rochester or Ms Fitzpatrick, it would be open for the Court to find that the accident probably occurred because an unnamed subcontractor left the post in the ground. His real point was that neither of the defendants were responsible for that situation. This quasi-concession makes one wonder why Counsel raised the other questions he did, which were referred to earlier in this paragraph.
2. The evidence of Mr Mahendran did not assist the defendants since he did not supervise. The evidence of Mr Payne yielded only limited assistance, since the problem arose after he left. I find that the post was there in late January 2017 when the plaintiff fell over it, at a time when the works were not complete. I accept that res ipsa loquitur reasoning does apply in circumstances. Further I find that the defendants did not discharge an evidential burden of identifying how the post got there after Mr Payne had completed his part of the job.
3. I agree with the plaintiff's submission that the works had not finished by November 2016 and confidently accept that the metal post that was present on the Moree Avenue property reflected the fact that the works were not yet completed. The first defendant was responsible for the condition of the Moree Avenue property to the extent that it was affected by the construction works for the drainage easement.
4. I find that the plaintiff did stumble over a metal post left on the driveway of the Moree Avenue property by one of the contractors engaged by the first defendant. I now turn to consider the defendants' real point which was that they were not responsible.

DUTY OF CARE

1. Both defendants denied the existence of any duty of care. In addition, they relied upon statutory defences under the Act which they say modified such duty.

The independent contractor point

1. At the forefront of Counsel for the defendants closing submissions was that the plaintiff's case, at its highest, was that the metal pole over which he stumbled had been left there by a subcontractor to the first defendant. That being so, although the plaintiff may have a claim against the subcontractor himself or herself (whoever that was), but that the first defendant could not be vicariously liable for any negligence of that subcontractor. It could only be vicariously liable for the negligent conduct of its employees or agents [2] .
2. The plaintiff submitted, firstly, that the first defendant did not plead this basis for exculpation, as it was required to do by r 14.14 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), it being a point which: (a) not being pleaded, took the plaintiff by surprise; (b) if it was good, would make the plaintiff's claim against the first defendant not maintainable and (c) raised a matter of fact not arising out of the statement of claim. The plaintiff submitted, further and in the alternative, that even if the point was allowed to run, it failed on the facts. Although the first defendant, as the builder of works and in relevant possession the Moree Avenue Property (or at least that part of the property where the drainage works were being performed) may, in the circumstances, discharge its duty to entrants, that depended upon proof of the circumstances in which subcontractors were engaged, including delineation of such matters as to how the subcontractor's work was to be supervised and what arrangement had been taken, as between the first defendant and the subcontractor, to ensure the condition of the working site was safe for entrants, like the plaintiff, who entered on to the Moree Avenue property.
3. Consideration of the plaintiff's first point requires reference to the pleadings. At paragraphs 3-3A of the Amended Statement of Claim, the plaintiff alleged, relevantly, that "the first defendant's servants or agents placed a metal post in the driveway of (the Moree Avenue property)" as part of drainage works. In its defence, at paragraphs 3 and 3A, the first defendant simply denied the allegations in the corresponding part of the plaintiff's pleading. As earlier indicated, special defences (contributory negligence, obvious and inherent risks) were raised by the first defendant, and specific assertions were made that no breach of duty could be found, but a fair characterisation of the first defendant's defence is that no point was raised about duty of care or legal responsibility generally, particularly in response to paragraph 3, to the effect that if the post had been left by someone contracted by it, then the first defendant would not be responsible for any loss, damage or injury sustained by persons such as the plaintiff as a result.
4. I agree with the submission of the plaintiff that all of the matters in r 14.14 of the UCPR made it incumbent upon the first defendant to raise it in its defence. It did not do so. No application was made by the first defendant to amend. There is no indication that the plaintiff acquiesced in the first defendant running the point (insofar as it concerned the issue of the first defendant's legal responsibility). It follows that procedural fairness is such that the point cannot now been maintained.
5. If, however, I am wrong in the above conclusion, I would have agreed with the alternative submission of Counsel for the plaintiff, that the first defendant did not deign to prove, and cannot prove, that its prima facie duty, as the effective occupier of the part of the land on Moree Avenue property insofar as it was necessary to undertake the drainage works, discharged its duties of care to entrants who might be affected by those works. The first defendant did not assert who the particular sub-contractor even was; let alone try to identify what arrangement it reached with that person as to who was responsible for the condition of the site, as it affected the Moree Avenue property. I agree with the plaintiff that the argument fails on the facts.
6. Other than the independent contractor point, there was no other basis cited by Counsel for the first defendant in opposition to the existence of a duty of care.
7. Conventional analysis would indicate such duty of care here. Where a claim for damages in negligence is brought for personal injury, it is generally said that it is enough to sustain a duty of care that a person knows or ought to have reasonably foreseen that physical injury is a likely result of the person's conduct [3] . That general rule may be subject to some exceptions. But most often, the duty of care is uncontroversial, since it is recognised in certain well-established categories of relationship.
8. In the case of the first defendant, I consider that the company did owe a duty of care to entrants, like Mr Shaw, on to the Moree Avenue property. There was a foreseeable risk that entrants on to the Moree Avenue property, like Mr Shaw, could suffer physical injury as a result of the condition of the Moree Avenue property over which the company, through its workers, had access, in order to undertake the construction works. The company was in practical occupation and in a position to control the condition of that property. Entrants to the Moree Avenue property, such as Mr Shaw, had no capacity to protect themselves against risk of harm (whether, and how, entrants could exercise reasonable care to protect themselves is a different question).
9. I find that the first defendant owed the plaintiff a duty of care.

Personal duty in the second defendant

1. A separate point raised on behalf of the second defendant is that merely because a drainage easement had been granted to him (among others), through an arrangement between the proprietors of the Austral Avenue property (including but not limited to Mr Mahendran) did not mean that he owed a personal duty of care to those affected by the works necessary to create the drainage.
2. The plaintiff's Counsel indicated that the joinder of the second defendant represented something of a 'fallback' position should the Court find that the first defendant was not responsible for any injury. Counsel referred to the circumstance that Mr Mahendran obtained a personal benefit through the grant of an easement. The terms of the easement (between the proprietors and the NSW Land and Housing Corporation) foreshadowed that some physical injury might arise from the performance of the works. This explained, for example, the provision, as a condition of the grant of the easement, that the owners of the Austral property effectively indemnify the NSW Land and Housing Corporation for harm resulting from the works on the easement. Counsel for the plaintiff referred the Court to observations of McColl JA (Ipp JA and Basten JA agreeing) in Stojan (No.9) Pty Ltd v Kenway; Ballina Shire Council v Stojan (No.9) Pty Ltd (2009) 210 LGERA 90; [2009] NSWCA 364 at [82]-[88], in support of her submission that the second defendant (along with the other proprietors of the Austral Avenue property) should be regarded as an 'occupier' of the part of the Moree Avenue property affected by the drainage easement works.
3. As was pointed out by McColl JA in the decision on which the plaintiff relied, the content of an occupier's duty depends on the circumstances. Usually, an occupier's duty of care is capable of fulfilment by delegation to an independent contractor: C Sappideen & P Vines, Fleming's The Law of Torts (10th ed, 2011, Lawbook Co) [22.130]. Because of the common association between Mr Mahendran as director of the first defendant builder (one of the occupiers of the site where the drainage works were performed) and as a co-proprietor of the Austral property (another occupier of the site where the drainage works were performed), there is a question whether the latter occupier discharged its duty by appointing the former to perform the construction works for want of independence. But there was no real inquiry into the first defendant's competence or renown in undertaking the works. That being so, I am not persuaded by the plaintiff, who bore the onus of proof, that by their appointment of the first defendant to undertake the construction works, Mr Mahendran (and the other Austral Avenue Property proprietors) breached a personal duty of care to the plaintiff.
4. Finally, I note, for completeness that simply because Mr Mahendran was the director of Niru Constructions, that circumstance does not make him personally liable for conduct engaged in by that company. That would infringe the principles from Salomon v Salomon & Co Ltd [1897] AC 22. There was no allegation, nor proof, of what Mr Mahendran actually, or even constructively, knew of the condition of the property himself. There was no evidence of any personal undertaking by him and therefore any assumption of responsibility, with known reliance.
5. Mr Shaw's action for negligence against Mr Mahendran personally accordingly fails.

The statutory defences

1. The duty of care in this case is also shaped by the statutory defences pleaded, although they were not vigorously pressed by Counsel for the defendants. Nevertheless, it is appropriate to turn to them first.

Preliminaries

1. The defendants, in their respective defences, relied upon ss 5F, 5G and 5H of the Act. They also relied upon contributory negligence, but that defence only concerns the nature and scope of Mr Shaw's duty of care to protect his own interests; which is conceptually quite different. Nevertheless, in the way that the defendants have pleaded their defences, their recourse to 'obvious' and 'inherent' risks of harm is intertwined with their case that the plaintiff failed to take care to protect his interests.
2. There is no actual express delineation in the pleaded defences of what the 'obvious' or 'inherent' risk actually is. What the defences amounted to, in substance, is the contention that if the plaintiff had exercised reasonable care he would have avoided the post as it was, in situ, on the day that the plaintiff fell over it. That, however, is to conflate the defences, and obscures identification of the risk of harm that the defendants had any duty to avoid. This became evident, as will be seen, when Counsel for the defendant was asked how he would define the 'risk of harm', for the purposes of analysis under s 5B.
3. A second matter is the consequence of any finding that there was an obvious risk. By their defences, the defendants contend that if the plaintiff suffered injury, he only did so by the materialisation of an obvious risk, or inherent risk, such that the defendants did not owe the plaintiff any duty and could not be liable in negligence at all.
4. That contention overstates the effect of, at least, the significance of an obvious risk. If there was any obvious risk, then the effect of the provisions in Part 1A, Division 4 of the Act is that (subject to exceptions not pleaded by Mr Shaw) it relieved the defendants of any duty to warn Mr Shaw about the risk. It did not otherwise immunise the defendants from any liability for negligence in other respects.

'Obvious risk'

1. Counsel for the defendants' position on the obvious risk defence was ambivalent. Having placed some importance on some evidence to suggest that it was dark, Counsel said that the risk of harm was obvious if it was dark. That is, obvious only in some circumstances. If it was not dark, the risk may not have been so obvious; albeit that it elevated the degree of care that the plaintiff should undertake himself to protect his person. In this way, it was relevant to the contributory negligence.
2. On the characterisation of 'risk of harm', the defendants' Counsel submitted that the risk of harm was that by walking backwards without observation, a person might stumble and fall over the metal post. The plaintiff's Counsel submitted that it was the risk of someone tripping over the post.
3. I reject the defendants' characterisation of the risk of the harm. It borders on the meaningless, since it is directed only to the contributory negligence defence; which would only need to be considered if a finding of negligence was made out, and is directed only to steps that a plaintiff might take to protect himself or herself against a risk of injury. The risk of harm is to be characterised as something that looks to what the defendant must do in response, taking reasonable precautions. If it is 'obvious' or 'inherent', it might not have to do anything. It still might not have to do anything if such inactivity represents a reasonable precaution in response. I characterise the risk as being that an entrant on to the Moree Avenue property would trip or stumble over a metal post left on the property resulting from the drainage works and suffer personal injury as a result.
4. Was the risk of harm that I have identified 'obvious'? Counsel for the defendants submitted that the Court should find that it was dark when the plaintiff fell over it. If that submission was to be accepted, it would be difficult to accept that the risk of falling over the metal post was 'obvious'.
5. Counsel for the plaintiff referred to the evidence not only to the plaintiff not seeing the metal post (after looking along the driveway), but also the evidence of Mr Rochester and Ms Fitzpatrick, that they did not see it either.
6. There was a certain vagueness about the evidence from the witnesses as to how light it was. No one pinpointed the time, with any level of precision, when the fall occurred. But it occurred in summer. It was common ground that it was not 'pitch black' and neither Ms Fitzpatrick nor any of the other witnesses for the plaintiff said that any positive action had been taken to turn the lights on. The plaintiff's best estimate, when he gave evidence in the Court, was that he fell somewhere between 7:00pm and 8:00pm. The likelihood is that whilst it was getting darker, some daylight remained.
7. It is unnecessary to be categorical, however. I accept the force of the plaintiff's submission that in circumstances that the post was not visible to either Ms Fitzpatrick or Mr Rochester, who were in the vicinity of the metal post soon, or virtually immediately after the plaintiff's fall, the defendants have not discharged their onus of proving that it was obvious in the circumstances.

'Inherent risk'

1. In Wyong Shire Council v Vairy [2004] Aust Torts Reports 81-754; [2004] NSWCA 247 at [163], Tobias JA distinguished between an 'obvious' risk and an 'inherent' risk. As the definition in s 5I(2) indicates, the risk must be something which cannot be avoided by the exercise of reasonable care and skill.
2. Unlike the defence of obvious risk, proof that injury was the result of materialisation of an inherent risk would immunise the defendants: s 5I(1) of the Act.
3. However, I am not persuaded that the risk that as a result of a construction worker (or workers) leaving a post in situ in undertaking construction works, a person would stumble upon it and personally injure himself or herself, satisfied that definition. For reasons that will become shortly apparent, it is far from self-evident that such risk could not have been avoided by the exercise of reasonable care.
4. The s 5I defence accordingly also fails.

Breach of duty

1. The issue of breach of duty against Niru Constructions turns upon the operation of ss 5C and 5D of the Act.
2. I described the risk of harm earlier in these reasons. Counsel for the defendants submitted that the risk of harm was not foreseeable. It would only be foreseeable if someone, like the plaintiff, had walked backwards without watching where they were going.
3. I disagree. The submission, in my view, conflates the inquiry as to a risk that was 'foreseeable' (under s 5B(1)(a)) with the separate inquiry whether the risk was "not insignificant" (s 5B(1)(b)). The test for the former is undemanding. It does not require foresight of the specific chain of events that led to the injury. In my view, it does not matter, for the purposes of s 5B(1)(a) whether an invitee approached an unknown obstacle like a darkly coloured metal post front on or from a backward direction.
4. As to the question whether the risk is 'not insignificant', the defendants are on firmer ground. But the defendants' problem is that the force of their argument could only depend on a set of conditions or circumstances. If someone was approaching the obstacle in broad daylight, its argument would have greater force. But as I have already indicated, when considering the statutory defences relied upon by the defendants, the circumstance is that none of the plaintiff, Mr Rochester or Ms Fitzpatrick clearly saw the metal post in the condition of the light that they faced. The plaintiff, who was not challenged on this particular aspect of his evidence, said that he looked at the driveway before walking backwards (T 28.9-28.14).
5. I regard that risk of harm as being both foreseeable and not insignificant.
6. The question (s 5B(1)(c) and 5B(2)) then becomes what reasonable precautions that an entity in Niru Constructions' position would have taken in response to that risk. Conceptually, one possible answer is nothing. Amongst other particulars of negligence identified in Mr Shaw's pleading, the pertinent one was the allegation that the metal post should have been removed at the completion of the draining works, or prior to the accident.
7. Taking into account the matters in s 5B(2), I find that there was a high probability that the harm, as I have described it, would occur if care was not taken. The physical harm that might materialise if an entrant stumbled on to the post cannot be dismissed as trivial. There was no suggestion by the company that either removing the post altogether, or barricading it was burdensome.
8. Counsel for the defendants accepted that, if it came to it, the reasonable precaution to the foreseeable and not insignificant risk of harm was to remove the post altogether. Indeed, ultimately, on the (contested) premises that (a) the first defendant was liable; (b) the metal post had been left there, Counsel for the first defendant ultimately accepted that it was not a reasonable response to a risk of harm generated simply for the person to have left the post in situ; so that if the first defendant was responsible it would be in breach, for the purposes of s 5B.
9. Accepting that those premises are made out, I find that the first defendant was in breach of its duty of care to the plaintiff by failing to remove the post.

Background

1. Mr Shaw was 52 years of age at the date of the accident. He was a qualified electrical mechanic (supervisor). In 1983, he was employed with British Telecom before he immigrated to Australia in 1987. He had been self-employed as an electrician since 1989; and has not received any wage ever since.
2. When he gave evidence at the hearing he was in receipt of 'Job Keeper' benefit through Centrelink.

Pre-accident injuries

1. Mr Shaw also sustained injury to his left ankle and heel in 2005 and had presented to Wentworthville Medical & Dental centre in 2007 with pain and swelling in his left ankle.
2. Mr Shaw had sustained injuries to his left ankle (2014, in an assault) and right ankle (2015, in an accident at home), along with injuries to both of his wrists. He explained in his evidence that although the right ankle did not cause any problems, his left ankle caused some pain which he said was bearable. The wrists were sore when he initiated wiring work and used power tools.
3. Documents tendered by the defendants (Exhibit 6) indicate that between February and May 2015, Mr Shaw had reported being unable to work due to various injuries: to his right hand (February 2015), and a fracture to his left humerus (May 2015).
4. Under cross-examination, Mr Shaw was challenged when he said that, prior to the subject accident, he had no prior injury to his left knee. He was referred to evidence (Exhibit 5) of his informing Dr Yusuf of a fall from the stairs on 7 September 2015 resulting in pain in his left knee (although no fracture was evident). He was also referred to a note from a different medical practitioner, Dr Abraham, recording that earlier, on 19 May 2015, Mr Shaw had reported an injury to a knee, following a fall. On that occasion, Mr Shaw received a referral to have a general x-ray. Whether or not he had that x-ray, or received other treatment, was not apparent from the evidence brought to my attention.
5. By contrast, on 13 January 2016, an ultrasound was conducted in respect to Mr Shaw's left knee (Exhibit E). Mr Shaw appears to have noted sharp pain in his knee aggravated by long distance walking, but there was no fracture on an x-ray. The ultrasound indicated a small amount of fluid in the plaintiff's left knee joint. The conclusion of the practitioner was minimal left knee joint effusion and there was no other significant finding.
6. On 3 February 2016, Mr Shaw presented to Dr Yusuf, requesting an ultrasound of his left knee. The practitioner explained to Mr Shaw that there was minimal effusion, no ligamental and tendon damage (Exhibit 5).
7. Other documents (Exhibit 6) indicated injuries to Mr Shaw in June 2016 (rib fracture) and September 2016 (left shoulder dysfunction), at times when Mr Shaw was seeking medical certification to enable him to claim Centrelink benefits.
8. Mr Shaw also acknowledged that he was afflicted by alcoholism, although he asserted that this did not impinge upon his capacity to work. He was not cross-examined in respect to that particular assertion. I would also add, with reference to Mr Shaw's admission of his 'bad memory' during the course of his cross-examination, that there was no medical evidence to indicate any cognitive incapacity in giving evidence on account of his alcoholism.

The accident and the injuries sustained

1. Mr Shaw was asked in cross-examination why he did not proceed, straight away, to the hospital after his fall. He had indicated that the fall had taken place after 5pm in the afternoon; perhaps at 7 or 8pm. He said that he did not want to sit around at hospital all night and was hungry. Instead he took some Panadol.
2. The day after the accident, 1 February 2017, Mr Shaw presented to the Emergency Department of Westmead Hospital (Exhibit 2). The orthopaedic team had the impression that Mr Shaw had sustained a vertical undisplaced fracture of the left patella closed, with vastus lateralis muscle tear, left lateral collateral ligament tear and haemarthrosis. He said his left knee was very swollen and that he could not walk. He received a brace for his knee upon his discharge from the hospital (2 February 2017), which he used, on and off, for 6 months.
3. At hospital, an x-ray and ultrasound of his left knee was performed. The ultrasound (Exhibit F) performed on 2 February 2017 depicted a patella fracture and a haematoma over the anterolateral aspect of the distal end of the left thigh.
4. Upon his discharge on 2 February 2017, the Westmead Hospital's clinical notes indicated a diagnosis of a fracture of the patella. The more detailed notes (Exhibit K) indicated a vertical undisplaced fracture left patella closed, with vastus lateralis muscle tear, left lateral collateral ligament tear with haemarthrosis.
5. Mr Shaw was requested to undertake an MRI and to follow up Dr Balalla with an x-ray. It was put to Mr Shaw that he did not do so, but the evidence (Exhibits G and Q) suggests that he did, on 15 February 2017. Dr Caristo concluded a recent lateral transient patellar dislocation.
6. Mr Shaw said that over the next 12 months, his left knee was sore. He could not squat, kneel or climb ladders; which were activities he said he could do prior to the accident. He was not challenged about this particular evidence in cross-examination.

Further investigations: February - March 2017

1. Mr Shaw attended the Medical and Dental centre at Wentworthville on 7, 8, 13 & 20 February 2017.
2. An X-ray of the left knee on 8 February 2017 indicated an undisplaced sagittal fracture, through the lateral patella, with extension to the lateral patella facet. Clinical notes from Westmead Hospital (Exhibit O) reported Mr Shaw's complaint about pain in the left knee, the insufficient painkillers he was provided and his concerns about his capacity to pay for an MRI.
3. An MRI of the left knee on 14 February 2017 (Exhibit G) likely indicated a lateral transient patellar dislocation, and also a vertical undisplaced fracture of the lateral patellar facet.
4. He also had an x-ray of his left knee on 30 March 2017. A clinical note (Exhibit R) indicated Mr Shaw's complaining of a lack of endurance and an inability to walk. The medical practitioner prepared a referral of Mr Shaw for physiotherapy. A different clinical note (Exhibit 4) indicated that a physiotherapy appointment was booked for 10 April 2017. Mr Shaw could not recall whether he attended that appointment.
5. He also had an MRI of his left knee on 7 June 2017. The results (Exhibit P) indicated a probable hyperextension-type knee injury with associated prior sagittal fracture through the patella.
6. A request for an MRI of the left knee was made on 4 September 2019 (Exhibit I) and further investigation was requested on 12 October 2019 (Exhibit J). It was also put that there were no records of medical prescriptions, or consultations with medical practitioners in that period.
7. It was pointed out to Mr Shaw that there were no medical records indicating any treatment for his left knee from 2 February 2017 until 2019. Mr Shaw said he could not recall having had any physiotherapy after his accident; notwithstanding that Dr Lee's report indicated that this had what occurred.

Post-accident injuries

1. On 2 December 2019, Mr Shaw consulted Dr Vernuguoplan, complaining about anterior knee pain and an inability to fully extend his left knee and anterior right pain. On examination, Dr Vernugoplan found that he had good flexion in the knee and diagnosed joint pains and likely arthritis.
2. Clinical notes from Westmead Hospital also referred to the plaintiff having had a left knee MRI scan, which occurred on 6 December 2019 (Exhibit H).
3. On 30 December 2019, Mr Shaw presented to Westmead Hospital with a fracture to his left ankle (Exhibit L), apparently after Mr Shaw tripped in a gutter. A consultation note with Dr Ferraro (Exhibit 3) confirmed a left ankle injury (fracture through distal fibula) sustained in early December 2019. Mr Shaw was advised that he might need surgery
4. The MRI on the left knee reported by Dr Lucas revealed prominent chondral wear at the retropatellar surface, both laterally and medially and medial joint cartilage wear. Dr Lucas described what he saw as patellofemoral compartment chondral loss and synovitis in the knee
5. On 30 January 2020 an x-ray was taken of his left ankle (Exhibit P).
6. A discharge summary from Westmead Hospital (Exhibit 13) indicated a closed fracture of the distal end of the radius. The summary had referred to the plaintiff's recent episode of slipping near an above ground pool when, in an attempt to break his fall, he injured his left wrist. This evidence reinforced the plaintiff's testimony, recalling that in December 2019, he injured his hands when slipping in or near a pool.
7. His past medical history was relevantly summarised as including a left ankle fracture, right ankle fracture (with osteomyelitis), right first digit break/dislocation with pin fixation and left humeral break and pin fixation.

The Plaintiff's medico-legal evidence

1. Dr Yuk Kai Lee, an orthopaedic surgeon, prepared a report 14 August 2020 for the plaintiff (Exhibit 1). Dr Lee cited a study from 2018 which identified that "long-lasting local hyperalgesia following a patella fracture is common." Dr Lee supplied a prognosis to the effect that Mr Shaw's fracture may have been caused by a patella dislocation, in which there was much soft tissue injury. Dr Lee considered that Mr Shaw developed a flexion contracture.
2. Mr Shaw also relied upon the report (23 July 2020) of Dr John Davis (Exhibit D), an occupational physician, who assessed Mr Shaw in July 2020. Dr Davis diagnosed a dislocation of the left patella with subsequent chondral damage to the posterior surface of the patella and early degenerative changes in the medial compartment.

The Defendants' medico-legal evidence

1. The defendants relied partly upon the opinion of Dr Anthony Smith, an orthopaedic surgeon, who supplied a report date 5 May 2021 (Exhibit 7). After taking a history from the plaintiff, reviewing the radiological investigations and conducting his own examination, he opined that Mr Shaw had bilateral osteoarthritis and that, through the accident, Mr Shaw sustained an injury to previously asymptomatic left knee osteoarthritis; probably dislocating the patella and sustaining the undisclosed vertical fracture. Such ongoing symptoms as he experiences are consequent to underlying knee osteoarthritis, and exacerbation of that condition.
2. The defendants also party relied upon the opinion of Dr Graham Hall, an occupational physician, who examined Mr Shaw on 20 April 2021 and similarly reviewed the investigations that had occurred from February 2017 through to December 2019. Dr Hall's report was dated 25 April 2021 (Exhibit 8). He diagnosed left patella dislocation and fracture with cartilage damage and ongoing knee restriction. Dr Hall also accepted that the accident caused a knee injury resulting in a permanent disability and that Mr Shaw was unable to kneel or squat, climb ladders or work in awkward or constricted spaces.
3. Drs Smith and Hall were both asked about whether in their (respective) views, Mr Shaw was exaggerating his symptoms. Dr Smith thought that Mr Shaw probably did suffer from symptoms associated with left knee osteoarthritis from time to time. Dr Hall did not detect any exaggeration.

Submissions

1. Counsel for the defendants submitted that the plaintiff's left knee injury was only "transient". The evidence left a lacuna as to the medical treatment he had received in relation to it, between 2017 and 2019 and he did not receive physiotherapy treatment in that period either. So too was there a lacuna in the medical or pharmaceutical expenses he had incurred. The plaintiff had sustained an injury to the left knee even before the accident.
2. Counsel for the plaintiff acknowledged evidence of some problem in the left knee, insofar as it affected the plaintiff's capacity to walk long distances, before the accident. But it was not a significant concern. The plaintiff sustained a traumatic injury to his left knee after his collision with the star post. This was borne out in the contemporaneous investigations (Exhibits F & G) and also the medico-legal opinions of Drs Lee and Davis and also Dr Hall, who was qualified by the defendants. It did not detract from his case that he was injured that the plaintiff did not identify particular treatment or receive particular medication. The objective evidence indicated that he sustained injury and he continues to be afflicted by it. Moreover, the nature of the injury, for reasons explained by Dr Lee, was such that the soft tissue injury would not usually be overcome. Dr Davis' evidence about the treatment he expected that the plaintiff might need in the future belied the suggestion that he sustained a trivial injury. Further, the Court should reject Dr Smith's evidence as an outlier - he referred to the plaintiff's problems in both knees.

Consideration of injuries

1. I do not accept the defendants' submission that the left knee injury was only transient. I find, on the probabilities, that by reason of the accident, Mr Shaw sustained a dislocation and fracture of the left patella, and that this has caused ongoing disability to the use of the left knee. None of the medico-legal experts suggested that anything that occurred in late 2019 had totally overridden, or displaced the significance or effects of the knee injury sustained in January 2017. Three of the four experts (including Dr Hall) causally attribute Mr Shaw's complaints about the disabilities concerning his knee to that accident. Dr Smith's opinion that his ongoing symptoms were consequent to underlying osteoarthritis was not only something of an outlier but, in my view, was also an opinion in respect to which the reasoning was not very transparent or, if it was, unconvincing. It appeared that he was influenced by statistics (Exhibit 7, p 4). Further, I consider that there is force in Dr Lee's evidence, in particular, about the enduring nature of pain following patellar fractures.
2. Whilst I take into account the circumstances that the plaintiff did not apparently seek medical consultations or even physiotherapy, they are not inherently incompatible with the claim of ongoing disability and inconvenience. I infer that the plaintiff has put up with the pain with over the counter painkillers and physical restriction. There was no pleading that the plaintiff had failed to mitigate his loss of damage.
3. That being so, I find that Niru Constructions' breach of duty caused Mr Shaw's knee injury and the disabilities associated with it.

QUANTUM

1. The real questions concern the extent of the harm and disabilities, so caused, up to trial and into the future. Ultimately, the heads of loss pressed by the plaintiff were past and future out of pocket expenses, future loss of earning capacity and future domestic care.
2. On the assessment of damages, where claims are made for future loss, and in accordance with the principles of Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 and Seltsam v Ghalloub (2005) 3 DDCR 1, the Court is required to consider the possibilities that such losses may be attributable to causes unrelated to the subject accident, which may lead to a greater reduction in damages for contingencies greater than would normally arise (H Luntz & S Harder, Assessment of Damages for Personal Injury and Death (5th ed, 2021, LexisNexis) [1.11.20] ("Luntz & Harder").

Non-economic loss

1. Mr Shaw said that he still experiences pain in his left knee; even with sedentary activities - he said he experienced pain when he gave evidence. He said that he cannot straighten his knees.
2. Dr Lee had recorded Mr Shaw informing him that he could not play golf, football or cycling, activities that he was able to do before his fall. Under cross-examination, Mr Shaw was referred to this account that he had given to Dr Lee. He maintained that he played golf every couple of weeks and cycled (although not very often) up until his accident. He also said he could play football up to the accident, but could not remember whether he did so right up to the accident.
3. In the defendants' schedule of damages (MFI 3), the defendant submitted that the loss was in the range of 15-20% of a most extreme case. In his closing oral argument, the defendants' Counsel disclaimed responsibility for the content of the schedule and indicated that he did not regard himself as being bound by it. In the event, he argued that because of the absence of consultations with practitioners, treatment and medication, this was all indicative of the fact that there was only the barest impairment to the various factors that would sustain an award of non-economic loss.
4. In his schedule of damages (MFI 2), the plaintiff nominated a figure of 28%. Counsel for the plaintiff submitted that having regard to the evidence of Dr Davis as to the treatment that the plaintiff might require on his left knee, essentially involving a knee replacement, this estimate of the proportion of a most extreme case was conservative.
5. Neither of these submissions really addressed the evidence, from the plaintiff, and medico-legal opinion, available about non-economic loss caused by the accident.
6. Having regard to the relatively sparse evidence of his pain in the knee and the amenities, especially his recreational pursuits, I assess the injury to the knee caused by the accident as 23% of a most extreme case. Applied to the maximum amount currently recoverable ($693,500 [4] ) that yields a sum of $34,675.

Past medical expenses

1. The parties ultimately agreed the plaintiff's past out-of-pocket medical expenses comprises $1,260.40.

Future medical expenses

1. As indicated, the plaintiff said that he takes pain killers and expects to continue to take them.
2. When asked about the need for future treatment for Mr Shaw, Dr Lee indicated no more than a need for painkillers, costing $60 a month.
3. However, the plaintiff also relied upon Dr Davis' opinion that, in the short term, he would reasonably require an arthroscopic examination with a patellar chondroplasty; involving the trimming of any frayed menisci. That would likely cost up to $9,000. Following this would be review by an orthopaedic surgeon ($250 per visit) and, if surgical intervention was required, there would be follow-up visits twice a year, at similar cost, for a period of 3 years.
4. In the longer term, Dr Davis considered that it was likely that Mr Shaw would suffer increasing degenerative changes, to the point where he would require a left knee arthroplasty, costing $35,000.
5. Dr Davis also envisaged that Mr Shaw would continue with his over the counter medications, for the future.
6. On the hypothesis that he received a recommendation to undertake surgery on his knee, for a knee replacement, Mr Shaw said that he would implement that recommendation; although he said he had not received that recommendation.
7. The plaintiff submitted that an allowance should be made, by buffer, for the sum of at least $30,000. The medico-legal evidence, including that of Dr Smith, indicated the plaintiff's knee was likely to worsen. The defendants submitted that no allowance should be made.
8. On the probabilities, I agree that the plaintiff's knee is likely to worsen. Dr Smith did not disagree with Dr Davis' opinion that a knee arthroscopy would be required. It was not suggested that Dr Davis' opinion as to the costs of such procedure were unreasonable. I accept, on the probabilities, that the plaintiff would take the procedure if he had the financial means to do so. But both Dr Davis and Dr Smith appeared to acknowledge that a contributing factor likely to lead to that outcome was degenerative change. If the prospect of arthroscopic treatment alone was to be considered with respect to this head of loss, I would have found that a greater than usual discount should be awarded for the contingencies.
9. I accept however, the preponderance of medico-legal opinion, and the plaintiff's evidence, that there is a need for future over the counter medication. However, I also consider that allowance needs to be had to the higher than usual contingencies that another or other cause(s) unrelated to the accident, principally degenerative changes, may require the medication to alleviate the plaintiff's pain from the left knee; or indeed other parts of the body.
10. I agree with the plaintiff that in the circumstances, a buffer sum should be awarded for this head of loss. I make allowance of $25,000.
11. The provision made for this head of loss has consequences for the two other heads of loss claimed.

Future loss of earning capacity

1. As indicated, the plaintiff's Counsel abandoned the plaintiff's pleaded and particularised claim for past economic loss predicated on loss of custom for a finite period post-dating the accident.
2. The defendants' Counsel submitted that the plaintiff's Counsel should have gone further and abandoned the claim for any future loss of earning capacity. He submitted that the evidence was such that it was unlikely that the plaintiff, who was on Centrelink benefits and who had falsely estimated his earnings prior to the accident, should not receive an award.
3. The evidence previously relied upon to sustain the discrete claim of past economic loss is relevant to the claim for future loss of earning capacity.

The plaintiff's lay evidence

1. Mr Shaw said that after his assault in 2014, he had returned to working about 3 days a week. As I understood his evidence, the nature of the jobs that he was undertaking prior to the subject accident, following that assault, was small-scale; rather than lengthy jobs spanning multiple days.
2. Mr Shaw said that he could not work at all in the 12 months after the accident. He had informed his orthopaedic surgeon, Dr Lee, that he had returned to work after 6 months. However, as was pointed out to Mr Shaw in cross-examination, in his Statement of Particulars, his claim for past economic loss was restricted to 12 weeks (at $1,000 net per week). No application was made to amend that document.
3. Mr Shaw was referred to a statement made by Dr Davis that he had "not worked since 2016". Mr Shaw said that this should be taken to be a reference to December 2016 and that he was still on holiday when he sustained his injury next January. However, Centrelink certificates and other records of medical consultations throughout 2016 indicated that Mr Shaw had not worked throughout 2016 generally, and not simply from December of that year.
4. Mr Shaw said, in his evidence in chief, that after the accident he did some electrical and handyman work. More recently, he has been doing some painting work as maintenance of an apartment block in Cairns for the 'body corporate'. He said he was somewhat restricted in this: he needed someone to assist him to paint the lower part of fences. There was no other type of work he was performing. Mr Shaw said that he is still mobile, but restricted. He cannot squat, stand on a ladder or crawl under houses; which were part and parcel to the work of an electrician.
5. Medical certificates compiled to enable Mr Shaw to obtain Centrelink benefits which were in evidence (Exhibit 9) predicted absences of work almost entirely throughout 2016 and even beyond the date of the injury (January 2017). The medical practitioner who filled them out attributed the expected absence of work not only to Mr Shaw's left patella, but also to a fracture of his left arm. Moreover, those certificates indicated that Mr Shaw's fracture to his left arm had troubled him since at least December 2015.
6. Mr Shaw said that prior to the accident, he had intended to work, as an electrician with 'associated handyman' activities until the age of 67. By associated handyman activities, he identified aspirations to engage painting, minor plumbing and carpentry and appliance repairs. He was concerned about his future work capacity - he could not undertake jobs he could previously have done; at all, or without someone to help him. Mr Shaw was not challenged on his evidence of his aspirations to undertake these activities.

The medico-legal evidence

1. Dr Davis, the occupational consultant who assessed Mr Shaw in July 2020, indicated that Mr Shaw had reported to him of not working since 2016 and losing customers following the fracture; and his inability to find appropriate employment. Dr Davis considered that he should seek out work of a more sedentary nature, such as the repair of small electrical goods; whilst acknowledging such positions may be rare. His prognosis for Mr Shaw returning to work was "extremely guarded".
2. Dr Hall, the defendants' occupational physician, examined Mr Shaw for the defendants on 20 April 2021 (Exhibit 8). He found that Mr Shaw had sustained a permanent disability from his knee injury. Nevertheless, he considered that Mr Shaw was capable of jobs which did not involve kneeling, squatting, stairs, ladders and walking on uneven ground. He would need to be able to rotate between sitting and standing. Further, because of a pre-existing injury to his left humerus fracture, he would need to avoid work with the left hand at or above shoulder level. He identified certain duties that Mr Shaw may be capable of performing: inspection, repair and assembly of items at bench level and a variety of delivery jobs.
3. Dr Smith's prognosis was that both of the plaintiff's knees would get slightly worse with the passage of time.

Tax returns & Notices of Assessment

1. The defendant tendered these (Exhibit 11). The tax returns disclosed gross business earnings in the years ended 30 June 2010 to 30 June 2019 as follows: Year ended 30 June 2010 $32,161 Year ended 30 June 2011 $81,140 Year ended 30 June 2012 $53,010 Year ended 30 June 2013 $55,171 Year ended 30 June 2014 $20,140 Year ended 30 June 2015 $2,045 Year ended 30 June 2016 Nil Year ended 30 June 2017 Nil Year ended 30 June 2018 Nil Year ended 30 June 2019 Nil
2. The tax returns also indicate Mr Shaw's receipt of Centrelink benefits since at least the year ended 30 June 2015.

Consideration

1. In State of NSW v Moss (2000) 54 NSWLR 536 ("Moss") Heydon JA (Mason P and Handley JA agreeing) indicated (at [87]) that a deficiency in proof, or 'meagre facts' relating to actual lost earnings up to the point of trial is not conclusive against a claim for future loss of earning capacity. As Heydon JA emphasised in Moss (at [71]) and in contrast to the plaintiff's pleaded or particularised claim for past economic loss for a finite period, what is being compensated is the loss of future capacity; not predicted earnings and the task is to value the diminution in capacity. Actual income earned is only an evidentiary aid in that valuation exercise.
2. Further, since the Court is engaging in a predictive exercise for the future, Malec v JC Hutton [5] principles apply, so that the Court is considering the issue on the basis of possibility, not the probabilities. This is reflected by s 13 of the Act. Section 13 does not preclude the Court from awarding a buffer sum [6] .
3. Underlying the plaintiff's claim for this head of loss is the premise that the injury to the plaintiff's left knee, and the resultant physical restrictions will not get any better.
4. In my opinion, on that premise, the preponderance of the medical evidence supports a view that Mr Shaw's capacity to earn in the future has been diminished: he is unable to squat and kneel, at least without substantial difficulty, and this has diminished his physical capacity to work as an electrician and 'associated handyman' activities; being the activities which, with the exception of the financial years ended since 30 June 2015, at least, Mr Shaw has been engaged in for about 25 years. The medical evidence also indicates that this aspect of the plaintiff's physical incapacity was not present prior to the date of the accident.
5. It is true that the plaintiff has had his fair share of other injuries, especially both his ankles, his ribs, and a shoulder complaint. But by and large, those injuries have been treated and the plaintiff has gotten by. The medico-legal evidence virtually accepts that his present problems of an inability to squat and crawl supports a view that for a man of this plaintiff's background, the accident has contributed to the situation where he is disadvantaged on the open labour market.
6. It is also true that he was in receipt of Centrelink benefits in 2016, even from October 2014, before the subject accident. But I do not accept that his position, before the accident, was such that he had no intention to ever work again. Medical certificates following the accident obtained to support his receipt of the Centrelink benefit not only referred to his left knee, but also his left arm. Nor do I accept the defendants' submission that, on the basis of the absence of earnings from the year ended 30 June 2015, Mr Shaw's physical capacity was totally destroyed prior to the subject accident.
7. I accept his evidence given at trial as to recent odd jobs that he had been performing as being consistent with his evidence of his desire to work.
8. A concern that the Court has, however, aside from the inaccuracy (putting it generously) of his evidence as to his actual earnings up to the date of the subject accident, is Mr Shaw's apparent willingness to take the relative certainty of Centrelink benefits in preference to an accurate accounting of pecuniary benefits received for the miscellaneous 'jobs' he gave evidence about in recent years. It is unnecessary to ascribe any cause or motivation about this. The concern is what this says about whether anything different will occur into the future.
9. Nevertheless, it is not the purpose of this Court to punish Mr Shaw. Dr Hall's evidence, for the defendants, supports the proposition that for someone like Mr Shaw, whose entire working life has been as an electrician (or handyman), which activities necessarily require squatting and kneeling, his capacity to perform those activities and therefore his capacity to earn, has been diminished. His absence of other qualifications leaves him disadvantaged on the open labour market.
10. I accept, on the probabilities, on the stated premise, that prior to the accident, it was likely that Mr Shaw would have wanted to continue to work as an electrician and handyman until the age of 67.
11. However, the premise upon which the analysis for this head of loss has so far proceeded does not take into account the arthroscopic procedure which I have found is both reasonable and likely that the plaintiff will undertake. Presumably, the procedure would only be undertaken in the expectation that the restrictions on the use of the knee or the pain or other symptoms of the plaintiff would be removed. Also presumably, if the procedure is successful, it will relieve the plaintiff of the physical restrictions in his knee which will (a) remove the impediment to his capacity to earn and (b) likely result in a need for future domestic care.
12. Further, I also factor in the possibility that other injuries, before and after Mr Shaw's accident, would possibly have affected Mr Shaw's capacity to earn into the future in any event. Although the effects of those may have abated, if further events occur to his ankles or wrist, he may be in a worse position. Unfortunately, the number of injuries he has sustained before and after the subject accident does indicate that, to some degree, he is prone to suffer physical injury. His alcoholism is not likely to assist him either notwithstanding that the plaintiff considers it does not affect his capacity.
13. I take into account the arthroscopic procedure for which provision has been made, the strong possibility that other causes unrelated to the accident may physically restrict and hence impair his capacity to earn, and doubt about the plaintiff's own willingness to work. But for the arthroscopic procedure, I would have been inclined to award a buffer sum of $30,000. But taking into account the chance (which I would estimate to be 10%) that the procedure will not succeed in removing the plaintiff's restrictions and symptoms in the knee caused by the accident, the award should be discounted to $3,000.

Evidence

1. Mr Shaw now lives in Cairns with his brother. He said that the extent of the housework that he does was confined to some washing up. He was essentially led (without objection) by his Counsel when giving evidence to say he cannot vacuum without pain, cannot clean the bathroom or mow the lawn. He was not challenged on this evidence and there was no suggestion that he was incapable of engaging in those activities prior to the accident. I accept it.
2. Dr Davis, Mr Shaw's occupational physician, referred in his report (23 July 2020) to an inability in Mr Shaw to perform work at a low level, requiring crouching, squatting or kneeling. He considered that provision should be made for 4 hours of paid commercial domestic assistance.
3. Dr Lee said that the plaintiff had reported to him that he could still do household duties, driving and shopping, but could not climb ladders or crawl in the roof or under the house.
4. Dr Hall, for the defendants, regarded the plaintiff as capable of managing most household duties, save for gardening and anything involving a ladder; and considered that he would be capable of performing most domestic duties.

Submissions

1. The defendant submitted that no allowance should be made for past or future care. The defendants' Counsel submitted that the medico-legal evidence indicates that the plaintiff can perform household duties, with some exceptions. There was no demonstrable need for commercial care and that had not been quantified.
2. These submissions, it seemed to me, focussed on the claim for past domestic care. Counsel for the plaintiff submitted that allowance should be made under this head for the future. The plaintiff was a single man, now in his late 50s, who cannot kneel or squat. She submitted that that nature of those physical limitations indicated a probability for a need for care, probably in the order of 1-2 hours a week. Adopting a commercial rate of $38 per hour for a further life expectancy of 29 years (with a multiplier of 796.6), that would yield the sum of $60,542.

Consideration

1. The same considerations which led to the rejection of the claim for future earning capacity apply to this head of loss. It is not necessary to repeat them. Accepting, as I do the reasonableness of the rate for the commercial services identified by the plaintiff, the proximity to the plaintiff's expected retirement age, and taking into account the contingencies and, in particular, the chance that the surgical procedure will not be successful in alleviating the plaintiff's restrictions and symptoms, I would allow the sum of $4,240 for this head of loss.

Summary on quantum

1. Subject to any deduction for contributory negligence, the plaintiff's damages are therefore assessed as follows: Non-economic loss $34,675 Past out of pocket expenses $1,260.40 Future out of pocket expenses $25,000 Loss of earning capacity - future $3,000 Domestic care - future $4,240 This amounts to a provisional award for damages, subject to consideration of the contributory negligence defence, in the sum of $68,175.40

CONTRIBUTORY NEGLIGENCE

1. The premises for my consideration of this topic is that the defendants were in breach of their duty of care and that such breach caused personal injury to Mr Shaw.
2. I accept the defendants' submission that prior to deciding to walk backwards, along the driveway, when assisting Mr Rochester to reverse, it was incumbent upon Mr Shaw, taking the precaution that a reasonable person in his position would taken, to visually assess the condition of the driveway. This was all the more so when the time of the day was such that the light was not complete. Under cross-examination, Mr Shaw accepted the general proposition that one might not see dangers in a path when walking backwards. On the assumption (soon to be considered) however, that the plaintiff conducted that assessment, I am not satisfied that it was still unreasonable, per se, for him to walk backwards, for a relatively short distance in the driveway of a residential suburb, to help Mr Rochester reverse the car and boat trailer. Relevant to this is that there was no evidence of fencing or other manifest indication that the drainage easement construction was still in place, even if that was the true position. In other words, there was nothing that the defendants pointed to which suggested that the plaintiff had a special reason to be on the lookout that went beyond the ordinary expectation that a person walking backwards would want to know what was behind him or her before commencing that journey.
3. It was put to Mr Shaw, but he disputed, that if he had been walking forwards, ie facing towards the Austral Avenue property, he would have seen the object. That might be so, but this does not take into account that the question of whether he had previously had a look. If he took a reasonable look, but did not see the post, then it was reasonable for him to walk backwards, for the short distance, to help Mr Rochester. Plainly he could not have assisted Mr Rochester by having his back turned to him, and walking forwards, in the direction of where the post turned out to be. It was also suggested that his previous familiarity with the property meant that he would, or should, have known that the star picket over which he fell was there. Mr Shaw maintained that he was not aware of the object being on the premises before he stumbled over it. This had followed his evidence in chief that prior to walking backwards, he did observe the condition of the driveway on which the post appeared.
4. As indicated in my earlier treatment of the special defences of 'obvious' and 'inherent' risk, the evidence of Mr Rochester and Ms Fitzpatrick would indicate that, given the time of the day, and the condition of the post, it was possible that the post might have been missed even if a check had been made.
5. Reasonable care demanded that before he walked back, Mr Shaw looked at the condition of the driveway. He said he did and I accept that evidence. In this regard, it is of some significance that the plaintiff said he was aware of works having been undertaken. That would explain why, or at least given added incentive, for him to have that look.
6. It was not so dark that Ms Fitzpatrick needed to supplement any artificial light generated by the sensor light that she described. Mr Rochester did not recall turning on his traffic lights. The plaintiff, and Mr Shaw, commonly believed that the condition of the light, and (in Mr Shaw's case) the condition of the driveway, was such that the motor vehicle and trailer could be reversed into the driveway without personal injury to Mr Shaw.
7. Nevertheless, given that the condition of the light was not so dark as to be pitch black, the clash of colour of the metal post and the driveway is such that, even in fading light, if Mr Shaw had taken a careful look, it is likely that he would have observed the post and either ensured its removal altogether or taken some alternative course of action that did not involve his walking back towards it and voluntarily taking the risk of stumbling over it.
8. I am persuaded that the first defendant has made out a case in contributory negligence.
9. Taking into account both the comparative contributions to his fall and culpability, as between Mr Shaw and the first defendant, the first defendant, had the actual knowledge of the existence of the post remaining on the property and the readier means of removing it. I assess that a deduction of 20% might be made for contributory negligence.
10. That results in a monetary judgment of $54,540.32

Costs

1. The plaintiff succeeded against the first defendant but failed against the second defendant. Ordinarily, since costs follow the event, he should have his costs against the first defendant but he should pay the second defendant's costs.
2. However, the Court has a broad discretion to order costs (s 98 of the Civil Procedure Act 2005 (NSW)) to meet the exigencies of the litigation. In practical terms, the second defendant's position was almost entirely assimilated to the position of the first defendant. Both defendants had common legal representation (solicitor and Counsel). Their defences were carbon copies, and the costs incurred by the defendants were relevantly indistinguishable. What distinguished the second defendant was essentially a matter of law (the question of duty of care) and that matter scarcely occupied any substantial time in the hearing of the case at all. The question of whether the second defendant owed a duty of care may be regarded as separable or discrete from other issues.
3. Nevertheless, I propose to give the parties the opportunity to address on costs, especially because some application might be brought arising from the assessment of damages.

Orders

1. I make the following orders: 1. Judgment for the plaintiff against the first defendant for the sum of $54,540.32 2. Judgment for the second defendant against the plaintiff. 3. Costs are reserved. 4. The parties are to exchange with each other party and supply my Associate with submissions on costs as follows: 1. The plaintiff is to file and serve an outline of submissions on costs not exceeding 3 pages (excluding material evidentiary attachments) by 10 November 2021; 2. The defendants are to file and serve an outline of submissions on costs not exceeding 3 pages (excluding material evidentiary attachments) by 12 November 2021; and 3. The plaintiff is to file and serve any written submissions in reply (not exceeding 1 page) by 15 November 2021. 1. Questions of costs are to be determined on the papers.

Endnotes

1. A distinction, which the defendants emphasised, between claims for actual loss of income and loss of earning capacity appears in rule 15.12(5)(c) and (d) of the Uniform Civil Procedure Rules 2005 (NSW)
2. Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 167 [12]
3. For example, D'Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1 per McHugh J at [101]
4. Civil Liability (Non-Economic Loss) Amendment Order 2021 dated 16 September 2021 (applicable for the year commencing 1 October 2021)
5. (1990) 169 CLR 638
6. Penrith City Council v Parks [2004] NSWCA 201 per Giles JA at [5], McClellan AJA at [58]; Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR at [30]. 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: 05 November 2021