Shinnaoui v Perron Investment Pty Ltd & Anor

Nature of case

1. This is a personal injury damages claim alleging negligence relating to a trip and fall arising from occupier's liability concerning underground car park premises located within a shopping mall.
2. The plaintiff, Mrs Fedaa Shinnaoui, brings this action against the first defendant, Perron Investment Pty Ltd, trading as Campbelltown Mall, the owner of the shopping mall and car park, and the second defendant, Jones Lang Lasalle (NSW) Pty Ltd, the first defendant's managing agent, in relation to injuries the plaintiff claims to have sustained when she tripped and fell in the car park.
3. The plaintiff claims her fall occurred because the defendants failed to maintain painted surface markings which had become worn and faded on the edges of concrete kerbing within the car park, and allegedly failed to properly illuminate the car park to adequately reveal the presence of that kerbing.
4. The proceedings are governed by the provisions of the Civil Liability Act 2002 ("CL Act").

Factual basis for the claim

1. At about 5.30pm on Tuesday, 15 May 2012, the plaintiff was walking towards her parked vehicle within the underground car park when she became distracted and looked ahead towards her vehicle, because of the appearance of a person pushing a shopping trolley that she apprehended might, and which ultimately did, collide with her parked vehicle.
2. In those events, the plaintiff continued to walk forward, and as she did so, she then tripped and fell on the concrete kerb of a lane separation traffic island, and she consequently sustained bodily injury, for which she claims damages.

Issues

1. Aside from preliminary matters concerning the credibility and the reliability of testimony, and the determination of matters of disputed fact, I consider that the issues calling for decision in these proceedings are as follows: Issue 1 - Whether the raised concrete kerbing within the car park was an obvious tripping risk within the meaning of s 5G and 5H of the CL Act, and if so, did this obviate the need to warn the plaintiff of the risk of tripping; Issue 2 - Whether the defendants had breached the duty of care they each owed to the plaintiff as occupiers of the car park; Issue 3 - Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent; Issue 4 - The assessment of damages.

Evidence overview

1. In the plaintiff's case, in addition to her own oral evidence, the plaintiff's husband gave evidence on damages issues relating to a claim for the value of domestic assistance. The defendants called no oral evidence. Each party tendered a tender bundle of exhibits: Exhibit "B" and Exhibit "1".
2. The parties each relied upon expert evidence. The plaintiff relied upon a liability report from a safety engineer, Mr Ian Burn, and the defendants relied upon a liability report from an architect, Mr John Cooke. At the hearing, an order was made requiring the experts to meet. Their subsequent joint report which followed that meeting was tendered. The experts were not required to give oral evidence to augment their written reports.

Credit

1. In the paragraphs that follow, I set out my conclusions concerning the credibility and the reliability of the testimony of the respective witnesses.

The plaintiff

1. The defendants made challenges to the plaintiff's credit, principally on the question of the reliability of her recollection about significant matters arising from within her medical history, and more particularly, alleging that the plaintiff had exaggerated the extent of her claim for household domestic assistance.
2. In my assessment, the plaintiff's evidence was given honestly, and to the best of her recollection on both the liability and damages issues. However, the contents of the plaintiff's pre-injury medical records revealed that she did not have a good or a reliable recollection of her prior health and illness history. I also formed the view that although she gave a truthful account of her injuries and disabilities, aspects of that evidence was unreliable on the issue of her claimed need for domestic assistance due to overstatement. I am satisfied that such overstatement did not involve dishonesty on her part, but was instead based on a perception on her part that she could make a claim for a greater extent of such assistance than was legally allowable.

Mr Shinnaoui

1. Mr Shinnaoui's evidence was directed principally to the component of the plaintiff's claim for damages for domestic assistance. The first component of that claim was for the initial period of about 12 months that immediately followed the subject accident. Mr Shinnaoui's evidence in respect of that period, related to the domestic tasks of cooking, making the beds, changing bed linen, doing the laundry, floor cleaning, vacuuming, bathroom cleaning, and grocery shopping. He estimated that those tasks occupied about 19 hours per week for a household of two persons: T92.49 - T95.15.
2. For present purposes, it is sufficient to say that I consider Mr Shinnaoui's evidence on domestic assistance matters, whilst given honestly, and to the best of his recollection and understanding, was confused as to what level of the provided assistance was allowable, insofar as a distinction was necessary to identify what assistance was actually needed as a consequence of the plaintiff's injury, as opposed to that which was actually provided.
3. The defendants attacked the credibility of the extent of the plaintiff's claim concerning her need for domestic assistance. The defendants asserted the claim was exaggerated and overstated. That assertion will be examined in the course of the consideration of damages issues.

Facts

1. Unless otherwise stated, my findings of fact are as follows.

Plaintiff's pre-injury background

1. The plaintiff is presently aged 35 years. At the time of the accident, she was aged 33 years. She was born in Melbourne, where she completed VCE examinations. In 2000, she completed an advanced diploma in business management. She then worked as a sales assistant in Melbourne for about one year.
2. In July 2002, the plaintiff moved to Sydney and married. She worked in Sydney as a sales assistant on a casual basis for about 6 months. She then worked for a bank as a filing clerk for a time, following which she and her husband opened a clothing store in Campbelltown, which they then operated for about 2 years before that business was closed down because it became economically unviable.
3. The plaintiff then pursued and completed a childcare course at a private college. She then sought work as a childcare worker. In the future she hopes to obtain a degree in teaching in early childhood, and she hopes to become a primary school teacher.
4. At the time of the accident the plaintiff and her husband were living in a house that was owned by her father-in-law. The plaintiff and her husband do not have children. Subject to a consideration of the effects of the plaintiff's pre-accident health issues, I consider the evidence amply demonstrates that were it not for the injuries she sustained in the subject trip and fall, she had a motivation to pursue employment in whatever field of employment she could find in a range of employment activities commensurate with her education, training, skills and ambitions.

Pre-accident medical issues

1. The plaintiff had experienced a number of pre-accident health problems. In 1997 she was diagnosed with hydrocephalus, for which she was operated upon for the insertion of a ventricular peritoneal shunt. Her pre-accident medical records reveal that she had been consulting her family doctor for a variety of other medical conditions over a number of years. In evidence, when she was asked about those matters, it became apparent that she did not have a good memory of the nature and the extent of those pre-accident problems. I do not consider that her limited recollections in that regard should be seen to adversely reflect upon her credit as a witness but those matters do have an impact on her claim for domestic assistance.

Accident circumstances

1. At the time of the subject accident, in company with her sister-in-law, the plaintiff was in the car park and she was in the course of returning to her parked vehicle which was located within a marked parking bay at the car park. She was carrying a plastic bag within which she had some grocery items she had purchased at the shopping mall.
2. At the time, the plaintiff was wearing flat closed shoes. She was walking on the flat concrete surface of the car park. As she approached a raised concrete divider, resembling a kerb or the raised edge of a traffic island, she was walking in what she described as a normal manner. In those events she tripped and fell on the raised concrete kerbing which was ahead of her. The route she had taken at that time was marked on the photograph comprising Exhibit "B", Tab 14.
3. Immediately beforehand, the plaintiff had been momentarily distracted from the view of the path ahead by the appearance of a woman pushing a shopping trolley near the plaintiff's parked vehicle. This was in circumstances where that trolley ultimately struck the plaintiff's vehicle: T62.46. In those events, as the plaintiff saw that woman and the trolley, she continued to walk forward, and as she did so, she tripped and fell over the concrete kerb divider. As she fell, she placed her hands out to break her fall forward. In that fall, her left shoulder and right knee took the weight of her body when it made contact with the concrete floor of the car park.
4. After the plaintiff fell, she said she then noticed the concrete kerb, which she estimated to be about 20cms in height. She said she had not seen it beforehand: T33.35. However, that evidence must be read in light of the fact that the plaintiff had been to that car park on a regular basis on a number of occasions over the course of about 7 - 8 years before the subject accident.
5. In cross-examination of the plaintiff, it emerged that in the events leading to her fall, on the day in question, and in the moments before the fall, she had already seen, and had walked over, and had successfully negotiated, another concrete kerb divider before she tripped on a second one: T59.26 - T59.37.
6. The plaintiff freely acknowledged that she had not seen the second concrete kerb divider on which she had tripped because at the time her attention had been directed elsewhere by the appearance of the trolley near her vehicle: T61.12 - T61.26. She agreed that at the time, she was concentrating on the lady with the shopping trolley: T63.10.
7. In evidence, when the plaintiff's attention was drawn to a photograph showing faintly painted white line markings on the concrete kerbing in the car park, she said she could only see them "Very slightly": T62.41 (Photo 14).
8. On the following day, the plaintiff attended at the premises and she reported the incident to someone in apparent authority at the shopping centre: Exhibit "B", Tab 14.

Injuries

1. In the fall, the plaintiff landed heavily onto her left shoulder and her left knee, with her hands outstretched in an attempt to break her fall. This caused her to suffer jolting injuries to her limbs and her body. She found the incident to be shocking for her.

Treatment and subsequent assessments

1. After the fall, the plaintiff immediately went to the home of a relative, where she rested for a while. Later, she took some painkilling medication when she got home, at which time she went to bed to rest.
2. Over the course of the ensuing week, the plaintiff continued to experience pain in her left shoulder and in her right knee. She then saw her local doctor, Dr Ahmed, who advised her to continue taking painkilling medication. That treatment later was expanded to also include anti-inflammatory medication, and ultimately, the plaintiff was referred to Dr Chandra Davé, an orthopaedic surgeon, who instituted some tests and investigations. The plaintiff also pursued some physiotherapy treatment.
3. On 18 February 2014, the plaintiff underwent an ultrasound of her left shoulder, which revealed appearances consistent with a sub-acromial/sub-deltoid bursitis with bursal impingement.
4. On 17 March 2014, at the referral of her general practitioner, the plaintiff was examined by Dr Davé, an orthopaedic surgeon. He examined her and advised her to seek a consultation with a spinal specialist.
5. On 10 November 2014, the plaintiff underwent another ultrasound of her left shoulder which again revealed sub-acromial/sub-deltoid bursitis.
6. On 10 November 2014, the plaintiff also underwent an ultrasound of her right knee, which was reported as being unremarkable.
7. On 17 February 2015, the plaintiff was re-examined by Dr Davé who reviewed the results of MRI scans of the plaintiff's neck and left shoulder. He noted multi-level cervical spondylosis and a possible SLAP lesion of the shoulder which might require surgery.
8. On 30 October 2015, at the request of her solicitor, the plaintiff was assessed by Mr Patrick Blowes, an occupational therapist, who reported that in addition to her physical complaints, the plaintiff described being affected by anxiety and depression, both before and after the subject fall. Mr Blowes considered the plaintiff's history of difficulty with some domestic tasks, amongst other matters. He also assessed the plaintiff's restricted left shoulder movements as limited to about 90 degrees and concluded she was unable to perform tasks that required shoulder flexion beyond 90 degrees. He gave examples of such movements relating to personal care as including donning and doffing clothes and her veil, washing and brushing her hair, cutting and colouring her hair. With regard to household domestic tasks, Mr Blowes recorded that the plaintiff reported that she was dependent upon others for a variety of described domestic tasks, and he suggested that she needed access to ongoing attendant care services to manage her activities of daily living aimed at reducing the strain on the plaintiff's husband in relation to such tasks.
9. On 30 November 2015, at the request of her solicitors, the plaintiff was examined and assessed by Dr Peter Endrey-Walder, a consultant general and trauma surgeon. He reviewed a number of medical materials and the products of medical assessment and investigations of the plaintiff that were not tendered in evidence. He recorded the plaintiff's accident-related complaints as being pain in the mid trapezius region, but not in the neck itself; the left shoulder and the right knee. He was of the opinion that in the subject accident, the plaintiff sustained a direct injury to the right knee and a strain to the left shoulder. He considered her left shoulder problems to be the most significant residual sequelae to the plaintiff's fall. He identified the plaintiff's main difficulty, whether in the employment or domestic spheres, relates to her restricted range of left shoulder and related arm movements, with associated paraesthesia in the (left) hand, with reduced grip.
10. On 17 January 2016, the plaintiff underwent an MRI scan of her left shoulder which revealed a low grade supra-spinatus and infra-spinatus tendinosis without a tear, a mild sub-acromial bursitis, and a SLAP tear.
11. On 17 January 2016, the plaintiff also underwent an MRI scan of her cervical spine which was reported as showing mild narrowing at the right foramen of the C3/4 disc level due to degeneration; C5/6 disc narrowing due to degeneration, and a mild right paracentral disc protrusion with associated prominent end-plate osteophytes, with flattening of the right anterior aspect of the thecal sac causing mild canal stenosis; C6/7 disc narrowing, with a degeneration, and a disc bulge and end-plate osteophytes causing mild canal stenosis; C7/T1 primal postero-central disc protrusion. Mild effacement of the spinal cord at C5/6 and C6/7 was noted, with no alteration of spinal integrity within the cord.
12. It appears that the plaintiff was examined by Dr Anthony Smith, an orthopaedic surgeon, on 25 February 2016 at the request of the defendants. No report was tendered by the defendants in relation to that examination by Dr Smith. The fact of an examination on that date only emerged from Dr Smith's commentary letter dated 8 June 2016, which was prepared as a result of a request from the solicitor for the defendants for a commentary. I shall return to this fact once I have considered Dr Smith's 8 June 2016 comments in chronological context.
13. On 8 March 2016, the plaintiff underwent an MRI scan of her right knee, which revealed mild changes of chondromalacia at the inferior pole of the patella, without other significant abnormalities being visualised.
14. On 10 March 2016, the solicitor for the defendants had a telephone conversation about the plaintiff with Dr Smith. I infer this was in relation to Dr Smith's first report, which has not been tendered. In that call a discussion took place about the plaintiff having fallen in a mosque, which could have easily aggravated her degenerative disease. Dr Smith mentioned having seen MRI films and x-rays, and "various notes", and suggested various tests: Exhibit "B", Tab 1.
15. On 22 March 2016, at the request of the solicitor for the defendants, the plaintiff was re-examined by Dr Smith. In that consultation, when he was observing the plaintiff, Dr Smith noted that she was exhibiting a better range of neck movement when her husband was rolling up her sleeves for her, and when she was sitting next to her husband and looked at Dr Smith and then her husband: Dr Smith's first tendered report, p 4.
16. In those events, Dr Smith formed the opinion that the plaintiff was "manufacturing physical signs" and commented that there was no organic illness that could produce the pattern of weakness exhibited by the plaintiff: Dr Smith's first report, p 5. In describing the neck musculature and its role in shoulder or neck complaints, he appears not to have discussed for the purposes of exclusion, the positioning and the course of the plaintiff's ventricular peritoneal stunt as it traversed the soft tissues of her neck. He suggested the possibility of a psychiatric cause for the plaintiff's complaints. Dr Smith acknowledged the possibility that the effects of the subject fall could have temporarily aggravated an arthritic condition of the right knee for 3 months at most. He then reiterated his view that the plaintiff was "manufacturing physical signs and therefore I think her symptoms": Dr Smith's first tendered report, p 8.
17. In my view, that negative opinion by Dr Smith should be discounted as he did not give the plaintiff a fair opportunity to comment on that adverse view before it was finally expressed: T104.10 - T104.20.
18. On 29 March 2016, the plaintiff saw Dr Davé again for a re-presentation of cervico-brachial irritation, for which he suggested she see a spinal surgeon.
19. On 8 June 2016, Dr Davé provided the plaintiff's solicitor with a report that detailed the history of his consultations with the plaintiff.
20. On 8 June 2016, Dr Smith prepared a supplementary report in which he addressed questions that had been put to him by the defendants' solicitor, Mr Windybank. That supplementary report did not appear to have been based on any examination of the plaintiff. In his responses, Dr Smith variously stated that : any aggravation to the plaintiff's right knee caused by the fall in respect of a pre-existing condition the plaintiff suffered had ceased, and the plaintiff was "manufacturing physical signs and probably symptoms". Dr Smith purported to comment on the attributability of some of the plaintiff's symptoms by reference to journal articles that were not provided for review as to the applicability of those articles to the plaintiff's circumstances, and in his commentary, he cast doubt upon the mechanism of the plaintiff's claimed injuries.
21. In the circumstances where the plaintiff has not been provided with the procedurally fair opportunity of responding to Dr Smith's assertion that she was in effect malingering, and in view of the non-service by the defendant of Dr Smith's first report in these proceedings, I am compelled to ignore all of Dr Smith's reports as it is plain from the absence from the evidence of the report which followed his 25 February 2016 examination of the plaintiff, that the reports selected by the defendants for tender do not represent a complete picture of his various assessments. Such a circumstance of selective tendering of reports containing relevant opinions should not occur in such cases as it falls foul of UCPR r 31.34(1)(b).
22. On 21 September 2016, Dr Davé reported on the plaintiff's right knee MRI, in which he confirmed the plaintiff had changes of chondromalacia at the inferior pole of the patella, which he considered as explaining her right knee pain.
23. On 30 November 2016, the plaintiff was re-assessed by Dr Endrey-Walder for the purpose of commenting upon the conclusions expressed in the defendants' report from Dr Smith dated 22 March 2016. He set out his reasoning, including his clinical assessment and reasons for disagreeing with Dr Smith's conclusions, particularly Dr Smith's opinion that the plaintiff was in his view, malingering, and manufacturing physical signs. I find Dr Endrey-Walder's conclusions compelling, and in the event that a comparative evaluation was required, I would prefer Dr Endrey-Walder's opinions to those of Dr Smith.

Disabilities

1. The plaintiff continues to experience left shoulder problems which had worsened by the end of 2013. Those problems, consisting of pain, and discomfort, with restriction of movement, have continued to the present time. She also continues to experience problems with her right knee and her left shoulder.
2. Activities such as lifting, bending and carrying, in the course of carrying out laundry and similar duties at home, cause the plaintiff to experience a burning sensation in her left shoulder and in her right knee. The plaintiff said, and I accept, that household tasks requiring vigorous effort, cause her to experience the described pain and burning sensation in the described areas. Such activities have an aggravating effect on the affected areas. The plaintiff also has difficulty lifting her left arm to shoulder level, or above her head. She is right hand dominant.
3. Activities such as walking, standing in a fixed position, and lifting, bending and carrying, causes the plaintiff to experience severe pain in her left shoulder and in her right knee. She continues to take paracetamol and anti-inflammatory medications. She has also pursued physiotherapy to the right knee and her left shoulder.
4. The plaintiff stated, and I accept, that her ability to walk long distances, ascend and descend stairs, and her pursuit of some hobbies and to perform commonplace every day activities, have been adversely affected. In her evidence, the plaintiff implied that her personality has changed since her injury in that she feels that she is not the person she used to be.
5. That evidence must be viewed in light of the matters that have emerged from a review of the plaintiff's pre-accident medical records. Those records were incorporated as part of Exhibit "1": Tabs 4 to 10. The records show a pattern of attendances by the plaintiff on her general practitioner for a variety of complaints, symptoms and conditions dating from August 2002, which in light of my findings on liability, are unnecessary to review in detail.
6. In relation to those matters, it is sufficient to record first, that the plaintiff has a poor memory of those matters, as emerged in the cross-examination that was based on those records, and secondly, the pattern of regularity of medical consultations suggests a degree of health concerns and unwellness on a range of pain, physical, functional and psychological issues which in combination, would have had some negative impact on the plaintiff's capacity to continuously pursue an unrestricted earning capacity.

Work effects

1. The plaintiff considers that the nature and the extent of her ongoing disabilities interfere with her ability to perform work activities that involve prolonged standing, lifting and carrying, including using her left arm at or above shoulder level.

Domestic effects

1. The plaintiff stated that her domestic activities have been affected in two respects. First, with regard to some personal care tasks such as showering, hair washing, and aspects of dressing, her left shoulder problems have meant that she calls upon her husband to assist her in those respects. Secondly, she has difficulty in carrying out household tasks requiring vigorous effort, such as mopping, vacuuming and scrubbing the shower and bathroom. These matters will be assessed in connection with the claim for damages for domestic assistance.

Mitigation

1. On the question of mitigation, the evidence shows that the plaintiff has pursued medical and allied treatment for her condition. The defendants have not argued that she has unreasonably failed to mitigate her damages.

Expert evidence on the liability issues

1. The plaintiff relied upon a report dated 16 April 2015, from Mr Ian Burn. Mr Burn's supplementary report is dated 26 August 2015. Mr Burn had attended at the premises for an inspection he carried out on 15 March 2015.
2. Following his inspection of the car park on 11 March 2015, in his first report, Mr Burn was of the opinion that the kerb or traffic island, which he measured at 165mm above the car park surface, was of similar colouring to the surface of the car park, which was "dirty with wear and from the emissions of motor vehicle (sic)". He observed that in his view, the presence of the traffic island was difficult to detect. He also observed the remains of white paint where the sides and the top edges of the island have had white paint applied in the past. He concluded that over time, the white paint had worn away to the point that it was barely visible, and he considered that the concrete island had "therefore reverted to its original state where it blends in with its surroundings and is difficult to detect": Exhibit "B", Tab 15, pp 2 - 3.
3. Mr Burn considered the kerb to represent a very high risk trip hazard for persons walking between parked motor vehicles in circumstances where there was poor visual clarity defining the kerb. He also expressed the view that the identified risk should be addressed by ensuring there was adequate illumination at all times in the car park, and by applying yellow or white paint along the edges of the kerbing in the car park, which he considered to involve routine maintenance tasks, which would incur little, if any, additional expenditure: Exhibit "B", Tab 15, p 9.
4. In his second report dated 26 August 2015, Mr Burn was asked to elaborate upon his earlier report by addressing some questions posed to him by the plaintiff's solicitor, and to comment on some contemporaneous photographs submitted to him, and an incident report dated 15 May 2012, which were also tendered in evidence: Exhibit "J".
5. In response to that request, Mr Burn essentially and tritely commented on the need for regular inspections and maintenance of the car park, including the need to maintain or repaint previously painted markings on the concrete kerbs where those markings had become degraded. He suggested that if this had occurred, the plaintiff's accident would have been avoided. In my view, that opinion by Mr Burn was expressed in simplistic terms, and did not take into account the fact that the plaintiff was not looking where she was walking at the time of her injury, where she saw the first concrete dividing kerb, but not the second on which she tripped as she walked along the pathway marked on the diagram comprising Exhibit "D".
6. For their respective cases, the defendants relied upon a report dated 29 July 2016 from Dr John Cooke. It transpired that Dr Cooke had only viewed photographs of the premises, and had not carried out any personal inspection of the premises.
7. In his report, Dr Cooke identified that his instructions were limited to an evaluation of the reports of Mr Burn dated 16 April 2015 and 26 August 2015. He was specifically not required to attend the car park premises to conduct testing of the lighting. He evaluated the lighting on the basis of the light readings recorded by Mr Burn, at his inspection of the car park on 12 March 2015.
8. After reviewing the building regulatory requirements for internal roofed car parks, Dr Cooke considered the level of illumination as measured by Mr Burn to be well above the minimum of 20 lux as required by the Building Code of Australia by reference to applicable Australian Standards.
9. On reviewing hazard perception issues for uneven surfaces, Dr Cooke's report stated: "33 Accordingly, if a pedestrian is aware of a number of obstacles on the path of travel or is aware that the pathway surface is irregular, the natural reaction is to pay close attention to the surface constantly to avoid tripping. By contrast, if the general visual assessment on approach is of an even pathway, the natural reaction is not to cast the gaze down continually to the pedestrian surface in order to negotiate obstacles and irregularities in the surface. Rather, pedestrians taking reasonable care can be expected to make a visual assessment of the condition of the surface from time to time. 34 In my opinion, if the plaintiff had made a quick visual assessment of her path of travel from time to time, she would have seen the concrete strip under the level of illuminance as measured by Mr Burn. 35 I therefore do not agree with Mr Burn's opinion on page 5 of his report dated 16 April 2015 that "there is no visual cue to shoppers as when to expect kerbs between columns when leaving or returning to parked vehicles". In my opinion, the level of illuminance was more than enough for the concrete kerb to be seen without difficulty, based on Mr Burn's measurements of levels of illuminance and the photographs in his report (reproduced in black and white in my copy of his report). … 37 I do not agree with Mr Burn's opinion that the illumination was inadequate in the carpark. Mr Burn refers to no provisions in the BCA or Australian Standards in support of his opinion. 38 In my opinion, the plaintiff was not keeping a proper lookout. However, it is good practice to highlight potential trip hazards with the aim of drawing the gaze of a pedestrian down to ground level to focus on the highlighted surface."
10. Dr Cooke therefore disagreed with Mr Burn's opinion that the illumination in the car park was inadequate, and he took the contrary view, as explained in the preceding citation from his opinion.
11. A joint report was prepared by those experts following a meeting they arranged during the course of the trial by order of the court. In their joint report dated 9 February 2017 (Exhibit "G"), which followed their meeting of the same date, Mr Burn and Dr Cooke agreed on the identification of the applicable provisions of the Building Code of Australia and the Australian Standards, namely a minimum illumination of 20 lux. They also agreed that Mr Burn's after-dark measurements of lighting levels of 29.5 lux on the surface of the concrete island in the horizontal plane, and 38 lux in the vertical plane, exceeded the BCA requirements for internal car park lighting by 50 per cent.
12. The experts also agreed that the visual task expected of pedestrians, to see the concrete island in the car park required 3 lux of illumination. They agreed the concrete island was a potential trip hazard, and that good practice required the kerbing of such structures to be surfaced in a contrasting colour to the surroundings. The experts also agreed that the previously applied paint to the concrete structures had to varying degrees become degraded, and that pedestrians exercising reasonable care for their own safety would in the circumstances, from time to time, make a quick visual assessment of their intended path of travel.
13. The point at which the experts disagreed, was the factual question of whether the plaintiff could have seen the concrete island (and by inference, the raised kerb) if she had been watching her step. Dr Cooke considered that because of the, albeit degraded marking, the plaintiff would have seen the kerb in the available light. Mr Burn considered she would not have seen it because the paint had degraded sufficiently, and under the available artificial lighting conditions, the raised kerb and the surface of the car park were similar in colour, so that the vertical step would not have been apparent.
14. Those conclusions were not so much expert opinions, but personal perceptions which provide some guidance, but not determinative guidance, to the fact-finding exercise required in these proceedings.
15. I now turn to a consideration of the issues calling for decision in the proceedings.

Issue 1 - Whether the risk was obvious

1. Before considering whether there was a breach by the defendants of the duty of care owed, it is necessary to first determine whether, at the time of the plaintiff's injury, the risk of her tripping on the raised concrete kerb in the car park was, in the circumstances, a risk that was obvious to a reasonable person in the position of the plaintiff. It is necessary to examine this issue first because if that was the case, then it follows that in such circumstances, the defendants did not have a duty to warn the plaintiff of risks of injury that should have been obvious to her: s 5G and s 5H of the CL Act.
2. Section 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."
3. Section 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."
4. Section 5H of the CL Act relevantly provides: "5H No proactive duty to warn of obvious risk (1) A person ("the defendant" ) does not owe a duty of care to another person ("the plaintiff" ) to warn of an obvious risk to the plaintiff. …"
5. The factual position is that the plaintiff had visited the car park in question on a number of occasions before the subject accident. In my view, it follows that she must be taken to have been familiar with its layout and structural appearance, and she must be taken to have been aware that there were concrete kerb dividers located within the car park.
6. In those circumstances, I consider that at the time of her fall, the plaintiff ought to have been aware of the presence of the concrete kerb dividers on the day in question. I am reinforced in that view because in her evidence, she conceded, reasonably, that she had already seen and had negotiated another such kerb divider before she fell. In those circumstances, I find the only reason that prevented the plaintiff from seeing the kerb on which she had actually tripped, was because her view of the way ahead had been distracted by the appearance of the shopping trolley which had struck her vehicle. This was in circumstances where she continued walking ahead without looking at the car park floor surface.
7. The photographic evidence is of little utility in determining the question of the adequacy of the level of illumination in the car park: Blacktown City Council v Hocking [2008] NSWCA 144, at [28] and [169] - [172]. However, I consider that the plaintiff's fall had nothing to do with the level of illumination that prevailed within the car park. I am reinforced in that view because the plaintiff had no difficulty seeing the first concrete island she had walked over. Had she been keeping a proper lookout whilst walking towards her car, and had she not been distracted by the trolley, she would have seen the kerb. I find she did not need a warning as the risk of tripping on the kerb was one that was obvious within the meaning of s 5F and s 5G of the CL Act.

Issue 2 - Duty of care and alleged breach

1. There is little room for doubt that at the relevant time, the defendants each owed the plaintiff a duty to exercise reasonable care for her safety whilst she was in the premises: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479.
2. The duty on the first defendant arises from the fact that the first defendant, as owner, had engaged the second defendant to undertake surveys on the condition of maintenance of the premises. That engagement of the second defendant was obviously undertaken out of concern over issues of safety and illumination of the car park. The duty on the second defendant arose from that defendant's activities in taking regular surveys of the state of repair and maintenance of the premises where from time to time the need to replace light globes was identified: Exhibit "B", Tabs 17 and 18.
3. In considering whether or not there was a relevant breach of the duty of care owed to the plaintiff, it is first necessary to identify the relevant risk of harm so that a proper perspective can be taken of that risk in light of the required precautions against the materialisation of such risk.
4. In my view, the relevant risk of harm was that of a person on the premises, such as the plaintiff, who, whilst taking reasonable care for her own safety, might not be able to see the presence of the concrete kerb divider in question, in juxtaposition to the car park surface, and in those circumstances might not realise that whilst walking towards that structure, there was a trip hazard ahead in the area she was walking.
5. The question of whether the defendants had been negligent requires a consideration of the evidence within the framework of s 5B of the CL Act, which provides as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
6. In order to advance the claim that the defendants were negligent, the plaintiff pleaded the following particulars of negligence against the defendants: As against the first defendant: "a) Failure to take any or adequate precautions for the safety of the Plaintiff. b) Exposed the Plaintiff to a risk of injury which could have been avoided by reasonable care. c) Failure to ensure an adequate illumination available at all times in the car park to the Premises. d) Failure to maintain the painted edges of the car park column kerbs and islands. e) Failure to implement a regular system for the inspection, maintenance and re-painting of column kerb edges of the car park. f) Failure to provide any or any adequate signing alerting the Plaintiff to the presence of concrete column kerbs on the car park ground. g) Failure to prevent degradation of the painted edges on the column kerbs. h) Failure to implement a regular system for the inspection, assessment and maintenance of the car park lighting. Failure to assess, prior to the accident, the trip hazard of the column kerbs, particularly when lighting is poor." As against the second defendant: "a) The Plaintiff repeats the particulars of breach of duty of care by the First Defendant as applicable to the Second Defendant. In addition: b) Failure to comply with its contractual obligations with the First Defendant under the Management Agreement."
7. For present purposes, those allegations of negligence that are common to both defendants may be condensed into questions relating to the adequacy of the illumination of the car park, the provision of adequate warning signs, and the adequacy of inspections relating to those matters. In addition, the plaintiff asserts as against the second defendant, a failure to comply with contractual obligations, a matter which I consider falls to be assessed according to the same considerations as her claim in tort.

Preconditions required by s 5B(1) of the CL Act

1. In my view, for the reasons that follow, the three preconditions required by s 5B(1) of the CL Act before a finding of negligence can be made, are satisfied in this case.
2. First, there was a prospectively foreseeable risk that persons walking in the car park might trip and fall because of differing surface levels consisting of the concrete tarmac and the raised concrete islands and the related kerb structures: s 5B(1)(a) of the CL Act.
3. Secondly, the risk of harm to a person falling onto concrete which partly comprised raised surfaces "was not insignificant" and as serious injuries could result from such a fall: s 5B(1)(b) of the CL Act.
4. Thirdly, a reasonable person in the position of the defendants would have taken precautions against the risk of harm from pedestrians tripping and falling in such car park premises: s 5B(1)(c) of the CL Act.
5. On being satisfied as to those preconditions, it becomes necessary to consider whether the precautions taken by the defendants against the risk of a trip and fall represented an adequate discharge of the duty of care owed in the circumstances: s 5B(2) of the CL Act.

Precautions and related burdens

1. The starting point for considering the adequacy of precautions taken by the defendants is the assumption that the plaintiff would, at all times, exercise reasonable care for her own safety whilst in the premises.
2. On the evidence, the two categories of relevant precautions that arise for consideration within the context of the consideration required by s 5B(2) of the CL Act are, first, the matter of illumination, and secondly, signs or painted markings which would serve as warnings.

As to the illumination issue

1. In my assessment, the question of whether the illumination of the car park was adequate so as to enable the raised concrete kerb to be recognised as a trip hazard does not relevantly arise. This is because the plaintiff had already seen the first raised concrete section, and the only reason she did not see the second raised kerb, being the one on which she tripped, was because she became distracted from the view ahead as she walked towards that second raised kerb, upon which she tripped. There is no reasonable basis for concluding that in the lighting conditions that prevailed in the car park, that she could not have seen the raised kerb on which she had tripped. The probability of the plaintiff not being able to see the raised kerb was very low: s 5B(2)(a) of the CL Act.
2. Recognising the limitations upon the interpretation of photographs as stated in Blacktown City Council v Hocking [2008] NSWCA 144, at [28] and [169] - [172], it nevertheless seems plain that, as explained by the experts, the area was served by appropriately spaced light fittings throughout the car park. There is no dispute that the level of the lighting exceeded the requirements of the applicable standards. There was no expert evidence to the effect that the lighting was below the required standard. The photographs do not provide evidence, they merely explain the evidence. As such, they do not serve as evidence of inadequate illumination of the car park.
3. I do not accept Mr Burn's description of the lighting as being inadequate in view of Dr Cooke's description of the lighting being compliant with the applicable code and standards, as explained at paragraph [73] above.
4. In those circumstances, and according to the requirements of s 5B of the CL Act, in my view, nothing further was required of the defendants by way of illumination precautions that were reasonably required to alert the plaintiff to the presence of raised kerbing on the surface of the car park.

As to painted edges and warnings

1. In view of my findings at paragraphs [78] to [83] above concerning the obviousness of the risk of tripping on the wheel stop, I find that the defendants did not have a duty to warn the plaintiff of that risk: s 5G and s 5H of the CL Act. This is because if, as she was walking, the plaintiff had looked towards where her vehicle was located, just as she had seen the first concrete kerb which she had successfully navigated, she would have also readily seen the second kerb, on which she subsequently tripped.
2. No warning in the form of signs or more freshly painted kerb markings was required, although it might have been good practice to refresh the painted surfaces at some time. The non-observance of good practice, without more, does not equate to a failure to exercise reasonable care. No interrogations were directed to that question. The evidence of the plaintiff which I have cited at paragraphs [24] to [27] above, satisfies me that it was her failure to look to where she was walking, and her failure to watch where she was placing her feet, that was the critical determinant of the cause for her fall. If she had been looking, she would have seen the second kerb, as she had seen the first kerb.
3. Accordingly, this component of the plaintiff's claim of negligence requires no further consideration: s 5B(2)(b), (c) and (d) of the CL Act.

Conclusion on alleged negligence

1. The findings in paragraphs [90] to [102] above lead to the conclusion that the plaintiff has failed to establish that the defendants were negligent as claimed.

Issue 3 - Contributory negligence

1. The defendants each relied upon an alternative defence of the alleged contributory negligence of the plaintiff, as follows: "(a) Failure to look where she was walking; (b) Failure to look where she was placing her feet; (c) Failure to keep proper lookout; (d) Failure to take reasonable care for her own safety; (e) Failure to take care of her own safety in circumstances where she knew or ought to have known a trip hazard may have existed (f) Failure to walk around or otherwise avoid the concrete island; and (g) Failure to negotiate the concrete island."
2. In view of my findings in respect of Issue 2 above, it is not possible to make alternative findings and apportionment findings on the issue of contributory negligence, other than to state that the incident occurred because of the plaintiff's failure to look where she was walking.

Issue 4 - Assessment of damages

1. Notwithstanding my findings on the liability issues, lest I be wrong in those conclusions, it remains necessary for me to briefly set out my findings concerning the damages issues.

Plaintiff's probable life span and actuarial factors

1. 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 for the purpose of projection of future losses. At the present age of 35 years, the plaintiff has a probable median life span of 53 remaining years. There is no evidence to indicate that the plaintiff's ordinary working life would be foreshortened by early mortality. The 5 per cent multiplier for a remaining life span of 53 years is 988.9. The 5 per cent multiplier for a remaining working life of 40 years to age 65 years is 917.5.

Non-economic loss

1. The plaintiff's damages for non-economic loss, representing her pain, suffering and loss of enjoyment of the amenity of her life, must be assessed according to a comparison with a most extreme case: s 16 of the CL Act.
2. On behalf of the plaintiff, it was submitted that the appropriate assessment for non-economic loss was between 25 and 28 per cent of a most extreme case. The defendant submitted that assessment should be up to, but no more than 23 per cent.
3. In my assessment, having regard to the plaintiff's injuries as identified at paragraph [30] above, and the matters arising from the medical reports, and my findings as to her injury-related disabilities, as set out between paragraphs [54] to [59] above, the appropriate assessment of the plaintiff's non-economic loss should be 27 per cent, of an extreme case, which in monetary terms equates to an amount of $60,500.

Past economic loss

1. At the time of the accident, the plaintiff was not working. Her doctor had pronounced her as unfit for either work or for study. There was no reliable medical evidence as to when that position might change. Consistent with that position, the plaintiff makes no claim for past economic loss, or past loss of employer funded superannuation benefits.

Future loss of earning capacity

1. Initially, the plaintiff made no claim for future loss of earning capacity: MFI "2". During the trial that period changed, and a claim was made for future loss of earning capacity, including loss of employer funded superannuation, in the amount of $150,000. In contrast, the defendant submitted that no such damages should be awarded.
2. The sum submitted by the plaintiff comprised an assumed loss of $450 per week net projected at 3 per cent over 20 years (x 666) to yield $220,000, to which a superannuation component of 14 per cent was added to yield $250,000, and the product of those calculations was then discounted by 40 per cent to yield $150,000.
3. For the plaintiff to receive an award for loss of earnings, as for loss of earning capacity, it must be shown not only that there was such a loss of capacity, but also, that this was productive of a financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.
4. Whilst there is no satisfactory medical evidence as to when, absent the subject injury, the plaintiff would have achieved sufficient wellness for work and study, the preponderance of the medical evidence indicates that on the balance of probabilities, by the time of the hearing, the plaintiff would have been able to carry out some kind of work: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.
5. The medical evidence which I have accepted, as explained and summarised at paragraphs [31] to [53] above, and the disabilities I have found at paragraphs [54] to [59] above, indicates that the plaintiff has significant left shoulder problems that interfere with her capacity to carry out a wide range of work tasks for which unrestricted use of the left arm and shoulder is required. These include reaching above the head, lifting, bending, carrying, and making vigorous efforts involving the use of her left arm, and knee problems which prevent her from standing and walking for prolonged periods.
6. The evidence does not permit a reasoned conclusion on the likely range of employment the plaintiff would most probably pursue. The projection of a claim for economic loss on the basis submitted on behalf of the plaintiff involves an unacceptable degree of unwarranted conjecture. This makes the task of assessing future loss of earning capacity difficult, including an element for loss of superannuation, assuming employee status rather than self-employment.
7. Such difficulties are not insurmountable where it would be appropriate to assess a buffer sum in respect of this element of the plaintiff's claim. I am satisfied that is an appropriate course in this case: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
8. In light of the foregoing consideration, I assess the plaintiff's damages for future loss of earning capacity, including loss of superannuation, in the buffer sum of $75,000.

Past domestic assistance

1. The plaintiff submitted that past gratuitous care and domestic assistance should be assessed at 24 hours per week for 247 weeks at the rate of $27 per hour, totalling $160,000. In contrast, the defendant submitted that no such damages should be assessed as the evidence does not meet the statutory threshold test for such damages: s 15 of the CL Act.
2. The statutory requirement the plaintiff must satisfy for an award for past domestic assistance is that it must have been provided to meet an injury-related need, for at least 6 hours per week for a minimum of 6 months: s 15 of the CL Act.
3. The evidence for the incidence of such services, was given by Mr Shinnaoui, as follows: cooking, 1 hour per day (T93.9); bed making, 10 - 15 minutes per day (T93.24); bed stripping, 30 minutes per week (T93.30); laundry, 45 minutes per day (T93.43); floor cleaning and vacuuming, 30 minutes per day (T94.13); mopping of floors, 1 hour per week (T94.22); bathroom cleaning, 1 hour per week, twice per week (T94.38); and grocery shopping, up to 2 hours per week (T94.50). Those descriptions amount to a total of about 22.25 hours per week. In respect of the above domestic activities, the defendants only specifically challenged that aspect of Mr Shinnaoui's evidence in respect of 15 - 20 minutes per day of bed making, suggesting his evidence in that regard was "a significant exaggeration" a suggestion which Mr Shinnaoui denied: T102.11 - T102.17.
4. In respect of the second component of the claim for domestic assistance, Mr Shinnaoui's evidence of the domestic tasks in which he and in some respects, his mother became involved but for the accident, in respect of a house with 6 persons resident, was 24.75 hours per week (T95.43 - T99.22) broken down into the following approximated elements, namely: cooking, 1 hour per day (T96.49); bed making, 15 - 20 minutes per day (T97.23); bed stripping, 30 minutes per week (T97.29); laundry, 1.5 to 2 hours second daily (T97.41 - T98.5); floor cleaning and mopping, 30 minutes, between 2 - 3 times per week (T98.7 - T98.17); cleaning of two bathrooms in the house, twice per week for 1 hour on each occasion (T98.26 - T98.39); and grocery shopping, 2 hours per week: T98.41 - T99.22.
5. The above tasks, when analysed, are obviously exaggerated statements in terms of the plaintiff's accident-related needs, and having reached that conclusion, I consider I cannot rely on that evidence. This is a matter upon which the plaintiff carries the onus of proof: s 5E of the CL Act. On the basis of that unreliable evidence, I cannot make an arbitrary assessment which concludes the statutory threshold has been met.
6. For the above reasons, I decline to make any assessment of damages for past gratuitously provided domestic assistance.

Future domestic assistance

1. On behalf of the plaintiff, it was submitted that damages for future domestic care and assistance should be assessed on a commercial or paid basis, for 6 hours per week at $35 per hour over a period of 20 years, without discount in the sum of $139,900. The precise basis for the claim of 6 hours per week is not shown on the evidence. In contrast, the defendants submitted the plaintiff had no accident-related requirement for such assistance.
2. The difficulty with the plaintiff's claim for future domestic assistance is that I am left with a body of evidence which is in an unreliable, and therefore, an unsatisfactory state, on this issue. I find that as a consequence of the exaggerated and unreliable time estimates of the tasks involved, as already referred to, I am precluded from assessing this component of the plaintiff's claim. To proceed to do so in an arbitrary manner, would involve error as to the necessarily conjectured assumptions involved.
3. I therefore decline to make any assessment of damages for future domestic assistance.

Future treatment expenses

1. The plaintiff made a claim for future treatment expenses in the sum of $39,705 to cover the cost of future steroid injections to the left shoulder, possible shoulder surgery, consultation with her general practitioner, physiotherapy treatment, related travelling expenses, and medications. In contrast, the defendants conceded a buffer amount of $2000.
2. In my view, the medical evidence does not support a precise calculation of the kind submitted on behalf of the plaintiff. As the treatment recommendations are possibilities rather probabilities, I consider the appropriate method of allowing for this is to assess a rounded buffer sum, which I assess at $7500.

Out-of-pocket expenses

1. The plaintiff makes a claim for past out-of-pocket expenses in the sum of $6276.95, which the defendant conceded. I therefore assess the plaintiff's damages for past out-of-pocket expenses in the amount of $6276.95.

Summary of damages assessment

1. My assessment of the plaintiff's damages is summarised as follows: (a) Non economic loss $60,500 (b) Past economic loss $Nil (c) Future economic loss $75,000 (d) Past domestic assistance $Nil (e) Future domestic assistance $Nil (f) Future treatment expenses $7,500 (g) Past out-of-pocket expenses $6,276.95 Total $149,276.95

Disposition

1. The plaintiff has failed to establish that either of the defendants was responsible for her injuries. The defendants are therefore entitled to a verdict and judgment in their favour.

Costs

1. The defendants are entitled to have their costs of the proceedings paid by the plaintiff on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

1. I make the following orders: 1. Verdict and judgment for the defendants; 2. The plaintiff is to pay the defendants' costs of the proceedings on the ordinary basis unless either party can show an entitlement to some other order for costs; 3. The exhibits may be returned; 4. Liberty to apply on 7 days' notice if further orders are required.

Amendments 22 March 2017 - Coversheet - Defendant to Defendants 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: 22 March 2017