Theodorakakis v Telstra Corporation Limited

District Court of NSW|2005-02-25|Before: Mr J

CITATION: Theodorakakis v Telstra Corporation Limited [2005] NSWDC 11

CATCHWORDS: Plaintiff fell over on a footpath due to presence of pit lid which was not flush with pavement - Hazard had been identified by council 14 months earlier but not rectified - Claim against council and party responsible for the installation of the pit lid - Whether defect was obvious - Burden of proof - Duty of care and breach of duty - Relevance of budgetary constraints on council - Whether s 45 of the Civil Liability Act applied - Contributory negligence - Quantum

LEGISLATION CITED: Civil Liability Act 2002, ss 16, 45 Roads Act 1993, s 4

Blatch v Archer (1774) 98 ER 969 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; [2001] HCA 29 Burwood Council v Byrnes [2002] NSWCA 343 Council of the Municipality of Waverly v Lodge [2001] NSWCA 439 Georgopoulos v Telstra Corporation Ltd [2004] NSWCA 266 Graham v Baker (1961) 106 CLR 340 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Hastings Council v Giese [2003] NSWCA 178 K-Mart Australia Ltd v McCann [2004] NSWCA 283 Lake Macquarie City Council v Bottomley [1999] NSWCA 28 Lake Macquarie City Council v Holt [2004] NSWCA 305 Lombardi v Holroyd City Council [2002] NSWCA 252 CASES CITED: Medlin v State Government Insurance Commission (1995) 182 CLR 1 Newcastle City Council v Mason [2004] NSWCA 108 Newcastle City Council v McShane [2004] NSWCA 425 Penrith City Council v Parks [2004] NSWCA 201 Richmond Valley Council v Standing [2002] NSWCA 359 Roads and Traffic Authority of New South Wales v McGuinness [2002] NSWCA 210 Ryde City Council v Saleh [2004] NSWCA 219 Ryde Council v Smith [2003] NSWCA 57 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Telstra Corporation Ltd v Smith (1998) Aust Torts Reports 81-487 Temora Shire Council v Stein [2004] NSWCA 236 Turnbull v Alm [2004] NSWCA 173 Waverly Municipal Council v Wagner [2002] NSWCA 10 Wyong Shire Council v Shirt (1980) 146 CLR 40

Maria Theodorakakis (Plaintiff) PARTIES: Telstra Corporation Limited (First Defendant) Port Stephens Council (Second Defendant)

Ms Norton SC; Mr Khandhar (Plaintiff) COUNSEL: Mr J Ryan (First Defendant) Mr Gambi (Second Defendant)

Brydens Law Office (Plaintiff) SOLICITORS: Henry Davis York (First Defendant) DLA Phillips Fox (Second Defendant)

1 The Plaintiff in this case, who was born on 5 December 1966 and is now 38 years of age, was injured when she fell whilst walking on a footpath on Shoal Bay Road, New South Wales. There is no dispute that she suffered injuries on 18 January 2002 as a result of the fall - a spiral comminuted fracture of the left ankle of both the tibia and the fibula - or that the ankle had to be fixed with plates and screws. She also suffered superficial burns to her buttocks because the pavement on which she found herself after she fell was very hot. There is no dispute that she fell at a point on the footpath at which is located a pit lid in place in the footpath. The pit lid covers a pit within which are located telephone lines and other equipment, and the pit and lid were installed by either Telecom or PMG, being the predecessors in title of Telstra Corporation, the First Defendant ('Telstra'). Telstra owns the pit, the pit lid and the cable leading into in and out of the pit, and equipment in the pit. No point is taken by Telstra as to the different identities Telecom and PMG, and I shall in these reasons refer to 'Telstra' to encompass all of these entities. Ms Norton SC with Mr Khandhar of counsel appears for the Plaintiff, Mr J Ryan of counsel for Telstra, and Mr Gambi of counsel appears for the Second Defendant.

2 The Second Defendant ('the Council'), it is admitted, has conferred on it by statute powers in relation to the footpaths within the city of Port Stephens, including Shoal Bay Road.

3 The Plaintiff was returning to the beach after purchasing a bottle of water and consuming it at a shop further west along the street, and was walking down the footpath in an easterly direction, at about 12.20 pm. She had never walked down that footpath before. It was a bright sunny day, and she was not wearing sunglasses or a hat. She was wearing rubber-soled sandals. She saw two girls at least 6 metres and more likely about 8-10 metres ahead of her (see T6.20) who were heading in the same direction as she was. She saw them move around a telegraph pole that was on the footpath about 20 metres before the pit: T39.8. She continued in the same direction and also walked to the side of the pole. She walked another 20 steps to a point outside No.25 Shoal Bay Road and felt the toes of her left foot catch upon something which caused her to fall, and in falling to break her ankle. Based on her evidence, which I accept, I find that her toes came into contact with the concrete footpath at the eastern side of the pit lid cover, causing her to topple over and to break her ankle.

4 The Plaintiff's evidence is that she was looking ahead and keeping a proper lookout but she did not see the depression in the footpath where the pit lid was located. She says she was walking at her normal fast pace but not running, and she was keeping a look out straight ahead and paying attention (T39.35-39; T41.50), and she agreed in cross-examination that she was looking because from her extensive experience it is a good idea to do so: T49.40-T50.25. The reason she did not see the depression in the footpath, she asserted in cross-examination, is because the base of the depression was the same colour as the surrounding footpath, and it being midday on a bright sunny day meant that there were no shadows to highlight the edge of the depression: see T39.30-35 and see T50.45-54.

5 Photograph 4 Exhibit B is a photograph of the pit lid at which the Plaintiff fell. The lid is seen again in Photograph 3 of Exhibit B and from a distance in Photograph 1 and Photograph 2 of Exhibit B, with 'X' marking its position. It is barely visible in Photograph 1 of Exhibit B because the photograph is taken from a long distance away, and because of the 'X'. A copy of Photograph 1, without the 'X' marking, was tendered and added to Exhibit A, so that the location of the pit can be seen.

6 The photographs were taken by the Plaintiff's husband on the day after the accident. Exhibit H is a close-up of the pit lid cover. No measurements were taken by anyone and the pit was replaced (in May 2002) by a different style of pit and pit lid cover: see the photographs annexed to Exhibit D and paragraph 3 of Mr Cowling's Report. At the time the Council repaired the footpath, no notification of the accident had been given to the Council.

7 There is evidence that the Council made an inspection of the footpath on 30 November 2000, and noted, at Chainage 136 (which, it is agreed, is the area of the Telstra lid to which I have referred), '20mm Lip'. The Council did not concede that the reference to '20mm lip' was a reference to the same pit as that at which the Plaintiff tripped, but nothing was put in argument against this proposition and on the balance of probabilities I find it was the same pit that was being described. If the Council wished to contend that the document was referring to another lid it was within its power to call such evidence: see Blatch v Archer (1774) 98 ER 969 at 970, cited with approval in Hampton Court Ltd v Crooks (1957) 97 CLR 367, 371. No action was taken by the Council at that time and no notification was given to Telstra of the 20mm lip, which I shall refer to as 'the differential'.

8 On 27 November 2001, the Council, it appears from Exhibit K, accepted a recommendation of its Operations Committee that the Council should adopt the Footpath and Cycleway Assessment and Maintenance Strategy, which involved inspecting footpaths and cycleways, and maintaining and repairing concrete surfaces. This policy includes identifying the types of hazard and their severity, and determining an appropriate response time to undertake the necessary inspections and repairs for each category of hazard. The policy contained the following: ' 3.2 Evaluation of Hazards

The identified failed footpath is evaluated for the severity of the hazard and the risk. The two major characteristics used in evaluating the risk are the Physical and Environmental conditions of the footpath. The evaluation of these characteristics rate the hazard as either low, medium, high, or very high, which is then used to prioritise the footpath repairs and the action response period. Evaluating the footpath will also assist in selecting the maintenance / repair procedure to prevent the failure from reoccurring.

Evaluation of the physical properties of the footpath include:

Vertical displacement - The degree of any step or vertical displacement in adjoining paving units measured in millimetres. The displacement can be caused by tree roots, differential settlement of the supporting ground, erosion of material from the path or pavers, poor construction techniques, damage by construction traffic, subsidence of utility trenches etc.

Uneven surface - The degree to which the surface is uneven due to previous maintenance repairs, patching, uplifting / cracking due to tree roots or heavy vehicle usage. When the sides adjacent to the footpath are lower than the level of the footpath are also considered an uneven hazard.

Slipperiness - The degree to which the surface finish is slippery due to inherent characteristics of the paving material, the paving manufacturing process, water, or wear and tear.

Environmental evaluation relates to external influences surrounding the footpath such as:

Frequency of Pedestrian Use - areas of differing usage such as rural, near schools or shopping centres, CBDs etc. High - Areas such as the CBD and shopping centres.

Medium - Areas near schools, leisure facilities, nursing homes, and aged care facilities.

Lighting - Day and night lighting and shadows that could reduce visibility or camouflage broken or misalign [sic] surfaces.

The gathered footpath Physical and Environmental properties are to be plotted into Table 3.2.3a Assessing Footpath Risk Rating to rate the hazard. In the event that there are two or more hazards that indicate that the footpath requires repair, adopt the worst case scenario for the rating. It should be noted that in this case, all of the hazards should be addressed to avoid a failure from re-occurring at the same area.'

9 Trip size of 20 mm with no shadows and excellent lighting, no slipperiness and no unevenness, constituted a 'high' risk where the priority levels were Very High, High, Medium and Light.

10 4.2 of the policy document said: "4.2 Risk Action Response Time There are four response times that will require action depending on the priority rating value of the risk, as shown in Table 4.3 Risk Action Response. - Low - as resources permit

11 There was to be inspection annually for low/medium/high pedestrian volumes: see p 8 Exhibit K.

12 The Council did not rectify the differential within 5 or 40 days from identification of the trip hazard, nor did it do so with 40 days of its adoption of the policy. There was no further inspection of the footpath after 30 November 2000 and before the accident.

13 I have noted that no measurements were taken of the size of the pit cover, or, more importantly, of the differential. Mr Cowling, the expert retained by the Plaintiff, estimated from the photograph that the depression was between 50 mm and 75 mm. He also expressed the view that: 'the footpath forming the sides of the depression show evidence of having been partially sawn through and then partially broken out manually using a mechanical hammer or a hand hammering device so as to form a rough opening rectangular in plan. In my opinion, this depression has not been caused by 'normal' settlement over time. The creation of this depression post-dates the construction of the surrounding concrete footpath. The depression was partially filled with wind-blown sand and other debris. Without further information it is difficult to estimate when the depression was created.'

14 Mr McDiarmid, an expert witness called on behalf of Telstra, and who has had many years of involvement with Telstra and the various pits and lids used by Telstra, did not disagree that the pit lid level was not a result of subsidence - indeed, he said that because of the nature of the cables going into the pit the pit would be unlikely to move at all. He was of the view that the pit was a 'Type-1 Telstra distribution cable network pit' which had now been replaced by a P5 pit (of larger dimensions: 760 x 420 x 40 mm). He identified the Type 1 pit as one installed as a PMG pit of a type manufactured between 1930 and 1960 with cabling of a type in use to 1958. He thought that the cabling indicated that the pit had last been opened up in the late 1960s. In his report, he described a Type 1 pit as having a height and width of 460mm by 230 mm: see para 7 of Exhibit 1D1 in response to lines 14-17 of Mr Cowling's report.

15 The issue of when the pit was installed and when last attended to assumed some importance because the Council was not able to say in answer to interrogatories when the footpath (as in place at 18 January 2002) was installed or by whom (see Exhibit G), and there was no direct evidence of when Telstra installed the pit. Mr McDiarmid said he could find no evidence from records of any work having been done on the pit in question, nor any complaint or incident involving the pit in Telstra records. He said, and it was not disputed, that although the block of flats built next to the pit would have required telephone cabling work when they were completed, the telephone cable to those flats does not traverse the pit in question. He also attached photographs of the pavement around the block of flats at No.25 Shoal Bay Road, and based on those photographs, together with information about holiday flats that had been in place before the current building, he concluded that the pit had been installed within the width of the previous footpath layback driveway access, and that 'at a time during the building of the apartments or after they were completed a new footpath was laid over the layback to the level of the existing footpath'.

16 The previous layback can still be identified in the photographs attached to and in Mr McDiarmid's report (and a set of these photographs became Exhibit 1D2) along the kerb in front of 25 Shoal Bay Road. He concluded that the Telstra pit was not raised when the new footpath was laid, and that the concrete footpath level at the pit was 'dressed down' to the Telstra pit cover around the edges.

17 His conclusion was that the Telstra pit was installed prior to the footpath that was in place on 18 January 2002 being laid.

18 Mr Gambi submitted that I should reject Mr McDiarmid's evidence because his manner of giving evidence and his admittedly strong connection with Telstra rendered his evidence suspect on the basis of partisanship. I did find his evidence that with a magnifying glass applied to the photographs he could examine what lay beneath the concrete puzzling, and I find it odd that none of the shapes for pit covers in Exhibit 1D7 reveal a lid with the dimensions he described a Type 1 pit lid as having, and there was an issue about one keyhole or two. There is a Type 1 pit lid 500 x 270 x 50mm (with one keyhole) which is close to that described, and it has only one keyhole, and has a rectangular shape without rounded top or base. Notwithstanding these aspects, I did not form the view that his manner of giving evidence and his connection with Telstra rendered his evidence suspect on the basis of bias or partisanship. I accept his evidence that the cabling in the pit was old and of a type which was consistent with an earlier time of installation, and that Telecom was the logo used from mid 1975 to 1993-1994. Given that the lid bears a Telecom logo, that cannot have been installed before mid 1975, but there is no dispute that the strata plan for the block next to the pit was registered in 1979, it being likely that construction of the block of units was commenced after that and a new path required. There was no dispute that the keyhole on the pit lid was covered over by concrete, which makes it unlikely that Telstra would have been responsible for leaving the lid in that condition, particularly given the evidence of Mr McDiarmid about inspection procedures of work performed on behalf of Telstra.

19 Taking all of the evidence on this point together, I find, on the balance of probabilities, that it is not established that Telstra was responsible for the height differential between the pit lid and the footpath. There was no evidence that Telstra was ever made aware of the differential and no evidence that the Council, having become aware of the differential in November 2000, sought to inform Telstra or thought it appropriate to do so.

20 Mr McDiarmid said that it was part of Telstra's policy to inspect pits when a complaint was received from the public but also that it was incumbent on Telstra staff working on cabling who observed defects to notify Telstra of such defects, which would then be examined.

21 Ms Norton sought to develop an argument based on this that Telstra employees must have been working in Shoal Bay Road at some time after the footpath was built and before the accident, and that they failed in their duty to inform Telstra of the footpath defect, and that Telstra failed in its duty to repair.

22 There is no evidence that at a time after the differential had been created there were Telstra employees working in Shoal Bay Road, but even if they were working on other pits, I do not think there is any basis for the proposition that those employees ought to have observed the position at another pit, and to have reported it. Another difficulty with this argument is that if Telstra was not responsible for the creation of the differential, it had no duty to repair it, but only at most to notify the Council of the defect, and the Council was made aware more than a year before the accident of the differential.

23 The conclusion I have come to is that no negligence on the part of Telstra has been established, and that there should be a verdict and judgment in Telstra's favour on the Plaintiff's claim and on the Council's Cross Claim against Telstra. There must accordingly be verdict and judgment against Telstra on its Cross Claim against the Council. It was agreed by all parties that I should reserve the question of costs.

24 If, as I have found, the footpath in which the pit was encased as at 18 January 2002 was built after the pit, it does not follow that it was the Council who constructed it. It was either the Council or the developer of the block of flats at 25 Shoal Bay Road (built in or after 1979).

25 There is no evidence of who in fact did the construction, but what is apparent from the documents produced by the Council and its interrogatories is that:

(a) on or by 30 November 2000 the Council became aware of the differential;

(c) one year later, it adopted a system pursuant to which the differential fell within the category of 'high priority' requiring rectification within five days;

(d) even as at 17 November, the Council's officer, Mr Peter Murray from Engineering Services, saw the purpose of the inspection which revealed the differential as a process which not only would enable the total repair costs of all footpaving to be estimated but which 'also allows any high risk faults to be repaired immediately': see Exhibit 15, Memorandum of 17 November 2000;

(e) there is no evidence that the Council considered that it was necessary for any other person to do the work (ie Telstra or the owners of the block of apartments at No.25), or that it took steps to notify any of these parties.

26 The condition of footpaths and roads is a subject which has given rise to much litigation. The High Court most recently dealt with the topic in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512, and the New South Wales Court of Appeal most recently dealt with the subject in Sutherland Shire Council v Henshaw [2004] NSWCA 386 and Newcastle City Council v McShane [2004] NSWCA 425.

27 I think it is open to draw the inference that the Council, having taken no action to inspect and rectify the footpath prior to 30 November 2000, became, by its failure to inspect over such a lengthy period, responsible for the condition of the footpath, but in any event its knowledge by 30 November 2000 makes it unnecessary to reach a conclusion on the position prior to that date, and was a circumstance that could, subject to matters which I shall next consider, impose upon it a duty to rectify the pavement: see para 150 of Brodie in which Gaudron, McHugh and Gummow JJ said: 'The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk . If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist' (my emphasis).

28 In Newcastle City Council v Mason [2004] NSWCA 108, Hodgson JA, with whom Giles JA and McColl JA agreed, approved of the approach summarised by her Honour Judge Sidis, the trial judge in that case, and drawn from what was said by Heydon JA in Richmond Valley Council v Standing [2002] NSWCA 359 and Foster AJA in Roads and Traffic Authority of New South Wales v McGuinness [2002] NSWCA 210 as arising from the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie and Ghantous. These six points are found in an article by her Honour subsequently published in The Judicial Review Vol 7 (March 2005) at p 165: '1. Highway authorities are obliged to take reasonable care not to create a foreseeable risk of harm. If the condition of a highway poses a risk, regardless of whether the risk is the result of design, construction or non-repair, they are under a duty to take reasonable steps by the exercise of their powers within a reasonable time to address the risk.

2.They are required to take reasonable steps to ascertain the existence of latent defects.

3.The elements set out in Wyong Shire Council v Shirt apply to the determination of whether there has been a breach of the duty, as does the issue of competing or conflicting responsibilities or commitments.

The duty does not extend to ensuring the safety of all road users in all circumstances.

4.There is no breach of duty if the danger could not reasonably be expected or could not be found except by taking unreasonable measures. There will be a breach of duty if there is a failure to inspect for reasonably expected dangers or a failure to remedy those of which the authority becomes aware.

5.The starting point in deciding whether there has been a breach of the duty of care is the proposition that person using the road will take ordinary care. Pedestrians are more able to see and avoid imperfections in road surfaces.

6.Some allowance must be made for inadvertence and for dangers that are not readily visible.'

29 In Standing, Heydon JA said: '[29] ...The question is whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians. The issue of the capacity of the defendant to deal with particular risks and the competition between claims on scarce resources is not specifically relevant to the question of the scope of the duty, but to the question of its breach.'

30 In Burwood Council v Byrnes [2002] NSWCA 343, Handley JA said: '[33] A Council's duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate 'obvious hazards' which 'could possibly be an occasion of harm' [para 29 above]. The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence.

[34] This Court has considered Ghantous in at least three cases involving pedestrians injured on a highway. In Hawkesbury City Council v Ryan [2001] NSWCA 212 the plaintiff was returning to her car parked in Richmond shopping centre next to the kerb. At this point the gutter was deep and the top of the stone kerb was 22mm higher than the brick paved footpath. The plaintiff tripped over the kerb while stepping down into the gutter. Williams DCJ held that the height differential at the edge of the kerb was a trip hazard. It had been created either when the footpath was laid or as a result of subsidence due to poor compaction of the foundation material. His judgment in favour of the plaintiff was upheld by this Court.

[35] In Parramatta City Council v Watkins [2001] NSWCA 364 the plaintiff again succeeded. She had parked her car next to the kerb in a designated parking area in Granville shopping centre. She walked around the front to get to the footpath and fell onto a manhole cover. This was flush with the road surface at the kerb but 50 mm or 2" below with a steep drop from the surface on the side furthest from the kerb. The manhole was partly obscured by her car and the space in front of her car was probably limited by another parked vehicle.

[36] There was a similar manhole cover 40 metres away which did not present the same hazard because of the gradual slope from the surface to the cover. The judgment of Robison DCJ was upheld because the change in level would not have been expected and its existence was likely to be and was partially obscured by the car. The change in level was found to be an unreasonable hazard created during resurfacing work a few years earlier.

[37] In the third case, Lombardi v Holroyd City Council [2002] NSW CA 252, the pedestrian failed. The plaintiff tripped over a concrete slab in the footpath which was 25 mm higher than the adjoining slab on one corner and substantially level with it at the other. This Court upheld the decision of Patten DCJ who found that the difference in height was plainly visible and could not be categorised as a concealed hazard. Hodgson JA, who delivered the principal judgment in this Court, said (para 32): 'that a plainly visible step of 25 mm in a footpath is [not] correctly regarded as high risk or unacceptable risk.

[38] In the first two of these cases the Court found that the state of the road or footpath created a hazard which was dangerous to pedestrians but not obvious. In the last of the cases the Court found, in effect, that the footpath 'could possibly be an occasion of harm' but it was 'an obvious hazard'. The facts of the present case are, in essentials, indistinguishable from those in Lombardi v Holroyd City Council . Indeed the height difference in this case was less.'

31 Ms Norton in her submissions submitted that the Plaintiff, to succeed, must establish that the lip of the concrete on which she tripped was 'not obvious to her while exercising reasonable care for her own safety', which she said is a question of fact. Mr Gambi submitted that a pedestrian exercising reasonable care would observe a 20mm gap and hence no duty was owed to her because she was not a person exercising reasonable care for her own safety. He propounded an approach that a trip on a 20 mm differential in a pavement in broad daylight where there are no obstructions, no other pedestrians in the immediate vicinity, and no diversions, can lead only to the conclusion that the Plaintiff was not exercising due care for her own safety, and hence was not a person to whom any duty of care was owed. Alternatively, he submitted that if a duty of care was owed, contrary to his submissions, then the duty was not breached, for the same reason, and further that if the duty was breached the Plaintiff's own negligence had contributed to the accident - a 15% reduction, it was submitted, would be appropriate. The Plaintiff did not see the differential or notice that there was a lid there, and the Defendants say that that is proof that she was not exercising due care.

32 The following additional cases were cited in argument: Lombardi v Holroyd City Council [2002] NSWCA 252; RTA v McGuiness; Standing; Byrnes; Lake Macquarie City Council v Bottomley [1999] NSWCA 28; Waverly Municipal Council v Wagner [2002] NSWCA 10; Council of the Municipality of Waverly v Lodge [2001] NSWCA 439; Lake Macquarie City Council v Holt [2004] NSWCA 305 [No Holt No.2]; Ryde City Council v Saleh [2004] NSWCA 219; Hastings Council v Giese [2003] NSWCA 178; Temora Shire Council v Stein [2004] NSWCA 236; Newcastle City Council v Mason [2004] NSWCA 108; Turnbull v Alm [2004] NSWCA 173, and after I reserved decision Ms Norton forwarded to me a copy of Telstra Corporation Ltd v Smith (1998) Aust Torts Reports 81-487.

33 It was submitted by Mr Gambi that Henshaw was distinguishable from this case and that the remarks of both Bryson JA in Henshaw and Giles JA in Stein were not consistent with the High Court's decision in Brodie and Ghantous. I should also note that Sheller JA in Henshaw, although concurring in the result, expressed a concern about the role of the Court of Appeal in construing judgments of the High Court. Sheller JA did not go so far as to say that the approach of Bryson JA amounted to a disregard for the High Court's approach in Ghantous, but his remarks could be viewed as reflecting disquiet. Bryson JA expressly adopted as correct the approach of the Giles JA in Stein.

34 Interesting and difficult issues arise - is the question of whether the particular paving defect is obvious to a person exercising reasonable care relevant at the duty part of the inquiry or at breach (the matter is discussed in detail by Hayne J in Ghantous, by Giles JA in Stein and by Bryson JA in Henshaw); if the question is assessed at the stage of breach inquiry then does this favour plaintiffs (Hayne J's view); if it focuses on breach, does that bring it with the realm of policy decisions. Heydon JA in Standing, Foster AJA in McGuinness and Mason P in Ryde Council v Smith [2003] NSWCA 57 seemed to treat the issue of the reasonable care by the pedestrian for his or her own safety as being part of the duty of care. Giles JA was of the view that the majority judgment in Ghantous was treating it as part of breach - this seems to be the approach taken in the summary set out in paragraph 28 above which I understand was adopted by the Court of Appeal in Mason. A further question is whether, if the matter is one of duty, there is any scope left for contributory negligence: see Henshaw.

35 Mr Gambi relies on the Court of Appeal decision in Burwood Council v Byrnes in which it was said: 'A height differential of 20 millimetres is not an unexpected or unusual danger to a pedestrian in the Sydney Metropolitan area, who is taking reasonable care and keeping a proper lookout,'

and the fact that when special leave was sought McHugh J, with whom Kirby J agreed, in rejecting the application for special leave, said: 'This is a case concerning a highway authority's duty to take care for the safety of those using the highway and its adjoining footpaths. The applicant seeks to exclude entirely from consideration of the existence of the duty of care owed by the highway authority the postulate of a plaintiff's obligation to take reasonable care for his or her own safety. The applicant contents that the latter obligation only arises in considering breach and any question of contributory negligence. We do not agree with this contention. We see no error in the reasoning of the Court of Appeal. There is no issue in the case warranting the grant of special leave to appeal' ([2003] HCA Trans 462 (14 November 2003) p5).

36 The status of decisions of the High Court on leave is discussed by Bryson JA in Henshaw, which he described as not authoritative, resolving only the question of whether special leave should be granted. His Honour also considered Byrnes and other cases in the Court of Appeal before Stein, and commenced by noting that they fulfil the prediction in Brodie that each case will turn on its own facts, but that: 'As a generalisation, cases based on tripping hazards where there are height discrepancies in the order of 25mm or 1 inch between otherwise regular paving slabs generally do not succeed; discrepancies treated as tripping hazards are usually greater and often are highly irregular or have some other unusual feature'.

37 In Stein, Giles JA said: '[40] It does not automatically follow that, in arriving at the response of the reasonable council, a defect obvious to the reasonable pedestrian needs no attention. As their Honours added (at [163]), "some allowance must be made for inadvertence". They had earlier (at [160]) referred to taking into account "as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness'", citing Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 343 where Taylor J spoke of doing that in enquiring what precautions or safeguards the exercise of reasonable care by an employer required. It is not clear whether their Honours meant, by the illustrations following, that inadvertence was failure by a pedestrian exercising reasonable care to perceive a danger where perception of the danger was diminished, for example because of inadequate lighting or concealment by grass, so that the danger was "in the nature of a trap". The line between failure to take reasonable care and inadvertence is fine, and an expectation that pedestrians will exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards leaves little room for inadvertence. It has not featured in the decided cases; in Newcastle City Council v Lindsay it was unsuccessfully argued that the pedestrian was distracted by unusual objects adjacent to the defect in the footpath, but it was said (at [42]) that inadvertence was relevant only if the pedestrian was otherwise exercising sufficient care.

[41] In the balancing required in accordance with Wyong Shire Council v Shirt the obviousness of the risk to the careful pedestrian will not be the only consideration, although it is likely to be dominant. In Parramatta City Council v Watkins [2001] NSWCA 364 at [27], included in the passage from Richmond Valley Council v Standing earlier set out, Hodgson JA envisaged that a sudden variation of level in the paved surface of an apparently well-made road, even if obvious, could call for remedy because unexpected. In a case decided after the hearing in this appeal, Dunn v Star City Pty Ltd [2004] NSWCA 223 (not a footpath but the foyer of the Star City Casino), it was relevant that the pedestrian would not reasonably have expected that the mats over which she tripped would have been in her path (see at [48]). Taking reasonable care can involve what is reasonably expected as well as what is obvious, and what is obvious in hindsight must be considered together with the occasion to perceive it at the time. In this respect, and more generally, the matters for consideration will include whether the defect was "in the nature of a trap".

[42] In the balancing exercise, the ultimate issue is what reasonable care required. All the circumstances of the risk presented to the careful pedestrian must be considered. Equally, see McHugh J in Liftronic Pty Ltd v Unver (2001) 179 ALR 321 at [25], it is an erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided, the defendant was necessarily negligent: as his Honour said, "[t]he issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequence of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it". See also Tame v New South Wales at [99] and Calfest v Tombleson [2003] NSWCA 210 at [18].

[43] The respondent had the burden of proof of negligence, including proof that the scope of the appellant's duty of care extended to remedyng any danger presented by the raised edge of the driveway or, as I would prefer to put it, that the reasonable response of the appellant was to remedy any danger, prior to 21 February 2002, for example by providing filling to form a ramp from the footpath up to the driveway. As part of her proof of negligence, it was for the respondent to provide evidence, and persuade the judge, that the hazard was not one which, with the exercise of care on her part, she could have seen and avoided. If she did not do so, she was exposed to the finding that there was nothing unreasonable in the appellant's response of inaction'.

38 The issue was revisited in Newcastle City Council v McShane (this case was not one cited to me in submissions), and Giles JA (with whose judgment Mason P agreed) considered the arguments of the type advanced in Henshaw and Stein, and before me in this case, with the same conclusion. A finding of contributory negligence was made in that case but that was because the Plaintiff was running with a bottle when he fell.

39 In my view, it is not open to me to disregard the unanimous approach in Stein and the majority decisions in Henshaw and McShane (in which Sheller JA came to the same result). Notwithstanding my view as to the position which must be adopted, I shall consider the position from both alternatives. On either approach, the plaintiff bears the onus of proving negligence, including the existence of a duty and its breach, and that the response of the Council to the risk was not reasonable: see Stein para [43] cited above, and see Georgopoulos v Telstra Corporation Ltd [2004] NSWCA 266.

40 The fact that a Plaintiff says that he or she was keeping a proper lookout cannot be determinative of whether he or she was in fact keeping a proper lookout, but it is some evidence.

41 The Plaintiff's honesty was not attacked in submissions. The Council's argument seems to be based in part on the proposition that the Plaintiff cannot be correct in saying that she kept a proper lookout because she fell. That begs the question, did she fall because although keeping a proper lookout the differential was not obvious and hence not noticed, or did she fall solely or partly because she was not keeping a proper lookout. The fact that she did not notice the differential does not of itself establish that she was not keeping a proper lookout.

42 I have come to the view, on the balance of probabilities, that the differential was not obvious to a person exercising reasonable care for her or his own safety. That conclusion is based on the following:

(1) the Plaintiff's evidence that she was keeping a proper lookout;

(2) the fact that the differential was down from the normal level of the pavement and located in a section of pavement that was without any other imperfection, with the consequence that a differential would be less likely than in an obviously affected footpath;

(3) the Council's note concerning the differential contained no description of the differential that suggested it was not a hazard to pedestrians and hence need not be repaired, and no evidence was called from the Council employee or employees involved in the inspection contradicting the Plaintiff's evidence that the differential was not obvious; indeed the Council without any notice of the accident did in fact repair the footpath. The Council gave this location a 'high priority ranking' (see Exhibit 2D7);

(4) I accept the Plaintiff's evidence that she was not distracted by any other pedestrian or event at the time that she walked along the footpath; it was not put to the Plaintiff that she was distracted by some other event consistent with a failure to keep a proper lookout;

(5) the top of the lid is covered in concrete and although, close up, differences between footpath and lid can be seen, the colours are similar. The existence of sand is likely to have acted as a further camouflage of the differential.

43 I should note that my initial impression of the photographs taken close to the pit was that they show an obvious defect. The problem with basing a conclusion on the photographs is, however, that the photographs were taken to show on what it was the Plaintiff fell, and it is not surprising that the defect appears obvious in the photographs. These photographs are not taken from the direction in which the Plaintiff was walking, nor is there evidence that they were taken with the sun overhead. Photograph No.2 is taken from that direction, and in it no differential is apparent, but I do not base myself on that photograph either, because it is obviously taken a long way from the pit lid, as is photograph No.1. The issue of the photographs highlights how difficult it is to reach a conclusion on whether a hazard is 'obvious', particularly when the conditions in which the accident occurred cannot be replicated. If Ghantous does stand for the proposition for which the Council contends then a great deal of court time would be saved in cases such as this.

44 So far as the absence of reports of injury are concerned, I note that no evidence was placed before the Court of any report of accident or complaint prior to the Plaintiff's accident (to the Council or Telstra). The absence of such reports is consistent with the absence of serious injury, and I take it into account. I also take into account the fact that neither of the two girls who were ahead of the Plaintiff, and one of whom walked in the same location as the Plaintiff, fell at the pit lid location, but these matters do not lead me to a different conclusion about the matter.

45 Having concluded that the differential was not obvious to a pedestrian exercising reasonable care, this leads to the rejection of the argument that there was no duty even assuming that the question is one of duty rather than breach. If, as Stein and Henshaw indicate, it should be treated as a matter going to breach and not duty, then for the same reasons I reject the contention that no breach is established because the Plaintiff was not keeping a proper lookout for her own safety. Rejection of that argument is, however, not determinative of the matter - was the Council's failure to repair the differential reasonable in all the circumstances - having regard to the nature of likely risk to pedestrians, the cost of repair, the other competing demands on the resources of Council: see Wyong Shire Council v Shirt (1980) 146 CLR 40, at pp47-48, where it was said (in a much cited passage): 'In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.'

46 The Council's further argument centred around the contention that the evidence established that the Council had budgetary constraints and did in fact repair the footpath in May 2002, even though at that time it had no knowledge of the Plaintiff's accident. Section 45 of the Civil Liability Act 2002 (NSW) ('the CLA') was also relied on.

47 I do not think the documents relied on by Council establish that the Council did not have funds to carry out the footpath repairs from November 2000 to May 2002. The memorandum of 30 November 2000 itself contemplated the possibility of immediate repairs, and no evidence was called by the Council from any person to explain why the differential was not repaired immediately or at least within more than 12 months that then passed. Even on the criterion that Council adopted in December 2001, the footpath was not fixed within five days as required, but I do not think it is appropriate to assess the Council's breach by reference to standards that it imposed on itself, just as I do not think it is appropriate to excuse Council because it only adopted a policy in December 2001. The fact is that the differential was known to the Council from November 2000 and not repaired until May 2002, and in my view a period in excess of a year to rectify problems in the footpath was not a reasonable response to the risk, even accepting that the risks of significant injury could reasonably be viewed as limited. Further, on the balance of probabilities, the differential had existed for longer than since November 2000.

48 Turning now to s 45 of the CLA, s 45 of the CLA provides: ' Special non-feasance protection for roads authorities

(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(2) This section does not operate: (a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b) to affect any standard of care that would otherwise be applicable in respect of a risk.

carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993 .

roads authority has the same meaning as in the Roads Act 1993 .' 'Road work' in the Roads Act 1993 (NSW) is defined by s 4 and the Dictionary to mean:

' road work includes any kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area, transitway station or service centre) that is constructed or installed on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road, but does not include a traffic control facility, and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work.'

49 No submissions were directed to the question of whether s 45 applies to pavements or footpaths at all, but in any event the Council did have knowledge of the differential and hence, I infer, of the risk to pedestrians if they did not repair the pavement.

50 It follows, in my view, that the Council breached its duty to the Plaintiff and is liable to her. I do not think that contributory negligence by the Plaintiff has been demonstrated.

51 I have previously outlined the nature of the Plaintiff's injuries. She required surgery for fracture of the tibia and fibula, and insertion of tubular plate and pins. The Defendants do not dispute that she suffered serious injury to her ankle, that for a period of nine months she was in need of assistance at home, and that an infection for which she was hospitalised for a week was causally connected to the accident. The Plaintiff was unable to walk without a frame initially but then progressed to two walking sticks and then one stick and then none (by September 2002). The superficial burns to the buttock healed relatively quickly.

(1) It is submitted on behalf of the Plaintiff that the severity of her non-economic loss should be assessed as 30% of a most extreme case (see s 16(3) of the CLA), whereas the Defendants assert that 27% is the appropriate figure.

(2) The Plaintiff seeks a figure for past domestic assistance of $26,450, based on a continuing need up to the date of trial, whereas the Defendants would allow only $16,720, based on allowance of 62 weeks ending March 2003.

(3) The Plaintiff claims $10,000 for future out-of-pockets and the Defendants concede that she would be entitled to $5,000 - this revolves around the cost of an operation to remove the plate and pins in her ankle.

(4) The Plaintiff claims a future wage loss of $30,000 - the Defendants assert that the Plaintiff has demonstrated no wage loss.

(5) In submissions, the Plaintiff's claim for future domestic assistance was abandoned.

(6) The Parties agree that the Plaintiff is entitled to $3716.16 for out-of-pockets.

53 At the time of the accident, the Plaintiff was a full time housewife. Her two daughters, then aged 11 and 7, were at school, and she had an active role in their education, especially her younger daughter, who has had some learning difficulties. The Plaintiff had, prior to having children, worked as a data entry operator and had done some reception work. The Plaintiff intended that when her daughters were older she would return to the workforce on a part time basis. She was considering undertaking some TAFE courses to refresh her knowledge of relevant computer programmes.

54 Following the accident, the Plaintiff was in hospital for six days and was admitted again on 13 February 2002 for six days in relation to infection of her wound. She had physiotherapy for her ankle and commenced on two sticks in March 2002 and moved to one stick in June 2002. In the period until September 2002 her mother moved into the house and provided additional assistance - her mother moved out in September 2002, at which time the Plaintiff was able to walk without any sticks. The Plaintiff last had physiotherapy in May 2002. She has not seen anyone in connection with her injuries, other than for the purposes of this case, since then. The only treatment which she requires is the removal of the plate and screws, and some physiotherapy following that operation, and she expressly said that she was waiting until the end of this case before she had that done as she wants the removal to be done in a private hospital, not a public hospital.

55 The Plaintiff says that she walks with a limp and that it hurts going up and down stairs - she has to be careful on uneven surfaces and feels pressure on her ankle going downhill. Her left leg is not as strong as her right, and it is thinner. She gets swelling in her ankle and there is tenderness there, but this will most likely be reduced with removal of the hardware: see Dr Kalnins 21 January 2005 Exhibit E. She has a scar around her ankle of approximately 8 cm in length, which is visible as a faint red line but not obvious. There is some wasting in the left leg. According to Dr Andrew Robertson (8 December 2003 Exhibit E), the Plaintiff developed an Adjustment Disorder with depressed mood for at least six months, but this gradually resolved 'to a considerable degree' and she has no psychiatric disorder nor does she require treatment. He described the prognosis as 'probably excellent' and I proceed on the basis that the Plaintiff has had a period of depressed mood, which coincided largely with her hospitalisation and need for a frame and walking sticks, until September 2002.

56 The Plaintiff walks her daughters to school and then returns home, and she repeats this in reverse in the afternoon - a total of approximately one hour on each occasion. The Plaintiff says that she needs to rest her leg after the one hour walk, although she said she can perform some work such as ironing whilst she is resting her leg. There was a period when the Plaintiff had low back pain, which, it is claimed, resulted from the problems with her ankle, but the back pain has gone unless she attempts heavy lifting. The Plaintiff does not undertake mopping and vacuuming, and this is something her husband now does.

57 The Plaintiff is not on medication. She will have to have an operation to remove the plates but will not require further operations. She is 39 years of age and wants, and will be able, to return to the work force, and is able to cook and clean (the lighter duties), wash, and continue her role as a homemaker. She is able to walk approximately two hours a day provided she can rest for a period.

58 By 2003, the fractures had repaired themselves in an apparently satisfactory position: see Dr Critoph (the reference to 2002 is obviously an error): see Dr Kalnins 16 February 2003 Exhibit E, and see Exhibit 2D3.

59 One of the doctors (Dr Taylor 9 December 2003 Exhibit E) thought that she would be likely to develop arthritis in the ankle, a view not expressed by other experts and not the subject of comment by any other expert.

60 I proceed on the basis that there is a significant prospect that the Plaintiff will suffer some degree of arthritis in the ankle in the future.

61 The Plaintiff describes herself and is described by others as having a limp, although Dr Ellis as at 3 December 2004 described her as walking with a normal gait. Dr Stephenson, who saw the Plaintiff in October 2003, noticed a slight limp then. Dr Kalnins (in the most recent report) noticed considerable restriction in the movements of the ankle even at 21 January 2005, but according to him there was no evidence of instability in the ankle joint.

62 The Plaintiff did say that she participated in jogging and aerobics before the accident but there was no detail of the level of her participation. I note that originally Dr Kalnins thought the plate and pins could be left in. Dr Conrad thought on the balance of probabilities she would need them removed, and Dr Kalnins, the treating surgeon, thought that her condition would be improved by removal from the point of view of tenderness and pain around the ankle. I proceed on the basis that the Plaintiff's condition will be improved by removal of the hardware and that it is appropriate for her to improve her condition by this course, and hence be compensated for the cost of that operation.

63 There is evidence that the Plaintiff went to her local doctor on 7 December 2001 (ie approximately five weeks before the accident), complaining of painful swelling in her left leg. The Plaintiff informed him that she had had cellulitis in the left leg some 11 years previously. The doctor on 10 December 2001, on hearing that the swelling in the leg remained and that the Plaintiff felt numbness in the sole of her left foot, encouraged the Plaintiff to return for a review, which she did. The doctor prescribed medication and recommended rest and elevation of the leg. The Plaintiff was cross-examined about this but could not recall the problems or that she had visited the doctor, or that he had contacted her and recommended her return to the surgery. None of the experts were told about the problems and the only reference to the earlier bout of cellulitis was a description of cellulitis in the right leg (not left leg). Since no-one was informed about the swelling and the recommendation of rest and elevation, no-one has commented on the possibility that any need for such elevation is a result of some condition unconnected with the ankle injury.

64 Having noted this, I should also note that nothing was said in submissions on the topic. No doctor expressed the view that elevation of the leg was necessary or would be helpful for the ankle swelling or injury. Nevertheless, I proceed on the basis that it was accepted that the Plaintiff's need to rest her leg is a result of the accident.

65 The Plaintiff said she has to be careful when walking so as not to injure her ankle again and she has to avoid lifting heavy objects. It is the concern about her back that has led to avoiding the mopping and vacuuming.

67 (1) Non-Economic Loss: It is the continuing problems with the ankle and the restrictions on movement of the ankle, reduced walking, difficulty with stairs and need to avoid heavy duties which make the injuries more significant. The second period of hospitalisation due to infection and the need for removal of plates and screws are further factors, as is the probability of arthritis. I am of the view that 27 per cent is the appropriate figure. The Plaintiff has restrictions and discomfort at times, which in addition to the pain and suffering previously experienced, and hospitalisation and need for an operation to remove the hardware, and further arthritis, must be taken into account, but she is able to lead the life she was living before - looking after the children and house, cooking, which she enjoys, and she will be able to work if she wants. She does not walk as much as she did but she is able to manage a substantial amount of walking each day. She is not undergoing any treatment and is taking no medication. She has a scar but it is not in a prominent position and it is not obvious except upon close examination.

68 (2) Assistance from March 2003 to date: The Plaintiff no longer claims for assistance in the future. There has been no major change in the level of assistance actually provided by the husband since March 2003. He did say that he assists 4-6 hours a week and that sometimes it is less than that and sometimes more, but it is not clear how that figure was made up, and it seemed to include activities that he had always performed. He works 60 hours a week as a butcher and has Sundays and Mondays off. I am not satisfied that the Plaintiff has, in accordance with the requirements of s 15 of the CLA, established that there was assistance of at least six hours a week after March 2003. I do not think Dr Taylor's views in December 2003 assist the Plaintiff in circumstances where the husband has given evidence of what he has done. The Plaintiff did give evidence that the husband does between 4-6 hours and then said sometimes he does 6-8 hours if he has to clean the two bathrooms. The only work that the husband described himself as doing two years after the accident that he did not do before was mopping and vacuuming, and it does not seem likely that he would spend six hours on these activities over the week.

69 (3) Future out-of-pockets (the cost of removal of the plates and pins etc): Dr Mahoney assessed the cost at $12,000 (including $3000 for physiotherapy) (report dated 21 March 2003), Dr Conrad assessed it at $6000 including physiotherapy, and Dr Ellis at $5000. Dr Stephenson, the Defendants' expert, thought the cost would be $10,000. There is no explanation for how the $3000 for physiotherapy is derived and I regard the assessment as unreliable for that reason, bringing the estimate close to that of Dr Conrad. The appropriate course is, I think, to take a midpoint between $5,000 and $10,000, and allow $7,500.

70 (4) Future Wage Loss: It seems that the Plaintiff will be able to obtain employment of the type which she desires. She has applied for work of a clerical nature at the children's school and she would be able to work in sedentary employment of the kind she previously engaged in or in work as a receptionist. She apparently will only be seeking part time work.

71 I accept that on the authority of K-Mart Australia Ltd v McCann [2004] NSWCA 283; Penrith City Council v Parks [2004] NSWCA 201, the court can award a buffer and still comply with the requirements of s 13. It does not appear likely that the Plaintiff would have done work of a different kind to that which she now intends to do and is capable of doing. She is 38 years of age and will be looking for part time work of a sedentary nature, and that is what she would have been doing in any event. I think it is possible that the Plaintiff's incapacity could in certain circumstances lead to reduced earnings (see Medlin v State Government Insurance Commission (1995) 182 CLR 1, Deane, Dawson, Toohey and Gaudron JJ at p 3, and McHugh J at p 16, and Graham v Baker (1961) 106 CLR 340). However, there is no evidence before me that but for the accident the Plaintiff would have done more work than that which she is presently seeking and intends to do in the future and for which she is entirely suited, or that she would have applied for jobs for which she now cannot apply. Accordingly, I am constrained by s 13 because I am not persuaded that the Plaintiff would be likely to have performed work in the future and for which she will not now be able to perform, or that a position which would have been available to her and for which she would have applied will not now be available to her, leading to her being unable to earn the income which she would otherwise have obtained.

72 It follows, in my view, that the Plaintiff is entitled to a verdict against the Council for: (a) $40,000 (27% of a most extreme case)

73 As noted above, there should be verdict and judgment in Telstra's favour on the Plaintiff's claim and on the Council's Cross Claim against Telstra, and verdict and judgment against Telstra on its Cross Claim against the Council.

74 I will hear the parties on the question of costs.

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.

At a glance

Court

Decision date

Before

Source

Judgment (127 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (31)