Viscardi v Hornsby Shire Council

District Court of NSW|2015-02-20

Solicitors: WG McNally Jones Staff (Plaintiff) Mills Oakley (Defendant) File Number(s): 2013/229406 Publication restriction: None

Table of Contents Factual background - paragraph 3 Issues - paragraph 7 Evidence overview - paragraph 9 Credibility and reliability of testimony - paragraph 11 Plaintiff - paragraph 12 Mr Bala Suthersan - paragraph 20 Professor Frederick Ehrlich - paragraph 23 Liability experts - paragraph 24 Facts - paragraph 25 Plaintiff's pre-accident personal history - paragraph 26 Plaintiff's pre-accident medical history - paragraph 27 Maintenance history of the car park - paragraph 38 Accident circumstances - paragraph 39 Injuries sustained in the accident - paragraph 44 Medical and allied treatment and reviews - paragraph 46 Disabilities - paragraph 57 Issue 1 - Whether defendant was responsible for the car park repairs - paragraph 61 Issue 2 - Duty of care and alleged breach - paragraph 81 Requirements of s 5B and s 5C of the CL Act - paragraph 88 Causation: s 5D of the CL Act - paragraph 123 Issue 3 - Whether there was an obvious risk : s 5F & s 5G of the CL Act - paragraph 131 Issue 4 - Alleged contributory negligence - paragraph 136 Issue 5 - Defences claimed pursuant to s 42, s 43A and s 45 of the CL Act - paragraph 138 Issue 6 - Assessment of damages - paragraph 139 Plaintiff's probable life span - paragraph 140 Mitigation - paragraph 141 Non-economic loss - paragraph 143 Past domestic assistance - paragraph 150 Future domestic assistance - paragraph 162 Future out-of-pocket expenses - paragraph 174 Past out of pocket expenses - paragraph 181 Summary of damages assessment - paragraph 184 Disposition - paragraph 185 Costs - paragraph 186 Orders - paragraph 187

Nature of case

The plaintiff, Paul Viscardi, sustained soft tissue injuries to his right shoulder in a fall that occurred whilst he was walking at night in a poorly illuminated open-air council car park. The fall occurred when the plaintiff lost his footing after stepping into a depression or defect which had formed in the bitumen paving of the car park surface.
The defendant, Hornsby Shire Council, was the owner and the occupier of the car park premises. The plaintiff claims the incident occurred due to negligence on the part of the defendant in respect of previous repairs it had allegedly carried out to the car park surface. The defendant denied having carried out such repairs. The proceedings are governed by the provision of the Civil Liability Act 2002.

Factual background

At about 8.15pm on the evening of Monday 16 December 2012, the plaintiff, then aged 62 years, was walking across the defendant's car park situated at the corner of Pennant Hills Road and Castle Hill Road at West Pennant Hills, NSW, also known as Thompson's corner.
In those events, the plaintiff stepped into a triangular shaped depression or defect in the bitumen. That area had previously been the subject of a patched repair. The defendant's records do not assist in identifying precisely when those repair works had been carried out, or by whom.
The plaintiff claims that the defect in the bitumen surface was due to inadequately performed repairs that amounted to misfeasance. The defendant claimed that an unknown third party had carried out those repairs.
The following photograph, taken several days after the plaintiff's fall, and comprising part of Exhibit "B", at Tab 5, provides a general perspective view of the nature and the extent of the depression or defect in question:

Issues

At the commencement of the trial, numerous issues were identified for determination: MFI "1". These can be conveniently condensed into the following formulations: Issue 1 - Whether the defendant was responsible for the repairs to the car park pavement; Issue 2 - Whether the defect in the car park pavement surface constituted an obvious risk for a fall by pedestrians, within the meaning of s 5F and s 5G of the CL Act; Issue 3 - Whether the defendant owed the plaintiff a relevant duty of care, and whether the defendant was in breach of that duty, having regard to the requirements of s 5B and s 5C of the CL Act; Issue 4 - Whether there was contributory negligence on the part of the plaintiff: Issue 5 - Whether defences claimed pursuant to s 42, s 43A and s 45 of the CL Act have been made out; Issue 6 - The assessment of the plaintiff's entitlement to damages.
Before the consideration of those issues, it is convenient to identify an overview of the evidence and to also identify my conclusions on the credibility and reliability of testimony.

Evidence overview

The plaintiff was the only witness to give oral evidence in his case. The plaintiff tendered a chronology (Exhibit "A") and a bundle of documents including medical reports: Exhibit "B". Included in Exhibit "B" was an expert liability report dated 25 March 2013 from Mr Alan Joy, an engineering consultant. Mr Joy was not required for cross-examination.
In the defendant's case, there were two tender bundles: Exhibits "1" and "2". Included in Exhibit "1" was an expert liability report dated 25 September 2014 from Mr Jackson Clark, a civil engineering and construction consultant. Mr Clark was not required fro cross-examination. The defendant also called oral evidence on factual matters from its employee, Mr Bala Suthersan, a pavement and roads engineer. The defendant also called medical evidence from Professor Frederick Ehrlich, a consultant rehabilitation specialist who had examined the plaintiff on its behalf.

Credibility and reliability of testimony

In the following paragraphs, I record my impressions and assessments of the credibility and reliability of the respective witnesses on matters which were the subject of credit challenges and submissions.

Plaintiff

Although there was a factual dispute about how the incident had occurred, the defendant's attack on the plaintiff's credit seems to have been limited to damages issues.
In that regard, on behalf of the defendant, it was suggested to the plaintiff that irrespective of the car park incident, he had "problems in relation to a number of joints" that caused pain and discomfort due to an underlying arthritic condition. The plaintiff rejected that proposition: T39.16 - T39.21. The defendant's allegations of the plaintiff's pre-accident limitations in activity were non-specific. Accordingly, I do not consider the plaintiff's cited denial raised a true credit issue, especially in view of his not otherwise improbable evidence that he was coping with his pre-injury share of household tasks (T9.45) or his pre-injury leisure pursuits: T10.15 - T10.46.
The truthfulness of the plaintiff's evidence at T48.49 was questioned as to why he had cancelled his physiotherapy treatment appointments: T49.5. It was suggested that the plaintiff was no longer in need of physiotherapy after having had 6 sessions: T68.31. The plaintiff denied that suggestion, and stated he was given equipment to perform the required exercises at home, which he did: T48.50. I accept his evidence in that regard.
At T55.19, it was suggested that at the time the plaintiff saw his orthopaedic surgeon, Dr Giblin, on 28 April 2014, the appearance of his hands showed he had been working in the garden, contrary to his evidence that he has been unable to undertake such activity since the subject injury: T55.12 - T55.22. In my view, those findings on examination referred to by the defendant do not necessarily traduce the plaintiff's denial of work or gardening activities. I see no sound reason for rejecting the plaintiff's denial that he had been working in the garden, especially as other possible explanations for the appearance of dirt and scratches on his hands had not been canvassed in the evidence.
The defendant argued that the plaintiff's evidence in which he asserted that the examination he had with Professor Ehrlich took no more than 5 minutes (T57.45 - T58.5), was not credible. This was in the context where neither the plaintiff nor Professor Ehrlich had timed that consultation. Professor Ehrlich allowed for the possibility that the consultation could have been relatively short, perhaps 25 minutes or so: T80.17. I do not consider the plaintiff's evidence that the consultation had taken 5 minutes should be taken literally. I consider that he meant to convey that it was a relatively short consultation, a matter that was consistent with Professor Ehrlich's view (T80.17) given that neither of them had timed the consultation. I do not consider that the plaintiff's estimate of 5 minutes for his consultation with Professor Ehrlich should be seen as being adverse to his credit or adverse to the reliability of his testimony.
It was put to the plaintiff that his evidence in which he was asked in court to demonstrate the extent of his arm movements, compared to his responses in that regard during the examination carried out by Dr Giblin, and his complaints of pain and inability to move his right arm, were exaggerations. The plaintiff denied those suggestions: T51.8 - T51.17. I find the plaintiff's evidence on those matters was not exaggerated, contrary to the defendant's submissions.
In my view, the comparisons sought to be made by the defendant in that regard were of little assistance because of obvious differences between movements and responses guided in a medical examination, and those movements evident in a court room demonstration. Furthermore, the possible effect of painkilling medication on the ability to move the arm and shoulder has to be taken into account: T76.13 - T76.28. This was not fully explored in the evidence. The defendant's submissions on this point should therefore not be accepted.
The defendant made extensive and detailed submissions seeking to contradict the plaintiff's evidence on medical histories and attendances based on an analysis of the content of medical notes and reports. In my view, those submissions were misdirected as the plaintiff was not the author of the notes, reports or summaries in question. In those circumstances, fairness requires that little weight be placed on those documents in the absence of explanatory oral evidence on those matters, including the compilation of the notes in question: Mason v Demasi [2009] NSWCA 227.

Mr Bala Suthersan

Mr Suthersan was an engineer employed by the defendant. His evidence on particular matters of fact has to be assessed for reliability in the context in which it was given. Mr Suthersan had been working with the defendant as a roads and pavement engineer for some years. He said the defendant shire council is responsible for some 615kms of sealed roads, some 42 car parks and some 4.5 million square metres of roads, and I infer, pavements, for which the defendant had relevant inspection, maintenance and repair responsibilities: T83.
Mr Suthersan explained the defendant's system of inspection and its records of works such as road openings and repairs, including where contractors were utilised for such works. He also made some observations of the triangular pavement defect, which was involved in the plaintiff's fall.
I considered Mr Suthersan's evidence to be vague and unclear in parts. It was based on unwarranted assumptions. It was unresponsive in parts, and at times it was argumentative in favour of the assumptions the defendant sought to have adopted in support of its position on the liability issues. He was reluctant to make due concessions. In my assessment, these matters raised doubts about the reliability of his evidence.

Professor Frederick Ehrlich

No credit issues arose from the evidence of Professor Ehrlich. His evidence supported the plaintiff's claim of a disability of the right shoulder. He made fair concessions regarding the possibility of the plaintiff's painkilling medication masking the potential painfulness of his condition. The reservations Professor Ehrlich had about the genuineness of the plaintiff's complaints (T75.1) rose no further than unsubstantiated suspicion, and should be disregarded.

Liability experts

There were no credit issues involving the expert witnesses on the liability issues. Instead, those expert opinions had to be analysed for reliability according to the reasoning proffered for the opinions stated, and the validity of the underlying assumptions: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588.

Facts

Unless otherwise qualified, my findings concerning matters of fact are set out in the paragraphs that immediately follow. Where matters of contentious fact arise in that review, such questions will be identified for resolution by findings in the context of the particular issues to which they relate.

Plaintiff's pre-accident personal history

The plaintiff was born in January 1951. He was aged 62 years at the time of the accident. He is presently aged 64 years. He has a pre-accident condition of psoriatic arthritis. This has effectively prevented him from working since 2006. He previously worked as a clerk in a conveyancing business. He is in receipt of a disability pension. He had been married, but was divorced in 2010. In 2011, he had formed another relationship, but that relationship ended some months after his injury. At the time of the subject accident his three adult children were living in his home. At the present time two of those children live at his home.

Plaintiff's pre-accident medical history

Exhibit "B", Tab 6 comprised historical medical records of the plaintiff's consultations with a variety of medical and allied practitioners at the various times there stated. The defendant also tendered a supplementary bundle of documents comprising copies of material extracted from the plaintiff's medical records produced on subpoena: Exhibit "2".
Those records show the plaintiff had an extensive pre-accident history of medical issues that from time to time caused him to seek medical advice and attention. That history is summarised as follows.
In 1994 the plaintiff was treated for an episode of sudden onset of back pain due to bending.
In January 2003, at the request of his general practitioner, the plaintiff underwent x-rays of his left shoulder and left knee, and had an ultrasound of his left knee. No abnormality was seen in the left shoulder. A large joint effusion was seen in the left knee, with irregular bulges, fluid accumulation and pathological changes on the lateral meniscus of that knee. At that time he also underwent an ultrasound study of his left shoulder which revealed fluid in the bicipital sheath, some thickening of the sub-acromia and sub-deltoid bursae, with slight flattening of the tendon, consistent with a partial tear of uncertain age, and some associated bursitis.
In August 2005, the plaintiff underwent an ultrasound study of his left knee, which revealed fluid-filled cystic structures.
In July 2006 the plaintiff underwent an x-ray and ultrasound examination of his right foot and ankle which did not show any definite abnormality.
In October 2006, the plaintiff underwent an x-ray and ultrasound examination of his right middle finger which showed no abnormality other than increased vascularity and tendonitis. Around that time the plaintiff's general practitioner provided him with an unfitness for work certificate involving keyboard use due to problems with his right middle finger, for which he was referred to a hand surgeon. On 30 October 2006, Dr David Yee, a hand surgeon, saw the plaintiff and treated his right middle finger with an injection of local anaesthetic with cortisone.
From 22 December 2006, and on various dates thereafter, the plaintiff has been treated by Dr Mark Podgorski for psoriatic polyarthritis, a debilitating dermatological and rheumatological condition. He continues to suffer the effects of that condition, which mainly affects his joints, including both knees, both feet, the toes, and his hands: T34.42 - T35.9. He took pain medications for these problems before the subject accident: T36.49. He had also been advised to avoid heavy lifting: T36.48. He had also sought pre-accident advice for depression.
On 11 November 2008, the plaintiff had a repeat steroid injection into his left shoulder by Dr Greg Bruce. At that time there was a plan for further review if the left shoulder problems did not settle.
The defendant tendered some difficult to decipher handwritten medical records relating to consultations the plaintiff had with his general practitioner between October and December 2008 (Exhibit "2", p 14), some physiotherapy records dated 1 October 2008 relating to treatment for left shoulder pain (Exhibit "2", p 11), some physiotherapy records dated 3 June 2009 relating to treatment of some lower back pain (Exhibit "2", pages 15 - 16), and some difficult to decipher handwritten general practitioner records for the same injury (Exhibit "2", pages 17 - 18).
The defendant also tendered a copy of computerised medical records covering the plaintiff's consultations with his general practitioner between August 2002 and May 2014: Exhibit "2", pages 21 - 41.

Maintenance history of the car park

A review of the defendant's documents within Exhibit "1" shows that between 25 July 2011 and 4 December 2012 there were 9 attendances to the car park in question made by council maintenance employees in respect of pothole repairs. The plaintiff relied on that material to show that the council were clearly aware of inadequacies in the car park surface, given the need to undertake repairs on about 7 occasions in 2012. The plaintiff submitted that although it cannot be asserted with precision that any of those repairs related to the square patch shown in paragraph [6] above, it was more probable than not that the defect involved in the plaintiff's fall existed on 4 December 2012, as asserted by Mr Joy: Paragraphs 11 and 12 of plaintiff's written submissions.

Accident circumstances

Although the plaintiff had previously been to the council car park in question, he had not previously been to the particular part of the car park where the incident occurred, and he did not know of the presence of the defect in the bitumen surface of the car park.
On the evening in question, the plaintiff had parked his vehicle in order to go and collect some mail from his daughter's business premises, which were nearby, and to then purchase a take-away meal.
In those events, the plaintiff left his vehicle and walked towards an alleyway leading from the car park. He did so in conditions of very poor lighting conditions: T13.21 - T13.49. In those circumstances, he did not see that there was a previously patched area of surface repair on the bitumen pavement that had incorporated within it, a section consisting of a triangular shaped depression or defect, where some of the bitumen paving that would have otherwise filled that defect, was missing. The lighting conditions did not permit the plaintiff to visually differentiate that area of the bitumen surface.
The plaintiff stepped into that defect with his right foot, whereupon he fell. His right shoulder took the impact of his fall. The plaintiff said, and I accept, that in the events leading to his fall, he had been watching out and looking ahead where he was walking, but due to the prevailing poor illumination conditions, he did not see the hole or depression which had caused him to fall: T42 - T44.
It appears from photographs of the accident scene taken a few days after the plaintiff's fall, that the triangular defect in the bitumen was weathered or worn. It is not possible to determine for how long it had been in the state shown in the photographs. I do not consider Mr Suthersan's estimate of the age of the defect to be a reliable estimate. His evidence in that regard did not have the expected hallmarks of expert evidence.

Injuries sustained in the accident

After the fall, the plaintiff felt immediate pain in his right shoulder, his neck and in his lower back. After gathering himself up, he drove himself home and took Panadol for pain relief, however this was not effective.
The following day, 26 March 2013, the plaintiff attended at the accident and emergency department of Royal North Shore Hospital, where x-rays were taken. This was later followed by an MRI scan, and a later referral to Dr Allan Young, an orthopaedic surgeon specialising in shoulder surgery. Concurrently, the plaintiff was also consulting his general practitioner, Dr Peter Urquart: Exhibit "A".

Medical and allied treatment and reviews

The medical evidence in support of the plaintiff's case was sparse.
On 30 March 2013, the plaintiff's general practitioner referred him to Dr Desmond Bokor, an orthopaedic surgeon, for assessment and treatment for the right shoulder problems the plaintiff incurred in the subject accident. There was no report from Dr Bokor tendered in the proceedings. The plaintiff explained that the planned consultation did not proceed with Dr Bokor because he had no funds to cover treatment from Dr Bokor.
On 2 May 2013, the plaintiff's right shoulder problems were assessed by Dr Ziad Dahabreh, an orthopaedic surgeon, at Royal North Shore Hospital. The plaintiff was then referred to Dr Young.
On 17 May 2013, the plaintiff was admitted to Royal North Shore Hospital under the care of Dr Young for arthroscopic repair of his right rotator cuff involving a full thickness tear of the supraspinatus tendon, and biceps tenotomy.
Between September and October 2013, the plaintiff underwent a course of physiotherapy at RNSH for treatment of his right shoulder.
On 8 December 2013, the plaintiff underwent an MRI scan of his right shoulder. This was reported upon by Dr Bruno Guiffre as showing the surgical repair of the right rotator cuff, and a markedly attenuated deficiency in the upper part of the biceps tendon in the groove portion of that tendon.
On 28 April 2014, at the request of his solicitor, the plaintiff was assessed by Dr Peter Giblin, a consultant orthopaedic surgeon. Dr Giblin considered that the prognosis of the plaintiff's right shoulder, neck and low back complaints was for periodic exacerbations and remissions requiring the avoidance of prolonged sitting, standing or repeated bending, lifting and twisting movements, with susceptibility to aggravations from innocuous physical events.
On 13 June 2014, the plaintiff was seen by his general practitioner, Dr Urquart. Dr Urquart noted the plaintiff had some injuries from a further incident that was unrelated to the present case. In that other incident, the plaintiff sustained another fall when he stepped into a hole in a footpath outside his apartment.
In that latter incident, the plaintiff injured his low back, left shoulder and neck, with resulting pain referred from the low back down to the back of both knees. A CT scan was arranged and the plan was for a cervical MRI, followed by a review, and then referral to a specialist. There were no reports from any of those investigations or specialist referrals. There appears to have been no lasting effects from that further fall.
On 25 July 2014, at the request of the solicitor for the defendant, the plaintiff was examined and assessed by Professor Frederick Ehrlich, a consultant rehabilitation specialist. In the opinion section of his report, Professor Ehrlich accepted that the plaintiff has not had a particularly satisfactory result from the surgery to his right shoulder because he has been left with persisting and significant limitation of movement in that shoulder, but without apparent pain.
In his oral evidence, Professor Ehrlich clarified that opinion by saying it was possible that pain in the shoulder could be masked by the plaintiff taking analgesic medication, including Endone: T76.3 - T76.28. In light of that evidence, I do not consider that a credit issue arises as to the plaintiff's variable limitations, or his complaints of pain with certain shoulder movements: T74.31 - T75.1.

Disabilities

Given my general acceptance of the plaintiff's credit as a witness, and my acceptance of his evidence generally, I propose to treat the plaintiff's history as summarised in the medical evidence and referred to in the paragraphs that follow as evidence of the plaintiff's difficulties that he has experienced as a result of his injuries: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.
Following surgery to his right shoulder, the plaintiff continues to endure pain in that area, but not as severe as before: T25.7. He has significant restriction of movement in the right shoulder. He has pain in the region of the right biceps tendon: T21.37. He takes Endone occasionally, and Nurofen. His pain medications serve to mask physical pain that may from time to time arise from the right shoulder condition. The plaintiff also suffers from depression due to his pain, and he takes antidepressant medication for this: T25.21. He has a 14cm scar on his right shoulder.
The plaintiff's personal relationship with his partner at the time had suffered as a result of his disabilities. This resulted in a separation without reconciliation. He had become a less congenial companion for his much younger partner. His leisure and sporting activities are much diminished. The enjoyment of the amenity of his life was therefore significantly affected in the adverse sense.
To the extent that the plaintiff had pre-injury health problems that affected the enjoyment and the amenity of his life, the defendant must take the plaintiff as he is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18], p 406. Those pre-accident problems meant the plaintiff could ill-afford further detriments to his health from his accident-related injuries.

Issue 1 - Whether defendant was responsible for the car park repairs

The defendant was the occupier of the car park. It had control over the process and the system by which the condition of the bitumen surface of the car park was inspected from time to time: T83.48 - T84.6.
The manner in which the defendant's system of inspection and repair was implemented meant that no records were kept of the inspections unless a problem was found to exist, and if there were complaints about the state of the car park, such complaints would be logged and then acted upon after priorities were assessed and assigned: T85.38. That method of record keeping, as was outlined in the evidence of Mr Suthersan, provided little assistance to assessing whether adequate inspections had been carried out.
The defendant employed maintenance crews whose duties included attending car parks and other places within its remit to repair known potholes and the like with hot mix bituminous asphalt. Those crews had access to the machinery required for such repairs: T85.40 - T85.45.
If a maintenance crew assessed a pothole as being repairable by hot mix, the crew would be expected to effect such repairs: T86.4. In the event that a repair was assessed as being beyond the ability of the attending maintenance crew, the practice of the council was that such works would be assigned to a private contractor: T86.17. That general description was of little assistance to the defendant to resolve the question of whether it was the council that had earlier repaired or patched the bitumen where the plaintiff later fell.
The council's system included a process where, in the event it was considered a repair job required an asphalt surface to be cut open, a council engaged repair contractor would not need the permission of the council to carry out such work: T87.44. That evidence was of little assistance to the task of determining whether the council or a third party had earlier carried out work at the place where the plaintiff had fallen. Once such works were completed by a contractor, the council would carry out an inspection, and if satisfied, payment for the works would then follow: T88.20 - T88.44. That evidence, taken together with the evidence of Mr Suthersan and the council records tendered, suggests that the patched area where the plaintiff fell was the subject of works carried out by council workers, and not private contractors engaged by the council.
Mr Suthersan's evidence concerning the defect involved in the plaintiff's fall was to the following effect: 1. He had carried out an inspection of the car park on or about 30 November 2012, at which time he gave some instructions for the maintenance crew to fix "some potholes" he had observed (T95.35 - T95.39) but he had not seen the defect in question at that time, and he believed that if that defect had been present at the time of his inspection, it was a matter he would have noticed: T103.36; 2. He considered that the defect in question had something to do with repair work; it was not a normal pothole and he classified it as a "restoration fail": T103.10 - T103.21; 3. He could not determine the age of the defect, but assumed from the absence of signs of erosion (T105.21) that it had been present for a relatively short time: T103.36 - T103.47. In my view, because the defect was a depression, this did not necessarily follow; 4. The edges of the triangular defect appeared "almost straight line as it was before when they saw cut it": T105.8. In my view this did not necessarily mean it was made by a saw cut, given the other possibilities canvassed in the evidence; 5. The edges looked clean cut, and not worn: T105.17; 6. The defect was located above a sewer line: T101.35; he assumed the sewer lines shown on the sewerage diagram were straight: T101.33. In my view, it does not follow that the work involved accessing the sewer line below. It could also have been a coincidentally located pothole repair involving a squared enlargement of the potholed area; 7. A check of the council records revealed that in respect of that particular area of defect, there had been: 1. no previous road opening permit issued: T105.37 2. no previous council work order given: T105.41 3. no previous payment made for a repair: T105.49 4. no previous records showing emergency works had been carried out, and later notified to the council: T106.15.
Mr Suthersan stated that the appearance of the works around the defect indicated that those works had not been carried out to the council standard of asphalt thickness of 150mm, and there had been no crack sealing, as would have been expected: T106.50 - T107.14. Mr Suthersan stated that the work was unlikely to have been carried out by a public authority such as the Water Board, Telstra and the like, as those organisations always obtained council permission for such works: T109. Those observations by Mr Suthersan do not necessarily follow.
Based on the evidence of Mr Suthersan, the defendant sought to inculpate an unknown third party for carrying out the defective repair work without having informed the council so as to avoid the need to pay the required fees: T106.35 - T107.15. In my view that explanation was entirely speculative and without satisfactory evidentiary foundation. That theory required the assumption that an unidentified plumber had obtained access to the sewer line below for an unidentified purpose. In my view, there was insufficient evidence to support that assumption.
In assessing the evidence of Mr Suthersan on that issue, it was apparent that he gave apparently conflicting evidence that generally undermined the reliability of his evidence. On the one hand he said that if necessary, the council's maintenance crew would use a saw to open up a bitumen surface requiring repair: T108.1. In contrast, he also said council maintenance crews would not use saw cutting: T108.15. I formed the view that in giving that evidence, Mr Suthersan was unduly defensive and guarded when questioned on factual matters that might affect the liability of his employer, the defendant.
I am reinforced in that view because on behalf of the council, he took on the role of investigating the plaintiff's legal claim (T130.25 - T130.31; T133.45) although the council had its own investigation officer: T134.22.
As foreshadowed at paragraph [38] above, the question for determination here is whether the defendant was aware of the defect in question on 4 December 2012. That question can only be determined by properly drawn positive inferences from the evidence of the circumstances: Hunt v Knight Frank (NSW) Pty Ltd & Ors [2005] NSWCA 139, at [42], citing Luxton v Vines [1952] HCA 19, at p 398; Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, at pages 480 - 481; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, at pages 304 - 305; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155, at pages 161 - 162.
Mr Suthersan worked within an inspection and maintenance system devised by the defendant. That system did not involve the mapping of potholes that required repair. In those circumstances, especially given the breadth of his pavement inspection responsibilities, I found Mr Suthersan's evidence to be of little assistance in resolving disputed matters of fact. I considered it to be unlikely that he was correct in his evidence when he said that he would have noticed the defect in question, given the absence of mapping, the absence of notices within the council records, and the time spacing between his inspections
The council had the manpower, machinery, tools and access to the required hot-mix materials to repair any surface defects in the car park surface that required repair. The council had a system of contracting out the more significant repairs, and it was not required to keep records of its own pavement opening works, as distinct from the situation where other public utilities were obliged to create records.
There was no record of any other utility seeking a council permit to open the car park surface for any reason. This leaves the likely alternatives to be either the work was carried out by the defendant council, or by a rogue tradesman or repairer.
I consider the defendant's argued notion of a rogue operator opening the car park surface for the purpose of access to the sewer line below the patched area is speculative and unsustainable. I consider it unlikely that a tradesman would, unobserved and unreported, undertake such a controversial course in a public car park in open view of the public without first seeking council permission, whether to avoid paying a fee, or otherwise, as has been suggested on behalf of the defendant.
On the evidence, the presence of a sewer line below the patched area should be seen as a coincidence rather than a basis for the finding sought by the defendant.
I consider that it is far more probable that the repair works in question had been undertaken by the defendant's maintenance crew who had the means to do so at their disposal. The defendant had the available manpower, the resources, the obligation to inspect and maintain. There was a record of the defendant's works in the vicinity against a history of complaints about potholes. Furthermore, the initial repair which Mr Suthersan described as being a failed repair, was carried out using hot-mix, which was the material used by the council. I consider that to be the critical feature that took the matter beyond speculation.
In my view, those circumstances compel the inference that it was the council that carried out the repair works that are in contention in this case.
In coming to that view, I have not overlooked the evidence of Mr Suthersan as to the council's usual practices for effecting such repairs. In my view, the described system had within it ample scope for departures from what might be considered to be the council's usual practice concerning pothole or bitumen repairs, which therefore renders the evidence of the council's system for dealing with such repairs to car park surfaces to be a variable one, containing scope for departures from usual systemic practice: Elayoubi v Zipser [2008] NSWCA 335, at [86].
I am therefore satisfied that at some uncertain time before the plaintiff's fall, maintenance employees of the defendant council carried out repairs to the area shown in the photograph at paragraph [6] above, where the defect in the bitumen later became apparent before the plaintiff's fall occurred.

Issue 2 - Duty of care and alleged breach

As the defendant was the occupier of the car park in question, it owed members of the public who used the car park a duty to take reasonable care with regard to the maintenance and repair of defects or potholes in the bitumen surface of the car park where such defects posed a foreseeable risk of injury that could have been avoided by the exercise of reasonable care: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, at p 488; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, at [13], [18]; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [45].
I am reinforced in that view because the defendant recognised that duty by having a system in place whereby it periodically inspected the car park surface, and when required, arranged for repairs of potholes that came to its attention, either as a result of such inspections, or as a result of complaints received from members of the public.
A highway authority (in this case the council) incurs civil liability for misfeasance where it can be shown that its positive actions created a danger, even by removing an existing danger, including by inadequately carrying out new works: Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512, at [86].
In view of the finding that it was the defendant that carried out the bitumen repair that became defective leading to the plaintiff's fall, the above principles are engaged, subject to the analysis required by the CL Act.
The plaintiff's amended statement of claim filed on 24 July 2014 pleaded the following particulars of negligence against the defendant: 1. Failing to take any or any adequate precautions for the safety of the plaintiff which were for purposes of Section 5B of the Civil Liability Act 2002 were foreseeable, significant and reasonable (sic). 2. Exposing the plaintiff to a risk of injury which could have been avoided by reasonable care. 3. Failing to warn pedestrians, including the plaintiff, of the dangers incidental to walking across a damaged section of the car park. 4. Exposing the plaintiff to a risk of injury which could have been avoided by reasonable care. 5. Failing to inspect the defect in order to ascertain whether or not it was capable of supporting the footing of the plaintiff. 6. Failing to provide a proper and suitable pathway for use by the plaintiff. 7. Failing to devise, institute and maintain a safety barrier to protect the plaintiff from tripping or falling. 8. Failing to adequately fill the defect so as to eliminate a hazard. 9. Failing to carry out proper repairs to the car park. 10. Allowing or causing poor restoration work to be carried out which act or omission amounted to misfeasance. 11. Failing to insepct (sic) the car park surface in order to ensure that it was safe for use by the plaintiff. 12. Failure to close off that point on the car park so as to prevent pedestrians from attempting to step onto the defect. 13. Providing inadequate lighting over the car park so as to make visible the position and dimensions of the defect. 14. In failing to ensure that when carrying out the repair of the footpath prior to the plaintiff's accident: 1. That the foundation material beneath the asphalt patch was properly and adequately compacted so as to provide a firm base; 2. That the edges of the asphalt patch met closely with the surrounding asphalt so as to provide a waterproof seal; 3. That any or any sufficient quantity of liquid bitumen was applied to the edges of the asphalt patch and the surrounding asphalt so as to provide a waterproof seal; 4. That the asphalt patch was sufficiently compacted so as to form a waterproof bond with the surrounding asphalt.
In essence, those particulars may be conveniently viewed as comprising the following categories of alleged negligence: 1. by misfeasance, failure to properly carry out repairs to the bitumen surface of the car park; 2. failure to inspect, detect and warn of the presence of the defect in question, and as an interim precaution, to isolate it from pedestrian access; 3. failure to provide adequate lighting over the area of the car park where the defect was located so that the position and dimensions of the defect would be made visible to pedestrians during the hours of darkness.
The assessment of those allegations in order to determine whether, on the evidence, a finding of negligence should be made, must take place within the terms required by s 5B and s 5C of the CL Act.

Requirements of s 5B and s 5C of the CL Act

Section 5B of the CL Act provides: 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.
The three pre-conditions required by s 5B(1) of the CL Act must be satisfied before there can be a finding of negligence.
As to the first pre-condition, I find that the risk of a person falling and suffering harm as a result of stepping into a defect in the bitumen car park surface in poor lighting conditions was a foreseeable risk: s 5B(1)(a) of the CL Act.
As to the second pre-condition, I find that in the circumstances of the described defect, the risk of a fall was not insignificant, especially where the car park was used by pedestrians to walk to, or from, or between vehicles: s 5B(1)(b) of the CL Act.
As to the third pre-condition, I find that a reasonable person in the position of the defendant, acting reasonably in seeking to discharge the duty of care owed by the council, would at the time the repairs were performed, have taken precautions to properly repair a surface defect in the bitumen surface of the car park directed at avoiding untimely failure of that repair: s 5B(1)(c) of the CL Act.
Turning then to a consideration of the further requirements of s 5B(2) of the CL Act, I find that the need for the defendant to take precautions against the risk of a pedestrian fall was indicated in this instance because since the car park was likely to be used by pedestrian traffic in non-daylight hours, there was a high probability of someone stepping into the defect in question in poor lighting conditions: s 5B(2)(a) of the CL Act. The occurrence of falls in such circumstances was likely, which was also likely to cause serious harm or injury: s 5B(2)(b) of the CL Act.
In those circumstances, a reasonable person in the position of the defendant would have taken precautions against such risks of harm to pedestrians. On the evidence, the nature of such precautions, as flagged in the plaintiff's particulars of negligence, were relatively simple, and not unduly burdensome, onerous or expensive. This is because the defendant had the available manpower, equipment, knowledge and access to materials to effect proper repairs, as well as having the ability to inspect such repairs for adequacy and for compliance to proper standards: 5B(2)(c) of the CL Act: There was a high social utility in taking reasonable care for the safety of pedestrians walking in the car park: 5B(2)(d) of the CL Act.
It also becomes necessary to consider the requirements of s 5C of the CL Act, which relevantly provides: "5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and …"
In considering the implementation of the required precautions a number of factors become apparent.
At the time the square patch of repaired bitumen (as shown in the photograph copied at paragraph [6] above) was installed and completed, it ought to have been plain to a council maintenance engineer or maintenance crew, or a qualified contractor, that unless a properly supported and sealed permanent hot-mix repair to the required standard was being effected, temporary repairs (such as with cold mix) required that other precautions for public safety be taken.
These precautions included the placement of a warning sign, placement of an isolating barricade to preclude access, and the placement of temporary lighting, flashing or otherwise, to provide adequate warnings to pedestrians at night, pending the carrying out of more permanent repairs to the car park surface. Such measures are commonly seen in the suburban areas where bitumen tarmac is under repair.
If permanent and properly sealed hot-mix repairs to that patch had been initially effected, then the repair should have had incorporated within it, sound structure and design to address the risk of water penetration, and the risk of the repair breaking-up under use in those circumstances, so as to avoid the emergence of a defect in the surface, such as the one the plaintiff in fact stepped into when he fell and sustained his injury.
The expert evidence becomes relevant at this point in the analysis. In that regard, the plaintiff relied upon the expert engineering report of Mr Joy, dated 18 July 2014. Mr Joy's curriculum vitae attached to his report shows him to be qualified to express relevant opinions on road works design, construction and safety issues. He was not required for cross-examination on the content of his report.
Mr Joy confirmed the view expressed by Mr Suthersan in his evidence, to the effect that the triangular defect in question, which had left a cavity, was due to the earlier failure of a portion of the patched area: report paragraph 7.16.
Mr Joy identified his view that the plaintiff's approach in walking to the patched area, as indicated to Mr Joy, and in respect of which there was little room for doubt on the evidence, would have cast a shadow over the patched area as he approached, as the lighting was from behind the plaintiff. I accept Mr Joy's opinion that the lighting in the area was poor so that the cavity or defect in question would have been inconspicuous at night and at the time of the subject incident: report paragraph 8.12. I have not accepted Mr Clark's evidence in that regard because it seemed to be speculative, as will shortly be explained.
Mr Joy explained, and I accept, that bituminous asphalt is not a rigid structural surface, and requires a sound foundation to protect it from water ingress in order to prevent disintegration under load: report paragraphs 8.13 - 8.18.
Mr Joy expressed the opinion that the photographs in evidence showed not only cracking of the patched area, but also cracking of the adjacent asphalt which he attributed to softening of the underlying base material beneath the asphalt due to water ingress due to rainfall. He identified the detachment of the triangular patch as being due to that process in the course of being used by traffic: report paragraph 8.19. That opinion seems reasonable, and is supported by adequate reasons: UCPR Sch 7, cl 5(c).
Mr Joy also stated, and I accept, that the implementation of proper patching technique required that where the original bitumen surface had been excavated and then patched, a sound seal required using liquid bitumen, be applied to the edges, with compaction, to achieve a sound bond between the old and the new materials, for imperviousness to the ingress of water: report paragraph 8.19.
My Joy interpreted the photographic evidence in conjunction with his observations, to conclude there had been erosion of the base material: report paragraph 8.24. I accept that expert evaluation in preference to Mr Suthersan's evidence to the contrary. Mr Joy's view is consistent with a process by which bitumen in-fill had come away from the base due to a failure of a base-bitumen bond. That seems consistent with erosion of the base. An eroded "bowl" does not seem to be a necessary consequence of the process.
I also accept Mr Joy's opinion on the balance of probabilities that the appearance of the triangular defect, which appeared to be about 5cms in depth, as shown in the photographs, indicated it had been in existence (and therefore observable) for some time, including on 4 December 2012, when the area was inspected: report paragraph 8.24. Mr Joy was entitled to interpret the photographs in that way, given his experience.
The events occurred in circumstances where the nearest primary night time lighting of the car park was about 33 metres away.
At paragraph 9.11 of his report, Mr Joy concluded: "The initial ingress of water, probably from rainfall, occurred as a result of failure to ensure that the edges of the patch were properly prepared and compacted so as to prevent ingress of water to the foundation material."
In considering the respective opinions of Mr Joy and Mr Clark, in my view, nothing of significance turns on their differing estimates of the dimensions and measurements of the patched area of the bitumen in question (60cm x 60cm - Mr Joy) / (1070mm x 1000mm - Mr Clark).
Essentially, the differences in opinion between Mr Joy and Mr Clark revolved around the manner in which they interpreted photographs, a process which is well recognised as having inherent limitations: Leichhardt Municipal Council v Montgomery [2007] HCA 6. Experts are in a better position than a court to make such interpretations. The evaluation of the opinions is therefore to be undertaken by reference to the reasoning of those opinions.
Mr Clark's comments at pages 6 - 7 of his report that are critical of Mr Joy's opinions, must be assessed in that light.
It was unfortunate that the experts had not been asked to convene a conclave and to then provide their evidence concurrently. The parties had not taken any steps to seek a conclave of experts with a view to then providing a joint statement of the reasoning behind their respective divergent views. Accordingly, it was not feasible to arrange for the evidence of those experts on those matters to be given concurrently: UCPR r 31.35. In those circumstances, as unsatisfactory as they may be due to forensic decisions made by the parties, courts are required to grapple with the problems within the expert opinions as best can be achieved on the available evidence.
In undertaking that exercise, I have concluded that I should prefer Mr Joy's opinions because they are rationally supported in compliance with UCPR Sch 7, cl 5(c) and appear reasonably based on the evidence. In contrast, Mr Clark's opinions require unwarranted speculation for acceptance.
Mr Clark's opinion was that at night, fluorescent lighting from an adjacent medical centre would have provided some additional lighting to the area of the plaintiff's fall: report p 4. I consider that opinion should carry little weight, and should not be accepted as it was vague, it was undefined, and for acceptance, it required evidence that his observation of the state of the ambient lighting observed by him on 25 September 2014 also applied on the night of the plaintiff's fall. That evidence was absent in this instance.
Mr Clark placed some significance on the fact that as the triangular defect had not formed "a bowl shaped hole", this indicated to him that the defect had only been present for a short time, and that the base was well compacted. I consider that opinion should not be accepted as it was inadequately reasoned according to the requirements of UCPR Sch 7 cl 5(c).
The timing for the wearing process leading to "bowl" formation was not explained, the assumptions upon which the opinion was based were necessarily vague, imprecise, and depended upon a narrowly confined interpretation of the photographs Mr Clark considered for the formation of his opinion, and the basis for concluding the base was well compacted, was not explained. Furthermore, there was the imponderable variable of the frequency with which the defect was traversed by traffic, which would have influenced the rate of any erosion.
A further difficulty with Mr Clark's report is that at page 4, in answer to question 4, he stated that there was an absence of a full thickness gap in the bitumen, the patch and the original paving. His inspection occurred on 22 September 2014. This was some 4 months after Mr Joy's inspection on 20 May 2014, and some 18 months after the plaintiff's fall. The investigation occurred well after repairs had been effected to the area. This aspect of his opinion appears to be in conflict with his answer to question 6 on page 5 of his report, where he stated that it was not possible to determine how much bitumen seal had been applied to the edges of the patch in question.
At page 4 of his report, Mr Clark addressed a question asked of him as follows: "5. Your opinion as to whether when the repair in the car park was undertaken by whomever did it, the asphalt patch was sufficiently compacted so as to form a waterproof bond with the surrounding asphalt? Yes."
In my view that evidence was of little if any probative weight and should be rejected as being insufficiently compliant with UCPR Sch 7 cl 5(c) due to a lack of supporting reasons.
In contrast, I found Mr Joy's expert report sufficiently supported by cogent reasons in compliance with the Expert Witness Code, which indicated that his opinions should be accepted in preference to those of Mr Clark on matters of opinion in dispute between those experts.
I now turn to the issue of causation.

Causation: s 5D of the CL Act

Section 5D of the CL Act provides: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
The causation analysis is necessarily retrospective: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124].
On a Vairy analysis, the sequence of events compels the finding that the negligence of the defendant, which created the circumstances in which the defect arose, as earlier explained in the consideration of Issue 1, was a necessary condition of the occurrence of the plaintiff's injury. The plaintiff has therefore established factual causation: s 5D(1)(a) of the CL Act: Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182, at [20], [44].
It therefore remains to determine the scope of the defendant's liability for the plaintiff's injury: s 5D(1)(b) of the CL Act. In addressing that issue, there is no sound reason demonstrated on the evidence that would serve to preclude liability being determined against the defendant: s 5D(4) of the CL Act.
In my assessment it is appropriate that the scope of the defendant's liability be extended to cover the injury suffered by the plaintiff: s 5D(1)(b) of the CL Act.
This is so because a foreseeable consequence of sub-standard car park surface repairs was that in time, potholes or defects would develop as a result of degradation of the base due to rainfall or water ingress, and a breaking-up of the surface to create circumstances where pedestrians may suffer injury, such as occurred in this instance. The risk of such injury could have been readily addressed by the proper performance of the repairs, and the placement of adequate warnings, barriers and lighting pending the completion of those repairs.
For the reasons outlined above, I find that the defendant was negligent in its repair of the car park surface, and that negligence relevantly caused the plaintiff's injury as claimed.
It therefore becomes necessary to consider the pleaded defence of obvious risk.

Issue 3 - Whether there was an obvious risk : s 5F & s 5G of the CL Act

The defendant argued that the defect in the bitumen surface of the car park was an obvious risk within the meaning of s 5F and s 5G of the CL Act: Paragraph 10 of the amended defence filed on 13 August 2014.
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.
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.
A defect of the kind shown in the photograph reproduced at paragraph [6] above could only have been obvious to the plaintiff if he actually knew that the defect was there (which is not the case here), or if the defect was observable to a reasonable person in the position of the plaintiff when traversing the area. Obviousness is a characteristic that must be viewed in context. Here, the context was the absence of prior knowledge of the defect and poor lighting conditions.
The plaintiff gave uncontradicted and not otherwise improbable evidence that he could not see the defect in the circumstances of the prevailing poor lighting conditions at the time: T13.45 - T13.49. He did not know of the defect beforehand. I do not regard his evidence in that regard to be unreasonable or improbable, and I therefore accept it. I therefore find that the defence of obvious risk is not made out: s 5G(1) of the CL Act.

Issue 4 - Alleged contributory negligence

By paragraph 9 of its filed defence, the defendant raised the following allegations of contributory negligence: 1. Failing to keep an adequate or proper lookout for his own safety in the circumstances, particularly when it is common knowledge that car parks and other bitumen surfaces are subject to deterioration and potholing. 2. Failing to see and avoid the hole in [the] middle of the car park. 3. Moving too quickly in the circumstances.
In considering those allegations, I accept the uncontradicted evidence of the plaintiff that he had been looking where he was walking at the time of the fall but that he had not seen the defective bitumen where he fell because the area was poorly lit at the time. There was no evidence to support the contention that the plaintiff had been moving too quickly as alleged. For those reasons, I reject the pleaded defence of alleged contributory negligence.

Issue 5 - Defences claimed pursuant to s 42, s 43A and s 45 of the CL Act

Although the defendant had pleaded defences based on the provisions of s 42, s 43A and s 45 of the CL Act, as the plaintiff's case was framed in misfeasance, those statutory defences were ultimately not argued: T149.

Issue 6 - Assessment of damages

In the paragraphs that follow I set out my assessment of the plaintiff's entitlement to damages.

Plaintiff's probable life span

In approaching the assessment of the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of 64 years, the plaintiff has a rounded down probable median statistical life span of a remaining 20 years. The 5 per cent multiplier for 20 years is 666.4.

Mitigation

The plaintiff has sought out and promptly obtained treatment for his injuries. I find that he has taken reasonable steps to mitigate the effects of the accident. I accept the plaintiff's evidence that he pursued home physiotherapy exercises. The defendant has not demonstrated any failure on the plaintiff's part to take reasonable steps to mitigate his damages.
I now turn to the assessment of the claimed heads of damage.

Non-economic loss

On behalf of the plaintiff, it was submitted that damages for non-economic loss should be assessed at 30 per cent of a most extreme case, which was submitted to equate to a monetary assessment of $180,000: s 16 of the CL Act.
In contrast, on behalf of the defendant, it was submitted the appropriate assessment of damages for non-economic loss would not exceed the threshold of 15 per cent of a most extreme case, with the result that there should be no award of damages for non-economic loss.
In my view, the defendant's non-economic loss submission should not be accepted. The opinion of the defendant's expert, Professor Ehrlich, to the effect that the plaintiff has been left with a significant and permanent restriction of right shoulder movement alone justifies a significant award of damages for non-economic loss. The plaintiff's need to take medication for pain relief and depression are also significant matters that have an adverse impact on the amenity and enjoyment of the plaintiff's life.
The plaintiff's background problems due to his psoriatic polyarthritis have already significantly affected his amenity and enjoyment of life. In those circumstances the superimposed effect of the subject accident on his pre-accident circumstances have caused additional and significant problems where he could ill-afford to endure such further problems.
The plaintiff's ongoing disabilities have already been identified at paragraphs [57] - [60] of these reasons.
In my view, after making due allowance for those matters, the plaintiff's age, and recognising he has a statistical life span of two decades ahead of him, the appropriate assessment for non-economic loss is 28 per cent of a most extreme case, which is the monetary equivalent of $80,000.
I therefore assess the plaintiff's damages for non-economic loss in the amount of $80,000.

Past domestic assistance

The plaintiff claims an amount of $15,700 for past domestic assistance. That amount consists of first, the calculation of 14 hours of assistance costed at $25 per hour for an initial period of 32 weeks ($11,200), and secondly, for intermittent assistance with transportation for about 5 months from 25 March 2013 to June 2014, including following the shoulder surgery in August 2013 ($4500).
In contrast, the defendant submitted that the plaintiff' should receive no award of damages for the value of past domestic assistance. In support of that submission, the defendant points to the sparsity of the supporting evidence for the claim, which it was argued, was simply based on the particulars of claim, and not evidence.
A review of the plaintiff's evidence in support of this component of his claim reveals that before the subject accident his underlying polyarthritis did not prevent him from attending to his household tasks: T9.44. His pre-injury regime was that he attended to 50 per cent of the housework: T8.48.
Since the accident, he was unable to attend to cooking, driving to and from medical consultations and treatment for several months, showering and bathing: T17 - T19. These tasks were variously undertaken by his former partner and by his son.
He is presently limited in his cooking, cleaning and laundry tasks and cannot hang washing. His daughter provides him with assistance in that regard: T60.27 - T60.45.
The plaintiff's evidence on the time taken up with past assistance as summarised above was vague and non-specific. There was a three month period where he could not look after himself: T17.35. His son drove him for some four to five hours per week for several months: T18.41. His former partner practically did everything around the house until November 2013, a period of 8 months: T22.7.
I infer from the above evidence that the minimum duration assessment threshold of 6 hours per week for 6 months has been exceeded: s 15(3) of the CL Act: Hill v Forrester [2010] NSWCA 170; (2010) 79 NSWLR 470.
I therefore consider the initial post-accident period of claim of 14 hours per week should be rounded down to 8 hours per week for a reduced period of 32 weeks on account of the imprecision of the plaintiff's evidence on the issue.
The hourly rate of $25 claimed by the plaintiff is less than the maximum statutory rate from time to time prescribed by s 15 of the CL Act. It must therefore be seen to be inherently reasonable.
This yields the calculation of $6400. I consider that amount to be reasonable and it should be allowed.
In respect of the claim for $4500 for the value of driving assistance provided to the plaintiff following his shoulder surgery, I accept the submission of the defendant to the effect that the evidence of the plaintiff on this aspect of his claim is vague and difficult to specifically quantify. In that regard, the plaintiff has not satisfied the duration threshold of 6 hours per week for a minimum period of 6 months in respect of those driving services.
I therefore assess the plaintiff's damages for past domestic assistance in the amount of $6400.

Future domestic assistance

The plaintiff claims an amount of $28,937 for future domestic assistance. That amount is derived by the undiscounted projection of the value of 5 hours per week of domestic assistance costed at $25 per hour or $125 per week over 5 years.
In contrast, the defendant submitted that the plaintiff' should receive no award of damages for future domestic assistance as the minimum threshold for the assessment of such damages has not been reached, and the claim is unsupported by the medical evidence.
In my view, the defendant's submission concerning this head of damage should not be accepted for a number of reasons.
First, the fact that the medical evidence does not support the claim is not determinative of the issue of whether the plaintiff has an injury based need for damages for future domestic assistance. Instead, this is an issue to be assessed according to a reasoned evaluation of the evidence taken as a whole. In that regard, I consider that the evidence of the plaintiff as to his ongoing restricted domestic abilities justifies an award for this component of his claim.
Secondly, in that latter regard, I consider it reasonable that the plaintiff would find it difficult to carry out a range of domestic tasks due to his right shoulder restrictions. Without attempting to be definitive, such tasks would include above shoulder activity such as hanging and retrieving laundered items, some cleaning tasks, and some home maintenance tasks. Such matters are not to be assessed according to a standard of precise efficiency: Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343, at [55].
Thirdly, the assessment context is that the plaintiff was able to carry out these domestic tasks before the subject accident.
Fourthly, it cannot be reasonably assumed the plaintiff's family members will continue to be available to assist him with domestic tasks into the future. This justifies awarding such damages on the basis they will be provided by an external source, and at a cost to the plaintiff.
The evidence of the commercial cost of such services is absent in this case. In other cases of this kind, one often sees conceded rates of between $30 and $40 per hour, if not higher, depending on the nature of the assistance required. In this case the plaintiff claims an hourly rate of $25, which is less than the maximum statutory rate prescribed by s 15 of the CL Act. I therefore consider the claimed hourly rate to be inherently reasonable.
I consider that an allowance of an average of 4 hours per week for paid domestic assistance over the limited period comprising the next 5 years would be a fair and reasonable allowance in this case.
The projection of the value of 4 hours of such assistance at $25 per hour ($100 per week) over 20 years at 5 per cent (x 231.5) yields an amount of $23,150. Given the plaintiff's underlying diagnosis of psoriatic polyarthritis, I consider that this sum should be discounted by the conventional figure of 15 per cent for the potential adverse vicissitudes that may be associated with that condition. This yields the amount of $19,677.
That discount also takes into account the likelihood of a relatively short lead-in time between the plaintiff's present regime in which he receives domestic assistance from his children, the external provision of such services in the future, and the possibility of progression of the plaintiff's underlying condition of psoriatic arthritis.
I therefore assess the plaintiff's damages for future domestic assistance in the amount of $19,677.

Future out-of-pocket expenses

The plaintiff claims the sum of $14,354 for future out-of-pocket and treatment expenses. That sum comprises the projection of a weekly sum of $21.54 representing annual visits to an orthopaedic surgeon, physiotherapy every two months, and six visits per year to a general practitioner.
In contrast, the defendant submitted that an allowance of $2000 should be sufficient for this head of damage. In making that submission the defendant seems to have distanced itself from the opinion of its expert Professor Ehrlich to the effect that the plaintiff does not need any future treatment, consultations, therapies or medications in respect of his shoulder condition.
I do not accept the opinion of Professor Ehrlich in that regard. I consider that it is reasonable that an award of damages for the plaintiff's injuries should include an amount for occasional consultations, physiotherapy and medications to address the plaintiff's ongoing disabilities.
In arriving at that view I consider that the evidence of the plaintiff and that of Dr Giblin justifies the allowance of a buffer sum for future treatment expenses. In that regard, I consider the opinion of Dr Giblin to be significant where he stated that the effects of the plaintiff's right shoulder injury makes that shoulder readily susceptible to further aggravations from innocuous physical events: Exhibit "B", Tab 1, p 5.
That susceptibility should be seen as something significant requiring medical review and treatment from time to time, and not just comprising a minor irritant covered by non-economic damages. That said, the evidence does not permit a precisely formulated weekly sum for projection over the plaintiff's remaining life span. Instead, a lump sum buffer amount would seem to be the appropriate means by which to compensate the plaintiff for such likely future expenses.
In my assessment, a lump sum buffer of $5000 would represent a proper sum that is both fair to the plaintiff and not unfair to the defendant: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13.
I therefore assess the plaintiff's damages for future out-of-pocket expenses in the amount of $5000.

Past out of pocket expenses

The plaintiff claims he has incurred out-of-pocket expenses in the amount of $6359.80. The defendant does not concede that claim, but agrees to the mathematical correctness of the total of the amount claimed.
In my assessment, having regard to the evidence the plaintiff has given as to his accident related injuries, his resultant disabilities and the effect that those matters had upon him, I consider it was reasonable that he sought out the treatment described in the evidence, and which is documented in Exhibit "B", Tab 6. I consider that the treatment claimed and described is reasonably costed, and should be allowed as out-of-pocket expenses in the claimed amount.
I therefore assess the plaintiff's damages for past out-of-pocket expenses in the amount of $6359.80.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $80,000 (b) Past domestic assistance $6,400 (c) Future domestic assistance $19,677 (d) Future out-of-pocket expenses $5,000 (e) Past out-of-pocket expenses $6,359.80 Total $117,436.80

Disposition

As the plaintiff has succeeded in the litigation he is entitled to a verdict and judgment in his favour against the defendant in the sum of $117,436.80.

Costs

The plaintiff is entitled to have his costs of the proceedings paid by the defendant on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff in the sum of $117,436.80; 2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further orders are required.

Amendments 23 November 2015 - paragraph 184 - correction of omission of tabulation of damages 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: 23 November 2015

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