Her Honour then considered the nature and extent of the hole in order to determine whether it was not such an obvious hazard. In paragraph [72] her Honour referred to the evidence of Mr Iulianetti that it was minor and to a submission put on behalf of the council that it was "there for all the world to see". The trial judge had had a view of the pram ramp in the course of the trial. We were told that this was to enable her Honour to better understand the evidence. Her Honour was conscious of this, for she noted that her inspection in March 2003 was made several years after the event. She had, however, the evidence of the witnesses which described the hole and its surroundings and the bundle of photographs taken by Mr Lightfoot a few months only after the incident and, doubtless, her inspection of the locus informed her understanding of the evidence.
15 Her Honour does not in terms state that the condition of the ramp at the time was such that it created a hazard to the suppositious pedestrian taking reasonable care for their own safety. She did, however, analyse the position of Mrs Merie and in particular, whether she as a pedestrian who did not see the hole, should have seen it in the circumstances. Her Honour's conclusion [22] was that the plaintiff's failure to see the hole was not, to adopt the words of Gillard, A.J.A. in the passage from Pearce's case which we quoted above, [23] a failure to "exercise reasonable care for her own safety".
16 This, it was submitted, was to fall into the error which was identified by Chernov, J.A. in Pearce's case[24], that of investing the suppositious careful pedestrian with the particular characteristics of the plaintiff. We think not: it is clear from the cases in this Court to which we have referred that the duty in question is a duty which is or is not owed to the plaintiff. The plaintiff is entitled to the benefit of the duty if, at the relevant time, she falls within the class of reasonable pedestrians of ordinary physical capacity exercising sufficient care to see where they are going and perceiving and avoiding obvious hazards, subject always to acts of mere inadvertence. Her Honour's approach to the question of duty of care was consonant with that of this Court in Moyne Shire Council v. Pearce[25].
17 We were invited by counsel for the council to form our own view of the hole in the circumstances in which it existed and to determine for ourselves whether such a pedestrian would have perceived it. We were reminded that, as it is a matter of inference, this Court is in an equally good position to undertake the task. There are, however, two difficulties in the way of our doing so. First, unlike the trial judge, we have not had the benefit of her view of the locus. Second, it is a regrettable feature of this case that a transcript of evidence is not available. We have only the trial judge's notes supplemented by those of the articled clerk employed by the solicitors for the council. Full as these notes appear to be, they are clearly not a verbatim account of the five day trial. We add, too, that we do not consider that it would be helpful to analyse this question simply by reference to the dimensions of the hole. Whether it poses a hazard of the kind which will give rise to a duty of care must depend not only upon these characteristics but also upon its colour, its location and the services which surround it, matters as to which her Honour was well informed.
18 We therefore conclude that the trial judge did not fall into error in her formulation of the relevant duty of care or in its application in concluding that the counsel owed to the plaintiff a duty of care to eliminate the hazard constituted by the existence of the hole and to avoid harm to her which might be occasioned by that hazard. Grounds 2, 2A, 2B and 2C therefore fail.
Was the Plaintiff's Fall due to her slipping in the hole?
19 This is essentially a question of fact. There is no doubt that Mrs Merie fell to the ground in the vicinity of the hole and that no witness saw her fall. She herself said she slipped in the hole and thereby fell to the ground, and her evidence was accepted generally by the judge as reliable. Her Honour was prepared to accept and act upon the evidence of those who also saw the hole and its environs. She observed that the plaintiff's injury was consistent with the fall which the plaintiff described. This was corroborated by the description she had of the plaintiff's movements at and immediately prior to the fall and by her husband's observations of the plaintiff's position after the fall.
20 We reject the submission advanced on behalf of the council that her Honour's conclusion on this matter ought not to have been made on the evidence. There was indeed evidence to support the inference and the inference was available on the balance of probabilities. We reject Grounds 3, 4 and 5.
Breach of Duty
21 There were in fact two distinct breaches alleged against the council and accepted by the trial judge. The first related to the patching which was carried out in 1997. This, her Honour found, was defective. The second was that of failing to rectify the paving or to eliminate the hazard which the hole constituted. In the first case, the council has undertaken work but performed it negligently; in the second, it has failed to provide the suppositious careful pedestrian with a hazard-free pavement. While considerations of cost and priorities may have had a role to play in the latter case it is hard to suppose that it might have a role to play in justifying bad workmanship or in avoiding the harm which this may cause.
22 In the present case, it was not suggested that, accepting that the hole constituted a hazard to careful pedestrians, there was any reason why it should not have been rectified. The argument put on behalf of the council was that it was not in truth such a hazard. The judge found that the council was aware of its existence and that it took no remedial action. Accordingly, the finding of breach of duty was inevitable. Grounds 6, 7, 8, 9 and 10 must fail.
Contributory Negligence
23 As has been pointed out[26], the notion of contributory negligence can have little role to play where the Brodie duty of care is made out. The judge found that the failure of the plaintiff to notice the hole was nothing more than mere inadvertence. The allegation of failure to keep a proper look out must fail in the light of that finding[27]. The other particulars all pre-suppose that the plaintiff was aware of the hole and did nothing to avoid it. Ground 11 has not been made out.
Damages
24 The judge awarded damages made up as follows:
(i) past medical expenses $4,703
(ii) future medical expenses $10,000
(iii) past loss of domestic capacity $24,000
(iv) future loss of domestic capacity $30,000
(v) past loss of earning $10,000
(vi) future loss of earnings $70,000
(vii) pain and suffering $100,000
The total is $248,703. This total was rounded off by her Honour to the sum of $240,000. Items (iv), (v) and (vi) were challenged in grounds 12 and 13 on the basis that the awards were against the weight of the evidence; and item (vii) in ground 14 as being so excessive as to be erroneous or plainly or wrong.
25 As a matter of general principle, a court assessing damages of this kind is not constrained by any requirement to apply some mathematical formula or to produce a perfect result.[28] Some components depend upon a prediction of what might occur in the future. Where it is necessary to form some impression of the quantum of a loss which has been demonstrated to have been suffered, the trial judge may make allowances for the uncertainties that inevitably face the tribunal of fact in determining how injuries will affect a plaintiff in the future and what the future generally might hold for her. The medical evidence in this case shows how this must be so. This is not to say that the judge might not find some assistance from calculations based on life expectancies, current wage levels and discount tables in order to determine as best she may the sum of money which, all things considered, fairly represents the measure of compensation to which the plaintiff is entitled and which is, at the same time, fair to the defendant.
26 The allowance of $24,000 for past loss of domestic capacity was not challenged. This was assessed on the basis of a need for 10 hours per week at $12 per hour. This represents about $6,000 per annum over the four years since the accident.
27 With respect to item (iv), the loss of this domestic capacity in the future, the figure is an approximation of the projected loss at the lesser rate of $80 per week over a period of 10 years. Applying a 10 year multiplier this produces a figure of $36,000, which her Honour reduced to $30,000. This reduction was said to cover, on the one hand, the prospect that the loss would continue beyond 10 years and, on the other, that the plaintiff's need might become less.
28 The challenge to this and to other figures with respect to future loss involved an analysis of the evidence of the likely duration of her disability and the uncertainties as to the plaintiff's plans in the future. As to the evidence, we think that her Honour was justified in concluding that the disabling pain which the plaintiff suffered would continue indefinitely. Her own evidence, which the judge accepted, was that in 2003, some four years after the incident, she had suffered and continued to suffer from severe or chronic pain as a result of the fall[29]. The plaintiff's orthopaedic surgeon, Mr Haw, concluded that the fracture to her sacrum had healed by August 2000 but that she had residual symptoms which might interfere with her social activities and her sexual life. The difficulty is that her physical condition has been exacerbated by post-traumatic stress reaction which, in the opinion of her psychiatrist, Dr Koshar, means that she has no prospect of gainful employment and will have on-going difficulties in managing her domestic duties. Professor Byrne confirmed this. Mr Kahan, another orthopaedic surgeon, spoke of her having partial permanent impairment of function as an after effect of the injury. Mr Brian Davie, the orthopaedic surgeon retained on behalf of the counsel, examined Mrs Merie in 2001 and 2003. In his April 2001 report he concluded as follows: