Whitton v Dexus Funds Management Limited

The pleadings

1. The plaintiff commenced her proceedings by way of Statement of Claim filed on 16 August 2018. In the Statement of Claim the plaintiff pleads, in summary, as follows: 1. That she was born in November 1944 making her 71 years of age at the time of the accident and 74 years of age at the time of the final hearing; 2. That the defendant corporation occupied, operated and managed the Deepwater Plaza at Woy Woy in New South Wales; 3. On 17 July 2016, the plaintiff attended the premises and was shopping at the premises. At approximately 12:15pm the plaintiff is alleged to have been exiting the amenities corridor at the shopping centre when she was struck by an unregistered mobility scooter which was travelling along the main thoroughfare of the shopping centre. It is alleged that at the time a shopfront hoarding was present, as Shop 46 at the centre was undergoing refurbishment and this was protruding into the main thoroughfare of the premises; 4. An ambulance was called and the plaintiff was conveyed to hospital. It is pleaded that the plaintiff suffered injury including injury to her right leg and psychological injury; 5. At all material times, the defendant owed the plaintiff a duty of care to exercise reasonable care to avoid risk of injury to the plaintiff, the risk of injury was foreseeable, the risk of injury was not insignificant and a reasonable person in the position of the defendant would have undertaken a number of steps which are set out: see paragraph 13; 6. It is alleged that the defendant breached its duty of care owed to the plaintiff. The particulars of breach of duty are set out in paragraph 14 of the Statement of Claim and are as follows: "14. The defendant breached its duty of care to the plaintiff. Particulars of breach of duty (a) Erecting a hoarding on shop 46 such that visibility of those entering the main thoroughfare from the amenities corridor between shops 46 and 56 was significantly restricted/impaired; (b) Creating a risk of injury by erecting a hoarding on shop 46 such that visibility of those entering the main thoroughfare from the amenities corridor between shops 46 and 56 was significantly restricted/impaired; (c) failing to eliminate and/or reduce the protrusion of the shopfront hoarding; (d) failing to enforce speed limits upon scooters being driven on the premises; (e) failing to erect warning signs; (f) failing to install signage as to the use of scooters on the premises; (g) failing to erect a convex mirror allowing those exiting the amenities corridor to see into the main thoroughfare; (h) failing to erect a convex mirror allowing those travelling along the main thoroughfare to see into the amenities corridor; (i) failing to erect barricades; (j) failing to monitor and control the use of scooters on the premises. (k) failing to comply with the provisions of the Work Health and Safety Act 2011 (NSW) and the Regulations thereunder. (l) failing to comply with its obligations pursuant to the Work Health and Safety Act 2011 (NSW) and the Regulations thereunder; and (m) failing to comply with the provisions of Australian Standard AS 1470-1986 Health and Safety at Work - Principles and practices, including: i. the application of hazard analysis as to the use of scooters at the premises; and ii. carrying out an adequate safety risk assessment in relation to the scooters at the premises." 1. It is alleged that the defendant was negligent and that the plaintiff would not have suffered the injury which she did but for the negligence; 2. It is also alleged that as a result of the negligence the plaintiff suffered her injuries which are particularised.
2. The plaintiff filed an Amended Statement of Particulars on 15 August 2019 which sets out the particulars of injuries allegedly received in the accident, which include injury to her right leg, bruising, a back injury, pain and depression. Particulars of continuing disabilities include pain and discomfort, anxiety, instability to the right leg, altered gait, difficulty walking, difficulty sleeping and difficulty with pre-accident social, recreational, self-care and domestic activities. Detailed particulars are provided of the damages sought.
3. In a Defence filed 8 January 2019, the defendant admitted that it owed a duty of care to patrons of the shopping centre, admitted that it occupied, operated and managed the shopping centre, admitted that the plaintiff was struck by a mobility scooter whilst walking in the main thoroughfare of the shopping centre, but otherwise puts in issue or disputes the plaintiff's allegations in the Statement of Claim. It is specifically pleaded that the defendant was not negligent, there was no causal connection and that the risk of being struck by a mobility scooter travelling along the main thoroughfare was an obvious risk of which the defendant had no duty to warn the plaintiff. Contributory negligence is also pleaded.

The plaintiff's evidence

1. There was CCTV film footage of the accident which became part of Exhibit F in the proceedings. In addition, the defendant tendered a number of photographic stills of parts of the CCTV footage which became Exhibits 1 to 3 in the proceedings. The plaintiff's solicitor also took some photographs which became Exhibit E in the proceedings.

The plaintiff's oral evidence

1. The plaintiff gave extensive oral evidence. In her oral evidence in chief the plaintiff confirmed that she lived in Kellyville Ridge in Sydney in New South Wales having moved there in July 2018 from Glenwood in Sydney. She said she was born in November 1944 and left school in 1958 to obtain employment at the age of 14 years and to complete a secretarial course. The plaintiff stated that she remained in continuous employment until she married her husband Val in June 1964. At that time he was completing an accounting course and some two years later he finished the course, set up his own practice and the plaintiff then began working for him and remained working for him in various businesses until she recently ceased work.
2. The plaintiff gave evidence that she had six children between 1968 and 1980 and only took two months off from work before and after each birth, with childcare assistance being provided by her mother or others.
3. The plaintiff gave a work history of the family buying a country hotel, her working in the hotel undertaking cleaning duties for some 18 months and then the family moving to Bathurst where her husband worked as an accountant for a religious order while she ran a clothing shop. In due course, the plaintiff's family returned to Sydney, her husband set up an accounting practice at Westmead and she worked fulltime five days per week in that practice. The plaintiff said that she looked after the files, answered the phones, made appointments and managed the business accounts of the practice. She said that the family rarely took holidays and she could only recall three holidays taken by the family.
4. The plaintiff gave evidence that a company called Fleet Wash Industrial Systems Pty Ltd ("Fleet Wash") was set up by her husband in 1995 which undertook the designing and manufacturing of washing systems for large trucks used on mining sites. Initially, the washing systems were manufactured in the country with an office in Sydney and then the manufacturing facility was moved to Sydney. The company employed a number of people. The plaintiff gave evidence that she worked for Fleet Wash five days per week from 9am to 5pm and undertook all accounting duties for the company including the payment of wages, the payment of invoices, the recording of debtors and creditors and other office administration. The plaintiff said that the role was busy but she did not deal with customers and rarely with suppliers. The plaintiff gave evidence that in the course of her duties she operated a computer and in due course became competent in the use of a computer. She worked in the office in the upstairs of the company premises. The plaintiff said that she remained working for Fleet Wash until 2017 and enjoyed going to work.
5. The plaintiff then gave evidence in relation to some health issues which she had suffered from prior to the accident. The plaintiff said that in 2008 she was diagnosed with Type II Diabetes but with taking medicine, it was controlled and she had no problems with it. In 2010 the plaintiff stated that she had a right total knee replacement which was successful. This caused her to be off work for six weeks after the operation and had resulted from difficulties which she had including pain in walking up stairs. The plaintiff said she continued to do the work necessary for the payment of wages for the business whilst in hospital and, after some difficulties, had a good recovery. The plaintiff also noted that she had stairs in her home at that time which also caused problems but there were no further difficulties after a few months.
6. The plaintiff gave evidence that in 2012 she had a left total shoulder replacement following breaking her shoulder when she fell over a dog. The plaintiff said that she was off work for four weeks and had a short stay in hospital. She said the pain at the time of the accident was considerable and it continued after the accident for a period, but gradually got better and left her with no pain but with a limitation in her left arm which she could only raise to shoulder height. This meant that the plaintiff could not hang up washing and she used a dryer instead.
7. The plaintiff gave evidence that in 2014 she had bursitis in the right groin and had some injections which assisted her with the pain going away. Prior to the accident, the plaintiff stated that she also had some low back pain for a period of about 12 to 18 months but it did not stop her doing things and in particular it did not affect her ability to work or look after the house. However, the plaintiff avoided standing activities including ironing.
8. At the time of the accident, the plaintiff said that she had a large two-storey home with four bedrooms and two and a half bathrooms with extensive living areas and an office downstairs. By July 2016, which was the month of the accident, the plaintiff said that she did not have any children living at home but different children with their families came and stayed with them from time to time if they needed accommodation while they were building houses. By 2016, the plaintiff stated that she had 18 grandchildren ranging from 18 years to two babies. She said that she had extensive interaction with her family, seeing them "all the time" and having them over for a large family dinner on a Sunday.
9. The plaintiff gave evidence that prior to the accident she employed a cleaner for three to four hours per week: T25.41. In cross-examination, this evidence was varied slightly to three to five hours per week. The plaintiff stated that this was not sufficient to maintain the house and on the weekends she did other housework particularly following the grandchildren attending the house on a Saturday after sport and after the family dinner on a Sunday night. She stated that while everyone helped clean up after the family dinner, her husband and her also undertook cleaning and tidying after the family left: T26.36.
10. The plaintiff stated that she occasionally took time off to collect grandchildren from school if it was required.
11. Prior to the accident, the plaintiff said that her husband was in charge of the business and she was in administration. She said that a number of her children were involved in working for the company including sales, the design of the truck washers, meetings with customers, attending site meetings, and other administration.
12. The plaintiff did not recall having falls prior to the accident in addition to the fall where she broke her shoulder: T38.37. She later changed this evidence and admitted having two further falls. These were shown to be in 2015 and 2016.
13. The plaintiff agreed that she enjoyed her work and remained working in her early 70s even though this was past the usual retirement age. She said she did not consider retiring and this was not discussed with her husband: T29.2. She said that prior to the accident her eyesight was "pretty good" and she only wore her prescription glasses to read and for no other purpose, including driving: T29.
14. The plaintiff then gave evidence in relation to the day of the accident. The plaintiff said that on 17 July 2016 she and her husband travelled to the Central Coast to see a friend. In order to do so they travelled through Woy Woy. They saw a shopping centre whilst driving through which she later became aware was the Deepwater Plaza Shopping Centre. She said that she and her husband went there to buy some boots for one of their grandchildren. She said she had never been to the shopping centre before. After parking their car, she and her husband walked into the shopping centre passing Coles and Kmart whilst walking in the main thoroughfare. She described the main shopping thoroughfare as "fairly wide": T30.42. She left her husband to look at shoes in a shoe shop while she continued on to locate Best and Less in order to inspect children's underwear. After going into Best and Less, the plaintiff decided that she would use the bathroom at the shopping centre and walked down what she described as a "long" walkway to the toilets: T32.40. After using the bathroom, the plaintiff said that she walked down the corridor and that it was "quite busy": T33.5.
15. The plaintiff said she "momentarily looked" to the right by turning her head slightly but not completely to the right back down the thoroughfare to her right: T33.4-.23. She then said that she "glanced over" slightly to her right and could only see people there: T33.44-T34.6. The plaintiff then gave evidence that she entered the main thoroughfare by turning left and could not recall how many steps she took before she was struck in the back heavily: T34.25. She said the collision was sufficiently strong to turn her around facing the other way and to knock her to the ground. The plaintiff said that she felt excruciating pain and when she opened her eyes whilst lying on the ground she realised that she had been struck by a mobility scooter which was still on top of her shoulder. She gave evidence that she had not seen the mobility scooter prior to it hitting her. However, she agreed that she had seen mobility scooters in shopping centres before: T35.4-.8.
16. The plaintiff said that she had severe pain down her right leg and particularly at the top of her hip. The plaintiff gave evidence that several people came over to assist her and in due course a security guard turned up as did her husband. A screen was put around her and the scooter was moved off her.
17. The plaintiff stated that an ambulance arrived and she was given some painkillers but was told by the ambulance officer that it was necessary to get another ambulance which had a traction device to assist her leg. In due course a second ambulance arrived and she was given further painkillers which lessened the pain. The plaintiff gave evidence that she was taken to the emergency department of Gosford Hospital. She said that she was affected by the painkillers which she had taken and her first recollection at the hospital was hearing the staff laughing that she had an accident with a mobility scooter: T37.25.
18. The plaintiff stated that she had terrible pain in her leg and that in due course on 18 July 2016 an operation was performed on her by a Dr Bateman which later evidence established was an open reduction and internal fixation with a metal nail rod. The plaintiff gave evidence that she continued to have terrible pain and was discharged from Gosford Hospital on 21 July 2016.
19. The plaintiff stated that she had restricted movement in her right leg and "almost unbearable" pain although she was able to get around on crutches: T38.15. She was transferred to the Norwest Hospital for Special Surgery in Sydney and came under the care of her former surgeon Dr Brighton.
20. The plaintiff said that she was given physiotherapy at the Hospital for Special Surgery which was very difficult at first and very painful. She said she was given painkillers including Endone which took the edge off the pain and she was in due course discharged on 5 August 2016: T39.2. At this time she was using crutches and also needed a walker.
21. The plaintiff gave evidence that she continued to go to the Hospital for Special Surgery for physiotherapy and hydrotherapy. She stated that she was on crutches or using a walker for about three to four months and in due course moved from crutches to the use of a walking stick which she still frequently uses to give her stability.
22. The plaintiff stated that she continued with physiotherapy and by December 2016 was able to get around without crutches but was walking with the walking trolley in her house until January/February 2017: T40.42. The plaintiff stated that as at December 2016 she still had pain at the fracture site and down the femur with pins and needles on the inside of her right leg. She also stated that the pain in her back which she had prior to the accident became worse two weeks after the accident and soon developed into very intense pain particularly if she was standing for more than 10 or 15 minutes: T41.20.
23. The plaintiff gave evidence that up to December 2016 she did not attend work and did no work at home: T41.23-.28. She stated that she needed assistance to get dressed and even after she was placed on crutches she attempted to undertake work including home duties but it was too difficult with the pain: T41.38. A bed was moved downstairs at her house so that she did not have to go up the stairs to sleep.
24. The plaintiff gave evidence about her mood after the accident. She said that she was very embarrassed at the nature of the accident being hit by a mobility scooter and felt depressed and lost interest in her work. She said she had not returned to work by December 2016 as she could not go up the stairs to the administration part at work and could not concentrate. She was also concerned about being a burden to the other family members at work. She said that the depression arose from feeling "hopeless" at not being able to get over the accident: T42.44. She said prior to the accident she was always very active and could not be so afterwards even though she was trying to get better through physiotherapy. At this time the plaintiff gave evidence that she was taking Endone and Panadol Osteo as well as undertaking hydrotherapy which assisted her: T43.15.
25. The plaintiff said that she got out and was able to drive and went shopping. She also said that her husband "made her go to work" as he was worried about her but she did little at work: T43.42.
26. The plaintiff said that in the first half of 2017 her pain was there "all the time" and she had difficulties sleeping, sitting or standing for long periods: T44.28-.36. She said that her leg ached and she had pins and needles on the inside of her right leg. She continued taking Endone in 2017.
27. The plaintiff gave evidence that in 2016 there were significant changes in the arrangements in the family company. A problem arose because a major subcontractor went into liquidation and the liquidator demanded the return of significant payments which had been made to the family company. For reasons which were not fully explained by her, the plaintiff said that this led to the family company stopping manufacturing the washing machines in Australia and it began importing machines for sale. The plaintiff said that she was not involved in these changes as she was not interested in the work. Having regard to these extensive difficulties, another company was incorporated which was controlled by her son Patrick. This company was named Speedy Wash (later shown to be Global Wash Pty Ltd). The plaintiff gave evidence that she was employed by Speedy Wash and was paid for two days work per week even though she did not undertake work. She said that she understood that she was being paid for the holidays which she had accrued with the first company, Fleet Wash.
28. At this time the family home in Glenwood was sold although she was not sure whether one of the reasons for the sale was the debts owed by the company. She stated that she could not deal with the large two storey house at that time because of its size and the fact that it had stairs. She said that she could not manage with the house as it was "too painful": T47.23.
29. The plaintiff confirmed that she continued to retain the same cleaner after the accident. She denied undertaking any cleaning after the accident, although she said that she attempted to do so (T47.36) but she could not bear the pain in the top of her leg and considerable back pain. The plaintiff said that she stopped cooking at this stage and did not do any for a long time. The family Sunday get-togethers ceased but on occasion the family was invited for afternoon tea rather than dinner. The plaintiff said that she prepared a number of meals but her husband cooked them: T48.27. The plaintiff said that at this time she could not undertake cleaning work at home as she was disinterested: T48.45.
30. The plaintiff gave evidence that she has had two general practitioners since the accident being Dr Ali and Dr Thomas. Her first general practitioner was Dr Ali but she could no longer go to him because of difficulties in access at the Castle Hill Medical Centre where Dr Ali worked. She moved to Dr Thomas who was at the Norwest Medical Centre. The plaintiff agreed that in May 2018 she was referred by Dr Thomas to a pain specialist, Dr Ramachandran. The plaintiff said she attended Dr Ramachandran on about three occasions and he did little to assist with her pain but prescribed an antidepressant, Cymbalta, for her.
31. The plaintiff also gave evidence that she was referred to a psychologist Ms Hinz who she saw on about six occasions. She said that this helped her "a little bit" but the psychologist moved to another area and the consultations did not really improve her depression. The plaintiff described the symptoms of her depression as feeling very lonely, wanting to be by herself and not talking to people. She said that her relationship with her husband remained good and he went to work most days although he helped at home on many Fridays by keeping her company and doing any domestic duties required around the house: T51.36.
32. In relation to motor vehicle travel, the plaintiff said she could be in a car for a maximum of three hours but only drove locally. She said she had problems sleeping and transferring from a chair where she ensured that she put the pressure on her left uninjured leg.
33. The plaintiff was asked whether she intended going back to work for her family. She said she did not know but she would like to: T52.45. She said that she regarded a return to work as placing her "under their gaze all the time".
34. The plaintiff was asked further questions about whether she could do some clerical work at home. She said she did not believe she could as some duties were now automated: T53.16. She also said that there would be too many papers to be brought home to look after debtors and creditors but that she could do it if the material was brought home: T53.27. She said it was a "big question" whether she could concentrate and sit to do work: T53.30.
35. In relation to meal preparation, the plaintiff said that she did not cook meals much but merely prepared some meals by sitting on a stool: T54.23. Although her family had arranged for prepared meals to be delivered in the last week or so, prior to that the family delivered meals for herself and her husband which required a lot of work from family members who work fulltime. Otherwise she said that she and her husband went out to dinner or bought takeaway food.
36. In relation to the cost of various treatments and medicines, the plaintiff said she went about once a week to the hydrotherapy pool at Castle Hill which cost $12 on entry and $160 a visit if a physiotherapist was also present. In relation to painkillers, the plaintiff still took Endone but did not use it unless she had to. She gave evidence that it helped her to get to sleep and to go out and about including shopping. The plaintiff stated that she also took Panadol Osteo and Cymbalta which provided her with a lift. She said that the Cymbalta did not assist her motivation or confidence.
37. The plaintiff stated that she now felt unsafe in a shopping centre. She said she was embarrassed by the accident, as she had never heard of anyone being hit by a mobility scooter before. The plaintiff gave evidence that she had contemplated "doing something silly" which I took to be self-harm in the first 12 months after the accident but not since, but felt guilt in relation to not being able to assist in the family business: T57.36.
38. The plaintiff was subject to an extensive cross-examination by senior counsel for the defendant. Initially, that cross-examination focused on the plaintiff's medical conditions prior to the accident.
39. The plaintiff agreed that she had a right total knee replacement prior to the 2016 accident. She could not recall when this occurred in 2010. The plaintiff confirmed that in July 2010 she was suffering from back pain and knee pain. The plaintiff was challenged in relation to her evidence in chief that after the right total knee replacement that things had settled down quickly and she had not had ongoing extensive problems. It was put to the plaintiff that some eight months later in February 2011 she was referred by her general practitioner to Dr Brighton. She agreed with this and agreed that she had complained about problems including continued soreness and swelling in the right knee and catching of the knee joint. The plaintiff stated that the knee replacement was fine but that a chipped bone was causing a catching of the knee joint. She stated that she was advised by Dr Brighton to leave the matter and it would remedy itself in due course and there was nothing he could do. The plaintiff said that in due course the swelling went down and the catching of the knee only occurred for a few months and she denied that there was any suggestion to her of a need for a further knee replacement at that time. She said Dr Brighton had told her that the knee replacement would last 10 years, which she agreed would be coming up for replacement now: T61.25.
40. The plaintiff also agreed that she had a total left shoulder replacement after the fall and that she had also had problems with her left knee. She agreed that she told Dr Brighton in December 2014 that she had problems with her left groin, left buttock and left knee from time to time. However, the plaintiff gave evidence that the problems with her left knee had cleared up and she had no problems with stairs because of it: T62.15.
41. It was put to the plaintiff that she told Dr Ali in April 2014 that she had pain in the right lower back and the right outer thigh and buttock with tenderness in both hip joints. The plaintiff agreed with this and said that it was due to arthritis. She said she had no problems with the right hip prior to the accident in that it gave her no restrictions and she could continue with her work. The plaintiff said that it was a completely different pain then to the pain she now had which was sharp with her right hip: T62.39.
42. The plaintiff agreed that in May 2014 as a result of right hip pain she was prescribed Mobic. While accepting that there was quite a bit of pain, the plaintiff said she had no problems working or negotiating stairs. She also accepted that in August 2014 she was taking Mobic and Panadol Osteo for pain but not together. She said the Panadol Osteo was for arthritis and she only took the Mobic when the pain was bad. The plaintiff agreed that she had discussed pain in both hips with doctors prior to the accident and said that it was trochanteric bursitis with the right leg worse than the left. She agreed that it affected the outer side of her hip: T67.4. The plaintiff also accepted that in June 2014 she was given an injection for bursitis in her right hip which provided her with some initial relief although the pain continued: T67.29.
43. The plaintiff accepted that in December 2014 she was referred by Dr Ali to Dr Brighton because of increased pain in the hip region: T67.37. She also agreed that she had a further injection for the pain in her left hip in October 2014. The plaintiff said that she could not recall pain in her left knee at this time.
44. The plaintiff also agreed that in November 2014 she was complaining to Dr Ali in relation to lower back pain, pain radiating to the right thigh, right groin pain and right knee pain: T68.16. The plaintiff said that the bursitis was causing it and she had four or five injections and it cleared up: T68.24.
45. It was put to the plaintiff that Dr Ali arranged for an x-ray in December 2014 which showed a stress type fracture in the right femur shaft. The plaintiff said that she remembered the x-ray but not the results but agreed that she had had problems with her right leg due to arthritis but in the hip area: T68.35. The plaintiff said that in due course these problems had been dealt with.
46. The plaintiff confirmed her evidence in chief that she had suffered no other falls other than the fall where she had hurt her shoulder and could not recall telling Dr Ali that she had had a fall shortly prior to June 2015 with Mobic not helping her: T69.15.
47. It was put to the plaintiff that she had problems in October 2015 with her left shoulder, left hip, right knee and lower back to which she agreed. The plaintiff said her left shoulder occasionally ached but there was no real problem with her right knee: T70.2. She also said that despite pain in various areas she was still able to work five days per week: T70.8. She denied that she had a lot of health problems at this time. She conceded that she occasionally had an ache in the muscle in her left shoulder and the outer arm as at March 2016.
48. It was put to the plaintiff that she had pain from her neck in early 2016. The plaintiff agreed with this and said that she was referred for physiotherapy: T71.12. She also accepted that she was prescribed Panadeine Forte for pain in her neck. However, she denied that it affected her work and said that her husband bought a special chair for her so that she was able to cope at work: T71.42.
49. The plaintiff could not recall telling Dr Ali in May 2016 that she had a fall three months earlier but confirmed that she had left neck pain and left upper arm pain at around this time and the neck pain continued all day and was relieved by lying down when she got home from work. She confirmed that the neck pain was described by her as being "10 out of 10" and that there was not complete night-time relief from taking Panadol and Panadeine Forte. She accepted that the neck pain at this time was "pretty bad" but said that her work was not affected by it and if necessary she could lie down on the couch at the office: T72.37-T74.15. In summary, the plaintiff accepted that she had neck pain at this time on a daily basis, it was described by her as being 3 out of 10 in the morning and at night it was described by her as being 10 out of 10 and it was unrelieved by taking Panadeine Forte: T74. She agreed that this was her position about six weeks prior to the accident but asserted that it did not affect her capacity to undertake her work and she went to work every day: T74.50.
50. The plaintiff was asked questions about her pay arrangements. She denied that there was a loose family arrangement in relation to her pay. She accepted that the second company run by her son, Speedy Wash (later established to be Global Wash Pty Ltd trading as Speedy Wash), paid her for her holiday entitlements earned while she was working for the first family company Fleet Wash. She also agreed that she had worked for Fleet Wash up until July 2016 and was then employed by Speedy Wash. She denied that the fact it was a family business allowed her family members to "manipulate" her pay. She said that in the financial year ending 30 June 2016 she had worked for the full year. She said her income varied as she and her husband decided that they would have a reduction in their salary to assist in the payments that were necessary to the liquidator of the subcontractor. She said that the amount in question was about $800,000. This differed to evidence later given by her son, Patrick Whitton. She agreed that in March 2017, Speedy Wash was established under the control of her son and that she and her husband work for the son's new company. She also accepted that she had signed an employment contract with her son's company for two days per week. She said that her husband pushed her to work but she was not going into work at this time. It was put to the plaintiff that the contract signed provided for her to undertake the work at home but the plaintiff said that she did not know this as she never read the contract: T79.13. She asserted that the job was set up for her so that she could work from home. However, the plaintiff said that she was not "interested" in working due to her depression: T79.44.
51. It was put to the plaintiff that she never told the defendant's medico-legal expert, Dr Harvey, of the neck problems which she had in 2016 but was able to tell him of the neck problems in 2014. The plaintiff was not aware whether she had but said that she may not have been asked by him. She agreed that she told Dr Harvey that she could not go to work as she could not go upstairs but said that while she could do the work at home she was not interested in it as she had problems due to her depression: T80.1; T80.11; T81.27.
52. The plaintiff was then asked a number of questions about the undertaking of domestic duties by her and what she told two occupational therapists who attended her house for a review. The plaintiff agreed that both occupational therapists had inspected her house and asked her about domestic duties performed by her before and after the accident. It was put to the plaintiff that she never told occupational therapist Ms Memon that she had a cleaner prior to the accident. The plaintiff denied this and said that she had told both occupational therapists she had a cleaner prior to the accident as she did not have time to undertake cleaning duties: T82.40.
53. It was put to the plaintiff that she told occupational therapist Ms Walcot that prior to the accident she did the grocery shopping whilst her husband waited at the shops and then he helped lift and carry the grocery shopping. She confirmed this was accurate: T83.6. It was put to her that she told Ms Walcot that after the accident her husband then did the shopping alone for three months. It was suggested to the plaintiff that the task then returned to the division of grocery shopping which had existed prior to the accident. The plaintiff denied this: T83.17; T84.6. The plaintiff said that her husband would not let her do the grocery shopping on her own and the only shopping she did was simply walking around a shopping centre usually with a grandchild.
54. In relation to meals, the plaintiff agreed that prior to the accident she prepared six meals per week. After the accident, the plaintiff said that she did no cooking for six months after discharge from hospital and in this time her husband cooked or her daughter prepared meals. She agreed that now meals were divided between her preparing them (three nights per week) and eating out or getting take away on other occasions. In relation to cleaning and general housework, the plaintiff said that she had a cleaner attend for three to five hours per week on Thursday prior to the accident as she did not have time to undertake cleaning. She gave evidence that after the accident she had a cleaner for between three and four hours a day undertaking the same cleaning duties: T85.10-.39.
55. It was put to the plaintiff that she had told Ms Walcot that prior to the accident she used the washing line for washing unless it was urgent when she would use the dryer. The plaintiff denied this and said that she never used the line prior to the accident because she had difficulty hanging out the washing: T86.4. She agreed that she told Ms Walcot that after the accident her husband did the laundry for six months and she placed it in the dryer. She also agreed that she had an ironing lady undertake the ironing both before and after the accident. The plaintiff agreed that both before and after the accident either her husband or her son attended to gardening and outside duties.
56. The plaintiff agreed that her current house was now half the size of the old house and that the cleaner could do the task in less time: T86.33.
57. In relation to work duties, the plaintiff said that payroll tasks were now more computerised, she could do the invoice work on the computer including at home but she was not able to do so as she was "no longer interested": T87.17.
58. The plaintiff denied having continuing neck problems, agreed that she had continued right hip problems and denied that she had problems with her left hip or right knee: T87.45-.14. She agreed that she continued to have back problems and could not lift her left arm above the shoulder: T87. She denied that the limitations with the left shoulder prior to the accident caused any restrictions in cooking.
59. The plaintiff was then extensively cross-examined in relation to the circumstances of the accident of 17 July 2016. The plaintiff agreed with the suggestion that she came down the corridor from the toilets, took a left hand turn and did not see the mobility scooter until she was lying on her back after it had struck her. The plaintiff denied, after being shown the photograph which became Exhibit 1, that just as she reached the end of the corridor before turning left, the mobility scooter was within her line of sight: T91.9. She also denied that she did not look to her right before proceeding out into the thoroughfare of the shopping centre. She denied that if she had made the "slightest glance" to the right that she would have seen the scooter: T92.31; see T92-T99.
60. In answer to a question from the court, the plaintiff said that she had an actual recollection of turning her head slightly to the right to look and stated that she did not see the mobility scooter: T98.44-T99.15. She denied that if she had looked to her right that she must have been able to see the scooter from the position shown in the photo which is Exhibit 1. The plaintiff said that at the time of the photograph which is Exhibit 2 she had already looked to her right before proceeding to her left. The plaintiff agreed that she could have stopped or stayed on the left-hand side of the thoroughfare after turning left but did not do so: T96.1-.9. The plaintiff claimed that she could not see the driver or the mobility scooter at any time.
61. It was put to the plaintiff that the hoarding on the shop to her right made sure that the scooter was more in the centre of the thoroughfare. The plaintiff denied this. The plaintiff also denied that the presence of the hoarding around the shop actually helped her in emerging from the corridor as it moved the scooter further out into the main thoroughfare: T99.46. In particular, the plaintiff denied that the presence of the shop hoarding to her right gave her a better and not a worse view of oncoming traffic: T103.6. In answer to the suggestion that the hoarding gave the plaintiff more time to see the approaching scooter, the plaintiff said that she would still have been run down by the scooter because the placement of the hoarding was not safe. The plaintiff again denied that the presence of the hoarding gave her more visibility when emerging from the corridor. The plaintiff denied that the hoarding did not obstruct her vision.
62. The plaintiff was then asked some questions about three photographs which became Exhibits A and B in the proceedings (previously MFI 1 and 2). In relation to the first photograph in Exhibit B, the plaintiff accepted that the hoarding in front of the shop forced the driver of the mobility scooter to travel further out from the shop front. The plaintiff was then asked a number of questions about the second photograph in Exhibit B. It was put to the plaintiff that if someone turned right into the main thoroughfare near the hoarding that there would be a blind turn to the right. The plaintiff initially did not understand the line of questioning and asserted that such a person would have a better view of the thoroughfare than she had because they would be looking in the direction where they would be going next and would see oncoming traffic. She also denied the suggestion that if the hoarding was not there that the visibility would be the same. After further questioning, the plaintiff accepted that there was a blind corner for a person turning right with the hoarding at the shop but denied that if there was no hoarding there would essentially also be a blind corner: T123.46; T124.8.
63. The plaintiff was then asked a number of questions about the pay which she received from the family companies. She denied the suggestion that her pay was changed and adapted when required because she worked for family companies. The plaintiff was then shown two PAYG Payment Summaries which became Exhibit 4 in the proceedings for Fleet Wash Industrial Systems Pty Ltd which showed different amounts of pay for her for the year ending 30 June 2017. The plaintiff could not explain the difference and said she was not doing the accounts for Fleet Wash at this time. The plaintiff was then asked a number of questions about her work for a new family company which traded as Speedy Wash. The plaintiff confirmed that she signed an offer of employment from Global Wash Pty Ltd trading as Speedy Wash Australia on 3 April 2017. This became Exhibit 5 in the proceedings. The plaintiff said that her employment was transferred over to Speedy Wash. Initially the plaintiff said that she had not done any work since the accident and never went back to work. She then altered her evidence slightly and said that although she did go back to the work premises after the accident she did very little except answering phones on a few occasions. The plaintiff accepted that she was paid a wage from Global Wash even though she really did not do the work for it. The plaintiff confirmed again that she was not responsible for the accounts for the company past the date of the accident and had not looked at a payslip in relation to her since the date of the accident.
64. The plaintiff confirmed that she had been employed by Global Wash from April 2017 and continued to be employed by it. However, she said that she had not worked at least two days per week since April 2017 in accordance with the contract. The plaintiff said that often she attended the work premises of the family company for a couple of days per week but found that she could not work and undertook very limited activities. When she did turn up for work the plaintiff confirmed that she was able to get up the stairs to the upstairs office but with some difficulty. The plaintiff said that her husband urged her to go into work as she needed to get out of the house and not work at home. She stated that while she often went in two days a week and it took a long time for her to climb the stairs that she was not able to do the work including basic book work two days a week as she found she was depressed. She denied that this was due to age factors and not due to the fact that she was disinterested due to depression.
65. The plaintiff was then asked a number of questions commencing with the suggestion that she had many physical ailments which she denied. When it was put to her that she had a serious neck problem three weeks before the accident, the plaintiff said that was many years ago and she was very busy at the time at work and in organising family matters. She then stated that she actually threw out the Mobic which she had been prescribed for her neck pain. She said she did not cut back on her work duties at this time even though she was complaining of daily neck pain at a level of three out of ten extending to ten out of ten by the end of the day which was unrelieved by the taking of Panadeine Forte.
66. On further questioning, the plaintiff confirmed that she did have two falls prior to the accident which she had not recalled on the first day of her oral evidence: T138.18.
67. The plaintiff was asked about a number of medical entries in consultation notes including one that suggested that she had said as at 20 December 2016 that she had long-term pain in her left shoulder. The plaintiff said that she had never had long-term pain with her left shoulder after the shoulder replacement. The plaintiff confirmed that she was taking Endone but not for her left shoulder but for arthritis problems and the bursitis in her leg. She also agreed that she had had some back problems prior to the accident.
68. It was put to the plaintiff that in March 2017 she said to her general practitioner that she had arthritis in the cervical spine which gave rise to pain and restrictions of movement. She confirmed this and said that it started in the lower back and travelled up to her neck. She said she did not have any ongoing problems with her neck as at the time of the accident.
69. The plaintiff confirmed that the pain which was ongoing from the accident was pain in the upper part of her right leg which went down the leg and included pins and needles on the inside of her right leg. She said that pain and restrictions prevented her doing activities. She denied that the matters which prevented her undertaking activities included problems from prior to the accident including pain in the left shoulder, arthritis, neck pain, back pain and bursitis in her legs. The plaintiff said that despite problems and her age she had good physical condition at the time of the accident. She also denied that the combination of the various ailments which she had prior to the accident had led to the restrictions which she claimed she currently had: T141.23-T145.37.
70. In re-examination, the plaintiff confirmed that prior to her consultation with Dr Ali in May 2016 six weeks before the accident she had suffered from neck pain for the previous three months. She also agreed that she had suffered from a fall. Despite these she said that she continued to work at her job and occasionally had to lie down and was given medication for the pain. The only need for regular treatment was to go to Dr Ali for her diabetes medication. She also stated that in June 2016 Dr Ali ceased or cancelled the prescription for pain medication for her neck as it was no longer needed and she had no ongoing neck problems after this time. She stated that as at the date of the accident on 17 July 2016 she was no longer taking Panadeine Forte for her neck. She also confirmed that Dr Ali's practice was the only practice prescribing medication to her at the time of the accident.
71. In relation to the report of Ms Walcot, the occupational therapist, the plaintiff stated that prior to the accident she prepared six meals per week and on Sundays cooked for between 30 and 40 family members and cleaned up afterwards. After the accident, the plaintiff said that she could not recall what she told Ms Walcot in relation to cooking but she said that she only prepared the meals and her husband cooked them. She also confirmed that she did not tell Ms Walcot that she had got back to preparing large family dinners on a Sunday. She said she had not undertaken the task since the accident.
72. The plaintiff Mrs Whitton impressed the court as essentially an honest and straightforward witness who was doing her best to answer questions truthfully. On occasions she found the questions asked of her difficult to follow. However, it is clear that the plaintiff holds the defendant to blame for her accident due to the visibility at the exit near the amenities corridor being, in her view, limited at the time. Often, the plaintiff had to be asked a large number of questions before she made concessions. Nevertheless, generally I accept the evidence of the plaintiff and that she is a witness of truth. I make more comments on the plaintiff's evidence including in relation to specific aspects further below.

Oral evidence of Patrick Whitton

1. Oral evidence was given by Mr Patrick Whitton who is the youngest son of the plaintiff. Mr Whitton gave evidence of his extensive commercial experience and the fact that he came to work in his father's company in 2007. Mr Whitton stated that he was the managing director of Global Wash Pty Ltd trading as Speedy Wash Australia, which was the company which ran the current family business. The company had the distribution rights in relation to an Italian product which was a truck washing machine sold under the brand of Speedy Wash and made by an Italian business called Bitimec. Global Wash Pty Ltd had run the family's business since 2017. Prior to this, the family business was run by Fleet Wash Industrial Systems Pty Ltd. Prior to 2017, Fleet Wash had designed and manufactured and installed truck washing machines for the resources sector including using the Bitimec washing product.
2. Mr Whitton gave evidence in relation to the company's business and premises from 2007. He agreed that from his commencement with the company Fleet Wash, his mother had been working fulltime and he was aware that she had been working fulltime prior to his commencement in 2007. Mr Whitton said that the plaintiff, his mother, undertook office administration, accounts, answering the phones and managing staff. He said his father undertook accounting duties as he was a qualified accountant. As at 2007, Mr Whitton said that his mother worked between 9am to 5pm five days per week but undertook work as needed outside these hours as it was a family company. He said he quite often saw her working on company matters at home. Mr Whitton confirmed that the plaintiff continued working for the family business fulltime until the accident.
3. Other than changes to the business premises and the size of the business, Mr Whitton denied that there were changes to the family business from 2007 until the date of the accident. In this period, the business had grown and moved four times, with each premises having a sales and warehouse function with the office for the company being located upstairs at each business premises. Mr Whitton gave evidence that in 2017 the company's premises moved from Seven Hills to Riverstone and the new premises had an office upstairs with about 17 to 20 stairs with a slight landing halfway up and a balustrade on each side of the stairs: T153.34.
4. Mr Whitton was then asked about his mother's physical problems prior to the accident in 2016. He confirmed that she had a right total knee replacement in 2010 and a left total shoulder replacement with only a few weeks off work and with her continuing to work on office matters from home while she recuperated. From his observations, the plaintiff recovered from both operations and he noted no limitations in his mother's role at work. He also did not notice other limitations outside work. Prior to the accident, Mr Whitton said that he saw his mother at work and otherwise almost daily and with family events also on the weekend. He confirmed the plaintiff's evidence that there was a large family get-together each Sunday and a family dinner occurred. He said that the plaintiff prepared the dinner with everyone assisting to clean up afterwards.
5. Prior to the accident, Mr Whitton said that his mother did not complain to him in relation to pain on the left of her neck. He also said that prior to the accident the plaintiff did not appear to suffer from depression or anxiety. He described the plaintiff as a "joyous person" who was happy, proud and confident and spent considerable time with her grandchildren. In relation to her work in the family business, Mr Whitton said the plaintiff worked as needed and was diligent prior to the accident. He said that there was no discussion about the plaintiff retiring and she appeared to love her work.
6. Mr Whitton then gave evidence about attending the defendant's shopping centre at Woy Woy on 22 July 2016, several days after the accident, with his father when film and photographs were taken. He described the purpose of the visit as to understand what had happened to the plaintiff in the accident. Mr Whitton gave evidence in relation to the taking of two videos which became Exhibits C and D in the proceedings. He also gave evidence in relation to the photographs which became Exhibits A and B in the proceedings which were taken at that time. Mr Whitton said that the videos and the photographs were taken from an iPhone. Mr Whitton said that when he was at the shopping plaza on 22 July 2016, he saw no signs alerting patrons to the possibility of mobility scooters being used in the shopping centre or signs directed to how the drivers of mobility scooters should drive their scooters. He also said that he did not see any convex mirrors located in the shopping centre.
7. Mr Whitton then gave evidence about finding out about the accident and seeing his mother on the day of the accident and soon after. Mr Whitton said he was informed of the accident on the day of the accident and almost immediately travelled to see his mother at Gosford Hospital. He said she was in the emergency ward in her own room and described her as being pale, unresponsive and looking asleep. He stayed for several hours and when she woke up she was groggy and immediately said she was in significant pain. Mr Whitton said that the plaintiff was transferred to the Hospital for Special Surgery in Sydney where the plaintiff had a few weeks of rehabilitation. He said he saw her either daily or every second day. He noticed from his observations that the plaintiff was obviously in pain as there was moaning, occasional crying and grimacing. He agreed that after a few weeks the plaintiff went home. He said his family members had moved the contents of his mother's bedroom downstairs while she was recovering. He said there was a slight improvement in her condition after four to five weeks but that her mood had changed and she was not the same person. He said she was withdrawn, sad and did not talk in relation to her grandchildren. He said these observations of her mood continued to the present day. He also noted that when she did attend work she appeared very sad, withdrawn and was silent.
8. Mr Whitton confirmed that between the date of the accident and December 2016 the plaintiff did not work in the family business. He said that about this time, having regard to the fact that his father needed to spend more time with his mother, the plaintiff, there was a need for younger family members to take control of the company and he volunteered to do this. Mr Whitton also gave evidence that there was a problem with a company contract at this time and administrators or liquidators of a company which had engaged Fleet Wash sought to claim the return of the contractual payments and commenced legal proceedings against Fleet Wash. Although this matter was settled, Mr Whitton said the proceedings had to be disclosed to customers and this had a significant deleterious effect on business. At that time, Mr Whitton said that Fleet Wash decided to change its business model and only to design and supply equipment and not install equipment at mine sites. Also at this time it was decided for Fleet Wash not to continue in business. Mr Whitton said that he then took control of the business as Managing Director of Global Wash Pty Ltd which sold Speedy Wash products. The family members who were employees of Fleet Wash then became employees of Global Wash. The family members entered into contracts including the plaintiff. Mr Whitton gave evidence that he was the only director and shareholder of Global Wash. He also confirmed that Global Wash made an offer of employment to his mother, the plaintiff, as the family had agreed that it was important for the plaintiff's recovery to get her back to work. He also said that the plaintiff was important to the company.
9. He said that initially the plaintiff's reaction was that she did not want to come back to work. A lot of pressure was put on her by family members to return as the belief was held that she needed to do so for her own well-being. He said the plaintiff at this time regarded herself as useless and she did not want to be a problem for family members. The offer of employment was signed by the plaintiff at this time for her to work two days per week. While it was regarded as preferable for the plaintiff to do her work at the work premises, the contract provided for the work to be done at home. He said it was recognised that the stairs at work posed a problem for the plaintiff but it was necessary to have her come into the premises, as she was not motivated to work from home. He said there was no motivation problem with the plaintiff prior to the accident. Mr Whitton said the plaintiff had attended the premises on and off from the end of 2017 to today. Sometimes she came in two days per week. She answered phones and occasionally proofread letters and documents but she took a very lengthy time to do straightforward tasks and was not efficient. She also on occasions assisted in a family jewellery business. Mostly, the plaintiff came to work with Mr Whitton senior, her husband. Ascending the stairs was a slow process with the plaintiff taking one of them at a time and it could take her seven to ten minutes to go up or down the stairs. On average, Mr Whitton assessed that the plaintiff undertook less than four to five hours per week of substantial work for Global Wash.
10. Mr Whitton gave evidence that when the plaintiff started working for Global Wash she was paid fulltime leave entitlements from her previous duties at Fleet Wash although she was not working at the time. Then she was paid on a part-time basis by Global Wash. Mr Whitton gave evidence that Global Wash was still trading with a turnover of approximately $1.9 million in 2017 to 2018 and a substantial gross profit. He stated that if his mother had not been injured in 2016 he was of the opinion that his business could afford to have retained her on a full-time basis and he would have requested her to work on that basis.
11. In cross-examination, it was put to Mr Whitton that the rearrangement of the companies' affairs between Fleet Wash and Global Wash in 2017 was done because Mr Whitton senior was effectively retiring. Patrick Whitton denied this and said the business was run through Global Wash because he wanted to develop the business himself from a product which he had developed. He also said the design of the family company changed from design/construct and installation to merely design/construct and supply. Mr Whitton agreed that Global Wash now ran the business which had previously been undertaken by Fleet Wash.
12. Mr Whitton was then asked some questions by senior counsel for the defendant in relation to the plaintiff's work after the accident. Mr Whitton said that in April 2017 there was a formal offer of employment by Global Wash to the plaintiff which she accepted which had the aim to get her back to work. However, he said that his mother did not physically turn up to work as required under the contract. The obligation under the contract was to work two days per week from home but Mr Whitton senior was of the view that the plaintiff should come into work. He said that the plaintiff came into work when she could and there were no set times. This had continued from April 2017 to today. Mr Whitton confirmed that the plaintiff usually came in one or two days per week and did effectively four to five hours of paid work in that time. He could not be more specific as to the times when the plaintiff went to work.
13. Mr Whitton was asked questions in relation to the apparent payment from 30 March 2017 to 28 June 2017 to the plaintiff of $1,168 per week. He could not confirm this but accepted that payslips he was shown established that. When asked to clarify the payments he suggested talking to Mr Whitton senior. He denied that the invoices and other accounts documents involve payments to assist his mother in her case. He said his mother was paid money from the business as the family needed her to work so that she became mentally and physically strong.
14. Mr Whitton was then asked questions in relation to payments to the plaintiff from June 2017 to the end of December 2018. He agreed that the plaintiff was paid the gross sum of $384 per week in this period for working for the Speedy Wash business. He accepted that the payments involved paying the plaintiff for work she was not doing out of the business funds but said that she provided a service to the company when she could as she was injured. He denied that the accounts of the business were manipulated to suit the fact it was a family business and said there had been a formal offer of employment to the plaintiff. He said that the plaintiff was employed part-time and was doing her best to perform her functions having regard to her injuries. He agreed that the hours which the plaintiff worked could not be determined from the business records and the records also did not disclose when the plaintiff worked and did not work.
15. In relation to the payment fulltime by Global Wash to the plaintiff in 2017, Mr Whitton confirmed that Global Wash paid to the plaintiff her holiday entitlements which she had accrued at Fleet Wash. Whether the plaintiff was entitled to that, Mr Whitton said that that was what he did and he chose to do it. He agreed that the plaintiff did not provide any work to the family business after the accident until April 2017.
16. Mr Whitton confirmed that Global Wash was still paying the plaintiff, his mother, now in accordance with the April 2017 contract and would employ the plaintiff when she is able to work including offering her to work at home.
17. Mr Whitton was asked questions about his evidence of attending the shopping centre soon after the accident and not seeing any signs alerting shoppers to the presence of mobility scooters in the shopping centre. It was put to him that you did not need a sign to tell you that, which he disagreed with and said that there needed to be a safe environment. He also suggested that a barrier would have been a good idea to eliminate risk but did not provide details. He asserted that the hoarding that was present blocked the view of the plaintiff and the lady riding the scooter of each other. However, he accepted that he did not know what their views were at the time.
18. Mr Whitton was cross-examined in relation to his knowledge of the plaintiff's injuries prior to the accident. The evidence essentially established that Mr Whitton was not aware of the plaintiff having any considerable problems with her right knee or left shoulder after the total replacements. In relation to the shoulder, he said the plaintiff made no ongoing complaints to him. He said he was not aware that she was limited in lifting her left arm above shoulder height as she appeared to him to get around perfectly. Mr Whitton was also not told by the plaintiff about problems with her hips but he was aware of back pain which he said had progressively got worse since the accident in 2016. He said he had heard the plaintiff had problems with her neck but did not know the detail of that. In particular, he said he was not aware of the plaintiff having any significant problems with her neck prior to the accident. He stated he was not aware of the plaintiff suffering severe neck pain in the three months prior to May 2016. He said he was also not aware that the plaintiff was taking Panadeine Forte for her neck at this time and it was not assisting her. He agreed that he did not know much about the plaintiff's medical issues both before and after the accident.
19. In re-examination, Mr Whitton confirmed that in the period between February 2016 and May 2016 his mother had attended work every day and was able to do her work professionally. He confirmed being aware that his father had bought a special chair for his mother to sit in in this period.

The oral evidence of Ms Basema Elmasri

1. Oral evidence was given by Ms Basema Elmasri, who is a solicitor with the plaintiff's solicitors, Turner Freeman, in Parramatta. Ms Elmasri gave evidence of attending the defendant's shopping centre at Woy Woy on the first day of the trial and taking a number of photographs with an iPhone, nine of which became Exhibit E in the proceedings. Ms Elmasri gave evidence describing the view given in each of the photos and where she was standing. Ms Elmasri stated that the photographs were taken with an iPhone at her eyesight level.

The oral evidence of Mr Val Whitton

1. Oral evidence was given in the proceedings by Mr Val Whitton who is the husband of the plaintiff. Mr Whitton is an accountant by profession and is currently employed as the Commercial Manager of Global Wash Pty Ltd with responsibility for commercial matters including contractual arrangements.
2. At the time of the final hearing, Mr Whitton was 75 years of age and had been married to the plaintiff for over 55 years. After giving evidence of his employment history, Mr Whitton stated that he commenced in private practice as an accountant after 1971. Apart from some breaks where Mr Whitton ran a farm and then a hotel, he practised as an accountant before becoming employed by Fleet Wash. He gave evidence that the plaintiff, Mrs Whitton, had worked for him in his private practice undertaking administrative duties, the preparation of accounts and secretarial duties on a full-time basis.
3. In about 1995, Mr Whitton established Fleet Wash with his brother. The business started initially with hand washing cars and expanded into an automatic washing system for trucks. Mr Whitton gave evidence that the plaintiff became a full-time employee of Fleet Wash in 1995 and undertook secretarial duties, payroll duties, dealing with accounts and administration duties. He said her fulltime duties were fitted around family responsibilities. Mr Whitton emphasised that the plaintiff had a strong work ethic and he described her as a "go-getter" who worked right up to the end of each confinement with each of her children and went back to work soon after the birth of each child.
4. Mr Whitton gave evidence that the business of Fleet Wash was extremely busy up to the end of the 2015 financial year designing, building and installing heavy vehicle washing systems for the mining industry particularly large companies such as Rio Tinto and BHP. Up to the financial year ending 30 June 2015, Mr Whitton said that Fleet Wash for the previous several years had been turning over between approximately $3.5 and $6.8 million per year, although the taxable income after the payment of salaries was not large because the business did not have a high margin: T465.3.
5. Mr Whitton said that a problem arose in the business in the 2015-16 financial year as the liquidator of a contractor sought to make a claim in relation to an alleged preference payment to Fleet Wash. This resulted in proceedings in the Federal Court. Mr Whitton gave evidence that although the proceedings were ultimately settled for a very modest payment by Fleet Wash, there was a need in tender documents to disclose the litigation. He stated that this had a substantial detrimental effect on Fleet Wash's business. Also at this time, the plaintiff's accident occurred and the need to provide assistance to the plaintiff following her injury took up part of Mr Whitton's time. He therefore stated that a business decision was made for Fleet Wash to exit the supply and installation of washing systems to the mining industry. Thereafter, Fleet Wash ceased to trade, the assets of the company were sold to the employees (but not the plaintiff), thereafter Global Wash Pty Ltd ran the family business and part of the arrangement included Global Wash taking over the payment of the leave entitlements of the plaintiff which she had outstanding.
6. Mr Whitton said that throughout the period from 2016 to April 2017, Fleet Wash remained solvent and had a credit balance to its bank account. Mr Whitton said that at this time, due to the fact that the turnover of Fleet Wash was down, he and the plaintiff took a decision to take a pay cut so that the other employees were paid their normal wages. Mr Whitton stated that at the time of the restructure he was the only director and shareholder of Fleet Wash and his son Patrick became the director and shareholder of Global Wash. At the time of the restructure, Mr Whitton said that about $20,300 was owed to the plaintiff in leave entitlements. At this time Mr Whitton said the plaintiff was not strong enough mentally or physically to work.
7. Mr Whitton gave evidence that Global Wash was a profitable company. He said that whilst having a substantial turnover, Global Wash made no taxable profit in the year ending 30 June 2017. In the year ending 30 June 2018, Mr Whitton said that Global Wash had about $1.9 million in turnover with a gross profit of $633,000 and a taxable profit of about $6,000. For the year ending 30 June 2019, there had been growth in sales with a turnover of about $2.1 million. Mr Whitton gave evidence that Global Wash had approximately $275,000 in credit at its bank. He gave evidence that in his opinion if the plaintiff had not been injured, she would have remained employed fulltime at Fleet Wash and would be employed fulltime at Global Wash. He said the plaintiff was an invaluable employee, a hard worker and a "go-getter". Even as at 2018 when Global Wash only had $6,000 taxable income, Mr Whitton said that the company could have forgone other expenditure, for example the purchase of new vehicles, in order to pay a salary to the plaintiff. As Global Wash was currently cash flow positive, Mr Whitton expressed the view that Global Wash would not have any difficulties taking on further employees if it so wished having regard to its financial position.
8. In relation to the position at Global Wash currently, Mr Whitton said it was a family business and that the various family members completed the work which the plaintiff had previously undertaken prior to the accident.
9. Mr Whitton was asked about the two PAYG payment summaries for the plaintiff for the year ending 30 June 2017 which became Exhibit 4 in the proceedings. Mr Whitton gave evidence that the computer generated typed version was incorrect and that the handwritten version showing gross payments to the plaintiff of $4,880 for the year ending 30 June 2017 from Fleet Wash was correct and represented payments to the plaintiff for July 2016. When the error was identified, there was an adjustment with the Australian Taxation Office in relation to the PAYG returns.
10. Mr Whitton then gave evidence in relation to his knowledge of the events of the day of the accident. His evidence was generally consistent with that of the plaintiff. He confirmed that he and the plaintiff had never been to the Deepwater Plaza Shopping Centre before. Mr Whitton stated that when he arrived at the accident site the plaintiff was writhing in agony and was in excessive pain. Mr Whitton stated that the plaintiff was in Gosford Hospital for three days before being transferred to the Norwest Hospital for Special Surgery where she remained for two weeks which included extensive physiotherapy before being discharged to home. Mr Whitton stated that the plaintiff when discharged was on crutches and had great trouble walking. He said that at home she was initially unable to do anything except feed herself. Her bedroom was relocated to the ground floor of the house. She also needed assistance to get dressed and with her shoes.
11. Mr Whitton gave evidence that there had been a total change in the plaintiff since the accident. He said the plaintiff had from his observation become heavily depressed with consistent pain which sometimes woke her at night. He said this continued to the present day.
12. Mr Whitton gave evidence that following the plaintiff's discharge from hospital the plaintiff did no work in the business for three months. After that time, he strongly encouraged the plaintiff to come to work and she came to work at the business for about two to three days per week. He said the plaintiff did not want to continue to do any work and it was a challenge to get her to come to work. In relation to the two to three days per week where the plaintiff came to work following a period of three months after the discharge from hospital, Mr Whitton stated that the plaintiff answered the telephones, undertook reception duties, dealt with the processing of documents and did typing. He estimated the number of hours of work performed by the plaintiff as being one to two hours per day on the days she was there. Accordingly, the plaintiff worked between four and six hours per week.
13. Prior to the accident, Mr Whitton said that there had been discussions about retirement but that he and the plaintiff had made no active plans to retire and did not regard themselves as "retiring people". He denied that there was any plan prior to the accident for him and the plaintiff to reduce their duties in the family company and for his son Patrick to take over the business. Mr Whitton said that two months before the accident he had commenced a Master of Engineering degree which he completed in September 2018. He said he would not have commenced this degree if he had any plans to retire.
14. Mr Whitton gave evidence that prior to the accident he and his wife lived in a two storey house. He said they always had a cleaner as the plaintiff worked fulltime. However, he gave evidence that not all the cleaning was done by the cleaner who attended weekly and undertook a weekly vacuuming, mopping, cleaning of the kitchen and the bathrooms. He said other cleaning duties which were done regularly were undertaken by the plaintiff and included cleaning up after grandchildren visited. Mr Whitton said that the plaintiff cooked all the meals. He said that the plaintiff cooked on Monday-Wednesday nights, on Thursday they ate out whilst shopping, on Friday they had takeaway food, on Saturday night they had a simple meal and on Sunday night they had a big family dinner. Mr Whitton said the plaintiff was primarily responsible for cooking and preparing the Sunday dinner with some assistance from daughters and daughters-in-law. He said the cleaning up done afterwards was mostly completed by himself with assistance from the plaintiff and his daughters and daughters-in-law.
15. In relation to the position after the accident, Mr Whitton said the plaintiff undertook no cleaning other than simple dusting like tasks: T488.11. He said the cleaner attended now for about three hours a week (although he conceded that the plaintiff would have a better knowledge of the time) and he did other cleaning for between four to six hours per week. In relation to cooking, Mr Whitton said that he cooked on Monday-Wednesday nights as the plaintiff could not stand up to do the cooking. He said she did some preparation. He stated that he cleaned up after the meals as this involved bending. He estimated undertaking at least two hours to do cooking and cleaning up on the three days per week when he cooked.
16. Mr Whitton said the plaintiff attended hydrotherapy weekly and he drove her due to difficulties with the parking. He said the hydrotherapy was of benefit to the plaintiff as it assisted her leg movement and he estimated that driving the plaintiff to the pool and taking her home took him about two hours on one day per week.
17. Mr Whitton gave evidence in relation to his limited knowledge of the plaintiff's health problems prior to the accident. He stated that the replacements of the right knee and left shoulder did not cause the plaintiff to stop work. In particular, Mr Whitton said he was not aware of the plaintiff having neck pain shortly before the accident. I very much got the impression that the plaintiff did not complain in relation to her health problems prior to the accident and accordingly, Mr Whitton had little knowledge of them. An example is that Mr Whitton was not aware of the plaintiff's inability prior to the accident to lift her left arm above shoulder height. In addition, Mr Whitton said the plaintiff was not troubled now by her right or left knees.
18. Mr Whitton stated that he was not aware of the plaintiff having falls other than the fall which led to her left shoulder replacement. In particular, he was not aware of a fall a few months before the accident or a fall in June 2015. In relation to problems with the plaintiff's right hip prior to the accident, Mr Whitton recalled her discussing her right hip with Dr Brighton and him saying that it did not need to be replaced but he said the plaintiff was in a better position to state what her problems were in her right hip prior to the accident. Mr Whitton was probably in error in this evidence and the consultation likely occurred after the accident. He could not recall any significant problems with the plaintiff's right hip prior to the accident. Mr Whitton said that he did not recall her having any problems with her left hip. He did not recall the plaintiff complaining of pain in her right hip prior to the accident.
19. Mr Whitton was asked further questions about the plaintiff's pay. He said she was not paid for her work which she undertook for Fleet Wash after the three month non-working period following her discharge from hospital. He said he regarded the work in this period as being good for the plaintiff's mental condition. When the plaintiff came back to work for Global Wash trading as Speedy Wash Australia in April 2017, she was paid approximately $1,200 per week which consisted of two days' work pay and three days' payment for her holiday leave accrued for Fleet Wash. Exhibit 16 was a PAYG payment summary for the financial year ending 30 June 2017 showing that the plaintiff was paid $15,184 from 30 March 2017 to 30 June 2017 by Speedy Wash Australia.
20. Mr Whitton gave evidence that they sold their two storey house because of his wife's injury as she could not get up the stairs. When it was sold, some of the proceeds were used to pay back a business overdraft which was supported by a mortgage on their house.
21. In cross-examination, Mr Whitton confirmed that he did four to six hours of additional cleaning per week as well as the work undertaken by the cleaner and it took him two hours once a week to take the plaintiff to hydrotherapy. He denied that the plaintiff was capable of assisting him in cooking a meal each night and in fact was capable of cooking each night. He also denied that it was not necessary to undertake considerable cleaning tasks in addition to the weekly cleaner.
22. Mr Whitton confirmed that he did outdoor gardening and lawn mowing which is inconsistent with the report of Ms Memon. He specifically denied the proposition that he did very little now which he did not do prior to the accident.
23. Overall, I regarded Mr Whitton as an honest witness, particularly as to the financial positions of the family companies. He appeared to have little recollection of the plaintiff's pre-accident physical problems. His evidence as to the plaintiff working from three months after discharge was contrary to the evidence of Patrick Whitton. In general, I prefer his evidence as to the tasks he did after the accident as he was the person who did them and the plaintiff was focussing on her injuries and recovery.

The defendant's manual

1. The plaintiff tendered as Exhibit G in the proceedings a document from the defendant entitled "Dexus Property Group Work Health Safety & Liability Manual" for June 2016. This was the month before the accident.
2. While there are parts relating to access to persons with a disability to properties, hazard management and safety management, there is no mention in the manual of mobility scooters or any policies relating to the use of mobility scooters in shopping centres owned by the defendant.

Evidence for the defendant

1. The defendant tendered a number of documents and photographs. I have already discussed above some of the photographs which the defendant tendered.

The incident report

1. The defendant tendered an incident report prepared by a security guard on the day of the accident which became Exhibit 6 in the proceedings. The report shows that the defendant had in place a procedure for the reporting of incidents which is confirmed by the manual which was Exhibit G in the proceedings. The report confirms that the incident was recorded on CCTV and that the time was 12:15pm. The name and details of the plaintiff and the rider of the scooter, a Ms Connolly, are included in the form. The observations of a witness, Mr Hoyland, are included. The document appears to be prepared by a "M Shaw" of security. On page 5 of the document the following comments are provided by the security officer: "Security comments While interviewing Gail Connolly about the incident. She informed me that she was in a rush to see her dad in hospital, And all so [sic] her Periferal [sic] eye sight isn't very good after having a stroke. Gail told me she didn't see Marree until it was too late."
2. The document clearly confirms that the rider of the scooter, Ms Connolly, did not see the plaintiff come out from the amenities corridor and merge into the thoroughfare at the shopping centre until it was too late for her to stop the mobility scooter and avoid a collision.

Subpoena to Produce filed 25 July 2019 and "Periskope Incidents" document

1. The defendant tendered as Exhibit 7 a Subpoena to Produce, addressed by the plaintiff to the defendant, which was filed on 25 July 2019. It was common between the parties that only the "Periskope Incidents" report and the manual which became Exhibit G was produced in answer to the subpoena, although later Exhibit 6, the "security incident report" was also produced.
2. The "Periskope Incidents" document confirms that in a period of about five years prior to the accident there were only three incidents involving a mobility scooter recorded in the defendant's records. The accident involving the plaintiff being struck by a mobility scooter is the only incident recorded where a person was struck as a shopper emerging from a corridor or in a main thoroughfare of the centre.

The expert liability evidence

1. Expert liability reports were relied upon by both parties to the proceedings. Reports were prepared and became part of the evidence from Mr David Dubos briefed on behalf of the plaintiff and Mr Ken Horrigan briefed on behalf of the defendant. It was not in dispute that both experts were experts in safety management issues. The reports which became part of the evidence were as follows: 1. Report of Mr David Dubos dated 23 April 2019; 2. Report of Mr Ken Horrigan dated 20 June 2019; 3. Responsive report of Mr David Dubos dated 23 July 2019; 4. Transcript of a conclave conference between Mr Dubos and Mr Horrigan held on 5 August 2019; and 5. Supplementary report of Mr Ken Horrigan dated 20 June 2019 but agreed as being prepared on 2 September 2019.
2. A feature of the reports and the conclave evidence which was transcribed from 5 August 2019 was that none of the experts had visited the shopping centre where the accident occurred when the various principal reports and conclave transcribed evidence were prepared. Subsequently, both experts visited the defendant's premises where the accident occurred. Mr Horrigan, the expert briefed for the defendant, also took a number of photographs from a location which he estimated was the position where the plaintiff indicated that she looked to her right before turning left and entering the thoroughfare immediately before the accident: see Exhibit 1 and T248.34.
3. Mr Horrigan gave some factual evidence in relation to the photographs which he took on 20 August 2019, the day before he gave that oral evidence. The factual evidence was given before both experts gave oral evidence in conclave.
4. The four reports and the transcription of the conclave report dated 5 August 2019 are very lengthy and detailed. There is some repetition of the views within the reports. What I will attempt to do is set out some of the major features of each report and the transcription of the conclave evidence which became Exhibit J in the proceedings.
5. Opinions expressed in Mr Dubos' first report dated 23 April 2019 included the following: 1. Mr Dubos refers in his first report to the fact that he had a conference with the plaintiff on 8 April 2019 when he discussed the circumstances surrounding her injury accident. The plaintiff's son Patrick was also present at the conference. In paragraph 8 of his first report, Mr Dubos notes the documents and instructions provided to him which included CCTV footage of the accident which he confirmed in his oral evidence was the film which was part of Exhibit F in the proceedings; 2. The protrusion of the construction hoarding from shop number 46 of the shopping centre to the right of the exit to the amenities corridor obscured any view of the plaintiff of the oncoming mobility scooter. In addition, the operator of the mobility scooter's forward vision was obscured also by the protruding hoarding: paragraph 12; 3. It was foreseeable that a customer in the shopping centre would walk from the amenities corridor, with the construction hoarding protruding to the right of the corridor, and be struck by a motorised scooter, which was permitted in the shopping centre: paragraph 13; 4. The shopping centre operator would in the normal course of events be responsible for general property inspections to assist in safety, standards of presentation, repairs and operations. The shopping centre management would take steps to ensure that access control and general security arrangements were in place and maintained and to oversee public safety risk and capital works in relation to any construction works on the property which were associated with public areas: paragraph 16; 5. Any safety management systems in operation at the centre had not been adequately implemented in terms of mobility scooter arrangements for safety, safety signage, visibility and safety and construction works or renovation works at the shopping centre: paragraph 17; 6. The availability of CCTV surveillance in the shopping centre enabled the shopping centre management to be in a position to manage safety in relation to the use of mobility vehicles in the shopping centre. It is common knowledge that many seniors and retirees operate mobility scooters: paragraph 18; 7. The Safe Work Australia July 2014 safety guidance publication "Traffic Management: Guide for Shopping Centres" provides information on how to manage risks that may arise from traffic movements in shopping centres and sets out methods of managing pedestrian, cyclist and passenger vehicles, such as motorised mobility scooters, and traffic: paragraphs 19-20; 8. Mr Dubos had no precise information about the speed at which the scooter that struck the plaintiff was operated but the rider said she was in "a rush" and Mr Dubos noted that scooters can generally be operated up to 10kph; 9. The lack of visibility at the point of the accident due to the construction hoarding, was exacerbated by the fact that the passageway ran at an angle of about 30 degrees in the direction of the path of travel of the mobility scooter. As a result, the lack of visibility was exacerbated by the 30 degree angle of the walkway in that direction. This meant that the exit wall from the amenities corridor at the right side of the corridor protruded further into the walkway than the exit wall on the left side of the corridor and this contributed to the lack of visibility and safety: paragraph 23; 10. As the plaintiff was turning left out of the amenities corridor, her physical presence was totally obscured by the one metre wide construction hoarding until she was struck by the mobility scooter. The sightlines for the mobility scooter operator were totally obscured. This was exacerbated by the direction of the hoarding which was 30 degrees to the horizontal away from the direction of travel of the mobility scooter: paragraph 24; 11. These circumstances required the hazard in the area to be highlighted with safety yellow or orange signage indicating reduced visibility and the fact that pedestrians were exiting the amenities corridor, for the safety of customers in the shopping centre. This would have been a reasonable and prudent action to take for safety by the management of the shopping centre: paragraph 26; 12. A range of reasonable alternatives were available, which, if properly implemented, could have prevented the accident to the plaintiff. An adequate safety program should have been put in place by the defendant to have clear signage showing that motorised mobility scooters should not be operated in the shopping centre at more than 3kph, safety warning signage should have been placed at each end of the protruding hoarding with signs and a traffic management plan for the shopping centre should have been developed and implemented: paragraphs 27 to 28. In addition, approved construction works should have been inspected so they did not create safety hazards for pedestrians and customers. A general safety program, including regular inspections of all parts of the shopping centre, should have been carried out by the defendant. Any areas where hazards may be present needed to be effectively assessed and then managed or controlled for the safety of visitors and other persons: paragraph 28; 13. Mr Dubos noted that there was signage at the shopping centre to the following effect: "No bikes or skateboards to be ridden or left on veranda area": paragraph 58. There was also a sign asking customers to refrain from "bringing bikes, skateboards and scooters" into the centre: paragraph 59; 14. A product safety guide published by the ACCC in relation to mobility scooters provides that it is essential that mobility scooter riders are able to use the product safely in order to avoid injury or death: paragraph 62; 15. Motorised mobility scooters do not require registration for use on a road in New South Wales. They do not require third-party insurance. They can be operated off-road, on footpaths and in public premises such as shopping centres. There is no training required for the use of a mobility scooter. A mobility scooter user is generally considered to be a pedestrian: paragraph 64; 16. The shopping centre management had a responsibility to ensure that a construction hoarding did not protrude into a common passageway and block the visibility of pedestrians when they walked from the amenities corridor. An inspection would have revealed this problem and responsible safety action would have required the erecting of warning signs: paragraphs 92-94. The signage should have been highlighted by the use of high visibility safety yellow colouring: see paragraphs 98, 103, 116-118 and 134. The cost of the effective safety controls was not grossly disproportionate to the risk: paragraph 137; 17. If the defendant had carried out adequate and effective safety management including an effective risk management process, then they would have prevented the accident to the plaintiff and her injuries. Safe access was not afforded to the plaintiff: paragraphs 141-142.
6. Mr Dubos annexed a schedule of photographs to his first report with commentary on them. Photograph 3 showed the signage displayed at the shopping centre in relation to bikes, skateboards and scooters (which no party asserted included mobility scooters). Mr Dubos also prepared a diagram annexed to his report in the schedule. He later conceded that the hoarding was incorrectly shown in the diagram as it did not continue on a straight course from the corridor side but was at an angle.
7. Mr Horrigan in his report dated 20 June 2019 expressed opinions which included the following: 1. The opinions expressed included comments on Mr Dubos' first report dated 23 April 2019 which Mr Horrigan had reviewed; 2. There is no specific legislation relating to the operation of unregulated mobility scooters in shopping centres. The Work, Health and Safety Act 2011 (NSW) and the Work Health and Safety Regulations 2011 (NSW) are applicable to the operation of shopping centres. A shopping centre is also a workplace. Operators of mobility scooters are visitors to a workplace: pages 6-7; 3. Usual industry practice would appear to be that the use of mobility scooters is permitted in shopping centres: page 7; 4. While Mr Horrigan was not able to inspect the hoarding in question to seek to assess its construction, the photographs of it do not indicate any obvious construction problems: paragraph 8; 5. The CCTV footage indicates that the front of the mobility scooter was likely to be visible to the plaintiff when she was still at least three steps from the exit to the corridor. The plaintiff would not have had to rely purely on her peripheral vision. A simple swivel of the eyes would have allowed her to see the mobility scooter but she would have had to look to be able to see it. As the plaintiff takes each step towards the exit, the mobility scooter became more and more visible until it was fully visible as the plaintiff reaches the exit at the point the plaintiff turned to veer to the left leaving her perception to rely more on peripheral vision. The existence of the hoarding would have slightly affected the overall visibility of the scooter in the plaintiff's peripheral vision but it did not act to block a view within the plaintiff's central visual field because the plaintiff did not look in the direction from where the scooter was coming: page 9; 6. While the hoarding would have contributed to reducing the view of the mobility scooter in the plaintiff's peripheral vision, the more important causative factors to the incident were the plaintiff not looking in the direction of the mobility scooter, the operator of the mobility scooter not having good peripheral vision, the operator of the mobility scooter being in a hurry, the operator of the mobility scooter being so distracted that she did not see the plaintiff until the contact was imminent and the plaintiff walking across the path of the mobility scooter: pages 9-10; 7. Mr Horrigan then expressed a number of comments in relation to the first report of Mr Dubos. Mr Horrigan expressed the view that the plaintiff and the scooter rider both had ample opportunity to see each other and take action to avoid contact: page 10; 8. A person exiting the amenities area or any store or blind corner within the shopping centre would have to rely on their past experience within shopping centres to assess the likelihood of a collision occurring with a pedestrian, a wheelchair, a walking frame, a shopping trolley or a mobility scooter: page 11; 9. The signage restricting access to the centre showed that the centre management was very much aware of the existence of pedestrians and potential risks including from mobility scooters: page 13; 10. The Safe Work Australia July 2014 publication "Traffic Management: Guide for Shopping Centres" was not specifically addressing the risk to pedestrians from mobility scooters as opposed to motorised vehicles near the shopping centre: page 13; 11. It is not possible to separate pedestrians from wheelchairs and mobility scooters without imposing discriminatory banning of wheelchair and mobility scooter users. The risks must be minimised as far as is reasonably practicable: page 14 12. The CCTV footage indicates that as the front corner of the scooter became visible to the plaintiff she was still in the corridor walking along the left side of the corridor. The CCTV footage indicates that the plaintiff made no attempt to look to the left or look to the right by turning her head. It is possible that the plaintiff was relying on eye swivel and/or her peripheral vision to ensure it was safe to exit the amenities. The CCTV footage indicates the front of the mobility scooter was likely to be visible to the plaintiff when she was still at least three steps from the exit. It appears that the scooter rider did not see the plaintiff until the collision was about to occur. The CCTV footage indicates that the scooter driver maintained a straight course until just before the collision when she attempted to steer away from the plaintiff: page 16; 13. It is highly likely that if the plaintiff turned left and walked up the thoroughfare rather than walking at an angle to merge with the path of the mobility scooter, the scooter would have passed by her without contact. From the CCTV film it is clear that the plaintiff should have been visible to the scooter rider. The existence of the hoarding in the window frame was probably "somewhat irrelevant" to the perception of the scooter rider of the plaintiff as she was possibly focused on her destination: page 17. The angle of the shopfront helps the visibility/perception of the mobility scooter by the plaintiff: page 18; 14. Mr Horrigan disagreed that signs as recommended by Mr Dubos were appropriate. Signs can cause a distraction if the viewer tries to decipher them and the recommended signs by Mr Dubos had "almost no chance of affecting behaviour". Nevertheless Mr Horrigan accepted that there would be no harm installing basic bright standard warning signs as suggested by Mr Dubos: pages 18-19; 15. Mr Horrigan expressed a number of opinions in relation to the photographs on the visibility of the mobility scooter to the plaintiff: pages 24-25. At page 25 Mr Horrigan asserts that the still from the CCTV footage shows that the shadow of the mobility scooter was visible in the photo and therefore the plaintiff could readily have seen the scooter. He later asserts that as the plaintiff is at the exit to the corridor the scooter is fully visible and would be easily seen by the plaintiff if she swivelled her eyes in that direction and it was visible in her peripheral vision: page 26; 16. At page 32 of his report, Mr Horrigan shows the hoarding in what he describes as "the correct position" showing that it is at an angle to the shopfront of Shop 46.
8. In his second report, Mr Dubos comments on the opinions expressed by Mr Horrigan in his report. Mr Dubos does not change his main opinions in relation to the accident as a result of Mr Horrigan's report. Mr Dubos expresses the following opinions among others in his second report: 1. He agrees with Mr Horrigan that the operator of a mobility scooter is a visitor to the workplace under the Work, Health and Safety Act 2011. He also agrees with Mr Horrigan that there is guidance material for the operators of mobility scooters in shopping centres but there is no specific legislation for unregistered vehicles; 2. The positioning of the specific hoarding and not merely its existence was a contributing factor to the plaintiff's injury accident: paragraph 15; 3. The risks of injury to a member of the public were not kept as low as reasonably practicable by the defendant in relation to the shopping centre: paragraph 16. Mr Dubos agrees with Mr Horrigan in his report that the hoarding would have contributed to reducing the view of the mobility scooter in the plaintiff's peripheral vision and would also have obscured the plaintiff to the operator of the mobility scooter: paragraph 21; 4. Mr Dubos disagreed that the plaintiff and the scooter rider had "ample opportunity" to see each other and take action to avoid contact: paragraph 23; 5. Mr Dubos disagrees with Mr Horrigan's comments about the Safe Work Australia 2014 "Traffic Management: Guide for Shopping Centres" document. In particular Mr Dubos states that mobility scooters travelling in shopping centres are part of the traffic in shopping centres and that the publication was designed for managing traffic in and around the shopping centre workplace: paragraph 27; 6. Mr Dubos accepted that the CCTV footage showed that the scooter rider maintained a straight course until she struck the plaintiff: paragraph 31; 7. The positioning of the hoarding was unsafe and reduced visibility for both the plaintiff and the mobility scooter operator: paragraph 33; 8. While Mr Dubos agreed with Mr Horrigan that signs were not the most effective risk control measure he stated that the signs should have been installed: paragraph 34. They are a "well-recognised risk control action"; 9. Mr Dubos in paragraph 37 of his second report also put forward the alternative of a barrier: "In the form of safety yellow or orange PVC mesh netting and/or witch hats to form a clear barrier to permit a safe passage way out of the corridor into the shopping centre thoroughfare … Such a barrier could have extended some two metres out from the end of the construction hoarding across to a point about three metres out from the far side of the corridor exit, forming a type of semi-circle around that area."
9. In the transcription of the telephone conclave between Mr Dubos and Mr Horrigan on 5 August 2019 the following points were made by the experts: 1. The construction hoarding installed obstructed the view of both the plaintiff and the mobility scooter operator: page 2, Mr Dubos; 2. The two experts agreed that the Work, Health and Safety Act 2011 (NSW) and the Work Health and Safety Regulation 2011 applied to duties and responsibilities of the defendant in relation to the circumstances of the accident involving the mobility scooter. They also agreed that if signage had been installed by the defendant limiting the speed of the mobility scooters then that signage would need to be enforced by security officers and they would need to be directed to do so. It was agreed that the hoarding was built at 90 degrees to the front of Shop 46 rather than a continuation of the wall of Shop 46. Both experts also agreed that the CCTV footage indicated that the plaintiff was wearing glasses at the time of the incident. The plaintiff denied this in her oral evidence: T58.2: see page 3 of the transcription; 3. Mr Dubos did not agree that the layout and dimensions of the amenities entry/exit area as estimated by Mr Horrigan were correct. It was noted that neither Mr Horrigan nor Mr Dubos at that stage had inspected the site. Mr Horrigan referred to the estimates which he had made: page 4; 4. Mr Dubos disagreed with Mr Horrigan's assumptions that risk management measures in the shopping centre applied to mobility scooters and related safety management. He gave his reasons for this including the position of the hoarding and there being no safety controls to limit the speed of mobility scooters or which applied specifically to mobility scooters: page 5; 5. Mr Horrigan stated that his estimations indicated that the hoarding did not restrict the direct view of either the plaintiff or the operator of the mobility scooter and that both had a clear line of sight to each other. He accepted that in normal circumstances, the hoarding may have had a slight effect on the scooter rider and the plaintiff's peripheral vision; however he expressed the view that the scooter rider had impaired peripheral vision: page 6; 6. Mr Horrigan noted that every shopper rounding a blind corner or exiting most stores' entry/exit will have a very restricted sight line until they reach the doorway. He said that they would normally glance around before stepping out into the thoroughfare: page 6. He stated that it was highly likely that the scooter rider's operation of the mobility scooter presented a very similar level of risk at every exit point she passed, irrespective of the existence or otherwise of the hoarding: page 7; 7. Mr Horrigan said it would be quite reasonable if the security staff were not instructed to ensure mobility scooters were specifically restricted to 3kph nor instructed to specifically restrict the speed of pedestrians pushing trolleys or pedestrian speed to 3kph. He said that a 3kph speed limit has no basis in mobility scooter legislation, codes of practice or guidelines: pages 7-8. Mr Horrigan states that at the time of the incident there was no legislation, codes of practice or guidelines requiring speed limits for mobility scooters to be placed in shopping centres: page 8. Mr Dubos agreed that there was no specific legislation on mobility scooters or speed limits on mobility scooters within shopping centres: page 9; 8. Mr Horrigan disagreed with Mr Dubos that the ACCC commissioned report from Monash University in 2011 studying injury data connected with motorised mobility devices was relevant: pages 9-12. He noted that nowhere in the key findings of the report was any reference made to fatalities to pedestrians as a result of mobility scooters and instead the report focuses mainly on injuries from falls: page 12. Mr Horrigan notes that at the time of the accident there was no technical process whereby the maximum speed of a mobility scooter could be changed when they left a road traffic area and entered a shopping centre: page 14; 9. Mr Dubos, while accepting that there must be a balance between safety and how long it takes to get somewhere, pointed to the speed which a mobility scooter could travel at: pages 14-15; 10. Mr Horrigan emphasised that there was no basis for a 3km speed limit for a mobility scooter or any legislation limiting the speed of mobility scooters in shopping centres; page 17; 11. Mr Dubos disagreed with Mr Horrigan that the construction hoarding did not restrict visibility for the plaintiff and the mobility scooter operator: page 17; 12. At page 18 Mr Horrigan notes from the CCTV footage that the plaintiff and the scooter rider appeared not to see each other and that the existence or otherwise of the hoarding "had only a small effect because the perception of both people was dependent on their peripheral vision": page 18. Essentially the experts completely disagreed on the ability of the plaintiff and the scooter rider to see each other and to take an opportunity to avoid the accident: pages 18-19; 13. Mr Dubos disagreed with Mr Horrigan that safety yellow or orange signage near the intersection of the amenities corridor and the hoarding would not have been a reasonable measure because the hoarding created a hazardous situation: page 19; 14. Mr Horrigan said that the absence of standard hazard warning signs does not make the area hazardous and that the addition of unclear or confusing signs could itself create a hazard to a mobility scooter rider: page 20; 15. Mr Dubos disagreed that the defendant minimised the risks of an accident occurring to as low as was reasonably practicable. He referred to alternative precautions including signs, a barrier and the installation of "a convex mirror positioned on the left side of the exit to the amenities corridor. This would have permitted the plaintiff to see the oncoming mobility scooter and to take evasive action": pages 20-21. This was the first time that Mr Dubos had mentioned a convex mirror as a safety measure. Mr Dubos said that the hoarding restricted visibility at the point in question so that safety measures were needed and the defendant had no effective safety measures in place: page 21. Mr Horrigan suggested that the barriers were too restrictive and inappropriate: page 21; 16. Mr Horrigan discussed convex mirrors and stated that the scooter rider and the plaintiff did not look to the side so that it was unlikely that they would have been looking for a newly installed convex mirror. Mr Horrigan also noted that the risk to people exiting all the shops passed by the scooter rider on her mobility scooter was very similar to the risk she created when she drove past the amenities exit at some speed. It was put forward that the risk at the amenities exit "may have been lower than the other exits because the hoarding forced [the scooter rider] to drive further away from the amenities exit, giving people more space and time to observe the approach of the mobility scooter: page 23. In relation to "witches hats" and safety tape, Mr Horrigan said this would force all pedestrians, trolleys, walking frames, wheelchairs and mobility scooters to detour and it would not be reasonably practicable and may become a hazard itself and increase the risk: page 23. He also noted that one could theoretically install convex mirrors on both sides of all exits from shops and on blind corners but it would have to be assessed to see whether this was a reasonably practicable risk control option: pages 23-24; 17. The experts disagree in relation to the applicability of the Safe Work Australia July 2004 Guide entitled "Traffic Management: Guide for Shopping Centres": pages 26-29; 18. Mr Horrigan noted that a mobility scooter was not the only moving object in a shopping centre that could cause serious injury to a pedestrian: page 29; 19. Mr Dubos disagreed with Mr Horrigan's estimates in his report in relation to the lines of sight of the plaintiff of the scooter: page 33; 20. Mr Dubos expressed the opinion that the construction hoarding positioning contributed to the plaintiff and the scooter rider not seeing each other: page 34; 21. In relation to Mr Dubos's suggested precautions, Mr Horrigan said that the apparent risk management system applied by the defendant was appropriate and that the important causative factors were the conduct of the plaintiff not looking properly and the operator of the mobility scooter: pages 36-37; 22. Mr Horrigan accepted that if the peripheral vision of the plaintiff and the scooter rider were not compromised the hoarding could have "slightly affected" the chance of the scooter rider and the plaintiff using their peripheral vision to see each other. However, the hoarding did not prevent the scooter rider or the plaintiff from seeing each other: pages 37-38.
10. In Mr Horrigan's supplementary report dated 20 June 2019 but agreed as prepared on 2 September 2019, which became Exhibit 17 in the proceedings, Mr Horrigan concluded that the safety sign proposed by Mr Dubos which became Exhibit L in the proceedings was not compliant with the relevant Australian Standards AS1319-1994. Mr Horrigan said it was neither compliant as a danger sign or as a warning sign with the Australian Standard applicable.
11. As indicated above, Mr Horrigan attended the shopping centre on 20 August 2019. By this time the hoarding in front of Shop 46 had been removed. Mr Horrigan attempted to stand in the approximate spot where the plaintiff claims she was when she glanced to her right to see what was coming. He then took photographs and expressed the opinion in oral evidence that the presence of the hoarding did not affect the plaintiff's line of sight from the position where she glanced to her right but rather the hoarding on his estimates of the width of the hoarding from photographs, forced the scooter further out in the corridor and thus created a better view to the plaintiff of the oncoming scooter. The photos taken by Mr Horrigan became Exhibit 9 in the proceedings.
12. Mr Horrigan gave evidence that he looked at the stills from the CCTV footage and the other photographs which became Exhibits A and B to determine both the likely dimensions of the hoarding and the distance which the scooter was travelling out from the hoarding shortly before the accident. He explained why he assessed the distance as 600mm of the path of the side of the scooter from the hoarding.
13. Mr Horrigan was asked a number of questions by senior counsel for the plaintiff in relation to his taking of the photographs on 20 August 2019 and the estimates which he had made as to the corner and outer wall of the hoarding as marked on some of the photographs in Exhibit 9. In relation to the photos, Mr Horrigan stated that Photograph 1 of Exhibit 9 was where he placed his feet when the other photographs were taken. He said other photographs were taken by him standing in that spot but turning his shoulders to the right to take the photographs. He agreed that photographs 3 to 4 were his attempts to provide assistance to the court as to what the plaintiff may have seen from the position she was in in Exhibit 1 upon looking to the right. Mr Horrigan gave evidence that he held the camera to his eye, did not change the setting of the camera, did not use a zoom lens and did not place his feet in different positions when the photographs were taken within a tolerance of millimetres. However, Mr Horrigan accepted that the views in some of the photos were slightly different but said this was not because he had positioned his feet differently but that the photograph was taken from a slightly different angle. He conceded that he was not an expert in photography. He also conceded that Mrs Whitton was not as tall as him and accordingly her eyes would be in a different location.
14. Mr Horrigan was cross-examined in relation to his estimate of the scooter travelling 600mm out from the hoarding. He agreed this was an estimate and was based on his assessment of stills in the CCTV footage comparing the location of the left rear wheel of the scooter to the black line of tiles closest to the centre of the thoroughfare as the plaintiff and the scooter proceeded away from the amenities corridor. He said he made the assumption that the trolley continued in a straight line from its position to the right of the hoarding. Mr Horrigan disputed that he could not assess where the left rear tyre of the scooter was from the black line of tiles closest to the centre of the thoroughfare. He accepted that the calculations were an estimate by him based on his assessment of the CCTV footage and his overall knowledge of the mechanical operation of scooters including the positioning of their wheels. In re-examination, Mr Horrigan stated that the photographs in photographs 3 to 5 of Exhibit 9 had differences in the angle of the face of the camera when they were taken but not the position which Mr Horrigan himself was standing in.

Expert oral conclave evidence

1. Both experts gave oral evidence in conclave. That oral evidence proceeded over three hearing days. Each expert was asked numerous questions in relation to their various reports and the alternative precautions which the plaintiff's expert, Mr Dubos, suggested should reasonably have been taken by the defendant in the light of the presence of the hoarding near the amenities corridor from which the plaintiff came shortly prior to her accident.
2. Mr Dubos, the expert briefed for the plaintiff, agreed that when he prepared the first version of his report that he had not at that time been provided with the CCTV footage. He stated that after a copy of the CCTV footage was obtained and provided to him he amended his report but only by including a reference to the CCTV footage being provided to him, deleting paragraph 50 of that report which said that he had not been provided with the CCTV footage and renumbering the subsequent paragraphs: see T269-270. Mr Horrigan also confirmed that he had seen the CCTV film when he prepared his report.
3. Mr Dubos was then asked questions about paragraph 17 of his first report dated 23 April 2019 (Exhibit H) where he stated: "I have no specific information in respect to any inspections or safety management systems that may or may not have been used by Dexus Property Group at its shopping centre. In my opinion, any such systems which may have been in place or on paper inside the shopping centre, had not been adequately implemented in terms of mobility scooter management for safety, safety signage, and visibility and safety and construction works or renovation works at the shopping centre."
4. Mr Dubos agreed that part of his reasoning for that opinion was that the interaction between pedestrians and motorised scooters was required to be addressed in an adequate safety management system plan. Mr Dubos was then shown Exhibit G, the Dexus Manual for June 2016. He said he had seen many similar documents. He was asked to assume that there was no reference to mobility scooters in the document. He confirmed that this was a defect in the Dexus Manual and noted that there was a reference at page 116 of Exhibit G to access to shopping centres by persons with a disability. He said he would expect there to be a reference in a plan to the interaction between mobility scooters and pedestrians, if a plan was a reasonable safety management system plan. He said that a mobility scooter was the only motorised vehicle in a shopping centre and there should have been a mention of it. Mr Dubos later conceded that motorised wheelchairs were also present in shopping centres. It was unclear whether Mr Dubos thought they should also have been considered.
5. Mr Dubos was then asked about the ACCC Product Safety Guide for Mobility Scooters dated 24 March 2011. He agreed that one issue for mobility scooters was the limited ability to control the use of scooters. He said they had no licensing requirements in New South Wales and were often used by disabled persons who were typically older and who had slower reflexes or in some cases limited vision and hearing. Mr Dubos said that these were matters which should definitely have been taken into account in preparing a reasonable safety management system plan. A shopping centre should have looked at the hazards, particularly in a crowded retail area, provided by a motorised scooter.
6. Mr Dubos conceded that there was a dispute between him and Mr Horrigan as to whether a Safe Work Australia July 2014 publication entitled "Traffic Management: Guide for Shopping Centres" applied to the interior of shopping centres or simply the outside. Mr Dubos said his opinion was that the publication applied to traffic management issues both inside and outside of a shopping centre.
7. Mr Horrigan agreed that a shopping centre should have a health and safety system. He also agreed that if the centre was one at which scooters operated in the presence of pedestrians that matter should be dealt with: T275.22. He accepted that scooters may potentially be a hazard in the presence of pedestrians and if assessed as a risk, that risk should be managed by the shopping centre operator. He said the usual approach was for hazards to be reported and assessed. If something was identified as a hazard a process was then undertaken to control the risk created by the hazard. Mr Horrigan said he had not seen any document where the defendant had implemented such a system at the shopping centre in question to deal with a motorised scooter as a potential hazard.
8. Mr Dubos' attention was drawn to his comment in his first report in paragraph 24 where he states: "As she was turning left out of the amenities corridor, Ms Whitton's physical presence was totally obstructed by the one metre wide construction hoarding, on the balance of probabilities, until she was struck by the mobility scooter. The sightlines for the mobility scooter operator were totally obscured, on the balance of probabilities."
9. Mr Dubos confirmed that having seen the photographs taken by Mr Horrigan which became Exhibit 9 in the proceedings and hearing his evidence in relation to them, he maintained that opinion. He also confirmed that Mr Horrigan's photos and his evidence as to them had not caused him to change any part of his opinion in his reports. He said the photos taken by Mr Horrigan did not show a hoarding or the location of a mobility scooter that was moving.
10. Mr Dubos confirmed that he had visited the shopping centre shortly before giving his conclave evidence, although he had not visited the centre at the time he prepared either of his written reports or gave his opinions for the purposes of the conclave report. Mr Dubos confirmed that he had undertaken measurements of various items in the course of his visit. Mr Dubos agreed that the outside of the second black tile was 1.21 metres from the shop frontage of Shop 46 at the shopping centre. He also agreed that the small white spot seen on the blackline to the left of the photo which was Exhibit 1 was the corner of the hoarding outside Shop 46. A similar opinion was held by Mr Horrigan. Mr Dubos stated that the tiles in question, both light and dark, were 400 square millimetres, the exit from the corridor was 1.3 metres on either side of the column and the thoroughfare was six metres in width. He said a seat and pot plant shown in Exhibit 1 had been moved such that the area outside the amenities corridor was six metres wide with clear access. Mr Dubos was asked about the criticisms he made of Mr Horrigan in his report about the use of signs as creating the potential for "visual clutter". He said he had seen the photos of the interior of the amenities corridor at the time and agreed that there were no apparent signs in the corridor except a sign warning of cleaning of the toilets. He said the addition of a warning sign in the corridor was not likely to cause "visual clutter" as mentioned by Mr Horrigan. A proposed new sign was shown to Mr Dubos which had on it the words "Slow Blind Corner Proceed With Caution" on a yellow background. Mr Dubos confirmed that this was his recommended sign to be placed at the blind corner to assist pedestrians as a warning upon leaving the amenities corridor.
11. It was put to Mr Horrigan that placing the proposed sign on the column in the middle of the exit foyer from the amenities corridor would assist in warning pedestrians of the blind corner. Mr Horrigan appeared to say that he could not agree that placing such a sign on the pillar would be a good place for it. Whilst accepting that the sign conveyed information to a person reading it, Mr Horrigan was of the view that a sign with symbols was preferable. He said he regarded the sign as confusing with too much information: T293.10. It was put to Mr Horrigan that the proposed sign conveyed two facts, the first being that a blind corner was to be encountered and the second to proceed with caution. Mr Horrigan agreed that the words "blind corner" were used but said it was not clear how the person would understand those words. Mr Horrigan said such a sign may amount to a distraction: T296.5.
12. Mr Dubos said that if he was advising the defendant in relation to their health and safety obligations in the vicinity of the exit to the amenities corridor he would recommend placing the proposed sign on the column in the middle of the exit or on one edge of the hoarding: T297.13. Mr Dubos said that whilst a sign was best confined to the width of the column without having any parts of the sign hanging out on either side, it could be placed at 6 feet 6 inches to 7 feet off the ground if it protruded: T297.42. Mr Horrigan stated that a proposed sign should be low down and not protruding if it was to be placed on the column in the middle of the exit.
13. This issue raises the question as to whether a warning sign is needed in relation to the blind corner or whether the potential dangers from oncoming users including a scooter are obvious.
14. Questions were then asked in relation to the mirrors recommended by Mr Dubos at page 22 of the joint report transcription. Mr Horrigan accepted that convex mirrors had as one use to create visibility to protect pedestrians or vehicles from oncoming vehicles. Such mirrors could be either flat or domed. The plaintiff tendered as Exhibit M in the proceedings internet advertising material in relation to such mirrors. Mr Dubos was asked whether he had seen the use of convex mirrors or domed mirrors in shopping centres. He said he thought he had but was not 100% sure but had seen them in hospitals, warehouses and shopping centre carparks: T302.23. Mr Dubos said that he would recommend the installation of a convex mirror at the blind corner at the exit of the amenities corridor where there was a hoarding at the time of the accident. He said he would recommend that a convex mirror be supplemented with the signage which he had earlier recommended. He said the mirrors could be placed on either side of the blind corners at the exit to the amenities corridor. He also gave evidence that it was feasible to install such a convex mirror on a bracket either on the left-hand side of the corridor or in the sign hanging from the ceiling in the thoroughfare directly ahead of the amenities corridor exit (see Exhibit E photograph 2).
15. Mr Horrigan was taken to pages 23-24 of the transcription of the joint conference and accepted that convex mirrors were sometimes installed at blind corners. However, he commented that people have to get used to the presence of the mirror. First, they have to see it and it may take a number of visits before they do. Secondly, he said that a convex mirror provided a small distorted image and it needed to be looked at carefully. He said it served a purpose, for example on seeing the movement of a truck but often did not allow a small item, for example the head of a person to be seen. Such a small item may be lost on the mirror.
16. Mr Horrigan confirmed that he believed that the plaintiff and the scooter rider would not have seen their image in a convex mirror because they had compromised peripheral vision which in the case of the plaintiff was the wearing of glasses at the time. The plaintiff stated that she was not wearing glasses. Mr Horrigan said that the CCTV footage appeared to indicate the plaintiff wearing glasses whereas Mr Dubos thought that perhaps the plaintiff was wearing glasses but he was not sure. In relation to the cost of the safety mirrors, Mr Horrigan said he was not aware of the cost but there may be some in the range of $200 whereas Mr Dubos said that a quite adequate safety mirror could be purchased for $100 although there would be the need for a bracket and the cost of the labour to install it.
17. Mr Horrigan confirmed his opinion, in answer to questions from senior counsel for the plaintiff, that the plaintiff had she looked when she was in the position in Exhibit 1, would have seen the front part of the mobility scooter. He also confirmed that his view was that the plaintiff did not look. He said that the basis for the opinion was shadowing shown on the extreme left hand corner of Exhibit 1 which was the shadow of the approaching scooter. He accepted that Exhibit 1 was a still photo which did not have total clarity but he rejected that it was speculative that there was the shadow of the scooter. He said he had looked at the image before the one in Exhibit 1 and there was no shadow, and in Exhibit 1 there was a shadow. When shown a further photo showing part of Exhibit 1 which was lighter, Mr Horrigan confirmed that he could detect the shadow in the new photo, Exhibit O. Mr Dubos said he was able to see the shadow pointed out by Mr Horrigan in Exhibit 1 on the left-hand side but questioned whether it was a mobility scooter or a shopping trolley or something else: T309.27. He said he had the same answer for the photo which became Exhibit O.
18. The experts were then asked questions about the weight of the mobility scooter involved in the accident. Mr Dubos accepted that the assumption he had made of the weight of the scooter with the rider being around 200kg was one for which he had no factual basis. However, he said any scooter carrying an adult would certainly be well in excess of 100kg. Mr Horrigan agreed that there was a chance that the scooter with the rider would probably be 100kg or greater. Mr Horrigan conceded that shopping centres were often used by adults and children including young children and he accepted that if a child was hit by a scooter weighing more than 100kg that there would be a chance of injury. Both the scooters and pedestrians have to share the same space in a shopping centre. Mr Horrigan confirmed paragraph 11 of his report where he states that it was foreseeable that the person entering the thoroughfare from a side entry could strike or be struck by a pedestrian, a wheelchair, a walking frame, a shopping trolley, a shopping trolley tractor or a mobility scooter. He said he remained of that opinion.
19. Whilst Mr Horrigan agreed the operator should reduce potential risks as far as reasonably practicable (T312.19-.43), he disagreed that the defendant had not taken steps to minimise risks at the shopping centre. He said there was clear space in the thoroughfares, the floor was in good condition, he observed security staff and some things had been done to manage risks. He also said that he saw many blind corners in relation to shops where people stopped or glanced to see the traffic coming: T312.48-T313.13. When it was suggested to Mr Horrigan that on his visit to the defendant's shopping centre he saw no steps taken by the defendant to lessen the risks of blind corners he appeared to agree but said there was space around blind corners. He said he did not see anything which was different to other shopping centres he had been in: T314.9.
20. Mr Dubos was then asked numerous questions by senior counsel for the defendant. Mr Dubos agreed that in relation to the first version of his report he had not received the CCTV footage when he prepared it. It was put to Mr Dubos that having regard to the extremely limited changes between the first version of his first report and the second version of his first report, the CCTV footage had no bearing on the opinions which he had given in the second report. He disagreed with this and said that was difficult to accept but agreed that in the first version he did not have the benefit of seeing the CCTV footage. He said that having reviewed it he saw no need relevantly to change his report. Mr Dubos accepted that in the final draft of his first report there was no relevant change having seen the CCTV footage: T319.34. Mr Dubos accepted that all the opinions and reasons given by him in his first version of his first report were provided by him prior to him actually seeing the CCTV footage: T321.19-.24.
21. Mr Dubos was then taken to paragraphs 12 and 24 of his first report where he stated (in paragraph 12): "The protrusion of this construction hoarding to the right of the exit to the amenities corridor obscured any view of the Plaintiff of the oncoming mobility scooter. In addition, the operator of the mobility scooter's forward vision was obscured also by this protruding hoarding."
22. It was put to Mr Dubos that in the light of the CCTV footage that statement was wrong. He disagreed with that. He was then taken to Exhibit 2 which was a still from the CCTV footage which clearly showed the mobility scooter and the plaintiff. After some questioning, Mr Dubos conceded that there was clearly a view between the plaintiff and the scooter as shown in Exhibit 2. When Mr Dubos was taken to what he said in paragraph 24 about the lines of sight being "totally obscured" it was put to him that that was incorrect. He disagreed with it and stated that he believed it was correct when he wrote the report. The following exchange occurred: "POLIN: Might the witness be shown exhibit 2, your Honour. Now, you see in exhibit 2 that's a still shot of the CCTV footage. WITNESS DUBOS: Yes. POLIN: In one thing that's as plain as day and that is that you can see Mrs Whitton. WITNESS DUBOS: Yes. POLIN: And you can see the mobility scooter can't you? WITNESS DUBOS: Yes. POLIN: It is not correct, is it, from just a simple viewing of that photograph to say that the hoarding obscured any view of the plaintiff of the oncoming mobility scooter? It simply not correct, is it? WITNESS DUBOS: I think that is correct, because we are talking about oncoming, the mobility scooter is moving, it's moving at pace. We haven't considered reaction time. POLIN: I'm not talking about that, sir. I'm talking about any view. We have Mrs Whitton in the photograph. WITNESS DUBOS: In view of the oncoming mobility scooter. POLIN: Yes. WITNESS DUBOS: So, yes, yes, she-- POLIN: Just let me finish. WITNESS DUBOS: Yeah. POLIN: We have Mrs Whitton in the photograph. WITNESS DUBOS: Yes. POLIN: We have the mobility scooter in the photograph. WITNESS DUBOS: Yes. POLIN: There is clearly a view between the two of them when you look at the photograph, isn't there? There is nothing blocking it. WITNESS DUBOS: No, she could have seen it at literally the last second. Yes. POLIN: I'm not asking when she saw it, sir. You see [say] had obscured any view she had of it. That's not correct, is it? WITNESS DUBOS: I'm saying that it obscured any view of the oncoming mobility scooter, yeah. POLIN: It's not correct, is it, any-- WITNESS DUBOS: No, the word "obscured" means - it means, taken in context rather than out of context, it means that it obscured the view of the oncoming mobility scooter coming along the passageway. POLIN: Well, let's-- WITNESS DUBOS: That's what I meant. POLIN: ‑‑look at the next paragraph then. "Mrs Whitton's physical presence was totally obscured"-- HIS HONOUR: Where are we reading from? POLIN: This is paragraph 24, your Honour. "By the metre wide construction hoarding until she was struck by the mobility scooter". Now, that's simply not correct, is it; because we've got the mobility scooter, her vision is not - the mobility scooter's vision of Mrs Whitton is not totally obscured by the hoarding up until the time she's struck, is it? WITNESS DUBOS: There is the oncoming mobility scooter-- POLIN: No, there's no oncoming there, sir. Lets-- WITNESS DUBOS: --was observed. She's also clearly starting to turn the corner there and is certainly not looking in that direction. POLIN: That's not what I asked you, sir. You say that Mrs Whitton's physical presence, and we see that on exhibit 2, was totally obscured by the hoarding until the time the mobility scooter struck her. That's what you say. That is not correct, is it? WITNESS DUBOS: Not on the basis of that one still, no." (T321.50-T323.39)
23. Later the following exchange occurred: "POLIN: Is that because you wrote it before you actually even looked at the CCTV footage? WITNESS DUBOS: Not entirely, no. I think we're looking at words there, and it did obscure the view of the oncoming mobility scooter. But given this one still here, had she looked in that direction, she might've seen it at the last second. We only have three seconds of CCTV footage. It's very very quick." (T324.16-.22)
24. Mr Dubos was also asked about the contents of Exhibit 6 being the incident report where the rider of the scooter Ms Connolly explained what she understood to be the reasons for the collision. Mr Dubos accepted that the rider's reference to defects in her peripheral vision was important in considering the causes of the collision: T327.42.
25. Mr Dubos was then taken to paragraph 17 of his first report and it was put to him that he could not express the conclusion that safety management systems had not been adequately implemented in terms of mobility scooter management for safety, safety signage, and visibility and safety without seeing any safety management systems which had been used by the defendant. Mr Dubos agreed that because the accident happened he concluded that the shopping centre had not adequately implemented a safety system in terms of mobility scooter management: T330.30-.34. This conclusion by Mr Dubos is difficult to accept because an accident could have occurred involving a mobility scooter for various reasons.
26. Mr Dubos was asked questions about paragraph 26 of his first report and particularly the part which reads: "Common sense dictates that if a construction hoarding is protruding into a common passageway and restricts visibility where vehicles such as motorised mobility scooters may be operated at speeds of up to 10kph in a shopping centre where pedestrians are walking, then that area should be highlighted with safety yellow or orange signage…".
27. Mr Dubos confirmed that in his view common sense dictated the various safety measures recommended by him. The plaintiff was struck from behind and the hoarding was approximately 1.2m out from the shop. This obscured the views of the plaintiff and the scooter rider particularly with the scooter moving. Mr Dubos also said that he spoke to the plaintiff and formed the view that the hoarding obstructed her view: T332.43-T333.26.
28. Mr Dubos also expressed the view that the photographs taken by Mr Horrigan which became Exhibit 9 were in general terms misleading. He saw the shopping trolley present in some of the photos as having nothing to do with the accident. In addition, no hoarding was present at the time the photographs were taken.
29. Mr Dubos was asked questions about there being similar dangers to shoppers from shopping trolleys which may be heavy with bulk purchases of drinks. It was suggested to him that such a shopping trolley would have a similar weight to a mobility scooter. Mr Dubos said that such a shopping trolley was unlikely to weigh 100kg. When asked whether his comments and recommendations would also apply in relation to motorised wheelchairs, Mr Dubos said that motorised wheelchairs were not as fast as mobility scooters and did not have the mass of mobility scooters. He expressed the opinion that mobility scooters posed a greater hazard and greater risk. While accepting that some motorised wheelchairs were heavy and bulky, he said that they did not have the same bulk as most mobility scooters: T340.12 to .49.
30. While Mr Dubos accepted in cross-examination that there were issues relating to the use of scooters and wheelchairs on footpaths and a motorised wheelchair was regarded as a pedestrian, he said that a motorised wheelchair did not reach speeds of up to 10kph: T341-T342.
31. Mr Dubos was then asked questions by senior counsel for the defendant in relation to paragraph 28 of his first report where he sets out various precautions after the following introduction: "An adequate safety program should have been put in place by Dexus Property Group. This would have involved the following…"
32. The first recommendation of Mr Dubos in his report was that the defendant should have displayed clear signage in the shopping centre premises indicating that motorised mobility scooters should not be operated in the shopping centre at more than 3kph at any time. It should be noted that senior counsel for the plaintiff expressly stated that the plaintiff was not making a case of negligence due to the failure to display such a sign. Mr Dubos said that he maintained this view and it was an alternative step that the defendant could have taken. He noted that an average pedestrian walked at 4 to 5kph and that some shopping centres hired out mobility scooters which were speed limited to 3kph. He altered his evidence by saying, contrary to the report, that this was a step in an adequate safety programme which could, as opposed to would, reasonably have been put in place: T343. Mr Dubos said he was not aware of any shopping centre in New South Wales where people with privately owned scooters were limited to travelling in the shopping centre at 3kph, but said that this may be something which would be introduced in the future: T344.18.
33. The second measure referred to by Mr Dubos in paragraph 28 of his first report was to place highly visible safety yellow warning signage at either end of the construction hoarding protruding into the common passageway in a shopping centre which was adjacent to the exit from an amenities corridor. The signage should include words to the effect: "Caution: Pedestrians Exiting Amenities Corridor" and/or "Caution: Blind Corner Ahead, Beware of Pedestrians".
34. Mr Dubos confirmed that he recommended that such signs be placed at either end of the hoarding but did not refer in his report to the sign recommended in his oral evidence which became Exhibit L and which he recommended be placed within the corridor. This additional sign was a recommendation which he had made after preparing his report. He agreed that he had not specifically recommended a warning sign in the corridor in his 23 April 2019 report.
35. Mr Dubos was then asked questions about hoardings at shopping centres. While he initially said that a hoarding does not necessarily protrude into the thoroughfare, he had seen them in shopping centres but did not believe them to be particularly common. He accepted that the presence of a hoarding was obvious to him and that it was at right angles to the shopfront. He also said that the side of hoardings was usually opaque. He accepted that someone was aware that at the end of a right angle there was a blind corner and that he did not need a sign to tell him that a blind corner was there: T346-T347 - especially at T347.49.
36. The third recommendation of Mr Dubos in his report was for the defendant to develop and implement a traffic management plan for the shopping centre which sets out a management plan for the interaction of different types of traffic including pedestrian and passenger vehicle traffic. Mr Dubos rejected the suggestion that this was a "motherhood statement" with no specification. He said it was very common to have such a traffic management plan for shopping centres and warehouses for the purposes of safety. He accepted that he could have provided more detail in his report on this matter. He also accepted that there was a traffic management plan referred to by the defendant in its manual which became Exhibit G, but said there was no mention of mobility scooters: T348.49-T349.9.
37. The fourth recommendation of Mr Dubos in his first report was that the defendant should ensure that approved construction works in the shopping centre did not cause or create safety hazards for pedestrians and customers and that warning signs were needed. He accepted that this was similar to his second recommendation.
38. The fifth recommendation of Mr Dubos in his first report was that as part of a general safety program, the defendant should regularly inspect all parts of the shopping centre complex to ensure that a range of safety hazards were not present or developing. He rejected that this was also a "motherhood statement" and said that there was no evidence that the defendant had in place a general safety program. When he was asked questions about the signs which the defendant had at the front of its premises in relation to safety issues, he said that such signs did nothing to prevent the accident in question in the proceedings. In particular, there was nothing in the signs about mobility scooters and it did not constitute a safety management system.
39. Mr Dubos was asked questions about paragraph 62 of his first report and the ACCC publication which became Exhibit K in the proceedings relating to a product safety guide concerning mobility scooters. He accepted that the document was directed towards the buyer of a mobility scooter. He accepted that a scooter driver must exercise reasonable care in relation to the safety of pedestrians and would be likely to slow down if pedestrians were present: T351-352.
40. Mr Dubos was then asked questions in relation to the Safe Work Australia July 2014 publication entitled "Traffic Management: Guide for Shopping Centres." He agreed there was a debate between him and Mr Horrigan as to whether it related to traffic on the outside or within a shopping centre. Additionally, it was suggested to Mr Dubos, which he rejected, that the document had nothing to do with the use of scooters inside a shopping centre.
41. Mr Dubos was then asked questions about a submission made on behalf of the Shopping Centre Council of Australia ("the Council"), which represented major shopping centre owners, to a New South Wales Joint Standing Parliamentary Committee on road safety in 2013 and comments made by the head of the Council at the enquiry. He accepted that the Council made submissions to the enquiry in relation to mobility scooters in shopping centres and the Executive Director stated that he was not aware of any major safety concerns arising out of the appropriate use of scooters. Mr Dubos accepted that the Executive Director said in the transcript of the hearing that one of the Council's major members had said that the number of notifications of crash or safety related incidents received was small. The defendant sought to draw an inference from this statement that the Executive Director would have been told by his members if their representatives thought the use of mobility scooters was a problem and signage was needed. Mr Dubos conceded that on a fair reading of the transcript before the Parliamentary enquiry, the number of incidents reported to the Executive Director involving mobility scooters as conveyed to the enquiry was very low: T363.23. Mr Dubos said that from a safety management perspective this was a very poor response by the Council: T363.31.
42. Mr Dubos accepted that in his first report he had made no mention of the recommended measures of convex mirrors, barriers or signs on the blind corners in the amenities corridor. He said his views had developed on these matters. He could not give a reason for not mentioning them in the first report other than he saw them as matters that should be considered as part of a proper traffic safety management plan at a shopping centre.
43. In relation to Mr Dubos' second report dated 23 July 2019, his attention was brought to paragraph 28 in relation to the claimed need to control the use of mobility scooters in shopping centres. When asked how that was to be achieved, he said it could be achieved through signage, speed limiting of scooters, having trained security guards supervise the premises, the use of convex mirrors and barriers as part of a safety management plan. He accepted that barriers were raised as an alternative for the first time in his second report.
44. There was then considerable cross-examination of Mr Dubos in relation to his recommendation for the use of witches hats and/or with PVC netting and bollards as a barrier between the end of the hoarding closest to the amenities corridor and the exit from the foyer of the corridor. It was put to Mr Dubos that these proposals created risks in themselves which he rejected. He said that they were common safety steps. In particular, he was of the view that the witches hats and other recommendations did not create any further risk but were highly recognisable due to their nature and colour and could easily be seen. He also said that the width of the thoroughfare meant that there was ample room for the placement of barriers and this would still allow people to move around with no heightened risks. In relation to the use of witches hats, he agreed they were one alternative which could be put in a line or semicircle with or without mesh netting at the end of the hoarding. He said he thought a curved line of hats was better, possibly in a semicircle shape. He said the witches hats would start at the end of the hoarding in a semicircle out from the hoarding of about one metre and that six to ten witches hats were appropriate. These would extend for about three metres, still allowing four metres of the passageway for traffic.
45. Mr Dubos conceded that he had never seen a configuration of witches hats providing a barrier near a blind corner. When cross-examined further, he agreed that witches hats may be needed not only at the end of the hoarding closest to the amenities corridor but also at the door of the shop at the other end of the hoarding. After looking at the photograph which is Exhibit B, Mr Dubos amended his evidence and was of the view that the use of witches hats would not be a good measure at the other end of the hoarding from the amenities corridor as there was a presence of a supermarket there.
46. It was put to Mr Dubos that the use of six to ten witches hats as a barrier in place over a number of weeks would give rise to a poor prospect of them remaining there due to them being removed or knocked over. Mr Dubos accepted that it was not the best measure but could involve security staff checking the barrier at least twice or more per day. Mr Dubos rejected the possibility of someone walking along and tripping over the witches hats or of them creating an obstacle or being moved by children. He said there would need to be some monitoring of this possible method of creating a barrier. He rejected the suggestion that the use of the witches hats with or without tape and the PVC netting was totally impracticable. He said the mesh could also be tied to bollards and three bollards may be needed as part of the barrier. He regarded the risk of tripping over the bollards or the base of the bollards as being small compared to the risk created by the blind corner near the end of the hoarding. He claimed these were standard safety measures. Mr Dubos gave evidence that in the course of his professional career, he had prepared reports on two or three accidents with persons being struck by mobility scooters with one being in a shopping centre: T383.39-.T384.7.
47. Senior counsel for the defendant asked a number of questions of the plaintiff's expert Mr Dubos in relation to the need for signs or barriers to be placed in relation to what was asserted to be a "blind corner" at the end of the hoarding near the amenities corridor. Mr Dubos said the purpose of such signs on a blind corner was to provide warning to a pedestrian walking out from the amenities corridor that they may be struck by traffic coming the other way. Mr Dubos was shown Exhibit B in the proceedings and agreed that the hoarding could be seen and someone could see the hoarding coming to an end and it ending with a right angle. While accepting that people coming from the amenities corridor to the end of the hoarding reasonably could look out at the side of the hoarding at the blind corner, Mr Dubos said a barrier needed to be there to protect pedestrians from oncoming traffic which could include people driving mobility scooters, people pushing shopping trolleys and people with small children.
48. When it was put to Mr Dubos that persons moving down the thoroughfare with the hoarding on the left such as in a motorised wheelchair keeping a lookout were no less able to perceive the end of the hoarding and the fact there was a blind corner, Mr Dubos agreed but said that there were other factors such as the speed of a mobility scooter, the fact disabled people drove them who may not have good eyesight, the heavy weight of a shopping trolley and children running. The presence of a barrier would prevent an accident. This was particularly the case where a shopping centre was crowded with numerous shops and distractions. The placement of a barrier would be a reasonable safety measure according to Mr Dubos to prevent a person walking out from the amenities corridor and being struck. A barrier would force a mobility scooter to go around the end of the hoarding and would be one measure amongst a range of measures that would be reasonable for the defendant to take.
49. It was put to Mr Dubos by senior counsel for the defendant that there was a blind corner at the end of the amenities corridor on both sides. Whilst Mr Dubos agreed that both walls met at right angles and created blind corners, he said he was not recommending that at every blind corner persons exiting be protected by barriers. Mr Dubos said the blind corner at the end of the hoarding was different to the one on the other corner of the amenities corridor which had better visibility. He said the combination of the hoarding and the column in the middle of the amenities corridor provided an obstruction to the vision of a pedestrian exiting the amenities corridor. This created a different type of blind corner which could not be compared to the one near the hoarding. Mr Dubos said that in his view the shopping centre was not required to do anything on the left-hand blind corner exiting the amenities corridor including placing barriers or erecting signs. Not every blind corner required the erection of warning signs. Mr Dubos said his reason for recommending a barrier was a combination of the obstruction to visibility by the presence of the column and the hoarding to a person exiting the corridor on the right. However, Mr Dubos said that whilst the vertical column provided some obstruction, if the hoarding was not there he would not recommend measures like signs and barriers: T399.37; T400.43; T401.4.
50. Mr Dubos was asked further questions in relation to his recommendation for the placement of convex mirrors. He agreed that the first time that he had raised this recommendation was in the joint conclave discussion. He said the reason that he had not raised this previously was that he would assume that this would be considered as part of a prudent safety management plan for the centre. He was referred to T302.23 where he was asked whether he had seen a convex mirror used in a shopping centre and he said that he thought he had but he was not 100% sure. Mr Dubos agreed with that evidence but said that he had seen the mirrors used in all sorts of situations.
51. Questions were asked of Mr Dubos as to where such a convex mirror would be placed. In the joint conclave transcript Mr Dubos states at page 23: "It is also possible to install convex mirrors on both sides of all exits from shops and on blind corners. The installations would also need to be properly assessed to ascertain if they were a reasonably practicable risk control option…"
52. At pages 20-21 of the transcript of the joint conclave meeting Mr Dubos states: "A further safety measure is the installation of a convex mirror positioned on the left side of the exit to the amenities corridor. This would have permitted the plaintiff to see the oncoming mobility scooter and to take evasive action." Mr Dubos said that he would place the mirror at the end of the wall on the left at the exit to the thoroughfare. It would be placed on a bracket coming out from the wall or at the base of the sign directly ahead in the centre of the thoroughfare. He also said that he would place a convex mirror on the right exit as the risk on the right was greater than the risk on the left. On the left it would be placed in a high position on the wall so as to show vision of traffic approaching on the right.
53. Mr Horrigan commented in relation to Mr Dubos' opinion on this issue that mirrors act on angles and that a mirror on the wall of the corridor would not be appropriate to provide proper vision. Any mirror would have to be placed one metre out into the thoroughfare (whether on the wall or on the hoarding) in order to obtain the light to reflect the vision. Mr Dubos disagreed with this.
54. Mr Dubos was then asked questions by senior counsel for the defendant in relation to Exhibit M, being the internet advertising for safety mirrors. He agreed that he had sourced the advertising material and provided it to counsel for the plaintiff. He stated he had searched for safety signs and equipment but conceded that he located it on that part of the website dealing with carpark protection: T415.41. However, he stated that such mirrors were used in various situations.
55. Mr Dubos was asked further questions about Exhibit L, being a proposed sign which would be potentially installed on the column in the middle of the foyer to the amenities corridor. He agreed that this had been sourced from a United States website but he did not know whether it would be found on Australian websites. He said this would deal with the hazard created in relation to the blind corner on the right of the exit created by the hoarding. He agreed that it would therefore be a temporary sign and would be a reasonable response to the presence of the hoarding. He accepted that the sign should not be there if the hoarding was not present and while the hoarding was there he regarded it as an important safety measure.
56. Mr Dubos agreed that it was important that a sign is not misleading. He confirmed that he recommended that the proposed sign be placed on the column in the middle of the exit to the corridor. Senior counsel for the defendant then asked how a person seeing the sign would know which blind corner was being referred to - the one on the left or the right. Mr Dubos said frankly that that was "a very good question": T418.16. He denied that the proposed sign was a "very silly sign" and said it would cause a pedestrian exiting to slow down and look both ways. However, he still was of the view that the sign was necessary to warn a pedestrian to look both ways.
57. Mr Horrigan expressed the view that a sign must be clear about what it is warning about. He stated that the exit corridor had two blind corners or on one view four blind corners depending which way the person was approaching the end of the exit corridor. Mr Horrigan said that the column partly obstructed vision and that the sign proposed would not indicate to a person looking at it which blind corner was being referred to: T419.21.
58. It was put to Mr Dubos that his proposed sign, Exhibit L, was obtained by him from a website in the United States and was used to bring blind corners to the attention of motor vehicle drivers. The defendant relied on an extract from the website of Accuform.com which included the sign and the following: "alert drivers of the need to slow down and proceed with caution around a blind corner." Mr Dubos agreed that the sign had been obtained from the website of Accuform.com in the United States and he accepted that it was to alert drivers of motor cars. He said he was not sure whether it was used on a roadway in Australia but suggested that the sign was a useful one to have as he proposed. Mr Dubos said it was a relatively simple task to develop a sign which complied with Australian standards.
59. Mr Horrigan, when asked, said that in order to determine whether the proposed sign Exhibit L complied with Australian standards he would have to go and research the issue.
60. Mr Dubos denied that there was no greater risk to shoppers with the hoarding in front of Shop 46 at the time of the accident than without it being there. He also denied that he was operating as an advocate for the plaintiff rather than as an objective expert.
61. Further questions were asked about the suggestion by senior counsel for the defendant that there was a shadow indicated in Exhibit 1 to the left of the still photograph of the approaching disability scooter. Mr Dubos' attention was drawn to T309.27 where he stated: "I can see a shadow there on the left-hand side [of Exhibit 1]. I don't know whether it's a mobility scooter or not." Mr Dubos confirmed his answer. Mr Dubos also confirmed his evidence as set out at T309.31-.36: "It could be a shopping trolley … it could be a number of things; we've got the light, you know, we've got reflections from the light, there's some bright ceiling lights as well, there's all sorts of possibilities I would say for that shadow." Mr Dubos confirmed that he had access to the CCTV footage (part of Exhibit F) and had analysed it. However, he did not concede that the shadow to the left of the photograph still which is Exhibit 1 was the shadow of the mobility scooter.
62. After some further cross-examination, Mr Dubos agreed that the CCTV footage established that the shadow on the left of Exhibit 1 appeared to be the shadow of a moving object (T434.3) and it appeared that in the very next frame of the film after the shadow, the scooter appeared (T437.31; T438.3). Accordingly, he accepted that in Exhibit 1 the scooter was just out of the frame of the film to the left: T438.49.
63. In re-examination, senior counsel for the plaintiff put to Mr Dubos that how far out of the frame the mobility scooter was at the time of the still in Exhibit 1 depended on a number of factors including the speed the scooter was travelling and where the light source creating the shadow was located. Mr Dubos agreed with each of these matters: T439.13-.34.
64. When it was put to Mr Horrigan by senior counsel for the plaintiff that how far the scooter was out of the picture in Exhibit 1 depended on the speed of the scooter which variable was not known, Mr Horrigan disputed that. He said that his analysis of the film was that the scooter appeared to continue at the same speed throughout the film. He said that he arrived at this conclusion as a review of each frame of the film showed that the scooter moved forward the same distance in each frame which suggested that it was moving at the same speed. He agreed that he assumed that the scooter was travelling at a constant speed but said he had drawn this assumption from his review of the CCTV film. When it was put to Mr Horrigan that he could not determine how far back the scooter was when it cast a shadow if the shadow shown in Exhibit 1 is the approaching scooter, Mr Horrigan said that it was established from the CCTV film that the shadow in Exhibit 1 was the scooter. This view was based on the fact that the light threw the shadow from the scooter. Mr Horrigan agreed that only estimates could be provided in relation to the speed of the scooter as shown in the film and that he could not be precise. He also said he did not purport to give evidence of what the plaintiff saw at the time.
65. Mr Horrigan accepted the proposition put by senior counsel for the plaintiff that one would expect to find mothers with children, mothers with prams and other children emerging from the amenities corridor into the shopping centre thoroughfare. He also accepted that all sorts of people use the thoroughfare including motorised scooters. Mr Horrigan said that the shopping centre owner had an obligation to minimise the risk to as low as is reasonably practicable in the circumstances: T444.32. When asked what was wrong with the concept of installing safety mirrors at the intersection between the corridor and the thoroughfare, Mr Horrigan said that there was nothing wrong with such measures as long as they did not provide a distraction to persons or increase the risk. He said that he regarded them of limited value and said that they would not necessarily decrease the risk until people knew they were there. He also said that warning signs rarely changed the behaviour of people unless they were enforced.
66. When it was put to Mr Horrigan that warning signs and the domed safety mirrors would likely reduce the risk of injury at the intersection of the corridor and the thoroughfare, Mr Horrigan said that in his view there was no indication that they would reduce that risk: T445.40. When asked what documentation he had seen from the defendant showing they had done a risk analysis of blind corners throughout the shopping centre area, particularly where they intersected with the amenities corridor, Mr Horrigan said he had not seen any such documentation from the defendant. However, if the intersection was identified as a hazard then a risk assessment should be made and any reasonable steps recommended to minimise the risk should be implemented. When it was put to Mr Horrigan that he was unable to say that the suggested safety mirrors and warning sign were not an effective method of reducing risk, he suggested that they were not likely to do any harm or increase the risk. However, he said he could not say they would reduce the risk. When asked how effective the mirrors and safety signs would be, Mr Horrigan said he would need to know precisely what was proposed and he did not have that information. Mr Horrigan also conceded that he would be greatly surprised if the suggested witches hats/bollards/tape/mirrors/signs were at the expensive end of potential risk control matters.

The Medical evidence

1. Medical evidence relating to the plaintiff was tendered and relied upon by both parties.

Medical evidence for the plaintiff

1. The plaintiff relied on a large amount of medical reports, consultation notes and hospital discharge documentation. The plaintiff had some considerable medical history prior to the accident. This included: 1. Type II Diabetes diagnosed in 2008 but which was controlled; 2. Reported obesity and hypertension; 3. Diverticulitis; 4. A left total shoulder replacement in 2010 following a fall at home with the plaintiff remaining unable to raise her left arm above the shoulder level; 5. A right total knee replacement in 2012 apparently as the result of osteoarthritis and osteoporosis; 6. An apparent previous injury to the right femur. The plaintiff's general practitioner, Dr Ali, advised the plaintiff that an x-ray revealed a "stress type fracture R femur shaft": note for 12 December 2014; 7. Falls in 2015 and early 2016 resulting in increased low back and left thigh/leg groin pain and, in relation to the 2016 accident, left-sided neck pain. The consultation notes of Dr Ali for 25 May 2016 refer to the plaintiff having left-sided posterior neck pain "all day" which was relieved by lying down but the pain became worse as the day went on and reached a ten out of ten intensity by the afternoon. The notes record that relief for the plaintiff was partially provided by the use of Panadeine and Panadeine Forte. The consultation on 31 March 2016 refers to a fall a week previously. There was a further consultation on 29 June 2016 where it was noted that the prescriptions for Lyrica and Endep ceased as they were no longer required. The plaintiff gave evidence in re-examination that her neck pain had improved by the end of June 2016 shortly before the accident; 8. Back pain on a number of occasions resulting in the plaintiff receiving steroid injections in the lower back in 2014: the entries with the Castle Hill Medical Centre in 2014, particularly for 4 April 2014 and 15 October 2014; 9. Pain in the hips, including trochanteric bursitis on the right side, not as significantly on the left; and widespread complaints of arthritis in the knee, hip and back particularly.

General practitioner notes after the accident

1. The plaintiff tendered general practitioner notes prepared after the accident from the Norwest General Practice from August 2016 until February 2019. These are generally consistent with the plaintiff's complaints about ongoing pain and difficulty since the accident following the internal fixation of the fractured right femur. The plaintiff apparently moved general practitioners because she could not access the location of her previous general practitioner. The notes show ongoing consultations relating to the plaintiff's diabetes both prior to and after the accident on a regular basis. The consultation notes also show the plaintiff attending regularly for pain prescriptions. There are references to the plaintiff struggling with her pain, having difficulty sleeping at night and being referred to a psychologist following depression. There is a diagnosis of osteoarthritis of the cervical spine on 17 March 2017 and the plaintiff having osteoporosis on 31 March 2017. There are also references to facet joint arthrosis in the spine and arthritis in the hips. There are also references in the notes to the plaintiff having trochanteric bursitis particularly on the right. Hip bursitis is referred to in a number of entries in 2017 and 2018.

Gosford hospital records

1. The plaintiff tendered Gosford Hospital records establishing the plaintiff's admission to the Emergency Department on 17 July 2016 following the accident with a right mid shaft femur fracture. They also refer to the plaintiff undergoing surgery on 18 July 2016 with an intra-medullary fixation with a metal "nail" and a transfer to the Hospital for Special Surgery under Dr Brighton. This is consistent with the plaintiff's oral evidence. It is quite clear from the records that the plaintiff was in significant pain and that the procedure undertaken on 18 July 2016 following the accident was a significant one.

Reports of Dr Brighton, Orthopaedic Surgeon

1. The plaintiff tendered two reports of Dr Roger Brighton, Orthopaedic Surgeon, dated 12 September 2016 and 24 January 2018.
2. In the first report, Dr Brighton notes that the plaintiff was making steady progress with her recovery, improvement had continued for the plaintiff after her discharge from hospital, there were continuing complaints of thigh pain which were usual for the surgery and that her fracture pattern was typical of that "seen with brittle bones" relating to osteoporosis.
3. In a second report dated 24 January 2018, Dr Brighton noted continuing complaints from the plaintiff around her right hip and lower limb. Dr Brighton recorded that he told the plaintiff that she did not need a right hip replacement and that an x-ray showed only mild-to-moderate change "at worst". The plaintiff's symptoms were linked to a number of matters including a combination of bursal irritation, scar tissue, osteoporosis which was described as "an ongoing problem" and low back trouble. He recommended the plaintiff continue guided injections into the region.

Reports of Dr Thomas, general practitioner

1. The plaintiff tendered a number of reports and referrals of Dr Lena Thomas, the plaintiff's general practitioner. In one report dated 16 May 2018, there was a reference to the plaintiff's "long-term hip pain" in the right leg becoming debilitating with pain in the outside of the hip and down the right leg with bursitis. A letter dated 22 May 2018 referring the plaintiff to Ms Hinz, psychologist, says that the plaintiff's pain following the accident "along with a stressful family business have caused worsening symptoms of low mood and feeling that she is spiralling downwards. Her lack of mobility is causing a lot of depression as well."

Report of Dr Ramachandran, pain specialist

1. The plaintiff tendered a report of Dr Alister Ramachandran dated 28 May 2018. Dr Ramachandran is a pain specialist.
2. Dr Ramachandran referred to the plaintiff complaining about various pain including chronic lumbar spinal pain, right hip pain, persistent postsurgical pain and depression and anxiety. Dr Ramachandran refers to the plaintiff complaining with a presentation of a long-standing history of right hip and lower limb pain "which was precipitated after [the] accident" and constant pain in the right hip region and low back pain "which is long-standing". Dr Ramachandran says that the plaintiff is able to do most of her activities of daily living without much difficulty and can self-care without assistance but does receive some help with household chores and is assisted by her husband. He refers to the plaintiff having a limited range of movements in the lumbar spine and tenderness in the lumbar spine. He prescribed her Cymbalta for significant depression and probable neuropathic pain. He encouraged the plaintiff to continue with hydrotherapy and to see a psychologist. Further pain management was recommended which it does not seem the plaintiff undertook.

Reports of Dr New, orthopaedic and spinal surgeon

1. The plaintiff relied on reports of Dr Charles New, an orthopaedic and spinal surgeon. Dr New saw the plaintiff on 25 September 2018. Dr New had the advantage of viewing a number of x-rays and a CT scan. In his report dated 28 September 2018, Dr New noted that after the accident a Dr Bateman, an orthopaedic surgeon, had performed a femoral nail fixation above the site of the total knee replacement on the plaintiff's right side. He also noted that the discharge plan involved the plaintiff being prescribed a large amount of medication for pain relief. He noted that the plaintiff attends physiotherapy and hydrotherapy but had problems with pain management. The plaintiff told him that although she had a history of low back pain prior to the accident this had been "dramatically increased" since the accident despite conservative management. Dr New noted a medical history of high blood pressure, Type 2 diabetes, multiple areas of osteoarthritis, osteoporosis "and depression". He also noted significant osteoarthritic change in the plaintiff's right hip which was symptomatic with her hip being asymptomatic at the time of the accident.
2. Dr New diagnosed lumbar spondylosis, lateral stenosis, L5 radiculopathy, a healed fracture of the right femur, osteoarthritis in both hips with the right worse than the left and an underlying right total knee replacement which he said had given the plaintiff a painful knee. He stated that the prognosis was poor and the plaintiff had osteopenia and she was carrying significant weight.
3. Dr New recommended ongoing rehabilitation and physiotherapy, hydrotherapy and pain management. He also recommended a nerve conduction study and electromyography to look at her L5 radiculopathy. He commented that the plaintiff would require assistance for domestic tasks and duties including shopping and cleaning. There is no indication in his report that he had details of the plaintiff's domestic tasks prior to the accident.
4. In a second report dated 28 September 2018, Dr New expressed the opinion that the plaintiff's combined back, femoral fracture and deterioration of the arthritis in her hip meant that she would almost certainly require surgical intervention. This has subsequently not occurred. He also noted that there was pre-existing low back pain and hip pathology.

Report of Dr Rastogi, psychiatrist

1. The plaintiff tended a report of Dr Richa Rastogi, psychiatrist, dated 10 October 2018.
2. Dr Rastogi noted the accident, the plaintiff's rehabilitation, the physiotherapy and hydrotherapy she was undertaking, attendances with a psychologist working with "pain and adaptation" and that the plaintiff's pain had continued with varying intensity and with ongoing functional decline. She noted the plaintiff was on Cymbalta. She also noted that the plaintiff had moved house which she found to be emotionally distressing.
3. Dr Rastogi set out the plaintiff's psychological symptoms as including social withdrawal, excessive fears and marked interpersonal sensitivity. She also noted alleged memory and concentration problems and that the plaintiff's motivation levels were poor. The plaintiff indicated that she felt helpless and hopeless and was a burden on her husband. She stated that she felt guilty for not contributing to the family business and had become emotionally detached and withdrawn. She reported fleeting suicidal thoughts in view of hopelessness and worthlessness and uncertainty about her future in employment. In her oral evidence, the plaintiff indicated that these thoughts had only occurred for the first year after the accident and accordingly this is inconsistent with Dr Rastogi's report. The plaintiff reported developing an avoidance of shopping centres due to an irrational fear of having a fall or being hit again. It was noted that the plaintiff had alterations in her daily life functioning including stopping cooking and being unable to do the housework. Dr Rastogi states that the plaintiff has a cleaner once a week "since the accident" which is inconsistent with the plaintiff's evidence of having a cleaner both before and after the accident. Dr Rastogi set out the plaintiff's treatment and medication.
4. Dr Rastogi's diagnosis was as follows: "Her mood was depressed and her affect was restricted and mood congruent. She described feeling irritable with poor frustration tolerance and sense of helplessness and hopelessness. She felt anxious and has lost her confidence. She reports fleeting suicidal ideation but denies any psychotic features. She was oriented to time, place and person. Diagnosis ▪ Major depressive disorder with depressed mood and anxiety ▪ Chronic pain disorder."
5. Later in her report, Dr Rastogi noted that the plaintiff had continued to experience chronic pain, swelling, functional limitations and an inability to do her premorbid functioning. She stated that the accident had instilled fears, loss of confidence, avoidance and dependence on her husband and family resulting in hopelessness and worthlessness. She states that the plaintiff's pain was unlikely to resolve as she had received adequate treatment and this made the plaintiff's psychological prognosis poor with significant functional compromises. It was noted that there was a financial strain on the plaintiff due to an inability to work in any capacity. The plaintiff did not refer to any financial strain in her evidence although she stated that her current house was in the name of a child due to financial issues relating to the business. Review by a psychologist and psychiatrist was recommended (see page 14). An antidepressant was also recommended. The plaintiff has not, according to her evidence, accepted this advice.
6. Later in her opinion, Dr Rastogi indicates that the plaintiff was unable to work in her premorbid capacity or alternate capacity due to her functional limitations and psychological condition with depression impacting her cognitive capacity and drive to do things. The opinion was expressed that the plaintiff was currently unfit to work in any capacity or in the future and it has shortened her working life by a few years. It was also stated that the plaintiff needed assistance for household maintenance for at least 12 months and likely indefinitely.
7. It is noted that the defendant's expert Dr Samuell did not diagnose a chronic pain syndrome. Also, as set out below, Dr Samuell diagnosed the depression as being in partial remission and of a mild degree. He saw the plaintiff several months after Dr Rastogi.

Report of Dr Harvey, Orthopaedic Surgeon

1. The plaintiff relied on a report of Dr F Harvey, Orthopaedic Surgeon, dated 19 March 2019.
2. Dr Harvey noted in setting out the history, that the plaintiff had problems prior to the accident including that she was having problems with arthritis of the right hip and there was a plan for her to have a right total hip replacement (page 2). It was noted that since a left total shoulder replacement the plaintiff had been unable to elevate the left arm above shoulder level. There was also treatment for low back pain in 2014 and neck pain. The plaintiff had difficulty lifting heavy things because of her low back pain.
3. The plaintiff complained of continuing pain in the right thigh in the area where it was fractured. In relation to her activities of daily living, it was noted that the plaintiff had moved houses as she was having difficulty managing the stairs in her previous house. Dr Harvey states the following: "She says their previous house had a large garden with a pool and her husband always did the gardening and looked after the outside and only did a little within the house. Before the accident, because she was working, she employed a cleaner who came for three hours each week. She says she did the cooking and shopping and she put clothes in the washing machine and dryer, but she couldn't hang on the line because she had a left total shoulder replacement in 2012. She also had a lady who did the ironing. The main work she did was shopping and cooking. Since the accident she has been employing the cleaner 4 to 5 hours each week and she does less about the house. She says she can still do the washing and she cooks about twice a week, but they now eat out more often. She claims now that she is not working she would have been able to do more about the home had it not been for the accident, and she would have required less help than before the accident rather than more as she is receiving now."
4. In her oral evidence, the plaintiff said that prior to the accident she employed a cleaner three to five hours per week and after the accident three to four hours per week. She also said that she did not cook but did meal preparation with her husband cooking.
5. On examination, Dr Harvey noted that the plaintiff used a walking stick and that without the stick she walked with a slight limp. Complaints of pain were made during his examination. The plaintiff did not complain of significant pain on movement in her left shoulder, although there was limited movement. Dr Harvey examined the radiological reports which were available. He diagnosed a fracture of the midshaft of the right femur which was consistent with the accident as reported.
6. In relation to the plaintiff's work capacity, Dr Harvey noted a previous total knee replacement and significant pre-existing right hip arthritis. He said it was to be anticipated that the plaintiff's right hip would be giving her increased symptoms and a significant loss of mobility after the accident. He also noted a number of other health problems which would affect her work capacity including the previous left shoulder replacement and an obesity problem. He expressed the opinion that she would still have been able to do secretarial and administrative work if she had to in an accessible office if there were no problems with transport. He stated that it was reasonable for her to see her own doctor every three to four weeks.
7. Dr Harvey stated that Mrs Whitton had significant right hip arthritis before the accident and the imaging showed well marked osteoarthritis in the right hip and also osteoarthritic changes in the left hip. He expressed the opinion that the osteoarthritic changes were likely to progress and the plaintiff would have increased problems with her mobility as she becomes older. He expressed the opinion that with her weight this was inevitable in any case but the fact that she had a fracture in a period of immobilisation would mean that she would become less mobile at an earlier age than otherwise would have been the case.
8. Dr Harvey stated that while it was not usual for a person to complain of pain at the fracture site when it is soundly united as is the case here, it is consistent that the plaintiff would have problems with pain arising from the right osteoarthritic hip and she would have some residual pain in the right knee where she had the previous total knee replacement. He referred to "significant pre-existing conditions" and that before the accident the plaintiff had bilateral hip osteoarthritis and a pre-existing right total knee replacement which the plaintiff said was giving some pain.
9. Dr Harvey expressed the opinion that due to the upstairs nature of the office the plaintiff found "she was unable to get up to the office" and he expressed the view this was reasonable and therefore she could not return to work. This was inconsistent with the plaintiff's evidence that with some difficulty she could get up the stairs. In relation to domestic matters, Dr Harvey expressed the opinion that it was reasonable that she would require one to two hours additional domestic assistance per week. This was also required with reduced mobility when she first came out of hospital.
10. In relation to Dr New's report dated 28 September 2018, Dr Harvey states that he did not find any evidence of radiculopathy. He also disagreed with Dr New's statement that the plaintiff's hip was asymptomatic at the time of the accident as the plaintiff had told Dr Harvey that she was planning to have a right total hip replacement before the accident. He also stated: "I agree with [Dr New's] statement that the pain she complains of in the right thigh is likely to be referred pain from her osteoarthritic right hip. She also told me that she was having some residual symptoms in the right knee following her total knee replacement."

Reports of Ms Memon, occupational therapist

1. The plaintiff tendered two reports of Ms Rehana Memon, occupational therapist, dated 31 January 2019 and 11 April 2019. The latter report amended a number of aspects of the first report, particularly as to the plaintiff's current limitations. There was no evidence as to why the amendments occurred but it is assumed from the amendments that the contents of the first report were regarded as inaccurate. I will focus on the second report whilst noting the differences in the two reports.
2. In the second report, Ms Memon assessed the plaintiff's ability to perform activities of daily living and made recommendations in relation to the past and future assistance needs of the plaintiff. Mrs Whitton reported to Ms Memon that she was dependent on her family for housework assistance especially her husband who took off every Friday to look after her and assists her on other days when she has to go for appointments: paragraph 2.2. In paragraph 2.3, there is a reference to past medical history. There is no reference in this paragraph to the plaintiff's back and neck problems prior to the accident.
3. In paragraph 3.3 of the report, Mrs Whitton's self-reported limitations and functional capacity tolerances are set out. Very limited restrictions are noted relating to the plaintiff prior to the accident. In relation to her sitting tolerances at the time of assessment, it is indicated that at present Mrs Whitton can only manage sitting for five minutes with changing her position frequently. This seems to be inconsistent with the plaintiff in court who gave evidence for lengthy periods of time although there were breaks and occasionally the plaintiff stood up.
4. In relation to stair negotiations, it is reported that Mrs Whitton stated that she could tolerate only four to five stairs and she reported that she had 28 steps at work and she would take more than five minutes to do that. This is inconsistent with her son's evidence who reported fewer steps. The evidence is clear that when the plaintiff goes into work that she has to negotiate these stairs as the office is on the upper level but it takes her some considerable period of time to negotiate the stairs.
5. In relation to reaching, it is stated that prior to the injury Mrs Whitton reported that she had no difficulties with reaching. Her oral evidence was that in relation to her left shoulder she could not raise her arm above shoulder level.
6. In paragraph 3.5, Ms Memon states that the plaintiff said she was off work until 19 March 2018 and then she had to leave because she was not coping with the work and with the stairs at her workplace. This was contrary to the plaintiff's evidence. It seems that from some date in early 2017 the plaintiff attended the work premises at various times but not for two days per week as was the stipulated period in her employment contract with Global Wash. Paragraph 4.3 describes the plaintiff as being not able to work. The plaintiff's oral evidence was that she did attend work from time to time but undertook limited duties. This was consistent with Patrick Whitton's evidence.
7. In paragraph 4.4 of the report, the plaintiff's domestic duties capacity was assessed. It is noted that prior to the injury the plaintiff reported that she would spend eight hours per week completing the cleaning. This is inconsistent with the plaintiff's evidence. She stated that she employed a cleaner and an ironing lady and did very limited tidying and cleaning. She continues to employ a cleaner and ironing person.
8. In relation to the laundry, the report indicates that the plaintiff stated that she was able to complete three to four hours of laundry per week. In her oral evidence, the plaintiff said that she did not hang clothes on the line and could not lift her arm above shoulder level.
9. In relation to shopping, the plaintiff gave evidence that prior to the accident she completed the shopping but that her husband was present and ready to assist with lifting and carrying. At present, she stated that her husband does the shopping. The report of Ms Memon states that the plaintiff can complete 1.5 hours of shopping but does not go alone.
10. In relation to garden maintenance, the report has Mrs Whitton stating that she would complete 1.5 hours of work per week in this task. There was no oral evidence from Mrs Whitton in relation to this matter. Mr Whitton said he did all the garden maintenance prior to the accident.
11. In paragraph 5.1, Ms Memon refers to equipment needs. There is no satisfactory evidence as to how the food processor would reduce the amount of preparation required for cooking. There was also no evidence about the need for a portable clothes airer as the plaintiff uses a dryer. In relation to a domestic shopping trolley, the entry at page 19 of the report appears to relate to another person. In relation to a vacuum cleaner, the plaintiff gave evidence that she does not undertake household cleaning duties and this was the position both before and after the accident.
12. At pages 20 to 22 of her report, Ms Memon sets out the plaintiff's domestic duties assistance to date and the recommended assistance for the future. In the light of the evidence relating to the cleaner and ironing person, it is unclear what the general cleaning requirement and the laundry/ironing requirement relate to. Similarly, it is unclear what involvement the plaintiff had in lawn maintenance. Nothing was mentioned in her oral evidence as to this. Mr Whitton said there was none. In relation to shopping, Mr Whitton attended the shops with the plaintiff to assist with carrying and lifting. An amount for general cleaning appears to have been repeated. In relation to childcare, the plaintiff's evidence was that occasionally she would be called upon to collect a child from school but this was not on a regular basis.
13. In relation to future care, Ms Memon sets out a recommendation of 15 hours per week. Recommendations are made for meal preparation, general cleaning, laundry/ironing, bed making/linen, shopping, garden/lawn maintenance and childcare.

Report of Dr D Samuell, psychiatrist

1. The defendant tendered a report of Dr D Samuell, psychiatrist, dated 13 April 2019. Dr Samuell saw the plaintiff in consultation on 1 April 2019 for the purposes of preparing his medico-legal report.
2. Dr Samuell noted in his report that at the time he assessed her, the plaintiff was under the care of her general practitioner alone and she was not being treated by a psychiatrist, psychologist or counsellor. Although the report notes the plaintiff had previously seen what she believed to be a psychiatrist, on three or four occasions, this was not a psychiatrist but Ms Hinz, a psychologist. It is noted that there is an inconsistency in the report as to the date of the accident. In some places Dr Samuell refers to the accident occurring on 24 April 2016 and in other places there is a reference to the plaintiff being injured in July 2016.
3. The plaintiff gave a history of becoming very depressed after the accident and not wanting to do anything or talk to anyone and staying at home. The plaintiff told Dr Samuell that her pain specialist had prescribed Cymbalta for her poor mood which she said assisted her. Despite this, the plaintiff described herself as being "still depressed" and shutting herself off from people and not liking going out. She also noted anxiety attacks when she was on her own particularly when she was shopping. She expressed concerns whilst shopping because of the circumstances of the accident and a fear of someone running into her and causing her harm. The plaintiff said she was able to drive and cook but hated cooking. The plaintiff noted physical difficulties arising out of the accident particularly walking upstairs at work and said that she could work from home but did not as she is "no longer interested". Dr Samuell noted the plaintiff having poor sleep, poor eating and a dark mood. She indicated that she had felt that her life had changed for ever. The plaintiff added that she felt as though she was a burden to her family.
4. Dr Samuell stated that at the time he assessed her, she described symptoms of both depression and anxiety. Dr Samuell agreed with the plaintiff's medico-legal psychiatric expert that the plaintiff had major depression but an improvement of mood with the antidepressant treatment was, in his view, consistent with a partial remission of the major depression. His diagnosis of the plaintiff was that of major depression with some features of anxiety, mild in extent (page 9).
5. On the basis that the plaintiff was accurately representing the extent of her physical disorder and that it was caused by the subject accident, Dr Samuell accepted that the plaintiff's depression had arisen as a consequence of the alteration in the plaintiff's physical functioning due to the accident (page 10). Dr Samuell expressed the opinion that taking the antidepressant medication Cymbalta was appropriate and that the plaintiff would likely require this for a further 12 months. Although she did not find previous professional assistance of much benefit, Dr Samuell stated that it may be worth her seeing a psychologist for eight to ten sessions to assist with her adaptation and pain management. He was of the view that her psychiatric difficulties were secondary to the physical consequences of the accident.
6. Consistent with my impression of the plaintiff, there was no evidence to Dr Samuell of exaggeration or inconsistency and that the treatment she had received appeared to be reasonable and necessary. In relation to a lack of suitability for future employment, Dr Samuell expressed the opinion that the psychological component of the plaintiff's claimed difficulties was mild and would not preclude her from resuming her usual roles and responsibilities. This is in contrast to the plaintiff's expert Dr Rastogi. Dr Samuell expressed the opinion that the plaintiff has not required domestic assistance due to a psychiatric condition.
7. As the plaintiff's psychiatric condition was mild, Dr Samuell expected with ongoing pharmacological management, her condition to improve. In contrast to Dr Rastogi, Dr Samuell did not make a diagnosis of a chronic pain disorder

Report of Ms Walcot, occupational therapist

1. The defendant tendered a report of Ms Kelly Walcot, occupational therapist, dated 17 April 2019 following an assessment on 25 March 2019 with the plaintiff at the plaintiff's home address. Ms Walcot described her report as being prepared following a "functional assessment of the plaintiff."
2. Ms Walcot noted the plaintiff's accident and the right femur fracture. She noted the stabilisation of the fracture with a femoral nail. Ms Walcot stated: "Ms Whitton had extensive related past medical history including falls, arthritis, osteoporosis and previous multiple joint replacements. Right total hip replacement had been discussed prior to the subject fall. She had a cleaner and ironing lady prior to the subject accident."
3. In relation to her summary of recommendations, Ms Walcot expressed the opinion that the plaintiff needed a certain amount of personal care for four weeks after the accident for 3.5 hours per week and domestic assistance from her discharge from hospital on a reducing basis until 2 February 2017. It was noted that the recommendations for past assistance did not meet the "threshold", undoubtedly a reference to the limitation in s 15(3) of the CLA to the award of damages to a claimant for gratuitous attendant care services where the services provided or to be provided relate to at least six hours per week and for a period of at least six consecutive months.
4. In relation to recommended future assistance, Ms Walcot did not recommend any future assistance for personal care, domestic assistance or transport and said that certain equipment and pain management education required a medical opinion (see page 3 of report).
5. In the body of her report, Ms Walcot goes through in detail the treatment received by the plaintiff following the accident, the plaintiff's complaints of significant pain and continuing disabilities, the plaintiff's medical history (pages 6-7), medico-legal opinion, and the plaintiff's background including family circumstances. Ms Walcot went in some detail into the plaintiff's various activities and her pre- and post-accident tolerances. Ms Walcot noted that the plaintiff's weight was in the "obese weight range", she lived with her husband, and had various limitations. It was noted that the plaintiff had moved into a home with minimal steps since the accident, she used a dishwasher, her husband usually helped her to put on her joggers, she did not feel confident lifting anything, she was worried about falling over and was particularly cautious walking in a shopping centre, and her pre-accident arthritis. Ms Walcot also noted the difficulties the plaintiff had in returning to work including that her office was up a long flight of stairs (page 25). It was noted that all activities by Mrs Whitton and her husband both before and after the accident were for the benefit of the household.
6. Whilst Ms Walcot saw a need for the plaintiff to participate in and return to light domestic activities, she saw no need for future assistance as the plaintiff had a capacity to undertake a number of tasks with variations and had largely returned to her pre-accident domestic routine. Certain equipment was recommended ($150 in total) with Ms Walcot saying the proportion attributable to the subject accident required a medical opinion.
7. Ms Walcot undertook a detailed consideration of the report of the plaintiff's occupational therapist Ms Memon and disagreed with significant aspects of Ms Memon's report noting that she had seen her 15 months prior to Ms Walcot's assessment. She also disagreed with Ms Memon's recommendation of equipment for the plaintiff.

Financial evidence

1. Exhibit 4 in the proceedings was two PAYG payment summaries for the plaintiff for Fleet Wash Industrial Systems Pty Ltd for the year ending 30 June 2017. Mr Val Whitton gave evidence that the handwritten payment summary was the correct summary. This showed the plaintiff having gross payments of $4,880 from Fleet Wash for the year ending 30 June 2017.
2. Exhibit 16 in the proceedings was a PAYG payment summary from Speedy Wash Australia, the trading name of Global Wash Pty Ltd, which indicated that in the period 30 March 2017 to 30 June 2017, the plaintiff was paid gross payments of $15,184 by it.
3. Exhibit Q in the proceedings was a collection of payslips for the plaintiff and an extract from the leave register relating to the plaintiff. This showed that starting 3 April 2017 the plaintiff had an annual leave opening balance of $20,375. The extract from the leave register which was part of Exhibit Q in the proceedings is consistent with Exhibit 16 as showing that the plaintiff had gross payments of $15,184 from Global Wash trading as Speedy Wash Australia for the year ending 30 June 2017. It also showed the plaintiff taking annual leave of $9,811.19 for the year ending 30 June 2017.
4. The figures in Exhibit Q may be summarised as follows: Year ending Gross payments Tax Net Annual leave 30 June 2017 $15,184 $3,133 $12,051 $9,811.19 30 June 2018 $19,687 $260 $19,427 $2,692.30 30 June 2019 (up to 27 December 2018) $10,000.12 $44.08 $9,956.04 6 days at 7.6 hours

1. Documents tendered by the plaintiff showed her earnings from Fleet Wash Industrial Systems Pty Ltd prior to the accident to be as follows: Year ending Gross payments Tax Net Evidence 30 June 2015 $54,965 $11,351 $43,614 Exhibit P pages 739 and 749 30 June 2016 $37,440 $4,202 $33,238 Exhibit P pages 740 and 757

Submissions of the parties

1. Both parties provided the court with extensive written submissions and also made oral submissions. The submissions made by the plaintiff, in general summary, were as follows: 1. The plaintiff should be accepted as a witness of truth. Patrick Whitton should be accepted as a witness of truth. Other than in relation to his evidence concerning when the plaintiff first commenced work after the accident, Mr Val Whitton should be accepted as a witness of truth; 2. Prior to the accident, the plaintiff had an outstanding work history, was a diligent employee, played a central role in the family and the family business and had no plans for retirement. Apart from during serious operations and periods around the birth of her children, the plaintiff had effectively worked fulltime all her life; 3. Although the plaintiff was 71 at the time of the accident and 74 at the time of the final hearing, the court should find that she planned to continue working at the date of the accident and had no plans for retirement; 4. Although there was a company rearrangement in early 2017, it was always the intention of the plaintiff and her family prior to the accident for her to remain working fulltime in the business; 5. Although the plaintiff had pre-existing illnesses and conditions, these were not significant and did not prevent the plaintiff remaining working fulltime before the accident. Although the plaintiff had a serious neck complaint in early 2016, by the time of the accident it had resolved and she no longer was taking the prescription painkillers for that condition; 6. The plaintiff's various pre-accident conditions would not have prevented her continuing to work fulltime for as long as she wished; 7. The plaintiff's evidence about what occurred on 17 July 2016 should be accepted. In particular, it should be accepted that the plaintiff looked to her right before exiting into the main thoroughfare of the shopping centre from the amenities corridor and did not see Ms Connolly on her mobility scooter. The reason why the plaintiff did not see Ms Connolly on her mobility scooter was because of the hoarding which emerged from Shop 46 and which obscured her view; 8. The hoarding also had an effect on the view of Ms Connolly by obscuring it; 9. The plaintiff's expert Mr Dubos should be preferred over the expert for the defendant Mr Horrigan as to liability issues. In relation to the opinion of Mr Horrigan and the cross-examination of him relating to it, that the plaintiff could clearly have seen Ms Connolly if she had looked to her right, it should be accepted that she did not see Ms Connolly and had already turned to her right to look before exiting the thoroughfare; 10. Mr Dubos' opinion in relation to the obligation of the defendant to undertake a proper safety management plan which included a consideration of the potential risks relating to mobility scooters in the shopping centre should be accepted. His view as to the need to have various precautions placed because of the increased risk due to the hoarding obscuring the vision of someone exiting the amenities corridor, should be accepted. The various precautions suggested by Mr Dubos were reasonable and practical and should have been adopted by the defendant; 11. Accordingly, the defendant breached the duty of care which it owed to the plaintiff as a lawful entrant into the shopping centre; 12. The plaintiff was seriously injured in the accident. The accident caused the fracture of her right leg, made her back condition substantially worse and rendered her hip condition substantially worse. Also, in due course the plaintiff developed the psychiatric injury of at least major depression. The accident has had a profound effect on the plaintiff, her life and her family. Substantial damages should be awarded to compensate her for her injuries.
2. The defendant made the following submissions, in general summary: 1. The plaintiff had significant pre-existing conditions which had manifested themselves considerably in the few years prior to the accident including shortly before the accident. It was likely that the plaintiff would have retired or severely limited her working activities even if the accident had not occurred and shortly after the accident; 2. While the plaintiff played a role in the family company, since the accident the other family members had taken over her duties without difficulty. The plaintiff's age and pre-existing health were significant matters in pointing to the fact that she would have ceased working either wholly or partly shortly after if the accident had not occurred; 3. When the plaintiff exited the amenities corridor, Ms Connolly on her scooter could clearly be seen. Both had a line of sight of each other prior to the accident. The plaintiff either looked and did not see Ms Connolly or did not look at all before she exited the corridor; 4. The hoarding had no detrimental effect on the plaintiff's view of the thoroughfare. In fact, by pushing the scooter further out into the main thoroughfare, it improved the plaintiff's potential view. It also provided some protection to the plaintiff by pushing the scooter further out into the thoroughfare. Contrary to the opinion of Mr Dubos, the hoarding did not increase any risk to the plaintiff. Mr Horrigan's evidence on this issue should be preferred; 5. While it is accepted that the plaintiff had a serious accident with a significant fracture, the plaintiff has had a substantial physical recovery from the accident. Her leg has healed, she has been able to undertake some pre-accident domestic duties and she has returned to work, albeit part-time. In relation to her psychiatric condition, this is in partial remission (report of Dr Samuell) and the taking of the antidepressant Cymbalta has improved her mood substantially. In summary, the plaintiff has substantially recovered from the accident and any remaining problems can be primarily blamed on her pre-existing conditions; 6. There is no need for any domestic assistance resulting from the plaintiff's psychiatric condition. Mr Whitton's evidence should be heavily discounted in relation to the tasks he says he performs in the house. There is no reason why the plaintiff cannot continue cooking duties; 7. The occupational therapist report of Ms Memon should be disregarded. It makes a number of erroneous claims and incorrectly adds up the hours claimed. There is repetition of claims. There is no support for any claim for past or future domestic assistance. Ms Walcot's report should be preferred; 8. Any award for non-economic loss should be heavily discounted having regard to the plaintiff's age and pre-existing conditions; 9. There was no breach of a duty of care. The hoarding did not increase the potential risk to the plaintiff. Even if a safety management plan had been prepared by the defendant, it would have found that there was no relevant risk in relation to mobility scooters. There had been no reported accidents at the centre like the present one before the plaintiff's accident. The plaintiff has not established that the risk was not insignificant; 10. Mr Dubos' various recommendations should be rejected. There was no evidence any other shopping centre had signs or mirrors as recommended at blind corners or the barricades as recommended. If these were required as alleged they would be required in every shopping centre at every blind corner which was unreasonable and impractical and unduly burdensome as to cost; 11. The plaintiff's case should be rejected.

Comments on the evidence

1. A number of comments may be made in relation to the evidence in the proceedings: 1. There was no evidence that the driver of the scooter, Ms Connolly, had been observed to be driving the scooter at excessive speed or erratically or unreasonably in the shopping centre either on the day of the accident or on other earlier occasions. There was no evidence as to how long Ms Connolly had been on her scooter in the shopping centre before the accident; 2. The Periskope Incidents report which was part of Exhibit 7 showed that apart from the plaintiff's accident, there had only been two incidents recorded involving mobility scooters at the centre in the period from 1 January 2011 to 31 July 2017. None of these incidents involved a scooter colliding with a plaintiff in a shopping centre thoroughfare. One incident involved a customer bumping into a scooter which caused the driver of the scooter to go forward and injure the customer. This is a different factual scenario to the present; 3. There was no evidence that the defendant was aware or should have been aware of other significant similar mobility scooter collisions in other shopping centres, particularly in the area of a blind corner, prior to the date of the accident; 4. There was no satisfactory evidence that signs warning of blind corners or convex or domed mirrors were used at the exits of amenities corridors or other similar blind corners within other shopping centres (including on or near hoardings) as opposed to at the exits of shopping centre car parks. There was also no evidence that barricades were used at or near blind corners with hoardings within shopping centres; 5. The plaintiff indicated through her senior counsel that she was not pressing any case that there should have been a sign telling mobility scooter drivers to limit their speed to three kilometres an hour or that steps should have been taken by the defendant to limit mobility scooters to three kilometres an hour within the centre: T217.21. However, a sign telling scooter drivers to slow down was pressed; 6. There was no evidence that it was common or frequent or usual practice for shopping centres or individual shop lessees to place warning signs at the exits of shops where visibility was obscured by a blind corner due of the existence of columns or other non-clear surfaces at the exits and entrances to shops; 7. It was not in dispute that there are no specific laws or regulations in New South Wales relating to the presence of mobility scooters in shopping centres or the speed at which those scooters can travel in centres other than they are generally speed limited to 10kph; 8. It was not disputed that shopping centre owners or operators cannot exclude people with disabilities from travelling in electric wheelchairs or mobility scooters in shopping centres; 9. It was not disputed that there are no licensing or registration requirements relating to mobility scooter drivers and their scooters in New South Wales. In particular, there are no requirements for the drivers of mobility scooters to undertake tests in relation to their eyesight or their capacity to safely drive mobility scooters, particularly in enclosed areas such as shopping centres. It was not suggested that there were laws preventing persons on disability scooters from attending government departments or other offices which may be relevant to them such as Centrelink; 10. It was not in dispute between the parties that Ms Connolly, the driver of the mobility scooter involved in the accident, did not appear to see the plaintiff until immediately before the accident when she moved the scooter slightly away from the plaintiff. It seemed to be accepted by both experts that Ms Connolly drove her scooter in a straight direction. It is also clear from the CCTV footage that Ms Connolly was driving her scooter at a speed in excess of the plaintiff's walking pace. There was no evidence as to how fast Ms Connolly was driving the scooter, although the incident report suggests that she was in a rush in order to visit her ill father; 11. There was no evidence as to the frequency of mobility scooter accidents in other shopping centres prior to the present accident.
2. The above matters appear to be relevant in considering the issues in the proceedings.

Factual findings

1. Having considered the evidence and taking into account the submissions which have been made by the parties, I make the following findings of fact: 1. The plaintiff was born in November 1944 which made her 71 years of age at the time of the accident and 74 years of age at the time of the final hearing. She has been married to her husband Val for over 55 years. The plaintiff left school in 1958 and other than for relatively small periods and during and immediately after the births of her six children, she has been in continuous fulltime employment since. Since about 1995, she has worked fulltime for various family companies or businesses with her husband Mr Whitton and since 2007, also with her son Patrick Whitton. On all the evidence, I find that the plaintiff played an important and central role both in the family and in the family business. The family was a close-knit one and she appears to have paid a significant role in keeping the family close and together. A number of family members work for the family businesses. I accept that the plaintiff was a diligent employee at all times and played an important role in the accounts and administration functions in the family business; 2. The plaintiff had a number of health issues and conditions prior to the accident. I have already referred to some of these above. The health issues include being diagnosed with Type II Diabetes in 2008, undergoing a right total knee replacement in 2010 and undergoing a left total shoulder replacement in 2012. The plaintiff's general practitioner consultation notes were in evidence. These established to my satisfaction that in the period between April 2014 and the date of the accident, the plaintiff complained to her general practitioner in relation to pain and restrictions in her back, bilateral hips and neck. The plaintiff was also diagnosed with or complained of osteoporosis, bilateral trochanteric bursitis, arthritis in a number of areas, back pain and issues with her right buttock and groin area. On a number of occasions, the plaintiff was prescribed Panadol Osteo and Mobic for pain. She also had a number of guided injections for back and hip pain; 3. Shortly prior to the accident, the plaintiff had serious complaints in relation to neck pain although by the time of the accident, it appeared, and I accept the plaintiff's evidence on this issue, that they had largely resolved. Despite these extensive medical complaints, the plaintiff remained working fulltime in the family business. However, in my view the extent of the complaints and the plaintiff's arthritis and weight meant that the pre-existing conditions are relevant to the plaintiff's likely working future if the accident had not occurred; 4. There was a substantial business problem with the family company Fleet Wash in 2015-16 caused by litigation which resulted in a considerable deterioration in the turnover of Fleet Wash. One consequence of this was that the plaintiff and her husband decided to take a substantial discount in their company salary in order to ensure that the wages of other employees were paid in full. I find that this state of affairs of Fleet Wash would have likely continued into 2017 when there was a rearrangement, with the business being taken over by Global Wash. This is relevant to the plaintiff's claim for loss of wages and past earning capacity; 5. As at the date of the accident, the plaintiff appears to have been in reasonable health and working full-time, playing a central role in the family business in relation to administration, accounts and wages; 6. On 17 July 2016, the plaintiff and her husband travelled to the Central Coast of New South Wales and visited the defendant's shopping centre at Woy Woy, the Deepwater Plaza. They had not been to the shopping centre before. I generally accept the plaintiff's evidence in relation to how the accident occurred. Despite some of the photographs in evidence showing the mobility scooter driven by Ms Connolly and the plaintiff in the same photographic still, I accept the plaintiff's evidence that she quickly glanced to the right before exiting the amenities corridor and did not see Ms Connolly advancing on her scooter. It is inconceivable, in my opinion, that the plaintiff would have proceeded as she did if she had seen Ms Connolly advancing down the thoroughfare at a faster than walking pace on the mobility scooter. There was no evidence of the speed at which Ms Connolly was travelling, but it was certainly in excess of the plaintiff's normal walking pace. I also reject the suggestion put forward by the defendant that the plaintiff should have seen the mobility scooter when she turned her head. Whilst it may be that the mobility scooter cast the shadow in the photograph as the plaintiff looked to her right (Exhibit 1), as the defendant alleges, it is unclear to me precisely where the scooter was at that time or at what speed it was travelling. In the end, I am satisfied that the plaintiff took proper care for her own safety when glancing to the right before exiting the amenities corridor to the left and into the main thoroughfare; 7. I find that the plaintiff was not wearing glasses at the time of the accident. I reject the experts' opinions to the contrary. I accept the plaintiff's evidence on this issue; 8. I accept from the evidence of the experts, that Ms Connolly was travelling on her mobility scooter at a faster than walking pace, that she was travelling in a fairly straight line from her position to the right of the hoarding outside Shop 46, that she was in a rush and that she did not see the plaintiff until immediately before the accident. Having regard to the CCTV film and the photographic evidence, in my view Ms Connolly should clearly have seen the plaintiff as she emerged from the corridor and taken appropriate action to slow down the scooter and avoid hitting her with it; 9. There is a significant issue in the proceedings as to the effect of the hoarding which was placed outside Shop 46 to the right of the amenities corridor as Mrs Whitton exited to the left. In considering this issue, I have taken into account the various photographic exhibits, the CCTV film, Exhibit 9 and Exhibit E, the evidence of Ms Elmasri (the solicitor for the plaintiffs who took the photographs in Exhibit E), the evidence of Mr Horrigan (who took the photographs in Exhibit 9) and the evidence of Mr Dubos, the plaintiff's expert who attended the shopping centre shortly before the final hearing. It is a matter of considerable regret that neither expert had been to the shopping centre when they prepared their principal reports and expressed the opinions in the conclave transcript. The experts only attended the shopping centre after the preparation of their principal reports. In particular, it is difficult to see how Mr Dubos could have expressed the opinions which he did about the lines of sight of the parties if he had not been to the shopping centre and inspected the area. Additionally, it is difficult to see how Mr Horrigan could have concluded, without going to the shopping centre, that the plaintiff had not looked to her right before exiting the thoroughfare. 10. Having regard to the whole of the evidence, I accept the submission of the plaintiff and find that the presence of the hoarding outside Shop 46 at the time of the accident had the potential to affect the vision of someone emerging from the amenities corridor in relation to what was approaching to their right. The hoarding, from the photographic evidence, was opaque and stood out about 1.2m from the existing shopfront into the thoroughfare. The extent of the impact of the hoarding on the view of a person emerging from the corridor, largely depended on where the person was standing when they looked to their right. The column in the middle of the foyer of the exit to the amenities corridor also obscured to some extent the vision. I accept the experts' views on that matter. To what extent the column in combination with the hoarding, obscured the plaintiff's vision depends on where she looked to her right and where the scooter was at that time. Although Mr Horrigan attempted to replicate this view in the photographs he took in Exhibit 9, there is a danger in placing too much weight on these photographs because of the differential in height between Mr Horrigan and the plaintiff and the uncertainty of the turning angle of the plaintiff's head when she glanced to the right and the location of the plaintiff and the scooter when she glanced to the right. Overall, in the light of the whole of the evidence, I accept the plaintiff's submission, which gathers support from both experts in their reports, that the vision of a person looking to the right was partially affected and obscured by the combination of the column in the foyer and the hoarding jutting out at an angle from Shop 46; 11. I also accept the submission of the defendant and find that the hoarding provided a limited degree of protection to someone like the plaintiff by potentially pushing traffic such as mobility scooters, motorised wheelchairs and trolleys further out from shop front towards the centre of the thoroughfare. This was caused by the hoarding protruding about 1.2m out from the shopfront causing traffic to proceed further out. I prefer Mr Horrigan's views to Mr Dubos' views on this issue; 12. The Periskope incidents report which is Exhibit 7, relates on its face to incidents reported relating to the Deepwater Plaza Shopping Centre concerning reported mobility scooters in the period from 1 January 2011 to 31 July 2017. There were only two incidents reported other than the one in question. The other two incidents were dissimilar to the present incident and did not involve someone being struck by a scooter in the main thoroughfare of the shopping centre or near a blind corner. It appears from Exhibit 7 and the requirements in Exhibit G that relevant incidents were reported and recorded. I therefore conclude and find that there were only two incidents relating to mobility scooters reported at the shopping centre in the period 1 January 2011 to the date of the accident and neither involved facts similar to the present; 13. Other evidence before the court relating to mobility scooters, does not suggest that there were any significant number of injuries caused by mobility scooters striking people in shopping centres prior to the accident. I have taken into account the material in the Shopping Centre of Australia Council submission to the Parliamentary enquiry which I have referred to above (Exhibit 11) and the transcript before the enquiry (Exhibit 12), discounting it partially for the fact that the Shopping Centre Council clearly had a commercial interest in relation to limiting further steps unless these were required and warranted; 14. The shopping centre at the time had CCTV cameras installed, had at least one security guard present at the time of the accident and had signs outside the shopping centre restricting access and prohibiting certain activities such as skateboards and scooters (although no one suggested that this included mobility scooters); 15. There was no legislation in New South Wales at the relevant time regulating adults who could drive mobility scooters and the speed at which they could travel in shopping centres. In particular, it was unnecessary for persons to undergo health or sight tests before being able to drive a mobility scooter. There were also no vehicle checks in relation to mobility scooters. I accept that there was legally no means to prevent a disabled person riding a mobility scooter or motorised wheelchair into a shopping centre including the Deepwater Plaza. Any such attempts would have been discriminatory if the reason was the person's disability. However, clearly, steps could have been taken to remove or limit access to a person riding a mobility scooter who was driving it in a dangerous or potentially dangerous or erratic fashion. There was no evidence that Ms Connolly who was riding the mobility scooter in the present case had been acting in such a way prior to the accident. There was also no evidence how long she had been in the shopping centre prior to the accident; 16. I accept the plaintiff's evidence in relation to the events after the accident, her stay in Gosford Hospital and the Hospital for Special Surgery, her rehabilitation and the difficulties which she has had getting around at home and to work. This is largely confirmed by Mr Whitton and Patrick Whitton. I also accept the evidence of Patrick Whitton in relation to the plaintiff's work activities since the accident. I accept the plaintiff's evidence that since the accident she has had feelings of helplessness and hopelessness, guilt in relation to her inability to help more in the family business and a sense of loss of her pre-existing independence and level of activity. I accept the plaintiff's evidence that her mood has improved with taking the drug Cymbalta; 17. I generally accept with certain qualifications Mr Val Whitton's evidence in relation to the additional assistance which he has provided the plaintiff since the accident. As he did the tasks after the accident, he was in a better position than the plaintiff to give accurate evidence on this issue. The plaintiff, having regard to her evidence and Mr Whitton's evidence, impressed as a person who kept a very tidy and clean house (see for example T487.13 and T488.11). I accept that she had retained a cleaner and ironing lady before the accident and continues to have such persons after the accident. However, now the plaintiff no longer has the large Sunday family dinners and seems to live a much quieter life in a smaller house. Accordingly, I have discounted the number of hours Mr Whitton gave evidence of for cleaning the house because of the high standard which the plaintiff has in relation to the state of her house and the altered use and size of the house; 18. The plaintiff says she is "not interested" in cooking but does meal preparation with her husband cooking. As I state further below, I accept Dr Samuell's opinion that there is no psychiatric reason for the plaintiff needing domestic assistance. In my view, the plaintiff, if she took turns sitting and cooking, could undertake more meal preparation and cooking and light cleaning duties (certainly in the kitchen) than she apparently currently does on the evidence. 19. Overall, I accept the evidence of the plaintiff, Patrick Whitton and Mr Whitton in relation to the plaintiff's ongoing working hours and her difficulties climbing the stairs at work. With proper medication and consultations with a psychologist, in my view the plaintiff could have a greater working role including completing work at home with the necessary support and cooperation of her family members; 20. I will consider other medical issues and issues relating to the alternative precautions and steps recommended by the experts further below.

Findings on the medical evidence

1. I make the following findings in relation to the medical evidence: 1. I have already referred above in the factual findings to the plaintiff's pre-existing total right knee replacement and her left total shoulder replacement together with her pre-existing conditions of Type II Diabetes, diverticulitis and arthritis. I have also referred to the plaintiff's pre-existing conditions in the period from April 2014 to the time of the accident as revealed in her general practitioner's consultation notes. The plaintiff in general terms did not dispute what appeared in the consultation notes. There was a degree of repetition in a number of the conditions and complaints and the plaintiff appeared to be an intelligent woman who was a reasonable historian. In my view, therefore, while caution must always be shown in relation to consultation notes, some weight can be placed on the notes as to the plaintiff's pre-existing conditions; 2. Although initially the plaintiff denied having any falls other than the fall which caused the left total shoulder replacement in early 2012, the plaintiff eventually agreed that she had further falls in 2015 and 2016, the latter apparently causing for some time considerable problems and pain with her neck; 3. Accordingly, as at the date of the accident, the plaintiff had a reasonably lengthy history of various physical problems including complaints of arthritis, limitations in movement of her left arm above shoulder height, various complaints of pain in the back and in the bilateral hips including bursitis and some problems with her right knee. On occasions she had also taken Panadol Osteo and Mobic. It appears that she took Panadol Osteo in the two years prior to the accident and Mobic from at least August 2014 when required for her pain, particularly her back and her bursitis, and in 2016 her neck. The plaintiff also had injections in the back and the trochanteric bursa prior to the accident. It is noted that on 29 June 2016 the prescriptions for Lyrica and Endep were ceased as they were no longer required. The plaintiff said, and I accept, that this was because her neck condition had substantially improved. It is also to be noted that the plaintiff had hypertension and osteoporosis prior to the accident; 4. It is not in dispute that the plaintiff was seriously injured in the accident and fractured her right femur. She spent three days in Gosford Hospital and on 18 July 2016 had an open reduction of her right femur with the insertion of an intra-medullary nail rod. The plaintiff was then transferred to the Hospital for Special Surgery under the care of Dr Brighton, who had been her previous orthopaedic surgeon for her other operations; 5. I find that the plaintiff remained in that hospital for two weeks and underwent extensive rehabilitation including physiotherapy. I accept that the accident, the rehabilitation, the physiotherapy and the plaintiff's recovery involved considerable pain and trauma to the plaintiff who was not a young woman. I accept the reports of the plaintiff's pain and distress given by herself, Mr Val Whitton and Mr Patrick Whitton; 6. I also accept the submission of the plaintiff and find that the fractured femur took some considerable time to completely heal, consistent, in Dr Brighton's opinion, with the plaintiff's existing osteoporosis (12 September 2016 report); 7. I accept the plaintiff's evidence that the plaintiff was discharged from hospital on crutches and used these for three to four months. I accept that she also used a walker about the house to give her stability before proceeding to a walking stick which she still uses. I accept that the plaintiff's pain and restrictions in her two storey house necessitated the moving of her bedroom to the ground floor due to her difficulties with the stairs. I also find that the plaintiff, even when returning to work sometime after the accident, has had continued difficulties with climbing and descending the stairs at her workplace with continuing pain; 8. The plaintiff developed a major depression as a consequence of her injuries in the accident. The plaintiff's pain specialist Dr Ramachandran prescribed Cymbalta for this and this has assisted the plaintiff. In relation to the plaintiff's present psychiatric condition, I prefer the report of Dr Samuell to that of Dr Rastogi as it is more recent and refers to the plaintiff's continuing improvement with Cymbalta. I accept Dr Samuell's opinion that the plaintiff taking Cymbalta is appropriate and that she will continue to require that for some time. I prefer the opinion of Dr Rastogi that Cymbalta will be needed for at least 12 to 24 months to Dr Samuell's opinion of a further 12 months. The former seems a more appropriate estimate having regard to the duration of the plaintiff's current psychiatric issues and her evidence as to her current status. I accept Dr Samuell's opinion that the plaintiff's psychiatric difficulties are secondary to the physical consequences of the accident. I also accept Dr Samuell's opinion that the plaintiff does not currently require domestic assistance due to her psychiatric condition. The limitations of the plaintiff in that area appear all to be related to her physical injuries; 9. Dr Samuell has a different opinion to Dr Rastogi in relation to impediments to work. Dr Samuell is of the view that the psychological component of the plaintiff's difficulties is mild and would not preclude the plaintiff from resuming her usual work role and responsibilities. Dr Rastogi expresses the opinion that the plaintiff's psychiatric condition is an impediment. Having seen the plaintiff and heard her evidence as to her current position, I prefer Dr Rastogi's view on this issue. However, in my view it is likely that the plaintiff would be able to resume more work duties following appropriate psychological care and the continued use of Cymbalta as recommended by both doctors, particularly if she undertook some work duties at home and had the full support of her husband and family. I accept Dr Samuell's opinion that the plaintiff suffers from major depression with some features of anxiety with mood and sleep disturbance and that it is in partial remission (if that means it has lessened) due to her treatment with the antidepressant. Dr Rastogi, but not Dr Samuell, also expressed the opinion that the plaintiff had a pain syndrome. This was not mentioned by Dr Samuell and as his report is a far more recent report, I find the plaintiff does not currently have a pain syndrome; 10. In relation to the plaintiff's physical difficulties, there are a number of reports before me including the reports of Dr New and Dr Harvey. Dr Harvey's report again is more recent than the reports of Dr New and overall I prefer it. It is a far more detailed and thorough report. I also prefer Dr Harvey's opinion that the radiology does not show L5 radiculopathy. This has not been previously suggested by other practitioners including in the radiological evidence; 11. Based on Dr Harvey's report and the consultation notes, I find that the plaintiff continues to take Panadol Osteo, Endone when required and Cymbalta. She also takes her medication relevant to her hypertension and diabetes. I find that arising from the accident the plaintiff has continued pain in the right thigh in the area where the femur was fractured, pain in the right hip due to a significant loss of mobility resulting from the accident, and that the fact of the fracture and a period of immobilisation is likely to mean that she will become less mobile at an earlier age than otherwise would have been the case. Dr Harvey makes no comment in relation to the plaintiff's back, other than pain in the lower back. I accept, based on Dr New's report, that the plaintiff's pre-existing pain in her lower back has increased since the accident. 12. I find that the plaintiff's likely progress will be slow having regard to her age, the duration of her difficulties and the fact that she is carrying significant weight (as reported by the doctors) together with the disabilities which I have referred to above. The plaintiff was coping with her domestic duties and work prior to the accident but the accident has aggravated her conditions in the hip and back and caused greater weakness in the right leg; 13. The plaintiff will require continued supervision by her doctors, occasional review by Dr Brighton and the continued taking of analgesics and antidepressants. I accept the opinion of Dr Samuell that psychological intervention is required as well as the continued use of hydrotherapy. I consider these matters further below when I consider damages issues.

Findings in relation to the expert liability evidence

1. The two liability experts, Mr Dubos and Mr Horrigan, have provided a number of reports and were extensively cross-examined. I have set out a summary of their evidence above. They had quite different opinions on many issues. I have set out above a summary of the parties' submissions in relation to the expert evidence.
2. In evidence as Exhibit G was the Work Health Safety & Liability Manual of the defendant dated June 2016. This had parts dealing with risk management, hazard management, construction works, managing the risk of falls and building access by persons with a disability. Having regard to the requirements of Part 26, the Claim and Incident Management section of the manual (see commencing page 118), I am satisfied that it is very likely that any incidents relating to mobility scooters at the shopping centre in the period from 1 January 2011 would have been reported and likely recorded by the defendant in the Periskope incidents report.
3. Part 2 of the manual deals with a risk management audit program, Part 4 deals with risk management including assessment of hazards identified during inspections of the property and monitoring of corrective actions via the development of a Risk Register and documentation and management of all records associated with risk management activities. The controls for each risk must be recorded and evaluated. Part 16 relates to hazard management including the need to conduct regular hazard inspections and consult with tenants on any work health safety and liability issues with inspections including paths of travel with all significant and high risks which cannot be eliminated or adequately controlled at the time of identification to be subject to a risk action plan. It is not in dispute that documented risk and hazard inspections at the shopping centre were not produced by the defendant upon subpoena: Exhibit 7.
4. The plaintiff submits that the conclusion should be reached by the court that the defendant did not have in place a documented health and safety management plan for the shopping centre at the time of the accident including one which made an assessment of the risks provided by mobility scooters.
5. I accept the opinion of Mr Dubos that the defendant should have had in place a practice of inspections and a safety management system plan which involved documenting a review of the shopping centre for potential risks and a consideration of possible means to eliminate or reduce those risks: first report paragraphs 16, 28 (last bullet point), 56. Mr Horrigan did not appear to have a contrary view: T275.16-.33. Mr Dubos said such a plan should include a consideration of the risks posed by mobility scooters: T`271.25; T272.7-.27. Mr Horrigan was of the view that any health and safety system plan should consider and assess potential hazards such as mobility scooters in a shopping centre: T275.22. If it was identified as being a risk, "then it has to be managed": T275.33 (Mr Horrigan). Mr Horrigan accepted that the risk must be minimised as far as is reasonably practicable: T444.32. I accept these opinions from the experts.
6. Mr Horrigan pointed to the presence of CCTV cameras at the centre, a security guard and the signs outside of the premises limiting skateboards and the like. I accept his opinion that these provide some evidence of an assessment by the defendant of risk and safety issues at the shopping centre: Horrigan report page 7. There was no express evidence before me, however, that a risk or safety assessment had been made by the defendant and documented in relation to mobility scooters in the centre or near the exit to the amenities corridor including with the placement of the hoarding. A risk assessment may have been made generally of the site and the preparation of documentation including some identification of risks may have occurred but none was produced. It is possible that the assessments were done without written records but there was no evidence of this. If they had been done or if documents were created one would expect them to have been produced and evidence to be called. I therefore find that no assessment of risks relating to mobility scooters at the centre or at centres generally was made and documented by the defendant. Exhibit G does not refer to mobility scooters.
7. That is not the end of the matter, however, because the question arises as to what risks and hazards should have been identified and documented by the defendant in such a plan and what steps should reasonably have been taken by it to eliminate or reduce them.
8. The risk of harm as identified by the plaintiff at the hearing was the risk of patrons at the shopping centre being hit by motorised mobility scooters: T7.7. The defendant accepted that that was the relevant risk of harm. The plaintiff submits that the risk was increased by the presence of the opaque hoarding extending outside Shop 46: written submissions on liability paragraph 12. Mr Dubos held that opinion. The defendant submits that even if a safety management plan and an inspection of hazards at the centre was made and documented including as to the risks involved with mobility scooters in the shopping centre, the hoarding did not relevantly increase the risk to someone like the plaintiff but actually provided some protection to someone like the plaintiff and therefore diminished the risk and that all the precautions recommended by Mr Dubos were not reasonably necessary in the circumstances.
9. As stated above, Mr Dubos recommended a range of measures including warning signs, convex mirrors and barriers including with mesh netting connecting bollards or witches hats. Mr Horrigan in summary said that the sign proposed by Mr Dubos (Exhibit L) was confusing and did not comply with Australian Standards and that other proposed signs had the capacity to confuse or result in visual clutter. He also saw difficulties with convex mirrors and with the barriers/bollards/witches hats.
10. I have found above that the presence of the hoarding did partially obscure or impair the vision of someone exiting from the amenities corridor depending on when they looked and where they looked. The plaintiff submits that if the hoarding had not been there, the plaintiff would have seen the approach of the scooter and avoided it and thus the accident would not have occurred. In my view, on the evidence, I cannot make that finding. The views of Mr Dubos and Mr Horrigan in their reports as to lines of sight and whether the plaintiff looked at all, must be heavily discounted by the fact that at the time they were expressed they had not viewed the shopping centre in person.
11. Mrs Whitton gave evidence that she momentarily looked or glanced to her right before exiting the amenities corridor. I have accepted that evidence. I have also accepted that the hoarding protruded about 1.2 m beyond the shopfront at the time. I have accepted that Mrs Whitton did not see the scooter. However, in my view the evidence is not sufficient for me to find that from where she was when she looked, the plaintiff would have seen the scooter without the hoarding. Although Mr Horrigan attempted in Exhibit 9 to take photographs from where the plaintiff was standing in Exhibit 1 when she glanced to her right, there are difficulties with this approach which I have referred to above. It also seems that Ms Elmasri, the plaintiff's solicitor, when she took Photograph 5 in Exhibit E, was standing in a different position to where the plaintiff was standing when she glanced to her right: T207.37-T208.6. The plaintiff's evidence in chief that she saw "just people" (T34.6) is consistent with a quick glance in a limited way. At the time the plaintiff glanced, her view may have been limited by the column and the existing shopfront without the hoarding. I am not satisfied on the whole of the evidence that her view was obscured when she looked because of the hoarding (with or without the presence of the column). I reject Mr Dubos' evidence to the contrary. I also am not satisfied on the evidence that the hoarding increased the risk of injury to someone in the position of Mrs Whitton - there was a blind corner with or without a hoarding. Whether the partially obscured view was relevant depended on how, when and where one looked to the right.
12. I now turn to consider the question of the precautions which Mr Dubos said should reasonably have been taken by the defendant in relation to the hoarding having regard to the risks which existed to centre patrons.
13. It must be recalled that this was the first time that the plaintiff had been at this shopping centre. She accordingly would have had no history in seeing signs or convex mirrors if they had been installed. Mr Horrigan, who I accept on this point, said that it often takes some time for customers at a shopping centre to become familiar with convex mirrors in particular: Exhibit J page 22. However, infrequent users may potentially see objects in their peripheral vision.
14. There was no evidence before me nor was it suggested that the hoarding was built inappropriately or in a dangerous or improper fashion. That case was not made by the plaintiff: T7.1. There was no satisfactory evidence that the hoarding could have been built differently.
15. In paragraph 28 of his first report, Mr Dubos sets out steps which he opines should have been taken by the defendant as part of an "adequate safety program". These precautions have to be seen in the light that the amenities corridor in my view created four blind corners. A blind corner to a person proceeding on the outside of the hoarding towards the amenities corridor; a blind corner to a person coming up to the right of the amenities corridor to turn around the hoarding; a blind corner to a person proceeding down the thoroughfare to turn right into the amenities corridor; and a blind corner to a person like the plaintiff emerging from the amenities corridor to turn left into the thoroughfare.
16. The first precaution suggested by Mr Dubos in paragraph 28 of his first report was to display clear signage on the shopping centre premises, indicating that motorised mobility scooters should not be operated in the shopping centre at more than 3kph. This was no longer pressed by the plaintiff in her case.
17. The second recommended precaution of Mr Dubos was to place high visibility safety yellow warning signage at the end of the hoarding protruding into the common passageway in the shopping centre and also on the column facing a person leaving the amenities corridor.
18. I reject Mr Dubos' recommended sign as being appropriate which is Exhibit L. This sign in my view is confusing as it only refers to a singular blind corner whereas there were at least two blind corners: see T418.16. It is also not consistent with Australian Standards (Horrigan, 2 September 2019 report).
19. The signs recommended in paragraph 28 of Mr Dubos' first report seem to be directed to someone in the position of Ms Connolly as they are to be placed on the hoarding. I am not satisfied that Ms Connolly on the evidence would have seen the signs. I am also not satisfied that these were reasonably necessary precautions as persons proceeding down the thoroughfare would always be aware that people could be emerging from shops or corridors to their left or right.
20. I accept that it would have been possible for the defendant to create a sign consistent with Australian Standards warning a person exiting the amenities corridor of the potential for ongoing traffic to their left or right. There was no evidence that such signage was used within shopping centres elsewhere in Australia at blind corners. The cross-examination of Mr Dubos established that it would have been clear to anyone coming up the corridor near the hoarding that they could not see traffic at the blind corners and thus some care would be required before exiting. This was in substance no different to the blind corners faced by people coming up to the amenities corridor: T388-401. In my view, therefore, such signs were not reasonably required as the risks at the blind corners on exiting were clear and a person could stop or slow down to carefully look before exiting. I reject Mr Dubos' opinions to the contrary. In addition, the plaintiff only glanced momentarily to her right. In my view, there are real prospects that she would not have seen any such sign particularly if it had been placed on the column (which was a relatively small area) or on the hoarding. I will consider this further when I deal with causation.
21. In relation to the recommendation of Mr Dubos to install convex mirrors, there was no evidence before me that these were used in shopping centres anywhere in Australia other than on the exits to carparks. Mr Dubos' equivocal evidence that he may have seen them but he was not one hundred percent sure (T302.23) did not satisfy me that they existed in any other shopping centre. However, that is not conclusive. Mr Dubos' suggestion that a mirror should have been placed under the sign directly ahead of the exit corridor did not satisfy me that any reflection would have been helpful as it would have involved potential movement in all directions in the corridor. The suggestion of a convex mirror either at the end of the hoarding or within the corridor to the left or the right also did not impress me as being reasonable. I would have needed far clearer evidence as to the view that could have been created by the convex mirrors recommended for someone like the plaintiff. In my view, it was obvious to all persons exiting the corridor that they were exiting to a thoroughfare and needed to take care. While persons exiting the corridor would not necessarily expect to be confronted by a mobility scooter driven at excessive speed, persons using shopping centres would be well aware that a range of pedestrian traffic could be seen including large pedestrians, parents with prams, persons of all different ages, persons pushing heavy shopping trolleys, persons pushing groups of shopping trolleys, persons moving commercial goods, persons in wheelchairs or with mobility walkers, persons using walking sticks, persons using motorised wheelchairs or persons using mobility scooters. The existence of a blind corner indicated that care should be taken.
22. The next suggestion of Mr Dubos was that barriers be installed around the end of the hoarding closest to the corridor possibly using bollards with mesh netting or witches hats: Exhibit J page 20 cf Exhibit J pages 21-23. There was no evidence that such barriers including bollards or witches hats had been used at exits from amenities corridors in shopping centres with or without hoardings where there was a blind corner anywhere in Australia.
23. The use of witches hats with or without tape in my view was impractical and not reasonable. They could themselves become a hazard to persons with limited sight and could be removed or moved by small children or teenagers or struck by shopping trolleys or by persons, and may themselves create a serious risk hazard. In relation to bollards with or without netting near the hoarding, in my view this would create a difficulty for a person exiting the corridor and turning right. The bollards would create particular difficulties for persons turning right around the bollards with prams, wheelchairs or mobility scooters. They would also need to remain in place while the entirety of the construction work was undertaken. It was suggested by counsel for the plaintiff that this would force a person riding a scooter like Ms Connolly to move further out into the thoroughfare. While that is possible, it would not necessarily prevent an accident of the type here in question involving the pedestrian moving into the thoroughfare from the left in the face of a person with sight restrictions riding a mobility scooter ahead.
24. In my view, it was obvious to anyone exiting the corridor to the left or the right that they were coming up to a blind corner and had to exercise care for their own safety. Mrs Whitton did this by looking to her right. She then proceeded to her left. I am not satisfied of the reasonableness of Mr Dubos' opinions in relation to the precautions that he said should have been taken by the defendant. Persons exiting the amenities corridor were in the same position as persons exiting shops where there is not clear vision due to the nature of the exit or goods displayed in shop windows obscuring the view of passing traffic. In my view the hoarding merely extended out 1.2 m approximately into the corridor. It did not create a structure which was different in substance to any person exiting a similar corridor or exiting a shop with a partially obscured view or opaque exit.
25. The matter can be tested this way. Anyone exiting a shop where the exit has a blind corner could be struck by someone on a mobility scooter or using a motorised wheelchair or someone pushing a heavy shopping trolley unless both parties exercised due care for their own safety and that of other patrons in the shared shopping centre space. Practically, people are expected to exercise due care for their own safety and the safety of others. Mrs Whitton did that by looking to her right before proceeding left. On the evidence before me, Ms Connolly did not exercise the same care and caution in relation to other persons using the shopping centre.
26. If the plaintiff's submission was correct, signs or mirrors may be needed at all exits where a blind corner existed where it met with a thoroughfare, including at the exits to many shops.
27. Accordingly: 1. In my view the defendant should have prepared an appropriate safety management plan identifying potential hazards and risks at the shopping centre including as to items such as mobility scooters; 2. There is no evidence that such a written plan was prepared. Inspections may have occurred without documenting the results but there was no evidence of this; 3. I accept the opinion of Mr Dubos, confirmed by Mr Horrigan in his reports, that the hoarding partially obscured the vision out of the corridor. I am not satisfied on the evidence that it obscured the vision of Mrs Whitton of the scooter at the time she glanced to her right; 4. I accept the evidence of Mr Horrigan that the presence of the hoarding actually pushed traffic further out into the thoroughfare and provided some limited level of potential further protection to a person exiting the corridor to the left; 5. I do not accept that the precautions recommended by Mr Dubos in his written and oral evidence were either reasonable or appropriate at the time having regard to the circumstances of the exit which had four blind corners. It was obvious to any person exiting that they must look carefully for oncoming traffic before exiting the corridor.

Consideration

1. I will now consider the legal principles applicable and whether there was a breach of a duty of care by the defendant as alleged by the plaintiff on the facts which I have found.

Duty and breach of duty of care

1. It is not in dispute that the defendant owed the plaintiff a duty of care as a person attending a shopping centre controlled by the defendant. The defendant submitted that any duty owed by the defendant to the plaintiff was no more than a duty to take reasonable care to prevent injury to her on the assumption she was using reasonable care for her own safety: defendant's written submissions paragraph 30. In paragraph 90 of her submissions on liability, the plaintiff submits that the defendant owed the plaintiff as a lawful entrant upon the premises a duty to take reasonable care to avoid foreseeable risk of injury. It is submitted by the plaintiff that to discharge its duty of care to the plaintiff, the defendant was required to do what a reasonable person would do by way of response to the foreseeable risk of injury caused to a patron by collision with a mobility scooter in the shopping centre.
2. In Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [103], Sackville AJA described the duty of care owed by a cleaner to a patron in a shopping centre in the following terms: "The duty owed by Atlantic and Mr Nguyen to patrons of the Centre was not absolute. They were required to exercise reasonable care to detect and remove potential hazards to patrons, including wet patches on the terrazzo floor. The standard to be attained was that to be expected of a cleaner discharging his or her duties of inspection with reasonable diligence and care. A failure to detect a particular hazard did not necessarily involve a breach of that duty. Whether or not it did so depends on the particular circumstances."
3. In Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [7]-[8], McColl JA stated as follows: "Duty of care 7. It was common ground that McDonald's owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury to him arising from the physical state of its land, on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334 (at [45]) per Gummow J. The appellant submitted that Holistic's duty was relevantly identical with McDonald's, a proposition Holistic did not dispute insofar at least as liability to the appellant was concerned. 8. Gleeson JA (with whom Emmett JA and Tobias AJA agreed) addressed the content of the assumption that an entrant uses reasonable care for his or her safety in his pellucid judgment in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (at [159]) as follows: "[159] The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, 'the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case': Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35]."
4. At paragraph 82 in the same case, Barrett JA (with whom Ward J agreed) stated as follows: "Duty of care 82. McDonald's was under a duty to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons coming on to the premises and that duty included the obligation to take precautions that a reasonable person in the circumstances would have taken by way of a response to the risk that a person may slip on the stairs: Civil Liability Act s 5B; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479; Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 at [50]. That duty subsisted, in the present case, in relation to premises visited by many people each day."
5. In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253, Leeming JA (with whom McColl JA agreed) stated as follows at paragraph 53: "53. Finally, the scope of an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety: see Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159] and Jackson v McDonald's Australia Ltd at [8]. As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a "specific element contained, as a matter of law, in the scope of the ... duty of care"."
6. Accordingly, in my view the defendant owed the plaintiff a duty to take reasonable care to avoid a foreseeable risk of injury to her arising from the state of the shopping centre, on the assumption as an element contained in the scope of the duty of care that the plaintiff would exercise reasonable care for her own safety.
7. In paragraphs 49-51 of the Patrick Stevedores case, above, Leeming JA stated as follows: "49. "Negligent" in this context means failure to exercise reasonable care and skill: s 5. It was not disputed that the risk of someone slipping, falling and injuring himself or herself while stepping up into the hut was both foreseeable and not insignificant. Even so, s 5B(1)(c) means that a plaintiff must fail in an action for negligence based on a failure to take precautions unless the plaintiff discharges the onus of showing that a reasonable person in the defendant's position would have taken the precautions. The fact that s 5B(1)(c) is a necessary element of a plaintiff's success in litigation to which it applies is plain on the face of the section, and was confirmed by the High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [34]. 50. As McColl JA observed in Jackson v McDonald's Australia Ltd at [11], the requirement in s 5B(1)(c) reflects the formulation of principle by Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 663 that the measure of the discharge of Patrick Stevedores' duty is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. That formulation was approved in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. 51. The essential issue posed by s 5B(1)(c) as to what a reasonable person would have done in response to the risk must be considered prospectively: Adeels Palace Pty Ltd v Moubarak at [31] and [40]. The court's determination of these questions is subject to the limitations imposed by s 5C of the Civil Liability Act, including in paragraph (c) that "the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.""
8. In Lloyd v Thornbury [2019] NSWCA 154, Gleeson JA (with whom White JA agreed) stated in paragraph 44 as follows: "What precautions against the relevant risk of harm were reasonable in the circumstances is to be determined taking account of s 5B of the Civil Liability Act."
9. It is accordingly important to identify correctly the risk of harm in the present case.
10. In paragraphs 47-48 of Lloyd v Thornbury, above, Gleeson JA stated as follows: "Identification of the risk of harm 47. It is well established that the correct identification of the risk of harm is necessary before "one can assess what a reasonable response to that risk would be": Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 (Dederer) at [59] (Gummow J). 48. In Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [118]- [122], Leeming JA (Basten and Simpson JJA agreeing) emphasised two matters. One is that the risk is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances. The other is that while there may commonly be a range of appropriate formulations of the generality of the risk of harm, ordinarily it is unnecessary and undesirable to define the relevant risk of harm with too much particularity. See also: Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [106] (Barrett JA, Gleeson JA and Tobias AJA).
11. Both parties submitted in their written submissions, relying on authority, that the identification of the risk of harm necessarily involves regard to the risk which materialised and, accordingly, some use of hindsight is permissible. Senior counsel for the plaintiff indicated at T7.7 the relevant risk of harm was that patrons of the shopping centre such as the plaintiff could be hit and injured by a motorised mobility scooter. A similar approach was taken by the defendant. I accept that was the relevant risk of harm in the present case.
12. As stated by Leeming JA in the Patrick Stevedores case at [50], the measure of the discharge of the defendant's duty of care is what a reasonable person would, in the circumstances, do by way of response to a foreseeable risk. That must be considered prospectively. The fact that there were measures that could have been taken by the defendant to avert (or, for that matter, diminish) the risk that actually materialised, does not necessarily establish breach. As stated above, the expectation will be that users will exercise reasonable care for their own safety.
13. The issue of breach of duty of care is governed by ss 5B and 5C of the CLA. Section 5 of the CLA defines "negligence" as a failure to exercise reasonable care and skill.
14. I will proceed to consider the elements in s 5B of the CLA (in the light of s 5C) as applied to the present case: 1. The risk was foreseeable, that is, it is a risk of which the defendant knew or ought to have known - both parties submit that the risk of the plaintiff being struck by a mobility scooter in the shopping centre was a foreseeable risk being a risk of which the defendant knew or ought to have known. I agree. It was foreseeable, that a patron of the shopping centre may be struck and injured by a mobility scooter in the shopping centre; 2. The risk was not insignificant - it is important to answer the question of whether the risk of harm was "not insignificant" and not whether the risk of harm was "not significant": Bruce v Apex Software Pty Ltd [2018] NSWCA 330 at [26]. The plaintiff submits that the risk of a mobility scooter colliding with a patron at the shopping centre was not insignificant. The defendant submits that this was not established and that the risk of collision was insignificant. In their written submissions on liability, Counsel for the plaintiff in paragraph 96 state that according to the defendant "over 63,000 people attended the shopping centre annually. Mobility scooters are common in view of the Plaza location in Woy Woy." This seems to be a reference to paragraph 18 of Mr Dubos' first report and to the fact that according to Mr Dubos, the Dexus internet website indicates that 63,340 residents attended the shopping centre in one year. Quite apart from this statement from Mr Dubos, it is clear that the location of the shopping centre in question on the Central Coast in a major centre such as Woy Woy would indicate that it was likely to be heavily patronised particularly having regard to the shops which the plaintiff mentioned in her oral evidence as seeing in the course of her journey on the day of the accident. However, Exhibit 7 indicated that from 1 January 2011, there had been only two incidents involving mobility scooters recorded at the shopping centre other than that involving the plaintiff, and neither of these involved a scooter running into a person in the main thoroughfare or emerging from the amenities corridor. I accept that drivers of mobility scooters may be disabled. I accept that a shopping centre has a confined space which has to be shared by various people and with various pedestrians going in different directions including persons in motorised wheelchairs or mobility scooters. However, the defendant was entitled to expect that users of the shopping centre would exercise reasonable care for their own safety. There was no evidence that Ms Connolly had been noted as being a dangerous or potentially dangerous driver or was driving erratically either on the day in question or previously. The blind corners in question in the present case in my view were obvious. Taking account of all of the matters I have indicated, in my view the plaintiff has failed to establish that the risk was not insignificant; 1. Whether a reasonable person in the position of the defendant would have taken the precautions indicated - based on my consideration of the liability evidence and my findings of fact which I refer to above, in my view a reasonable person in the position of the defendant would not have taken the precautions recommended by Mr Dubos and submitted by the plaintiff; 2. The probability that the harm would have occurred if care were not taken was very low. It was not probable at all in my view that a person riding a mobility scooter would proceed at a high speed and not slow down or avoid colliding with a pedestrian ahead; 3. The likely seriousness of the harm - a collision between a mobility scooter and a patron may involve serious harm to the patron; 4. The burden of taking precautions to avoid the risk of harm - there was not a significant burden on the defendant in taking the specific precautions which the plaintiff put forward. However, there are potential blind corners throughout shopping centres including at the exits and entrances to shops. Senior counsel for the plaintiff submitted that none were shown on the photographs in evidence other than the corners of the amenities corridor. That is to be accepted. However, blind corners can occur at the entrances or exits of many shops particularly where the area near the exit is opaque or a window nearby is obscured by the shop window decorations or displays of goods or clothes for sale. Mr Dubos said that in his view the risk was caused by a combination of the central column and the hoarding. However, it appears to me that if this is correct, there is a risk even if the hoarding had not been there and there was a risk to the left on the plaintiff exiting the corridor. To put signs and/or mirrors at all exits or entrances where there were blind corners or obscured vision would impose a significant and unreasonable and costly burden on shop owners/lessees and shopping centre owners; 5. The social utility of the activity that creates the risk of harm - it is important that the drivers of mobility scooters have the ability to travel within the community including in enclosed places that are necessary for them to attend such as shopping centres, hospitals, government departments or potentially Centrelink agencies. It would be discriminatory to prevent someone riding a disability scooter or a motorised wheelchair into a shopping centre simply on the basis that they were disabled unless they clearly posed a not insignificant risk to other patrons by obviously being unable to control the vehicle. The social utility of having disabled people undertake tasks in the community is a relevant factor; 6. The risk at a blind corner is in my view obvious; 7. Taking into account all of these matters, in my view a reasonable person in the position of the defendant would not take the precautions recommended. First, the blind corner at the hoarding and at the exit to the corridor was obvious. There are potentially many other blind corners in shopping centres which may require similar precautions including at the exits of shops. There was no history of any significant number of mobility scooter accidents and in particular of the nature here. It was not a matter which would have been apparent to the defendant that there was any real probability of someone in a mobility scooter running a person down from behind and not taking steps to lower their speed or avoid a collision.
15. Taking into account all of these matters, in my view there was no breach of duty of care by the defendant. In coming to that conclusion, I have considered each of the particulars of breach alleged. In paragraph 101 of their written submissions, counsel for the plaintiff submit that a reasonable person in the position of the defendant would have taken precautions against the risk of harm and the defendant called no evidence to suggest a particular industry practice to the contrary. The burden rests on the plaintiff to establish a breach of duty of care. There was no evidence that the risk suggested at the exits of corridors or other spaces where there were blind corners and a hoarding had been considered in any other shopping centres to have required the use of warning signs, mirrors or barricades. I also reject the submission that the defendant should have placed a warning sign telling scooter drivers to slow down: plaintiff's submissions paragraph 104. In my view that was an obvious step for a driver to take having regard to the nature of a shopping centre and the fact that it had to be shared by various persons.

Obvious risk

1. In paragraph 10 of the Defence, the defendant pleads in response to the Statement of Claim that if the presence of a mobility scooter travelling along the main thoroughfare posed a risk to the plaintiff (which is not admitted), it was an obvious risk of which the defendant had no duty to warn the plaintiff. Reference is made to ss 5F, 5G and 5H of the CLA.
2. Sections 5F, 5G and 5H of the CLA provide as follows: "Division 4 Assumption of risk 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. 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. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection."
3. The plaintiff gave evidence that she liked shopping: T35.2. She confirmed that she had seen mobility scooters before in shopping centres: T35.8. In my view, any reasonable person who attends shopping centres knows that there is a potential variety of traffic in the shopping centres including people walking, people with walking sticks, parents with prams, children of various ages, people with walkers, people in wheelchairs including motorised wheelchairs, people on mobility scooters, people with shopping trolleys with various loads and sometimes persons moving stock or collections of shopping trolleys back to supermarkets.
4. Further, in my view, any reasonable person would have seen upon approaching the exit to the thoroughfare that there were blind corners both to the left and to the right and that there was a possibility of traffic approaching in any one or more of the forms which I have indicated in the previous paragraph.
5. In my view, the risk in the present case of being struck by some form of traffic including a mobility scooter was an obvious risk within s 5F of the CLA as it would have been obvious to a reasonable person in the position of the plaintiff taking care for their own safety. The risk of a blind corner and oncoming traffic was obvious in the present case. This was the reason why the plaintiff glanced to her right. Accordingly, there was in my view no proactive duty on the defendant to warn the plaintiff of the obvious risk by the placement of a sign, convex mirror or barricades. There was a risk of the blind corner with or without the hoarding. Although the hoarding had the potential to partially limit or obscure a view of a person exiting the corridor, the hoarding created a different blind corner. It would have been obvious to a reasonable person in the position of the plaintiff that there was a potential for traffic. It was not obvious however to the plaintiff that she was at risk of being struck down by Ms Connolly who should have exercised greater care to slow her mobility scooter and to avoid pedestrians in the thoroughfare.
6. Accordingly I find that the risk created was an obvious risk within s 5F of the CLA.

Causation

1. The principles to apply in relation to causation under the CLA are set out in ss 5D and 5E of the CLA which are as follows: "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. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
2. Accordingly, the plaintiff has the onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings. In Strong v Woolworths Ltd (2012) 246 CLR 182 at [18] and Wallace v Kam (2013) 250 CLR 375 at [16]-[19] the principles in relation to s 5D of the CLA were set out.
3. The determination of factual causation under s 5D(1)(a) of the CLA involves the application by a court of the "but for" test of causation. That is, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: Strong v Woolworths Ltd, above, at [18]. This involves a determination in the present case whether but for any breach of duty of care, any loss or damage suffered by the plaintiff would not have occurred.
4. I have found that no breach of duty of care was committed by the defendant in the present case. If, contrary to my view, the defendant should have undertaken one or more of the precautions indicated or the failure to conduct a written risk assessment at the shopping centre relating to mobility scooters constituted a breach of the duty of care owed, I have to determine whether the injuries would have occurred anyway to Mrs Whitton. As stated by the High Court in Strong v Woolworths Ltd, proof of the causal link between an act or omission and an event requires consideration of the probable course of events had the omission not occurred.
5. The failure to conduct a written risk assessment of the shopping centre relating to mobility scooters was in my view not causative. I have found that such an assessment if undertaken would not have caused the defendant to implement any of the precautions argued by the plaintiff having regard to the nature of the risks involved.
6. The plaintiff submits in paragraphs 106-107 of her written submissions on liability, that Mrs Whitton cannot give admissible direct evidence about what she would have done had the defendant warned her about the risk of harm. In my view that is correct. It is submitted, however, that in the circumstances the court would be comfortably satisfied that Mrs Whitton was a careful and cautious person who looked before she turned and would have taken appropriate notice of any warning signs or other measures including convex mirrors and barricades diverting her journey to a safer path. The defendant submits in its written submissions that causation is wholly retrospective and seeks to identify what happened and why and is a factual issue requiring the plaintiff to prove on the balance of probabilities that the failure to take the precaution was a necessary condition of the occurrence of the harm. It was submitted that there is no evidence of conduct on the part of the defendant which increased the risk of injury to the plaintiff and that the probable course of events would have been the same even if the signs and other precautions had been used. It is submitted that the real cause of the incident was Ms Connolly failing to have kept a proper lookout for Mrs Whitton and other users.
7. The position as to causation needs to be looked at from the point of view of Ms Connolly and then the plaintiff.
8. In relation to Ms Connolly, having regard to the contents of the incident report (Exhibit 6) and the CCTV film, I am not satisfied that the plaintiff has proved on the balance of probabilities that Ms Connolly would have taken notice of any warning signs or seen any reflection of the plaintiff in any convex mirrors. Having regard to the fact that Ms Connolly was in a rush and did not see the plaintiff, I find that she would not have paid any heed to a warning sign attached to the hoarding or looked in any convex mirrors hanging down in the centre of the thoroughfare or protruding on a bracket from within or just outside of the amenities corridor. I also find that Ms Connolly would not have seen or paid attention to any sign exhorting mobility scooter drivers to slow down in the centre.
9. In relation to a barricade, this would likely have pushed Ms Connolly slightly further out into the thoroughfare. However, I am not satisfied on the balance of probabilities that this would have avoided the collision. The plaintiff would still have emerged from the corridor and Ms Connolly would still have proceeded down the thoroughfare and the collision is likely still to have occurred. In the end, I am not satisfied that the plaintiff has established on the balance of probabilities that barriers or barricades would have avoided a collision involving serious injury to Mrs Whitton.
10. One then has to look at the position from the point of view of Mrs Whitton. The submission is made by counsel for the plaintiff that the court would be comfortably satisfied that Mrs Whitton was a careful and cautious person who looked before she turned and would have taken appropriate notice of any warning signs or other measures such as convex mirrors and barricades. I accept that Mrs Whitton if she was turning right would not have purported (as perhaps a teenager may have) to walk through or over a barricade or witches hats. But she was not turning right, she was turning left. There is no indication in my view that she would have acted any differently. In fact, the presence of barricades or witches hats may have given her more comfort in relation to her security.
11. Mrs Whitton had also already looked to her right. In my view, she would have placed greater weight on her glance to the right rather than on any sign on the column facing a person exiting the amenities corridor. The fact that she only momentarily glanced to the right is also inconsistent with her taking particular notice of a sign. After all, the blind nature of the corner was clear to her.
12. In relation to the convex mirrors, I have already found above that I am not satisfied that a convex mirror in the centre of the thoroughfare would have prevented the accident due to the location of it and the various reflections. It was also not established what view would have been given by a convex mirror placed externally to the hoarding or to the exit on the left. It would have had to have been placed high enough to provide some view and also probably placed externally to the walls on the left or the hoarding on the right. There was simply no evidence before me as to what view would have been shown. At the end of the day, I am not satisfied on the balance of probabilities that the presence of the mirrors as recommended by Mr Dubos would have resulted in any different course of events. In finding that, I am satisfied that Mrs Whitton was a careful and likely cautious person. Her position at the company would likely have made her a careful person. However, I think it highly likely that she would have relied on her glance rather than any sign or mirror. It should also be taken into account that what was involved was a shopping centre with an obvious blind corner and not the much more serious situation of an exit in a motor vehicle.
13. Taking into account all of these matters, I am not satisfied that causation has been established on the balance of probabilities. I find that it is more probable than not, that Mrs Whitton would not have altered her course if there were mirrors or signs present. I have already found that Exhibit L is a confusing sign. As to the barricades, Mrs Whitton would have turned left and likely continued on a similar or slightly different path. I am not satisfied that it has been established by the plaintiff that the accident would have been avoided. No application of s 5D(2) of the CLA was urged by the plaintiff.

Contributory negligence

1. The defendant has pleaded contributory negligence in its Defence: see paragraph 6 above. In paragraph 11 of the Defence, the defendant pleads the particulars of contributory negligence as being a failure to look and determine whether there was any oncoming traffic as the plaintiff entered the main thoroughfare from the amenities corridor; failing to notice the mobility scooter before being struck; failure to keep a proper lookout; failure to keep any or adequate notice of her surroundings; failure to watch where she was going; and failure to take adequate care for her own safety.
2. The defendant submits in paragraph 123 of its written submissions on liability, that the court should find contributory negligence of 100%. In paragraph 128 of the written submissions of the defendant the following is stated: "The real cause of the accident was the negligence of Connolly and Whitton. When assessed as against any fault of the part of Dexus, the Court would comfortably find contributory negligence of 100%".
3. This submission does not sit comfortably with paragraph 3 of the same submissions where it is submitted that the real cause of the accident was Ms Connolly as opposed to the plaintiff.
4. Sections 5R and 5S of the CLA provide as follows: "Division 8 Contributory negligence 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
5. In paragraphs 92-94 of Lloyd v Thornbury [2019] NSWCA 154, Gleeson JA stated as follows: "Contributory negligence 92. The question of whether a person has been guilty of contributory negligence is to be determined objectively - whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [54] (McColl JA); see also at [94] (Basten JA, Emmett JA agreeing). 93. Section 5S provides that, when apportioning responsibility, a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence. 94. The principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury: s 5R. Accordingly, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk: Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241 at [14]- [15] (Basten JA)."
6. The first particular of contributory negligence is a failure by Mrs Whitton to look and determine whether there was any oncoming traffic as she entered the main thoroughfare from the amenities corridor. I accept, as indicated above, that Mrs Whitton did look. I also accept the submission in paragraph 112 of the written submissions of counsel for the plaintiff on liability, that having looked, there was no further reason for her to turn her head backwards to look again a second later. I also accept the submission that Mrs Whitton, upon exiting the amenities corridor and joining the thoroughfare, was not failing to exercise care when she started to leave the line of black tiles and merge to her right. This occurred in a shopping centre and Mrs Whitton was simply merging into the main part of the corridor. The mobility scooter in question appears to be an electric scooter and therefore would have been fairly quiet. There was no evidence that anyone called out to her. Similarly, I accept that she did not see the scooter. Mrs Whitton could not take precautions when the scooter hit her from behind.
7. Section 5R of the CLA states that the principles applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of the harm. The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person with the consideration of what that person knew or ought to have known. Mrs Whitton did not know the scooter was there. She looked and in my view there was no reason why she should have known it was there having looked. I do not consider that a reasonable person in her position would have acted any differently. In those circumstances, and applying s 5B of the CLA: 1. The risk was foreseeable in that it was a risk of which the person knew or ought to have known - Mrs Whitton knew or ought to have known that mobility scooters could have been used in the centre whilst she was there and that there was a risk of being struck by one if she failed to take reasonable care for her own safety. However, in my view, Mrs Whitton, having looked, should not reasonably have regarded the risk as something which she ought to have known about; 2. It was reasonably to be expected by her that someone riding a mobility scooter at speed would exercise reasonable care for the safety of patrons. Therefore I find that there was no basis for concluding that the risk was not insignificant; 3. Having already looked, I do not consider that a reasonable person in the position of Mrs Whitton would have taken any additional precautions; 4. There was a low probability that harm would occur if care were not taken by her but she had already looked; 5. Whilst the seriousness of the harm was potentially considerable and the burden of taking precautions to avoid the risk was limited, having already looked it was not incumbent in my view on Mrs Whitton to look again.
8. For all these reasons, in my view there was no contributory negligence on the part of Mrs Whitton. She took that degree of care for her own safety that an ordinary reasonable person would take. I reject the submission of the defendant that there should be a 100% reduction for contributory negligence. In my opinion, there should be no reduction at all for any damages because of contributory negligence.

Damages

1. It is necessary for me to consider damages if I am found to have erred in relation to the breach and causation issues.
2. The plaintiff makes claims for damages for non-economic loss, past loss of wages and earning capacity, loss of future earning capacity, loss of superannuation entitlements, for past out-of-pocket expenses and future out-of-pocket expenses, for past domestic assistance and future domestic assistance.
3. The amounts submitted by each party as the appropriate damages to be awarded if liability is found are as follows: Head of damages Plaintiff Defendant Non-economic loss $209,500 (33% of a most extreme case) $22,000 (20% of a most extreme case equals 3.5%: s 16 CLA) $32,968 Past economic loss $74,065 Cushion for past and future economic loss of one year's earnings based on 2016 tax return ($634 net per week) Past superannuation loss $8,147 Future loss of earning capacity $112,622 Loss of superannuation $3,626 Past out-of-pocket expenses $31,874 $18,474 Future out-of-pocket expenses $40,720 $3,000 Past domestic assistance $55,736 Nil Future domestic assistance $78,941 Nil Total $611,605 $80,068

Non-economic loss

1. This matter is governed by the CLA. Under s 16(1) of the CLA no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. Under s 16(3) of the CLA, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the table set out in that section. Under the Civil Liability (Non-Economic Loss) Amendment Order 2019 the maximum amount of damages which may be awarded for non-economic loss at the relevant time is $658,000.
2. In s 3 of the CLA, "non-economic loss" is defined as meaning any one or more of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. In the present case, there was no claim based on a loss of expectation of life or disfigurement in relation to the plaintiff. The real issue relates to pain and suffering and loss of amenities of life.
3. I refer to my medical findings which I have set out above. I have found that the plaintiff continues to have major depression, although with her taking of Cymbalta, the plaintiff's condition has improved. Dr Samuell, whose opinion is somewhat later than that of Dr Rastogi, concludes that the condition is in partial remission. By that, I take it to mean that the Cymbalta has improved the plaintiff's psychiatric condition.
4. In relation to the plaintiff's physical condition, I refer to my findings. The plaintiff continues to have pain in her right leg, is on fairly strong pain medication and has had a substantial increase in her back pain. The medical evidence suggests that her right hip has become increasingly symptomatic. The accident has had a profound effect on the plaintiff's amenities of life. She has great difficulty attending her workplace, has limited ability to undertake work, and her psychiatric condition has given her a feeling of hopelessness and helplessness. I have taken into account the plaintiff's pre-existing medical conditions which I have outlined above in my medical findings. However, these apparently did not prevent the plaintiff working or undertaking an active life with her family including undertaking the majority of in-house domestic duties.
5. The defendant submits that the plaintiff's claim of 33% of a most extreme case is excessive. It points to the age of the plaintiff both at the time of the accident and now and relies on Reece v Reece [1994] NSWCA 259 where the Court of Appeal found that the trial judge's assessment of 33⅓% of a most extreme case in relation to a 64-year-old plaintiff was erroneous when considered with the position of a much younger woman having the same conditions. An assessment of 22½% was substituted by the Court of Appeal.
6. In Reece v Reece, Handley JA (with whom Clarke and Sheller JJA agreed) held that the plaintiff in that case had a number of injuries which were likely to worsen with time as degenerative and arthritic changes supervened and progressed. The plaintiff there had led an active personal life prior to the injury with a number of activities significantly affected by the injuries. The Court of Appeal found that the trial judge was correct in finding that the plaintiff had suffered a significant impairment. However, Handley JA held that it was difficult to reconcile the trial judge's assessment with that which might properly be made in the case of a much younger woman with a similar range of interests and hobbies.
7. In my view, there is some force in the submission made by the defendant. Although Reece v Reece was decided under different legislation and although expectations of life span have increased since 1994, in my view it is relevant to take into account the plaintiff's age at the time of accident and at the time of assessment. Whilst the accident has had a profound effect on the plaintiff and there is no indication the plaintiff in Reece v Reece had a psychiatric injury, in my view the plaintiff's submission as to the appropriate percentage should not be accepted.
8. Having regard to the matters which I have referred to above, I assess that the appropriate percentage of a most extreme case is 23% which gives rise to damages for non-economic loss (as a proportion of the maximum amount that may be awarded for non-economic loss of $658,000) of 5% being $33,000.

Past out-of-pocket expenses

1. During the course of the hearing I was informed that the parties had agreed on hospital, medical and pharmaceutical expenses for the past totalling $18,474.51: see the plaintiff's damages submissions paragraph 39 and defendant's schedule of damages.
2. The plaintiff also claimed a lump sum to allow for the cost of travelling to or from treatment providers including physiotherapists and hydrotherapists in the amount of $3,000.
3. There was no precise evidence as to this amount. However, it is clear from the evidence that the plaintiff has found treatment such as hydrotherapy to be helpful. I accept the evidence of Mr Whitton that having regard to the parking limitations where the plaintiff goes to hydrotherapy, that it is at present reasonable for him to take her there and to bring her home. It is also clear that the plaintiff has had physiotherapy and has attended her general practitioner for treatment. In the absence of more specific evidence, I would allow $2,000 under this head of damages.

Future out-of-pocket expenses

1. Different submissions were made in relation to future out-of-pocket expenses. The defendant has allowed $3,000 for future medical expenses on the basis that the plaintiff obtains some benefit from hydrotherapy, she requires continued medication for pain but otherwise the amounts claimed by the plaintiff are inappropriate.
2. The plaintiff submits that there should be an amount for ongoing psychological and psychiatric treatment as well as physical treatment. The estimates from Dr Rastogi in her report are relied upon. It is submitted that the psychological and psychiatric treatment should continue for four years not two years, that the plaintiff would benefit from continued hydrotherapy, the plaintiff requires ongoing consultations with her GP for management of her pain, radiological investigations, pain management therapy and the like and a minor allowance should be made for the low possibility of the operative costs of hip surgery being incurred.
3. Having regard to the opinion of Dr Brighton in his 24 January 2018 report that the plaintiff does not need a hip replacement, I do not allow anything for the possibility of the operative costs of hip replacement surgery being incurred.
4. In relation to the claim for ongoing consultations with her general practitioner, the plaintiff sees her general practitioner regularly for treatment of her Type II Diabetes. However, in my view there may be the need for further consultations to obtain prescriptions and referrals. I also think it likely that with the plaintiff's condition there will need possibly to be further radiological investigations and pain management therapy. Dr Harvey in his 19 March 2019 report, said it was reasonable for the plaintiff to see her own doctor every three to four weeks and states that it could be appropriate that the plaintiff is referred to a specialist in addiction medicine. He also expresses the opinion that the plaintiff would require continuing analgesics. On the whole of the evidence, I would allow an amount for some additional ongoing consultations with the plaintiff's general practitioner for management of her pain, radiological investigations and referral to a pain specialist in the amount of $6,000 which is slightly less than that claimed by the plaintiff.
5. Dr Harvey in his report dated 19 March 2019, expresses the opinion that the plaintiff's hydrotherapy should be encouraged. The defendant does not dispute an amount of $12 for entry to the hydrotherapy pool but does dispute the claims for additional amounts if the plaintiff is accompanied by a physiotherapist or hydrotherapist. The plaintiff seeks an allowance based on 20 sessions per annum accompanied by a hydrotherapist or physiotherapist and 20 sessions per annum unaccompanied together with reasonable travelling expenses coming to $2,250 per annum which over five years would be $10,014. In my view, this is excessive. There was no evidence as to the amount of assistance the plaintiff actually obtained from a physiotherapist or hydrotherapist at the pool. I accept that some assistance from a physiotherapist or hydrotherapist at the hydrotherapy pool would be valuable initially. After obtaining instructions, the plaintiff could continue on the therapy by herself. I agree that an amount should be allowed for five years but would reduce it to an amount of $5,000 which allows for some initial guidance from a physiotherapist and hydrotherapist, entry to the pool for the plaintiff and some travel expenses.
6. In paragraphs 41 to 42 of their written submissions as to damages, counsel for the plaintiff seek an amount for ongoing psychological and psychiatric treatment and medication for four years. The defendant submits that the plaintiff has already obtained a referral to Ms Hinz and that it was not helpful. There is some evidence that the treatment with Ms Hinz, psychologist, ceased because she moved out of the area.
7. In her 10 October 2018 report, Dr Rastogi refers to the need for the plaintiff to take Cymbalta and additionally an antidepressant for a period of at least 12 to 24 months and there being a need for the plaintiff to have psychological and psychiatric treatment. Dr Samuell at page 11 of his later report, expresses the opinion that the plaintiff taking an antidepressant medication is appropriate, it is likely that she will require the antidepressant medication for a further 12 months and that it may be worthwhile the plaintiff seeing the psychologist for 8 to 10 sessions to assist with her adaptation and pain management.
8. As I have stated above, I accept the later opinion of Dr Samuell in relation to the need for psychological intervention. I prefer the opinion of Dr Rastogi, having seen the plaintiff give evidence and having regard to the extent and duration of her psychiatric condition as I have found, that the medication should continue for at least 12 to 24 months. I would not allow the cost of a psychiatrist as well as that is inconsistent with the improvement in the plaintiff's condition as referred to in Dr Samuell's report dated 13 April 2019 and his comments at page 11. Having regard to the uncertainties in relation to the plaintiff's condition and the need for antidepressant medication and psychological review, I would allow $12,000 using the figures on page 7 of Dr Rastogi's report (Exhibit P Page 14).
9. Accordingly, the amount I allow for future out-of-pocket expenses is $23,000.

Damages for economic loss

1. I have found above that at the date of the accident the plaintiff had no intention of retiring. However, I have also found that the plaintiff had a number of medical problems in the period of just over two years prior to the accident as reflected in her general practitioner notes as well as a previous total left shoulder replacement and a total right knee replacement. Despite these, the plaintiff had continued working fulltime albeit with the assistance of a cleaner and an ironing lady to assist her with domestic duties.
2. Although the plaintiff stated that she had no intention of retiring at the time of the accident, and this was supported by the evidence of Mr Whitton on this issue, there are two matters which are significant: 1. The plaintiff's age at the time of the accident - 71 years; and 2. The plaintiff's medical history from 4 April 2014 to 29 June 2016 which I have discussed above.
3. I have also referred above to the fact that I generally prefer Dr Harvey's report to the reports of Dr New as Dr Harvey's report is more recent and more detailed and I have rejected Dr New's finding of L5 radiculopathy. Dr Harvey was also provided with a more extensive medical history (compare Exhibit P page 13 to Exhibit P pages 33-34). I also note that Dr Harvey expresses the opinion in his report that the plaintiff had significant pre-existing right hip arthritis, restricted movement in the left shoulder and an obesity difficulty. Dr Harvey noted osteoarthritic change in the left hip which was likely to progress with the arthritis in the right hip. Dr Harvey describes the plaintiff as having "significant pre-existing conditions" including a serious obesity problem with Type II Diabetes and hypertension with bilateral hip osteo-arthritis and the pre-existing right total knee replacement which was giving the plaintiff some pain.
4. These matters are relevant to the requirement under s 13 of the CLA for the court to satisfy itself about any assumptions about future earning capacity or other events on which an award of damages is to be based, unless it accords with the claimant's most likely future circumstances but for the injury as found by the court: see Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 at [110]-[115]; Gulic V Angelovski [2018] NSWCA 161 at [34]-[38].
5. I take into account that the plaintiff worked with her husband in a family business. I take into account that some of her children also worked in that business and that the plaintiff would want to continue her work association with her husband and the children. I take into account the fact that the plaintiff gave evidence, which I accept, that she loved her work. It is relevant that the plaintiff's husband is a driven person who had no intention of retiring. It seems that the family members worked in the business closely together.
6. However, the plaintiff's pre-existing medical conditions impact upon the likelihood of her continuing to work fulltime particularly with the substantial change in the company business in 2015-16.
7. It is clear that compensation for loss of earning capacity for a plaintiff is awarded because there is a diminution in the plaintiff's earning capacity which is or may be productive of financial loss. The plaintiff must prove the loss for which compensation is claimed: Graham v Baker (1961) 106 CLR 340 at 347, Sretenovic v Reed [2009] NSWCA 280 at [80].
8. The defendant submits that I should allow a buffer for past and future economic loss of one year's earnings based on the 2016 tax return of $634 net per week totalling $32,968. The plaintiff divides the economic loss for various periods between 17 July 2016 to the present and then allows a buffer for the future.
9. I base my assessment of damages on the finding that the plaintiff had no intention of retiring at the time of the accident and that the injury took her out of the workforce for some considerable period of time. I also accept that Mr Whitton was wrong in his evidence that the plaintiff came back to work for some hours per week three months after she was discharged from hospital. That seems to be inconsistent with the plaintiff's evidence, which I accept, that she continued to use a walker after she got rid of her crutches until January or February 2017: T40.42. It is also consistent with the evidence of Patrick Whitton, which I accept, that the plaintiff did not do any work in the family business until beyond the end of 2016 (T168.15) until about April 2007 (T172.1-.28 and T173.27-.35).
10. The evidence establishes that due to the litigation involving the company that Fleet Wash had a significant decline in its business in the 2016 financial year. Mr and Mrs Whitton took a salary reduction so that other employees received their usual salary. This explains the reduction of the earnings for the year ended 30 June 2015 compared to the year ended 30 June 2016. There is no suggestion that the prospects of the family business improved until at least April/May 2017 when Global Wash commenced the new family business. Accordingly, I consider it likely that the plaintiff's earnings would have continued at the reduced rate if the accident had not occurred. I accept the submissions of both parties that the appropriate weekly net amount is $634 per week based on the plaintiff's 2016 tax return. Accordingly, I allow the following amounts: 1. For the period from 17 July 2016 to 1 April 2017 I allow the amount claimed by the plaintiff of $23,458 being for 37 weeks at $634 per week; 2. In relation to the period from 2 April 2017 to 30 June 2017, I find that the plaintiff was paid for two days work per week but did not attend to do work on those days always. I accept the plaintiff's claim of $329 per week ($634 - $305 tax) for 13 weeks totalling $4,277; 3. For the period from 1 July 2017 to date the plaintiff claims an amount assessed at pay for five days a week being $792 net per week minus the $382 which she receives equalling $410 per week for 113 weeks amounting to $46,330. I would reduce this figure by 40% to allow for the real possibility of the plaintiff limiting her work or taking time off work for pre-existing medical conditions in the light of her age and the demands of her job. This would allow $27,798; 4. The amounts which I have referred to above total $55,533. This should be reduced by 15% for the usual allowance for vicissitudes. This arrives at a figure of $47,203.05 which I would allow for past loss of wages and past loss of earning capacity.
11. I accept the plaintiff's submission that in addition the plaintiff would be entitled for the loss of employer funded superannuation contributions at 11% of her net loss which equals $5,192.33.
12. The plaintiff claims an entitlement to a substantial buffer or cushion on the basis that had she not been injured she would still be working and would intend to work to the future. The plaintiff is now over 74 1/2 years old. The plaintiff seeks an allowance based on a loss of four years at $792 per week less 25% for higher vicissitudes equalling $112,622. The defendant has combined the amount for past and future loss of one year's wages based on the 2016 tax return at $634 net per week of $32,968.
13. In my view, some allowance for the future should be allowed as a buffer. This is appropriate where the impact of an injury caused by negligence upon the plaintiff's loss of earning capacity is difficult to determine or involves uncertainties: Penrith City Council v Parkes [2004] NSWCA 201; Sretenovic v Reed [2009] NSWCA 280 at [79]-[81].
14. Having regard to the plaintiff's pre-existing problems, her age, her strong work ethic and the family nature of the business in my view it is appropriate to allow a buffer. However, the plaintiff's age and pre-existing problems determine that it should not be very high. I allow the sum of $40,000.

Domestic assistance

1. There was considerable evidence in relation to the need for domestic assistance. The threshold in s 15(3) of the CLA must be satisfied by the plaintiff.
2. In relation to the plaintiff's psychiatric injury, Dr Rastogi asserts that the plaintiff would need assistance for household maintenance for at least 12 months and likely indefinitely (Exhibit P page 26). Dr Samuell states that the plaintiff has not required domestic assistance due to a psychiatric condition (Exhibit 14 page 13). Dr New states that the plaintiff would require assistance for domestic tasks and duties including shopping and cleaning (Exhibit P page 5). Dr Harvey noted that the plaintiff received a significant amount of domestic assistance before the accident and considered that with her reduced mobility it is reasonable that she would require one to two hours additional domestic assistance per week. In addition, he notes that the plaintiff would have required additional domestic assistance on her initial discharge from hospital (Exhibit P page 38).
3. The plaintiff gave evidence that she does some meal preparation but that her husband does the cooking and that she can do no other domestic activities which she leaves to her husband, the cleaner and the ironing lady.
4. Mr Whitton gave evidence that he does four to six hours of cleaning per week, six hours of cooking and associated washing up and tidying per week and two hours per week driving the plaintiff to and from her hydrotherapy.
5. Senior counsel for the plaintiff said that each of the occupational therapist reports could be criticised. In my view there is considerable force in that submission. Senior counsel for the defendant was also highly critical of a report of Ms Memon, the occupational therapist retained on behalf of the plaintiff to provide a report. The domestic duties assistance needs to date, set out by Ms Memon in her report (Exhibit P page 83) involve repetition as to cleaning, referred to childcare which was not claimed and mathematically did not correctly add up as 26.5 hours. The amount referred to is only 21.5 hours. The plaintiff did not press the equipment needs set out in paragraph 5.1 of Ms Memon's report (Exhibit P pages 81-82). It was also clear that Mr Whitton did garden and lawn maintenance so this would not be an appropriate claim in relation to the plaintiff. Further, Ms Memon does not break down the assistance needs into the various periods from when the plaintiff first was discharged from hospital. However, Ms Memon's report does establish that there was a need for some domestic assistance. This is supported by the medical evidence.
6. In relation to Ms Walcott's report, it seems to be based on the plaintiff being on crutches for only four weeks post discharge. The plaintiff said at T39.37 that she was on crutches for three to four months and she used a walking trolley all the time in the house even after she got rid of her crutches until January or February 2017: T39.36-T40.46. She was using the walker because she felt unsteady on her feet and thought she might fall over: T40.45. The report is also inconsistent with Mr Whitton's evidence which on this issue is likely to be more accurate than the plaintiff as to the assistance provided post- accident.
7. In my view, an allowance should be made for some meal preparation, necessary cleaning undertaken by Mr Whitton outside that done by the cleaner, assistance with the laundry, bed making and the changing of the linen. The grocery shopping appeared to involve a rearrangement of duties between Mr and Mrs Whitton. I accept the criticisms by Ms Walcott in her report in relation to the doubling up of the claims for general cleaning, garden/lawn maintenance and childcare by Ms Memon. In my view, there should not be a discount for the fact that Mr Whitton also benefited from some of the cleaning, bed making and cooking activities as he also lived in the house. The fact that needs may be the comingled needs of a husband and wife are no less the needs of the wife because they were in some cases mutual. What occurred in the present case goes beyond the mere rearrangement of domestic duties and was a wholesale alteration of the duties performed internally in the house: White v Benjamin [2015] NSWCA 75 at [61]-[66].
8. I also accept Mr Whitton's evidence that the plaintiff only undertakes light cleaning duties such as dusting and that the heavier duties are left to him. He referred to the plaintiff as having a high standard of neatness and cleanliness so some discount should be made for assistance to a reasonable standard.
9. In my view, having regard to the evidence of the plaintiff and Mr Whitton as well as the medical evidence, I would allow the following past domestic assistance: 1. Nine hours per week at $28.24 per hour from 7 August 2016 until early March 2017 equalling $254.16 per week. This essentially is the period after discharge; 2. From 1 March 2017 to date I would allow seven hours per week at $28.24 per hour.
10. This involves cooking and cleaning up of four hours per week, two hours per week for general cleaning and linen changing and one hour per week for assistance when needed for transport to the hydrotherapy pool. That is an amount of $197.68 per week.
11. In relation to the future, I consider it likely that the plaintiff will, as she improves, particularly her psychological condition, engage in more modest cleaning tasks and will commence some cooking. I also consider it likely that she will be more confident in driving herself to the hydrotherapy pool. Having regard to these matters and the plaintiff's age (as she may have needed more domestic assistance anyway), I would allow a buffer for the future of $20,000. This allows an ongoing allowance of about seven hours a week for two years. In my view this properly reflects the likelihood that the plaintiff's condition will improve and she will take on a greater role with domestic duties.
12. Therefore, the amount of damages which I would have allowed is as follows: Head of damages Non-economic loss $33,000 Past economic loss $47,203.05 Past superannuation loss $5,192.33 Future loss of earning capacity $40,000 Past out-of-pocket expenses $2,000 Future out-of-pocket expenses $23,000 Past domestic assistance To be calculated in accordance with reasons Future domestic assistance To be calculated in accordance with reasons

Disposition

1. Accordingly, I have found that the cause of the accident was the careless control of the mobility scooter by Ms Connolly. On all the evidence, I have found that the defendant did not breach the duty of care which it owed to the plaintiff and that causation has not been established.
2. This accident caused serious injuries to the plaintiff. It has also raised the risks posed by mobility scooters under the control of persons with a disability. I recommend that consideration be given to: a) having a medical test requirement for people driving a mobility scooter to ensure they have the physical ability and vision necessary safely to control a scooter; b) requiring the drivers of mobility scooters to be insured; and c) placing controls on scooters allowing their speed to be limited to 3kph in shopping centres and other indoor locations and drivers being required to place the scooter at that speed mode when in a shopping centre or other public indoor location.
3. I make the following orders: 1. Judgment for the defendant. 2. The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed. 3. Liberty to the parties to apply to seek a different cost order to that in (2). 4. Exhibits to be returned after 28 days.

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: 18 October 2019