Williams v Wollongong City Council [2020] NSWDC 564 | Case summary

District Court of NSW|2020-08-18

Solicitors: Nikolovski Lawyers (Plaintiff) McCulloch & Buggy Lawyers (Defendant) File Number(s): 2019/00154842

The pleadings

The plaintiff commenced the proceedings by the filing of a Statement of Claim on 16 May 2019. An Amended Statement of Claim was later filed.
In substance, the plaintiff pleads his cause of action as follows: 1. As at 17 May 2016, the defendant Council owned, controlled and managed the Park and provided to members of the public at the Park a place for recreation with various facilities including public toilets and footpaths. It is pleaded that the defendant employed personnel to inspect and maintain all improvements within the Park including footpaths and owed a duty of care to entrants to the Park to take reasonable care to avoid foreseeable risks of injury; 2. Within the Park, the defendant constructed and maintained a footpath made from brown coloured rectangular brick pavers which led from the car park to a toilet block with the intent of providing reasonably safe means of access to the toilets. It is pleaded that the footpath contained three single descending steps for persons walking towards the toilets separated by a landing. The steps were pleaded to be constructed from the same brown coloured rectangular brick pavers; 3. At all material times, the footpath and each single step were subjected to shadowing from overhanging trees within the Park thereby creating a variety of lighting conditions. It is pleaded that at all material times there were not any handrails adjacent to each single step; 4. The plaintiff pleads that at all material times by reason of their design, the construction materials used and their location within the Park where they were subjected to overshadowing from trees, each single step on the footpath posed a not insignificant risk of injury due to tripping and/or missing the step; 5. It is pleaded that the defendant at various times surveyed the features of the Park, constructed multiple sets of steps, installed handrails along various steps and footpaths and installed tactile indicators to alert persons to hazards including steps on newly constructed footpaths. However, these various items including handrails and tactile indicators were not placed at or near the footpath in question; 6. In paragraph 16 of the Amended Statement of Claim filed 2 July 2020, the plaintiff pleads the content of the duty of care allegedly owed by the defendant to entrants to the Park which is stated to include an obligation to take reasonable precautions against the risk of harm. Various matters are pleaded which ought to have been adopted by the defendant to minimise the risk of harm including arranging a risk assessment at the Park, identifying the single steps as a potential trip hazard, placing a warning to entrants in relation to the footpath, installing non-slip strips or tactile markers to the leading edges of the single steps, painting the leading edges of the single steps to make them visible to entrants, erecting a hand rail near the steps, removing the steps, removing vegetation causing overshadowing of the footpath and installing tactile ground surface indicators; 7. The facts of the plaintiff's presence at the Park with a disabled person under his supervision on 17 May 2016 and the fall are pleaded. Paragraph 19 pleads as follows in part: "As he did so the single steps were shaded by overhanging trees and the plaintiff did not see the first single step that he encountered as he walked along the footpath and consequently he experienced a misstep and fell and sustained serious injury"; 1. A breach of duty of care is pleaded with the particulars of breach being as follows: "(a) Failed to arrange a risk assessment to be carried out on the footpath at the Park; (b) Failed to identify the single steps as a potential trip hazard; (c) Failed to warn entrants that the footpath contained single steps and trip hazards; (d) Failed to install non slip strips or tactile markers or some other device along the leading edges of the single steps to make them visible to entrants; (e) Failed to paint leading edges of the single steps to make them visible to entrants; (f) Failed to erect a handrail adjacent to the single steps to make them visible to entrants; (g) Failed to remove the single steps during landscaping works carried out at the Park in 2006; (h) Failing to remove vegetation causing overshadowing of the footpath; (i) Failing to perform remedial works to the footpath so it complied with the BCA, AS 1680.1, AS 1428.1 and AS1657; (j) Failing to install tactile ground surface indicators that complied with AS 1428.1 and AS 1428.4; (k) Failing to install temporary barricades to prevent pedestrians using the steps until such time as permanent remedial work could be performed on the single steps; (l) Failing to erect suitable warning signs near the single steps alerting pedestrians to their presence." 1. Causation is pleaded and the Amended Statement of Claim includes particulars of injury including left radial head fracture, left wrist fracture and the requirement for multiple surgeries and ongoing medication and medical assessment with chronic pain and the total loss of earning capacity.
A detailed Amended Statement of Particulars was relied upon. The particulars of injuries received included injury to the left wrist, injury to the left elbow and depression. Various continuing disabilities are particularised including pain in the left wrist and hand, pain in the left shoulder and arm, pain in the left shoulder with stiffness in the left wrist and various difficulties including difficulty gripping and reduced fine motor skills in the left-hand.
A Defence to the Amended Statement of Claim was filed on 7 August 2020. This admitted that at all relevant times including as at 17 May 2016 the defendant was the owner, controller and manager of the Park and provided public toilet facilities at the Park and employed personnel to inspect and maintain all improvements within the Park including footpaths for use by members of the public. In paragraph 2(b) of the Defence, the defendant admits it owed entrants, being members of the public, a duty to exercise reasonable care but otherwise did not admit the plaintiff's formulation of the duty of care.
The defendant denies liability and says that the risk of harm posed by negotiating the three steps at the Park where the plaintiff fell was an obvious risk for the purposes of ss 5G and 5H of the CLA. Contributory negligence is pleaded. Paragraph 11 of the Defence pleads s 43A of the CLA but that was not relied upon at the trial.
A Reply was filed by the plaintiff on 6 August 2019 but this related to the defendant's pleading of s 43A of the CLA and is thus not relevant.
The plaintiff was born in March 1954 and was thus 62 years of age at the time of the accident and 66 years of age at the time of the final hearing. Apart from a very limited period undertaking some administrative duties after the accident, the plaintiff has not worked since the accident and is now retired. There is accordingly no claim for loss of future earning capacity by the plaintiff.

The plaintiff's work history

As stated above, the plaintiff was a disability support mental health worker at the time of the accident with House With No Steps. The job description for a disability support worker at House With No Steps was in evidence. As well as requiring a current driver's licence and a current first aid certificate, it is clear from the job description that a disability support worker in the plaintiff's position was required to undertake a number of physical tasks in the course of their employment including the ability to safely perform people and manual handling tasks which may involve assisted lifting, bending, twisting, pushing, pulling and repetitive actions as well as the ability to supervise safely a disabled person. A worker was required to provide group home and in-home support services which were to assist disabled clients with domestic and household duties including household maintenance. The physical demands of the position were outlined in some detail in the job description and involved lifting, pushing and pulling between 5-10kg on a frequent basis and up to 25kg on an occasional basis. Repetitive reaching and sustained gripping was required.
In evidence was a resume for the plaintiff which showed that he had worked in disability services since 1992 having been promoted during that period from a supervisor to a facility manager. Prior to that time, the plaintiff worked in various other positions including as a production operator and production supervisor for MM Metals Pty Ltd, as a barman and doorman and as an underground miner.

Documents relating to construction work at the Park by the defendant

In evidence was extensive documentation relating to historical construction and development by the defendant at the Park. An Application for Building Approval for an amenities block was made by the defendant on 4 March 1986. At that time, the Park was described as being used as a "public recreation area". Concept drawings dated February 1993 relating to proposed construction at the Park show the toilet block to be constructed with the footpath where the accident occurred noted with the description "access steps". Near the access steps was a proposed curved area providing ramp access. In an area of the Park to the north east of the proposed facilities block, other access steps are indicated which later were apparently removed. The plaintiff relies on their removal as indicating that the defendant reviewed the Park and decided that the removal of the other steps was appropriate but did not remove the steps where the accident occurred. A Master Plan for the work at the Park also indicated both sets of steps.
A Statement of Environmental Effects prepared by the landscape architectural section of the Council in June 2004 indicated that the defendant proposed to upgrade the lookout at the Park and the surrounding area following consultation internally within the defendant Council. It is noted in paragraph 1.3 of the Statement of Environmental Effects that "disabled access" was also featured on the site and that the objectives of the upgrade included meeting "all safety measures for users". The document described the major benefits of the upgrade as being improvements to the Park and lookout area satisfying the community interest in rectifying an otherwise unutilised space.
Other documents show that handrails were inserted at areas in the Park in the upgrade. A pro-forma letter dated 22 June 2004 from a Mr Palmer, a landscape architect at the defendant Council, stated: "The design will address safety principles at the lookout and provide access for the disabled". Meeting notes from persons involved in the upgrade noted that rails on a balustrade fence and a handrail on the outside of the disabled ramp were to be installed. Following further consideration, handrails and tactile indicators were discussed as being needed for the viewing platforms at the Park and were installed, despite considerable cost, by the defendant. It appears that tactile indicators were proposed for persons including the visually impaired to show a change in pathways at the Park. Email correspondence from early 2005 which was tendered shows that Mr Palmer, a landscape architect at the defendant Council, recorded the installation by a contractor of a handrail along the footpath plus tiles including tactile indicators on some steps at the Park.
There were various photographs in evidence of the area where the accident occurred. These showed that the relevant area was altered over time including by the removal of bollards near the footpath on the approach to the steps in question, the removal of a pergola, and changes to vegetation near the steps.
In evidence was a document relating to an apparent nomination for an award to the defendant Council in 2005 concerning the Park upgrade. The photographs in the document show extensive use of tactile indicators on the paths and the installation of handrails particularly on the pathways leading to and at the Park lookout. The awards document provides: "Tactile pavers, matt black ceramic tiles, custom designed seats and tables and powder coated and stainless steel fencing and hand railing are the other landscape components at the site." The awards document makes clear that the upgrade was designed with disabled persons in mind: "The site has been designed in a way to enable equal access…"
In evidence was a risk assessment prepared for the defendant Council by a senior property risk consultant at Vero Corporate Risk Control dated 3 May 2007. While the assessment appears primarily aimed at fire related risks, it is clear that the Council was willing to undertake risk assessments at the Park when they were deemed necessary or desirable.

Oral evidence of the plaintiff

The plaintiff gave evidence that he lived in a suburb of Wollongong in a house where he had lived for 32 years. Although the house is leased from the Aboriginal Housing Corporation by the plaintiff and his wife, they maintain the gardens and lawns at the property. The plaintiff confirmed that he was born in March 1954. He said he completed school until the age of 15 and left in 1968.
The plaintiff gave evidence that a chronology, which became Exhibit A, was correct which summarised his working background and significant family events. The plaintiff said he had two children. His daughter, who was married and had two children, lived close to his place of residence. Later evidence was given by the plaintiff that he saw his daughter daily and that she assisted sometimes with household tasks for about 30 minutes per week. The plaintiff's son-in-law now undertakes the lawn mowing at the plaintiff's place of residence.
The plaintiff gave evidence that he left a job at MM Metals Pty Ltd in 1992 to work with a body called the Greenacres Association which assisted people with disabilities in undertaking packaging and assembly work. This was done in one of two workshops. Eventually the plaintiff became the Facilities Manager in charge of 82 people.
The plaintiff left Greenacres in 2009 to join the House With No Steps which was a company which assisted disabled people.
Prior to the accident, the plaintiff gave evidence that he was active with lawn bowls, golf, fishing and camping either by himself or with his family. Since the accident, the plaintiff said he was unable to do a number of activities including fishing because of problems with his left hand including an inability to tie knots or place bait on the hooks.
The plaintiff said that his position at the House With No Steps was as a disability support/mental health worker: T39.23. The position involved him assisting with respite care for disabled persons to give their family a break. This required taking disabled persons for weekends or a week at a time as part of respite care. Various activities were completed by the plaintiff with disabled persons as part of respite care including walking, fishing, shopping, cooking and other outdoor activities. The position was a fulltime job and involved considerable overtime particularly in the two years prior to the plaintiff's injury in May 2016. The plaintiff could work for 67 hours a week with some variation. He said that he enjoyed his work.
The plaintiff gave evidence that there were physical requirements in the job including the need on occasions to deal with wheelchairs and walkers as well as to assist residents with domestic tasks such as cleaning, washing, vacuuming, mopping, and cooking and, with some clients, assisting them with bathing and toileting. The plaintiff said that he hoped to continue his job until aged 68 as there was no formal retirement age.
The plaintiff stated that he had as part of his duties assisted disabled people in accessing toilet facilities in shopping centres and at various parks. Importantly, the plaintiff gave evidence that prior to the accident in May 2016, in his 23 years of work in the disability sector he had never encountered steps leading to a disabled toilet: T41.40. The plaintiff repeated this evidence on a number of occasions during the hearing.
The plaintiff gave evidence in chief that he had attended the Mount Keira Summit Park once prior to the accident when he went in the September/October school holidays in 2015 with his son and grandchildren. He said that on that occasion he did not use the toilets at the Park and had never used them prior to the accident. In his cross-examination, the plaintiff added that he had attended the area near the Park with a disabled client prior to the accident but had parked about 500m to 700m away from the area involved in the accident and had taken the client on a bushwalk. Prior to the accident, the plaintiff said that he had never walked on the pathway involved in the accident.
The plaintiff then gave extensive evidence about the day of the accident. He said he went to the Park with a disabled client in his late 30s or early 40s who had an acquired brain injury arising from a motor vehicle accident and had limited vocabulary. The plaintiff stated that he attended the Park with the client to have lunch and to look at the view. Ambulance records were later tendered which showed that the plaintiff was incorrect in his evidence in chief that he arrived between 11:30am and 11:40am on the day of the accident. The ambulance records suggest that the accident occurred at about 11am-11.15am. Despite these records, the plaintiff said his recollection remained that he arrived at that time for lunch. It is possible that the plaintiff did arrive for an early lunch but also that he arrived with the client for morning tea.
The plaintiff stated that the weather when he arrived was fine and sunny. The plaintiff said that after he parked his car he walked with the client to the viewing area at the lookout. He said in order to do so he went up and down steps. He observed discs or buttons placed on the ground at the top of the steps with handrails on the right. These were inserted in the pavement. The plaintiff indicated that on the day of the accident, he viewed the discs or buttons as indicating a hazard ahead being something like steps: T46.37. The plaintiff said he had seen the discs or buttons before in many places including around Wollongong Harbour and in shopping centres and parks where there were stairs. He said the buttons were of some relevance to his work as he would keep an eye on his disabled clients to make sure they did not fall down the stairs: T47.4. He agreed that prior to stopping for lunch he had seen other steps with buttons and handrails at the Park. Having regard to later evidence, it is clear that the plaintiff's references to "buttons" were to tactile ground surface indicators ("TGSI" or "tactile indicators"), which are used to warn people, including vision impaired persons, of approaching hazards.
The plaintiff said that he then had lunch at a picnic table with the client for about 20 minutes. At the time, he said he saw surveyors working in the Park.
At some stage, the client stood up and said "toilet, toilet" and headed at a quick pace from the picnic table up the roadway to go to the toilet amenities at the Park. Mr Williams said the toilet block could be seen from where they were sitting at the picnic table. The plaintiff said that at that time on the day of the accident there was a pergola about 10 feet from the toilet block.
The plaintiff said he was walking about 10 to 15 feet behind the client as he walked to the toilet: T49.1. The plaintiff stated that he saw the client walk towards the ladies toilet and then called out to him to direct him towards the disabled toilet as he saw the sign on the disabled toilet door. Having satisfied himself that the client was following his directions and was walking towards the disabled toilet, the plaintiff headed down what he thought was a path directly down to the disabled toilet. He said that there were trees in the vicinity which cast shade onto the ground in front of where he was walking: T49.30. The plaintiff said the path appeared to be on the same level but was sloping down to the toilet. The path was made of brick pavers which were brownish in colour, and as far as the plaintiff could see, led a straight path to the door of the disabled toilet: T50.21. The plaintiff said that he did not notice that the bricks were laid in a particular pattern and did not see changes in the pattern in the bricks as he was walking towards the pathway. Similarly, he said he did not see any metal discs or buttons in the pavement or a handrail. Further, he said did not see any steps in the pathway leading down to the disabled toilet: T50.39. The plaintiff confirmed that he was looking down to the toilet as he walked onto the pathway: T50.43. At that time, the client had walked past the ladies toilet and was walking to the disabled toilet: T50.45-T51.2.
The plaintiff then said he fell and landed on his left arm and hand. He described the accident in the following terms: "Q. Can you tell us how did you fall? A. I fell down on my left side, on my left arm, hand and I just - I didn't - just didn't realise. I thought I was walking down a path and I just fell. "Q. What part of your body first hit the ground? A. My left hand. Q. Did you feel pain when you hit the ground? A. Yes. Q. Where was the pain? A. Right on through my arm." (T51.17-.28)
The plaintiff said that once he landed he looked around and realised he had fallen down a step. He said he was lying on the ground in the area above the second step. He confirmed he did not see the steps before he fell: T51.38.
The plaintiff said in relation to the lighting on the pathway, that it was in shadow but he could not recall whether the first step was in shade at the time when he looked back as he was in too much pain: T51.48; T53.13.
The plaintiff said that he could not get up and a man came out of the toilet and he called out to him and asked for help. Shortly after, the man's wife came out and she called the surveyors to assist. The plaintiff said that he called his employer to arrange for the disabled client to be picked up and someone called an ambulance and he was taken to hospital. The plaintiff later gave evidence that he was not admitted but was taken to the hospital fracture clinic: T55.39.
The plaintiff gave evidence that he attended the Park precisely two years after the accident on 17 May 2018 and took a number of photographs. He said the weather on that day was also fine and sunny. He noted on the later visit that the trees had been trimmed (T53.50) and the pergola had been removed (T54.4). He said there were no changes to the path steps at that time: T54.9. The plaintiff took a photograph at that time which became Exhibit D. This was a photograph taken whilst the plaintiff was positioned on the asphalt looking towards the pathway which he walked down and fell from at the time of the accident.
The plaintiff said that he felt pain in his left arm up to the shoulder and hand following the accident and to his left elbow: T55.25-.33. The plaintiff said that he was diagnosed with a fracture of the head of the radius in his left elbow. He gave evidence that a procedure was performed on him by Dr Kadir, Orthopaedic Surgeon. He said his general practitioner also referred him to a physiotherapist, Ms Ekman, who gave him hand physiotherapy. He said he obtained hand physiotherapy from Ms Ekman from June 2016 to June 2019 when he formed the view that the exercises he was being given could be done by him at home to assist with his finger strength and fine motor skills: T56.16. He said he found the physiotherapy of assistance but he had not completely regained his fine motor skills. He said his grip strength was particularly affected in his left hand and he had problems with gripping including using a knife and fork. The plaintiff said that he dropped plates and glasses on occasion when washing up.
The plaintiff gave evidence of his various operation procedures and that he sometimes took medication to assist with pain relief: T57.10. On a scale of one to ten, the plaintiff said that at first he felt the pain was between nine and ten and now it was at a level of three constantly but was of a seven severity if he bumped his wrist: T57.13. The plaintiff gave evidence that he could only lift his left arm to about head height whereas he could lift his right arm above his head. The plaintiff said that he had good movement in his left elbow but with slight pain on occasions.
The plaintiff gave evidence that he could not recall having any pain or medical treatment in or to his left wrist, elbow or shoulder prior to the May 2016 accident: T58.22-.32.
The plaintiff gave evidence as to his five procedures and also as to steroid injections to his wrist after the second operation which he said only assisted for a week or two. After the third operation in April 2017, the plaintiff said he had constant pain and saw Dr Tawfik who recommended a fusion of his left wrist which was performed in June 2017. After that, he had one more procedure to remove the hardware in his forearm and near the wrist.
The plaintiff stated that after the accident he received workers compensation benefits and was given certificates that he was incapacitated for work. He said he received rehabilitation from an exercise physiologist.
The plaintiff gave evidence that he went back to work for two half days and went out with another worker with two clients on a lunch and did some minor administrative duties. The plaintiff said he believed that this work was unnecessary, did not assist the organisation and was of no benefit to his clients or his employer. Later, he said he regarded his presence as being unnecessary. The plaintiff said that he had never gone back to work to fulfil his previous duties and believed he did not have the ability to do so because they involved a lot of lifting and pulling and using his left arm which he could no longer do. This included, for example, pushing a wheelchair. He said he resigned from the House With No Steps in December 2016 but would have been willing to work fulltime doing light duties if they were offered. After leaving the House With No Steps, the plaintiff stated that he applied for numerous other jobs without success. He later gave evidence that it appeared that once potential employers realised that he was on workers compensation benefits, they did not appear to be interested in him despite his experience: T60.21-T62.10.
The plaintiff said that his workers compensation benefits finished in January 2019 (T62.16) and that he then went on a New Start Allowance before proceeding to an aged pension in March 2020 (T63.26). The plaintiff gave evidence that he felt depressed as he regarded himself as "a failure" as he could not work and provide an income. The plaintiff said that now he felt constantly down and that he could not get back to work. He gave evidence that he took Zoloft for depression but had taken it prior to the accident although his dosage had doubled: T63.4-.20. Later he gave evidence that while this was the case, his dosage had returned to his pre-accident dose at some stage.
The plaintiff gave evidence that after his five operations, his wife had assisted him with personal care including showering, drying him, assisting him with dressing and placing on shoes and socks and cutting up the food in his meals. He said this assistance was for about three months after each procedure and then lesser assistance was needed until the next operation. However, his wife continued to assist him with many personal care tasks during these periods even though he could shower himself. Assistance was given by his wife every day: T63.35-T65.29.
The plaintiff gave evidence that prior to the accident in May 2016 that he had undertaken the mowing of the lawns at his residence and the whipper snipping of the edges when he was not working. He said it took between one and a half and two hours to undertake these tasks. The tasks were undertaken weekly in summer and about every three weeks in winter. He said if he was working, his wife did the mowing. He said after the accident his son-in-law did the mowing and whipper snipping for about the same period of time. The plaintiff stated that if he could afford it he would take the burden off his son-in-law as he was a very busy man who worked fulltime and did the lawns for other people: T65.31-T66.29.
The plaintiff gave evidence that he and his wife had a traditional allocation of roles. He did many of the tasks outside the house and his wife did the tasks inside the house. The plaintiff said that his wife regarded the house as her domain and the garden as her garden with him being limited to the lawns and the whipper snipping: T66.33-.38.
The plaintiff gave evidence that his wife was away for periods up to six weeks visiting family (the plaintiff's son lived in Dubbo and was divorced with four children). He said assistance was given in the house by his daughter at these times. He said that if his wife was not there then he would need assistance with vacuuming, mopping, washing, hanging the washing out and taking it in, ironing and with some meals. The plaintiff said generally he would need assistance with the cleaning of the house although he was able to prepare some simple meals: T66.4. He later said he could do some work in the house such as wiping the benches and doing the washing up.
The plaintiff said that he would pay someone to assist him with these tasks if he could afford it rather than his daughter who works fulltime and has two children: T67.19.
The plaintiff gave evidence that his wife had a number of medical problems and was diagnosed with breast cancer in 2015 and was under medical supervision for that condition. In addition, his wife had torticollis which involves spasms in the muscles in her neck. She received regular treatment in Sydney for that. Despite this, the plaintiff said that his wife struggled with the household tasks. He observed that with her condition these was sometimes difficult and caused her pain close to when she needed her usual injections: T67.31-T68.21.
The plaintiff confirmed that in the last 12 months he had not had any hand physiotherapy as he could do the exercises at home: T68.27. The plaintiff said that he saw his general practitioner in the last 12 months for his depression to obtain scripts for Zoloft but he had also attended his general practitioner for these scripts prior to the accident: T68.48. He said he had last seen his orthopaedic surgeon about six weeks after the last operation and he said that no further action was available: T69.8.
The plaintiff, who is a large man, said that his weight had increased substantially since the accident although he had reduced it to some degree. He said it was difficult to reduce his weight as he had no motivation to get out. He said his continuing injuries meant he was not able to participate in activities with his grandchildren and his irritability had affected his relationship with his wife: T69.45.
The plaintiff wore, whilst giving evidence, what appeared to be a glove with the ends of the fingers cut out which he said was a Thermogard cover made out of material similar to a wetsuit. He said that his left hand swelled up and changed colour sometimes and the glove reduced the swelling. He said it was given to him by his physiotherapist Ms Ekman to wear, particularly outside, and when the hand was cold and/or swollen. He gave evidence that his hand regularly felt cold and became swollen two to three times per week.
The plaintiff clarified that at the time of the accident when he stepped onto the path he did not see any steps as he proceeded towards the disabled toilet. He stated that on the day of the accident he recalled shadowing along the pathway and towards the path and at the beginning of the path: T70.47-T71.17.
The plaintiff said that when he walked down he did not see the step and thought it was just a pathway: T71.47.
In cross-examination, the plaintiff was asked a number of questions about the various paths that he and his disabled client took shortly before the accident. The plaintiff confirmed that he spoke to the client to redirect him from going towards the female toilet to the disabled toilet. He denied that he chased the client but said he proceeded towards the amenities block area at a reasonably fast walk. While the plaintiff agreed that he did not want the client to go into the ladies toilet by accident, he denied that he was concentrating on the client at the time of the accident. He said he spoke to him and the client came back away from the ladies toilet and was walking towards the disabled toilet: T76.7-.24. Accordingly, the plaintiff denied that he was paying attention to the client but said that he was walking down towards the disabled toilet and was not distracted by the client: T76.38. The plaintiff gave evidence that the client was halfway between the ladies toilet and the disabled toilet when he commenced walking down the pathway: T76.49.
The plaintiff was asked whether he saw the pattern on the bricks as he was walking towards the pathway. The plaintiff said that he saw there were paved bricks but did not see any pattern on them: T79.40. He said he did not recall looking at the pattern on the bricks when he was on the asphalt. The plaintiff said that he thought it was a path and he was walking towards the path. He said he was not worrying about any steps as in his 23 years as a disability worker he had never encountered any steps down to a disabled toilet: T81.4. In particular, the plaintiff said that he did not look down at the paved bricks but was looking ahead as he was walking down the path: T81.26. He denied that he was monitoring the movements of his client as he was walking down the path or talking to him but said he was looking towards the disabled toilet. The plaintiff later gave evidence that he could see the disabled sign on the toilet as he was walking down the path: T82.25; T82.47. His aim was to meet with the client at the toilet but would stay outside while the client went to the toilet: T83.39.
The plaintiff was cross-examined about previous visits to the Park but said that he did not take clients to the Park whilst working at Greenacres: T91.42.
The plaintiff was asked questions about his visit to the Park on 17 May 2018 and his visit in 2019 when he went with Mr Adams, the plaintiff's liability expert. The plaintiff said he attended the Park on 17 May 2018 at about 12:15pm but did not recall the time he attended when he went with Mr Adams.
The plaintiff was cross-examined in relation to a photograph of the path and accepted that he could clearly see the different configuration of the pavers up to the first step where he fell. He agreed that there was a different pattern on the next step. He agreed that although the pavers were shaded at the time he attended on 17 May 2018, he could still see the pavers and the different pattern on them. However, the plaintiff said that by the time of the visit with Mr Adams, the top of the steps had been painted and his vision of them had changed. The plaintiff said that he only saw the pattern on the pavers when he was on the ground after his fall: T93.14-T95.46.
It was put to the plaintiff that if at the time of the accident he had looked at the pathway in front of him he would have seen the different patterns. The plaintiff denied this and said he was walking down the pathway and it was shaded and in his 23 years of experience in the disabled sector had never seen stairs leading down to a disabled toilet. He accepted that he knew that the toilets were on a different level and believed that the pathway was a sloping pathway going down an incline to the amenities block: T96.2-T96.19. He denied that the edges of the steps would have been visible to him at the time of the accident if he had looked ahead. He also denied that he was anxious to prevent the client going into the ladies toilet and was focusing on his movements as he said he had already directed the client and the client was walking back towards the disabled toilet. He said he was not watching the client the whole time. He denied the reference in Mr Adams' report that he was still monitoring and instructing the client when he fell. He repeated that the client had left the area of the female toilet and was walking towards the disabled toilet at the time of the fall. The plaintiff said that to him it just seemed like a pathway, not a set of steps: T98.17. He repeated that he was looking towards the disabled toilet.
Mr Williams was cross-examined in relation to the time of his fall. His evidence in chief was that he arrived at the Park with his client between 11:30am and 11:40am and that the accident happened at about 12:15pm. It was put to him that the accident occurred before 11:15am and he denied it: T99.46. Upon seeing the ambulance records from the New South Wales Ambulance Service which showed that the first call in relation to Mr Williams' accident was at 11:17am, it was put to Mr Williams that the accident must have occurred prior to that. Mr Williams stated that his recollection was that the accident occurred after 12noon. Having been provided with the records for his review he accepted that those records were accurate: see Exhibit G; T100.30; T101.17. Mr Williams appeared to be honest and forthright in relation to this matter. He said he did not see who called the ambulance to attend at the Park. He said his recollection was that he attended with the client at the Park for the purposes of having the view from the lookout and having lunch. He did not recall whether he had lunch with the client earlier than 11:15am: T101.33.
There was then considerable cross-examination in relation to Mr Williams' medical history prior to the accident. The plaintiff accepted that he had a history of depression since 2008 for which he had been prescribed Zoloft with a dose of 50mg daily. He also accepted that he had suffered from weight problems prior to the accident and his weight had fluctuated. The plaintiff agreed that in March 2016, a few months before the accident, he had x-rays on his left knee complaining of pain and tenderness and a doctor had diagnosed osteoarthritis in the left knee. He was referred to a specialist in relation to a meniscal tear in the left knee but the consultation did not occur because of the accident. Whilst the plaintiff accepted that his left knee was a problem at times he said it did not create problems at work, although he noticed the knee clicked a bit: T101.40-T103.8; T103.49.
The plaintiff also accepted that he had sleep apnoea problems which affected his sleep prior to the accident: T103.29. He stated that he did a lot of stay overs as part of respite care which took him away from his home for periods.
He said he was able to persevere with his work through his knee problems. The plaintiff said that he had some pain with his knee getting in and out of cars if he drove for a fair distance: T104.8; T104.31.
The plaintiff accepted that in July 2016 after the accident he had bursitis in his right elbow which was investigated. He said this problem has resolved and he was advised that it was due to him using his right arm a lot in compensation for the injury to his left arm. He said he suffered an accident to his right arm many years ago and believed there was a piece of floating cartilage or bone in his right elbow: T106.9-.40.
The plaintiff agreed that he told his general practitioner Dr Hannousblunt in October 2016 that his wife was not well. He also accepted that his son had legal issues with a custody battle in relation to his children. The plaintiff said his wife had been diagnosed with ovarian cancer markers prior to the accident. It was put to the plaintiff that it suited him to retire about the time of the accident and thereafter because of his personal and health problems. The plaintiff rejected this and said he did not want to retire but wished to continue to work: T107.40.
In relation to the two half days at the House With No Steps after the accident, the plaintiff agreed that he did not find the work meaningful and merely accompanying another disability worker with two clients was not part of his job and his presence was unnecessary. He accepted that at his exit interview he complained about issues relating to management, his family and his injury and it was suggested that the other-issues led to his decision to resign not merely his injury. The plaintiff rejected this: T108.41; T109.12; T109.23; T110.19. While accepting that he was concerned about a lot of things he said the major reason for leaving his job was his injury. He said he wanted to work, the work offered to him was menial and "embarrassing" and he was looking for work after he left. The plaintiff was convincing in cross-examination in his rejection of the proposition that he was happy to remain unemployed after his resignation from the House With No Steps: T109.23. He said he was a worker, he always wanted to work and had applied for numerous jobs after leaving the House With No Steps. He said he had a few replies but nothing else: T109.29.
In relation to his depression and his taking of Zoloft, the plaintiff accepted that his dosage had been increased from 50mg to 100mg daily by his general practitioner in April 2017 but was reduced later to his pre-accident level: T110.39.
In further cross-examination, suggesting that he was not suitable for some jobs after the accident due to his knee problems, the plaintiff rejected this and said that he had no time off work at any stage due to his knee problems: T111.21; T111.34. He said he had a rehabilitation counsellor to assist him in finding a job and helping him to apply but no positions were available to him or were offered to him. He accepted that his skills and experience made him a potential employee to various disability providers but he received no positive replies, he believed because he was on workers compensation: T112.9; T112.44.
The plaintiff accepted that after operation number five he was able to use his left hand including for shopping but he said he had a limited ability to lift up to 5kg with his left arm: T113.7. When it was put to him that he could use his left hand now for cleaning, he said his wife did the cleaning within the house. He accepted, however, that he could do some things with his left hand around the house although writing and computer usage with his left hand was a problem because of the repetitive motions. Upon questioning from the court, the plaintiff accepted that if his wife was away he could undertake simple household tasks such as wiping the bench and undertaking some washing up, but said he could not undertake vacuuming or making the bed: T114.15. He agreed that he could take the rubbish bin out: T114.40. The plaintiff accepted that he could undertake driving. When it was suggested to him that he could be an Uber driver, he said he did not have a good car to do that: T115.29. When it was put to him that he had withdrawn $50,000 in superannuation and had that available, the plaintiff said that the sum was used in paying bills and helping his children: T115.44.
The plaintiff denied that he was able to mow the lawns due to the need for pushing and pulling and the vibration. He also said he could not start the lawnmower: T116.26.
It was put to the plaintiff that he had an ultrasound of the right shoulder in March 2019 which diagnosed a partial tear to his supraspinatus tendon. The plaintiff agreed that he had a reduced range of movement with problems and some pain. However, the plaintiff rejected that his various health problems would have led him to retire and he said he could not afford to retire and needed to access his superannuation to pay bills. He said if there had been no accident he would have continued working as his other problems and injuries were not that severe: T117.11; T117.34; T117.47.
In re-examination, he said he had never taken a day off work while working at the House With No Steps due to his other medical problems: T124.43.
The plaintiff was cross-examined about his work at home externally to his house. He said his son-in-law did not do the mowing prior to the accident. He said he did it when he was available including the use of the whipper snipper but when he was not available his wife did it. He accepted that his son-in-law may have helped on occasions but he said he was not away for extended periods as part of his work. He also agreed that his daughter provided domestic help for about 30 minutes a week in the house otherwise his wife did the cleaning. He accepted that his wife still did the house work in the house despite her medical conditions. Despite his wife's conditions and the plaintiff's medical problems he said that he and his wife were coping and his wife always kept the house spotless as it had been prior to the accident: : T120.5.
In general terms, this evidence was consistent with that set out in Ms Zeman's report (the occupational therapist briefed to provide a report by the defendant). The plaintiff rejected the proposition that after his five procedures he received substantial personal assistance for no more than five and a half weeks for about seven to eight hours and then the assistance dropped off. He said it continued for two to three months: T122.4.
In re-examination, the plaintiff said that at the time of the accident he saw the disabled sign on the door of the disabled toilet: T123.21. He also agreed that on the day of the accident the pergola was as indicated in the photograph in Mr Adams' report in Exhibit B at page B224.
The plaintiff confirmed that he drove to Dubbo sometimes to assist his son but the majority of the time now he went by train which he regarded as easier as his left arm/hand/wrist "played up" if he drove a lot: T124.14.
The plaintiff confirmed that his right elbow was injured when he was aged 18 or so but it did not affect him prior to the accident. The plaintiff also said in re-examination that prior to the accident if he had seen tactile buttons on the ground in front of steps he would look ahead to see what there was as it normally would indicate a handrail with steps: T126.27.
Mr Williams was clearly in error in his evidence in chief as to the time of the accident and when he arrived at the Park: see Exhibit G. It may well be that his recollection is incorrect that he arrived at the Park with his client to have lunch and to look from the lookout as opposed to having morning tea.
Otherwise, the court was impressed with Mr Williams' evidence and found him to be a forthright, direct and honest witness. He made concessions where appropriate and particularly was forthright in relation to his prior medical history and his post-accident medical problems which were unconnected with his left arm and wrist. He readily conceded in cross-examination the limited role which he had in undertaking domestic duties within the house prior to the accident and his varied role outside the house which was limited to lawn mowing and whipper snipping when he was available. Overall, the court accepts Mr Williams as a witness of truth and would only not accept his evidence on a matter where it is shown to be wrong by clear contemporaneous evidence such as the ambulance records relating to the time the ambulance was first called.

Oral evidence of Mrs Colleen Williams

Oral evidence was given in the proceedings by Mrs Colleen Williams, the wife of the plaintiff. Mrs Williams gave evidence that she was born in November 1949 and was thus 70 years of age at the date of the final hearing.
Mrs Williams gave evidence that she had been married to the plaintiff for 41 years and had two children and six grandchildren.
Mrs Williams stated that she had not worked since 2015 and had previously been a cleaner. She gave evidence that she had ceased her employment in 2015.
Mrs Williams gave evidence that the cleaning duties at her house were not shared with the plaintiff. She said she did the household domestic activities. She stated that the plaintiff prior to the accident assisted with lawns and the whipper snipping of edges when he was not working and was at home. She said her husband did not assist with these duties after the accident but they were completed by their son-in-law. Mrs Williams gave evidence that after the accident she left her home on occasions for visits to her son and elderly mother who lived in Dubbo. The longest period when she was not at home where the plaintiff was looking after himself was in 2020 when she was away for seven weeks. During this time, her daughter assisted the plaintiff with household activities by coming to "freshen up the house". Mrs Williams stated that her husband made attempts to help with household activities such as washing up and making the bed but she has to redo the latter activity and she is concerned that the hot water may affect the plaintiff's hand. She confirmed that she had not seen the plaintiff undertake sweeping or mopping.
Mrs Williams gave evidence that in the period after the accident and after the plaintiff's operations, she provided her husband with additional care including personal care involving assistance with covering his arm, with showering, wiping the plaintiff and dressing him. In relation to meals, depending on the meal, Mrs Williams assisted the plaintiff by cutting up his food where utensils were needed. She said she did not assist with other personal tasks: T143.36. These tasks would continue from one operation to the next. The personal care by Mrs Williams for the plaintiff was undertaken every day: T144.13.
In addition, Mrs Williams gave evidence that she drove the plaintiff to the hospital, picked him up from the hospital after his operations, and took him to doctors' appointments by driving him.
Mrs Williams was asked questions about her own medical issues in the last five years. She gave evidence that she was diagnosed with breast cancer in 2015 and had radiation treatment. Her treatment involved follow-up consultations with medical specialists including her surgeon and her radiation oncologist. These consultations are ongoing. Mrs Williams gave evidence that 10 years ago she noticed jerking motions of her head due to her neck. These motions were apparent whilst Mrs Williams was giving her oral evidence. Mrs Williams stated that she was diagnosed with torticollis which included spasms involving uncontrolled movements of the neck and head. She said she attended St Vincent's Hospital in Sydney every three months for Botox injections to her neck to assist this. This condition involved discomfort in the neck from time to time and she was under the continued treatment of a specialist.
Mrs Williams was asked whether the plaintiff's personality had changed since the accident and she gave evidence that he had become cranky and short with her. She said this meant that they were less tolerant of each other and their relationship was not the same.
Mrs Williams gave evidence that her daughter attended their house daily and the grandchildren attended frequently. She stated that the plaintiff was less patient since the accident with his grandchildren.
In cross-examination, Mrs Williams confirmed that her daughter visited every day in the morning and afternoon as the plaintiff dropped her off at work and sometimes picked her up (or Mrs Williams would pick her up from work).
Mrs Williams confirmed in cross-examination that the help which she gave to the plaintiff in personal care matters reduced between operations: T148.41.
Mrs Williams gave evidence that when she was away from Wollongong her daughter attended the house for 30 minutes weekly to assist the plaintiff. Otherwise, when she was home she was in charge of cleaning within the house, as she did not like her husband to interfere with it. She also confirmed that she undertook weeding in the garden when she had time.
Mrs Williams was cross-examined in relation to the duties of her son-in-law as to lawns and edges at her house before and after the accident. Mrs Williams said that prior to the accident when her husband was away on respite stays, her son-in-law did do some of the mowing and whipper snipping instead of her husband. She also said that she did some of the mowing of the lawns herself. Her son-in-law now assists with the lawns. Mrs Williams said that the garden of the house was maintained properly at present, as was the house itself.
Mrs Williams confirmed that she had noticed her husband having knee pain for the last two years and he appeared a bit lopsided. In relation to whether she noticed the plaintiff having problems with his right shoulder and doing work around the house, she stated that the plaintiff did not do much work around the house. However, she confirmed that the plaintiff had attended the doctor in relation to his right shoulder.
In re-examination Mrs Williams stated that the lawns were mowed and edged by her son-in-law once a week in the warmer weather. She stated that she did not any longer mow the lawns due to her health issues with breast cancer and torticollis: T153.
Mrs Williams impressed the court as a completely honest and straightforward witness who made concessions where appropriate. The court accepts her as a witness of truth.

Oral evidence of Mrs Tahnee Iera

Evidence was given to the court by Mrs Tahnee Iera who is the daughter of the plaintiff and his wife. She was born in June 1981 which made her 39 at the time of the final hearing. Mrs Iera gave evidence that she lived near to the plaintiff and was married with two young children. Mrs Iera also gave evidence that she was employed.
Mrs Iera gave evidence that she had noticed changes in her father's personality since the accident. She said that there was "no life" in him, he was withdrawn, his depression had become worse and he lacked patience.
Mrs Iera gave evidence that she provided cleaning assistance to the plaintiff. She said prior to the accident this was not required. However, after the accident cleaning assistance was given when her mother left Wollongong to visit relatives. This assistance included dusting, vacuuming, cleaning the kitchen and bathroom, mopping and washing. She also gave evidence that her husband, the plaintiff's son-in-law, provided assistance with lawns and gardening.
Before the accident, Mrs Iera gave evidence that her parents and her family had gone on holidays together to the Gold Coast and Batemans Bay but that since the accident the plaintiff had not gone on any holidays. Mrs Iera gave evidence that she led a busy life and she would not continue to provide the domestic assistance for her father if he could afford to pay someone to do it.
In cross-examination, Mrs Iera said she could not remember helping clean her parents' house before the accident but it was possible that she did so, for example if her mother was unwell. Mrs Iera said that her husband did not assist the plaintiff with lawns and gardening before the accident only after the accident. She gave evidence that if the plaintiff was available he would do the lawns. If he was not available, then her mother did the lawns especially before she became unwell: T157.14.
Mrs Iera was not aware of her father having problems with his knees or right shoulder recently.
Mrs Iera impressed as an honest and straightforward witness who made concessions where appropriate. The court accepts her as a witness of truth.

Treating medical evidence

In the course of his fall, the plaintiff fell on his left hand side taking the force of the fall with his left hand and forearm on the brick landing after the first step of the stepped pathway. The plaintiff contacted his employer who arranged for the disabled adult client under the plaintiff's care to be collected. The plaintiff was transferred by ambulance from the Park to Wollongong Hospital. It is not in dispute that the plaintiff was referred to a specialist and came under the care of Dr A Kadir, orthopaedic surgeon, who performed a number of medical procedures on the plaintiff. Dr Kadir at one stage sought a second opinion from Dr J Tawfik in relation to pain in the plaintiff's wrist.
Following the plaintiff's injuries to his left wrist and elbow in his dominant left upper limb, the following surgical procedures occurred: 1. On 31 May 2016, there was an open reduction and internal fixation of the left radial head fracture and bone grafting performed by Dr Kadir; 2. On 29 September 2016, there was a left wrist arthroscopy and TFCC debridement (triangular fibrocartilage complex) and an ulnar shortening osteotomy performed by Dr Kadir; 3. On 27 April 2017, there was a left wrist arthroscopy and debridement performed by Dr Kadir; 4. On 8 June 2017, there was a left total wrist fusion performed by Dr Kadir; 5. On 18 February 2018, there was a procedure for the removal of the plate and screws from the left wrist joint and from the left ulnar performed by Dr Kadir following irritation caused by the medical hardware components.
There is a variation in the medical evidence as to whether as well as the fracture of the left radial head, the plaintiff also had a (left triquetral dorsal capsular avulsion) fracture in the wrist. This is later considered in the medicolegal evidence. Whether there was a fracture or not, it is clear that the plaintiff suffered considerable soft tissue injury to his left wrist in the accident.
In evidence are numerous reports from Dr Kadir to the plaintiff's general practitioner, Dr Henneuseblunt.
In his letter dated 26 May 2016, Dr Kadir states: "He sustained a left intra-articular fracture of the head of the radius. This fracture is displaced and it caused a block in forearm supination. Bernard also sustained an injury to the left wrist. The x-ray and CT scans show a fracture through the dorsal rim of the triquetrum. He also had an MRI that confirms an injury to the dorsal capsular ligament complex of the left wrist. … Bernard requires an open reduction and internal fixation of the left intra-articular radial head fracture … The left wrist can be managed non-operatively with a splint."
In a letter dated 14 June 2016 following the first operation, Dr Kadir expressed the opinion that the plaintiff was making good progress and had started physiotherapy. The plaintiff's left wrist was described as still tender and swollen. In a letter dated 12 July 2016, Dr Kadir stated that the x-rays of the plaintiff's left wrist suggested that the wrist fracture was healing and that the x‑ray of the left elbow showed the radial head fracture had united. An MRI of the left wrist was requested. Very limited light duties were also suggested.
In a letter dated 2 August 2016, Dr Kadir noted that the plaintiff had a good result with the left elbow but the left wrist continued to be a problem. He noted that the repeat MRI showed a full thickness tear of the peripheral attachment of the TFCC ligament.
Continued problems with the plaintiff's left wrist were noted in a letter dated 14 September 2016 and a left wrist arthroscopy and triangular fibrocartilage repair plus an ulnar shortening osteotomy were recommended. It appears that the plaintiff naturally had a slightly longer than normal ulnar.
Various later letters from Dr Kadir noted continuing problems with the plaintiff's left wrist. Cortisone injections failed to resolve the wrist problem. In a letter dated 5 April 2017, Dr Kadir stated in relation to the plaintiff's work capacity that he was unsure if the plaintiff would be able to have a pain-free wrist although the surgery completed had improved his symptoms.
Following the plaintiff's continued problems with his left wrist, Dr Kadir sought, as indicated above, a second opinion from Dr Tawfik. As a result of the plaintiff's continued wrist pain with a limited range of movement, Dr Tawfik expressed the view that the plaintiff would benefit from a total wrist fusion which would address the pain. In a letter dated 9 May 2017, Dr Kadir said in relation to the plaintiff's left hand work capacity that he should use a splint for pain and he would need lifting restrictions. In the light of Dr Tawfik's opinion, Dr Kadir, in a letter dated 24 May 2017, offered the plaintiff a total wrist fusion of the left wrist which the plaintiff agreed to. In a post-operative letter dated 21 June 2017, the plaintiff was noted as having physiotherapy and his wrist and fingers were still swollen. Later letters indicated that the wrist fusion was doing well but the swelling and discomfort meant the plaintiff was not ready to return to work. In a letter dated 31 August 2017, Dr Kadir expressed the opinion that the plaintiff would not be able to return to his previous to injury work, and there was a reduced grip strength. Later letters indicate continued pain in the plaintiff's left wrist. Dr Kadir in a letter dated 26 October 2017 stated that the plaintiff would have a permanent limitation to his left hand function. The plaintiff was on pain medication for his wrist and Dr Kadir recommended continued hand therapy.
By 28 February 2018, the plaintiff was noted as being unable to form a complete left fist and more physiotherapy was recommended. In a letter dated 2 May 2018, Dr Kadir noted that the plaintiff had improvements with him not complaining of any pain in the left hand, but the grip was weak. Dr Kadir noted that the plaintiff was looking for a new job.
As noted above, the plaintiff was having hand therapy to his left wrist with a physiotherapist. In evidence was a report from Ms N Ekman, physiotherapist, dated 6 June 2019. Ms Ekman recorded that the plaintiff had been attending hand therapy for his injured left wrist with her since 3 June 2016. The plaintiff attended fortnightly until the end of February 2019 and then once per month since that time. While the plaintiff had been undertaking all the relevant exercises, he still complained of pain in the left arm, wrist and hand. Reduced grip strength in the left hand was noted. The plaintiff was advised to continue with his home exercise regime as he was able and to attend fortnightly for hand therapy treatment.
In evidence was a report from the plaintiff's general practitioner Dr Henneuseblunt dated 12 May 2017. This recorded that the plaintiff was getting low in mood due to the surgeries performed on him and it was recommended that he attend a pain management psychologist. The general practitioner noted: "Has been approved for light duties today, but practically he is no longer with previous employer and injury co-ordinator will be doing a return to work plan etc".

Evidence for the defendant

The defendant relied on photographic, documentary and oral evidence.

Oral evidence of Mr G Cook

Oral evidence was given in the proceedings by Mr Grahame Cook. Mr Cook stated that he was employed by the defendant Council as the Horticultural Supervisor in the Botanical Gardens Department. He had been employed in that position for a lengthy period.
Mr Cook gave evidence that in 2009 a need arose for maintenance at the Mount Keira Summit Park. A maintenance team was assembled and undertook maintenance activities at the Park under his direction. These activities included toilet cleaning, litter removal, clearing of paths, making sure fences were secure, tree work, the cleaning of the barbecue facilities and minor landscaping work. Some landscaping work at the Park had also been completed by Mr Cook prior to 2009.
Mr Cook gave evidence that the Park was run by a Curator and he was the next step beneath the Curator in charge of operations at the Park. Mr Cook stated that he had attended the Park once or twice a week since 2009: T158.22. He said there was a storeroom in the toilet block at the Park which was used by the maintenance crew to store tools and supplies: T158.30. Mr Cook stated that the storeroom could be accessed by using either the stepped pathway in question in the present proceedings or the ramp. Mr Cook stated that he used the steps down to the amenities block quite often and preferred to use them as they were the quickest way to access the amenities block from where he parked his vehicle: T158.50.
Mr Cook was taken to photograph seven in Mr Adams' report at Exhibit B page B222. He confirmed that this showed the top of the stairs to the amenities "walk" in the late afternoon. He stated that he parked his car usually where the vehicle to the left is shown in photograph seven and then got out of the car and walked towards the steps to access the amenities block as it was the shortest point to the storeroom: T160.39. He confirmed that he had used the steps in question once or twice per week in his activities and the last task was generally to lock the storeroom and walk up the steps to his vehicle. Mr Cook said that he had used the steps in question at different times of the day, including at pre-dawn, after dusk and at other times during the day. He said he had never had any problems seeing the steps or seeing the pavers of the landings: T161. He said he had seen other people using the steps to walk down to the amenities block. He said he had not seen anyone have an accident whilst using the steps since 2009 nor had he heard of any accidents in that period: T161.41-T162.2. On occasions there had been reports of loose pavers on the steps and these were made safe as soon as possible.
Mr Cook gave evidence that he painted the nosings on the steps with paint but did not know why this was done. He said he was given a direction to highlight the nosings on the steps: T162.23.
In cross-examination Mr Cook confirmed that he had no idea why he was directed to paint the nosings of the steps. He agreed that the paint applied to the nosings of the steps was bright yellow and made the appearance of the steps more obvious: T163.22.
Mr Cook was asked whether the steps were the shortest way to the disabled toilet facilities and he answered "potentially yes": T163.33. A similar answer was given to the proposition that the first thing that is seen is the door to the disabled toilet from the top of the steps. He confirmed that MFI 1 which became Exhibit N showed the disabled toilet with the door opened. He also agreed that the stepped walkway led directly to the disabled toilet: T163.50. It was put to Mr Cook that the painting of the steps fundamentally changed their appearance. Mr Cook agreed. He said that you could see them much better with the paint applied although you could also see them before: T164.15. He agreed that he had been familiar with the steps for 11 years and had used them many times in that period. He said he had no memory of the first time he walked down the steps.
Mr Cook was asked about the photograph which became Exhibit K in the proceedings taken on 17 May 2016. He confirmed that it was a photograph of the steps but was not aware who took the photograph and said that he had received no notification of the plaintiff's accident. He accepted that the photograph which is Exhibit K showed shadowing on the steps. He also accepted that there may have been other accidents apart from the plaintiff's that he was not aware of: T165.10. Mr Cook appeared to think that the shadowing shown in Exhibit K related not to the pergola which was present at the time of the accident but from the roof of the amenities block.
Mr Cook confirmed that part of the shadow shown in Exhibit K was the shadow from a tree and was of the view that it showed the shadow of a Banksia tree which was present. It was put to Mr Cook that council workers had removed branches to reduce shadowing but Mr Cook said that whilst pruning occurred he was not sure whether it was to reduce shadowing. In due course, he said that trees were not removed as far as he was aware because of shadowing: T166.29.
Mr Cook accepted that the pergola had been removed in the period between 2015 and 2017 and said the reason for the removal was because it was redundant as it had been made to house a map and the map was never installed.
Mr Cook confirmed in his cross-examination that the amenities block included a storeroom but stated that it did not include a lunch room: T166.42.
Mr Cook was shown Exhibit C and accepted that there were tactile indicators on the edge of the steps shown in the photograph. He denied that tactile indicators were placed in front of steps at all other places in the Park: T168.26.
Mr Cook was not aware of the Vero 2007 risk assessment in relation to the Park and was also not aware of other risk assessments which had been undertaken since 2009 for the defendant. He was of the view that the current Curator would be involved with any risk assessments at the Park. He was not aware of any occupational health and safety inspectors employed by the Council coming to the Park. He confirmed that he had not been provided with any incident report in relation to Mr Williams' accident: T170.15.
Mr Cook impressed as an honest and straightforward witness. I accept his evidence.

Documents relied on by the defendant

In addition to the material in the joint tender bundle which became Exhibit B, the defendant tendered a number of photographs and documents. These photographs included the pathway areas leading from the carpark to the amenities block at the Park (Exhibit 1), stairs in the Park which had a handrail installed next to them (Exhibit 2) as well as a photograph showing an area of the Park which is dirt with bush (Exhibit 3).
In addition, the defendant tendered as Exhibit 4 a bundle of medical records relating to the plaintiff to establish medical conditions unrelated to his left arm on which he had been cross-examined, such as his knee problems, sleep apnoea and right shoulder problems.

Liability reports

Both parties relied upon reports from expert witnesses on the issue of liability.

Report of Mr N Adams

The plaintiff relied on a report of Mr Neil Adams, an expert in the fields of ergonomics and safety management, dated 16 October 2019. In paragraph 1 of his report, Mr Adams notes that he met with Mr Williams, the plaintiff, and his legal advisor at the Park on 14 May 2019 for the purposes of an inspection of what he describes as "the stepped walkway" down which Mr Williams fell. Mr Adams notes that he took photographs and made measurements at the site. He records that Mr Williams advised him that the situation was unchanged since the day of the accident except for the removal of the pergola which had been standing to the north of the accident site and the trimming of some overhanging tree branches.
It is unnecessary for the purposes of these reasons to set out in great detail Mr Adams' opinions largely because the experts later met in a conclave and prepared a joint report.
There are some variances between the assumptions on which Mr Adams' report is based and the plaintiff's oral evidence. In paragraph 2.1.3, Mr Adams records the plaintiff's instructions that he was about 15 metres behind when the client moved from the asphalt roadway onto the paved surfaces whereas Mr Williams' evidence was that he was between 10 and 15 feet behind: T49.1. In paragraph 2.1.3, it is also noted that when Mr Williams transitioned onto the paved surfaces he "continued calling out to the client and [was] monitoring the client's movements" whereas Mr Williams stated in his evidence that he called out to the client and was satisfied that he was moving to the disabled toilet when he (Mr Williams) walked down the pathway: T51.1. Photographs three to five in Mr Adams' report illustrate the different paving patterns of the brown pavers with a line of bricks delineating the division between one part of the paved area and the stepped pathway leading to the first step. There is also a change in pattern on the nosing of each step in the stepped walkway.
Paragraph 2.1.4 of the report provides: "Mr Williams was still monitoring and instructing the client when he (i.e. Mr Williams) quite unwittingly stepped beyond the edge of the uppermost step of what he subsequently learned was a stepped walkway, rather than the sloping path he thought he was following".
Mr Williams in his oral evidence said that this was not correct and that he had ceased instructing the client and looking at him when the accident occurred: T50.47. I prefer Mr Williams' oral evidence on this issue as being more likely to be correct, having observed him giving his evidence during cross-examination.
Photographs four and five in the report also show shadowing on the steps but not the first step where the plaintiff fell.
In paragraph 2.2.1 of his report, Mr Adams notes that the stepped walkway is about 4.8m long from the uppermost nosing to the drain that is set into the walkway beyond the lowest step and approximately 1.3m wide with the riser of the relevant step being 0.16m high and with the stepped walkway sloping down towards the toilet block.
In paragraph 2.2.2 of his report, Mr Adams refers to the varied pattern in the pavers and notes that the three step nosings along the stepped walkway were the only three locations within the paving where soldier course edging was associated with changes in level.
In paragraph 2.2.3, Mr Adams notes the stepped walkway did not have colour contrasting strips painted or mounted on either the outer edge of the upper level or on the nosings of the intermediate steps to render them more visually obvious and expresses the opinion that in the absence of such contrasting nosing strips, each of those edges did not have any characteristics likely to cause them to be sufficiently conspicuous to be visually obvious. He also notes that bright yellow paint has since been applied to the steps which he considered to be both appropriate and necessary.
In paragraph 2.2.4, Mr Adams notes that the stepped walkway lacked handrails and there were not tactile ground surface indicators provided at either the top or the bottom of the stepped walkway to alert vision impaired pedestrians to the presence of the potentially hazardous nature of the walkway due to the three steps along the structure.
In paragraph 2.2.5, Mr Adams notes that in his view it is pertinent that the toilet block includes facilities that are marked as disability units and signs directing people with disabilities to the toilet block. The fact that the stepped path was substantially or entirely shaded and therefore less visible is referred to in paragraph 2.2.6.
In paragraph 2.2.5, Mr Adams suggests that the steps did not comply with AS 1428.1.2001 relating to access and mobility for disabled persons or AS 1657.1992 relating to, among other matters, stairways.
In paragraph 2.2.7, Mr Adams refers to the absence of warning signs advising Park users of the presence of the steps in the subject area. In paragraph 2.2.8, he notes it to be of significance that other structural components of the Park were provided with handrails and tactile indicators to provide safety for users. Photograph 11 in his report notes the area leading to and at the lookout in the Park where handrails and tactile indicators are used. In the photographs numbered 12 and 13 in his report, the bright yellow paint which has been placed on the steps since the accident is illustrated.
In paragraph 3.1.2 of his report, Mr Adams expresses the view that all steps and stairways are considered potentially hazardous. He notes various factors including that the stepped walkway comprised an available path of travel that could be used by visitors including persons who are caring for others, there were signs directing people generally and people with disabilities in particular to the toilet block, there were no tactile indicators present, the shading and the Australian Standards which have previously been referred to. He also notes the fact that the stepped walkway lacked handrails. In paragraph 3.1.3, he expresses the view that the stepped walkway "would have been more than usually potentially hazardous compared to steps and stairways generally". He refers to the absence of visual cues to the stepped walkway in paragraph 3.1.4. In paragraph 3.1.11, he expresses the view that the steps that have been constructed along the paved walkway were visually indistinct from the adjacent paved surfaces and had no contrasting nosing strips and no handrails and would in his view have been fully or almost shaded from the sun at the time of the incident. He says this exposed the plaintiff to a significant risk of a misstep. In paragraph 4.1.5, Mr Adams expresses the view that an appropriate hazard identification and risk assessment process would have noted the potentially hazardous nature of the unmarked steps within the paved walkway before the accident.
In paragraph 4.2.4 of his report, Mr Adams refers to reasonable means available to the defendant that it could and should have implemented by which the risk would have been controlled if not entirely eliminated. These matters have largely already been indicated but include the insertion of tactile indicators above and below the stepped walkway, the use of strongly contrasting nosing strips or highlighting tape or paint on the steps, the use of visually different pavers along the nosings, suitable handrails, suitable temporary barricades and suitable warning signs. See also paragraph 5.2.3.

Reports of Dr J Cooke

The defendant relied on three reports of Dr John Cooke, architect and Adjunct Professor at the University of New South Wales. Dr Cooke has very extensive experience in relation to the design of buildings and safety issues including trips and falls.
In his first report dated 11 December 2019, it appears from paragraphs 7-8 of his report that Dr Cooke inspected the site and the accident area. Later evidence established that this was after the bright yellow paint had been applied to the step nosings by the defendant.
In paragraph 17 of his report, Dr Cooke notes that the nosings of the steps and the side edges of the landings are accentuated by means of paving bricks laid in a row by comparison with a brick herringbone pattern used elsewhere. He expresses the opinion that the changes of level would have been apparent at the time of the incident to a pedestrian taking appropriate care. Although he noted that the pedestrian surface was shaded to some extent by tree branches, he concluded that the level of light was satisfactory.
Dr Cooke also expressed the following opinions: 1. AS 1657-1992 has no statutory force in its own right and has no application to the accident site because it applies to means of access and safe working at places normally used by operating, inspection, maintenance and servicing personnel; 2. The Building Code of Australia has no direct application; 3. Even if the Building Code of Australia was applicable, no hand rail would be required, because the widely spaced steps in question did not constitute a stair for which a hand rail would be required. Similarly, there would be no requirement to highlight the nosings by reference to any provision in the Building Code of Australia; 4. The appearance of the step including the visual cues from the change in the brick paving pattern would have alerted a pedestrian taking reasonable care to the step; 5. There was no requirement to install tactile ground surface indicators under AS 1428.1:2009. The widely spaced steps and intervening landings did not constitute a "continuous accessible path of travel" under the Standard. In any case, a continuous path of travel being a brick paved path with a gentle slope was provided to the right of the step surface with the curved bricked path.
In his second report dated 6 February 2020, Dr Cooke examines Mr Adams' report. He expresses the view that the surface in question was correctly described as a "stepped walkway" and not a stair. He disagreed with Mr Adams that in the absence of yellow stripes that were added after the event, the edges of the steps did not have any characteristics likely to cause them to be sufficiently conspicuous to be visually obvious to a person like Mr Williams who was neither aware of nor anticipating their presence. He expressed the view that there were visual cues of the steps. He disagreed with Mr Adams that there was any requirement for handrails or tactile pavers to be inserted. He also expressed the opinion that the shadows cast by trees do not adversely affect the ability of a pedestrian to have seen the steps. He did not consider warning signs to be necessary. Dr Cooke remained of the view that the relevant Building Code of Australia and Standards to which Mr Adams referred, were not applicable to the present stepped walkway. He noted, however, that an accessible path of travel was provided to the toilet facilities. He expressed the view that tactile indicators should not be installed unnecessarily and accordingly it would not be good practice to install them on the subject steps.
In his third report dated 27 April 2020, Dr Cooke expresses the opinion that any shadow cast by the pergola near the toilet facilities would not have reached the step on which the plaintiff was alleged to have lost his footing (paragraph 10). However, it is noted that this is on the basis of the position of the sun at 12 noon on 17 May 2016: paragraph 11. He also noted that shadows cast by trees at the time of his inspection did not conceal the step or cause difficulty in seeing the step.

Joint report

Mr Adams and Dr Cooke prepared a joint report as a result of a conclave held on 23 and 24 July 2020. As a result of that conclave, the experts agreed on the following relevant matters: "1.1 A single step in a pedestrian area is a potential hazard if it is not marked by adequate visual cues. 1.2 The marking of the nosings of the steps with yellow paint (since the incident) has provided enhanced visibility of the nosings. 1.3 Pedestrian access structures, such as stairways, ramps, and stepped walkways, can generally be expected to be safer for normal use in a wide range of circumstances if at least one suitable handrail is provided beside them. 1.4 There were signs directing people generally, and people with disabilities in particular, from the car park to the toilet block. 1.5 One accessible path of travel, with no steps, was provided between the car park and the toilet block (to the north of the stepped walkway). 1.6 The stepped walkway does not conform to the requirements for classification as a component of an accessible path of travel. The stepped walkway was not required to be an accessible path of travel because an accessible path of travel was provided to the toilets to the north of the stepped pathway. … 1.8 The stepped walkway, including the nosing of the uppermost step, would have been shaded to some extent by overhead tree branches (again, assuming sunny conditions)."
The agreement as to the shading in paragraph 1.7 was on the assumption that the incident took place at 12.20pm which is contrary to the evidence. See the new calculation of the shading in Exhibit L.
There was substantial disagreement between Mr Adams and Dr Cooke as to various matters in the conclave report.
In relation to the brick pavers used and their pattern, there was disagreement as to the efficacy of the change in the brick pattern as the sole means of highlighting the existence and location of the step. Mr Adams expressed the opinion that before the yellow paint was applied to the nosings, the pattern change was not sufficient as the pavers were otherwise identical in colour, shape, surface characteristics and size to other pavers that comprise the pedestrian walkways in nearby sections of the Park. Mr Adams was of the view that the distinction between the unpainted "soldier" course and the remaining pavers was not sufficiently conspicuous to draw the visual attention of all pedestrians and to alert them to the change in the walkway. This included in relation to some pedestrians like the plaintiff who had to focus a proportion of their visual and cognitive attention on aspects of the situation in addition to their own safe movement as pedestrians. Mr Adams also noted that the soldier course of brick pavers was used extensively along the edges of paved areas in walkways in other sections of the Park. Dr Cooke was of the view that the visual cues to the existence of the steps, including the brick soldier course on the nosings, in addition to the visual effect of seeing the pedestrian surfaces in three dimensions and the fact that the toilet block was obviously at a lower level in the pathway, provided adequate visual cues to the existence of the steps and the nosings.
Whilst there was agreement that the shadows cast by trees when the area was inspected by the experts did not conceal the step, there was disagreement as to whether or not the shadows would have materially affected the visibility of the steps. Mr Adams said that although the relevant shadowing at the time of the accident cannot now be accurately determined, it could have reduced the extent to which the existence and location of any change in level in that area might have been clearly visible. Dr Cooke was of the view that the shading would not have adversely affected the ability of a pedestrian, including the effect of dappled shade, having regard to the very high levels of illuminance in the area at the time of his inspection.
Mr Adams was of the view that the failure by the plaintiff to notice the step was not necessarily indicative of any lack of care on his part of the type that a person in his position might reasonably be expected to exercise. Dr Cooke expressed the contrary view but it seems to have been based on the assertion that the description of "the client" in paragraph 2.1.2 of the report was the plaintiff whereas it was the plaintiff's client being the disabled adult of whom he had the care.
There was further disagreement in relation to the extent to which specifications and recommendations that are available in publications such as the Building Code of Australia and Australian Standards should be considered relevant to the matter. Mr Adams saw these as being relevant particularly to a local government body. Even if, as Dr Cooke expresses the opinion, the Building Code of Australia and AS 1428 were not applicable, Mr Adams said that the relevant information in each of those documents should have been considered by the defendant during the planning processes for the work that was undertaken between 2004 and 2006 and between 2009 and 2015. This particularly included whether or not it would have been good practice for the nosings of the steps to be highlighted with paint or a handrail to be provided.
Dr Cooke was of the view that the Building Code of Australia has no direct application although it may have been relevant to good practice to consider highlighting the nosings of the steps and/or to provide a handrail. He also noted that the Building Code of Australia provision under consideration applied to stairways and ramps not to single steps. He was of the view that a handrail was therefore not required at the incident site. He also expressed the view that the Building Code of Australia did not require step nosings to be highlighted except in cases of public places of public entertainment. He remained of the view that a single step is not a "stairway" under the Building Code of Australia and accordingly the stairway design provisions in AS 1482.1-2001 were not directly relevant. He was of the view that the installation of tactile ground surface indicators specified in AS 1428.1:2009 did not apply and were not required by the Building Code of Australia at a single step.

The oral evidence of the liability experts

Oral conclave evidence was given by the two liability experts.
Mr Adams gave evidence in relation to paragraph 2.2.6 of his report (Exhibit B page B223). Mr Adams confirmed that since the preparation of his first report he had prepared an alternate calculation showing the shadow which would have been thrown by the pergola at the time of 11:15am on the day of the accident. He confirmed this calculation is shown in the first email in Exhibit L. With the revised calculation, Mr Adams said that he was still of the opinion that as at 11:10am to 11:15am on 17 May 2016, the combined effect of the shadowing from the pergola and the trees had substantially or entirely shadowed the stepped pathway: T173.20. Mr Adams confirmed that this was shown in Exhibit M on which, with a green highlighter, he had marked the southern extremity of the shadow thrown by the pergola. He confirmed that the shadowing shown in Exhibit M covered in his opinion the top step of the stepped pathway: T173.35. Dr Cooke indicated that he had seen the revised calculations prepared by Mr Adams as at 11:15am and expressed the opinion that in the period 11am to 11:15am all of the steps would have been in shadow and he agreed with the opinion of Mr Adams: T173.47.
Mr Adams was taken to paragraph 4.2.4 of his report where he refers to the reasonable means available to the defendant that it could, and in Mr Adams' view, should have implemented. Mr Adams said a combination of one or more of the means indicated could have been implemented. He stated that if the stepped pathway was redesigned and modified then the other means would not be necessary. The installation of contrasting nosing strips would be one means and if it was combined with handrails that would provide an additional visible cue: T174.16. He was also of the view that tactile indicators at the head of the first step on the stepped pathway would have been an appropriate means available to the defendant which could have been implemented. He said that using tactile indicators above and below the stepped walkway would have been consistent with their use elsewhere in the Park: T174.34-T175.30. He was of the view that it was inconsistent for the stepped pathway not to have used tactile indicators where steps elsewhere in the Park had used tactile indicators: T175.30. Mr Adams was of the view that this was not good design practice not to use the tactile indicators at the accident area: T175.35.
Dr Cooke disagreed with this view of Mr Adams: T175.35. He stated that the Australian Standards indicated the situations where tactile indicators were appropriate and single steps were not one of those situations: see paragraph 33 of Dr Cooke's first report. The court asked Dr Cooke whether, having regard to the fact that the stepped pathway went to the disabled toilet facilities and that disabled persons were potential users of the stepped pathway who could include vision impaired persons, it was appropriate to use the tactile indicators: T176.18. Dr Cooke was of the view that it was not as the location did not fall within the applicable Standards: T176.28. He also rejected the proposition put to him that having alerted users to steps elsewhere with tactile indicators it was sensible to alert them to the stepped pathway. He said such use was not within the Standards and did not require use of the tactile indicators. When Dr Cooke was asked to put aside the Standards and to consider the appropriate use of tactile indicators at the stepped pathway in question, Dr Cooke was of the view that it was inappropriate to use the tactile indicators and again referred to the Standards. Dr Cooke stated that the Standards were very comprehensive in relation to the use of tactile indicators and the text of the Standards did not suggest that tactile indicators should be used in front of a single step: T176.29.
Dr Cooke accepted that it was good practice to undertake a risk assessment of properties from time to time: T176.48. He also accepted that tactile indicators were a helpful cue to vision impaired persons including in relation to single steps. It was put to Dr Cooke that tactile indicators were a visual cue to the existence of a single step and he agreed with this, if they were correctly installed: T177.10-.19. He also accepted that the use of single steps in a pedestrian area was not good practice and if it could be avoided in a design it should be avoided in pedestrian areas: T177.21-.35. However, he denied that the steps in question here were three single steps and said they were a stepped walkway with three widely spaced steps. He regarded them as different to an isolated single step: T177.47.
Dr Cooke was asked whether, for the purposes of his inspection in November 2019 at the Park for his first report, he attempted to recreate the same conditions as the plaintiff faced on 17 May 2016. Dr Cooke stated that he "roughly speaking" attempted to do so and the photographs were taken by him between 10:58am and 11:23am: T179.27. He said it was partly overcast at the time and he waited until the sun came out to view the shadow placed over the steps to assess the degree of light: see T179.31 and paragraphs 15 and 18 of his first report at Exhibit B page C73. Dr Cooke accepted that he could not reproduce the light and shade at the time the plaintiff had his accident at the time of his inspection. He rejected the proposition that the position was totally different as the pergola had been removed. Dr Cooke said that he was looking at the pathway in dappled shadow. He stated that at the time of the accident the whole of the steps would have been shaded which, in his view, would have made it easier to ascertain the steps than if there was dappled shadow. He also stated that the light levels were very high which made the steps easier to see: T180.1-.13.
Dr Cooke was taken to the photograph in Exhibit K and it was put to him that the pattern on the bricks was less conspicuous in the shade. He said it was slightly less conspicuous in the photograph: T180.23-.31
On this point Mr Adams was of the view that the shadow shown in Exhibit K was from the pergola and made a perception of the difference in the pattern on the pavers more difficult than in bright sunlight areas: T180.46.
Dr Cooke was then asked about the photograph taken by him which became Exhibit N which showed the bright yellow paint on the soldier course of pavers at each step. He agreed that this was present when he undertook his inspection. He denied that the presence of the yellow paint prevented him being able to give an objective opinion as other unpainted paved areas were in close proximity and an observer would be seeing the steps in a three dimensional capacity: T181-T183. Dr Cooke accepted the general proposition that there is a potential hazard of single steps without adequate visual cues: first report paragraphs 23-24; T184.40. He also accepted that a handrail would be an additional visual cue: T185.8. He denied that the pattern of the pavers was the only cue in the present case and stated that the viewer of the stepped pathway sees it descending in a three dimensional way: T185.15. When it was put to him that the first step on the stepped pathway posed a risk of injury to pedestrians using it for the first time, he said it depends if they were hurrying or not paying attention: T185.42. He said any single step is a potential hazard: T185.43. Dr Cooke emphasised the different pattern of the pavers on the nosing to the steps. He said the level of lighting involved did not make the steps difficult to see: T186.12. When he was shown Exhibit D, Dr Cooke accepted that it made the first step difficult to appreciate in the photograph but said in reality the position was different. In reality the person looked at these steps in three dimensions and the photograph in his opinion appeared to be over-exposed and with what seemed to be a "foreshortening effect": T186.31.
In relation to Exhibit D, Mr Adams said that the photograph supported his visual impression from reviewing the stepped pathway that the nosings on the steps were difficult to see: T186.48.
Dr Cooke stated that when the amenities block was constructed there would not have been any statutory requirement to place highlights on the nosings of the steps or a handrail even if the employees of the defendant Council used part of the amenities block as a storeroom: T187.37-T188.19. Dr Cooke said the stepped pathway was not a "stairway" requiring different cues. He accepted that with stairs it is good practise to install a handrail: T188.47. He accepted that it was not good design to use single steps and where they were used there should be adequate visual cues to alert users together with adequate lighting: T190.19.
Mr Adams was asked questions about the inspection which he undertook for his report: see the photographs at Exhibit B page B220. Mr Adams confirmed that the inspection occurred in the mid-afternoon and at that time, as shown in the photographs he took, there was a shadow thrown by the amenities block over part of the stepped pathway. He agreed that he did not undertake a luminescence measurement at this time. When he took photograph four in his report, he confirmed that he could see the different pattern in the pavers and that the amenities block was at a different level to where he was standing: T191.50-T192.26.
When taken to Exhibit D, which is a photograph taken by the plaintiff of his asserted view just prior to the accident, Mr Adams accepted that the photograph was taken whilst the photographer was standing on the asphalt some metres from the edge of the asphalt. He said he could not determine the distance to the edge of the nosing on the first step, but it was more than 1.3 metres. Mr Adams did not appear to accept that the patterns of the pavers were clearer in the shade than in the sun and expressed the opinion that the patterns of the pavers were obscured, especially the soldier course in the nosings to the steps: T194.3. Mr Adams indicated that it was not necessarily the case that a person walking towards the top step would notice a difference in the pavers due to the soldier course. He further was of the opinion that even if a person did notice the soldier course they might not necessarily draw the inference that the soldier course represented a change in level: T195.3.
Mr Adams accepted that he did not carry out an illuminance measurement as he did not consider it to be relevant as he could not recreate the precise circumstances and create an accurate reading and also because on a sunny day inevitably the reading would have been quite high: T195.47.
Mr Adams accepted that he could not replicate the lighting conditions on the day of the accident and that both within sunlight and within shadow a high degree of lighting was available at the accident site. However, he remained of the view that the steps were not sufficiently visible to draw the attention of people who were not aware of them being present and who were not actively looking for a stairway in the area: T196, especially at T196.29.
Mr Adams was asked a number of questions by counsel for the defendant about visibility of items within shadows. He stated that shadows can hide things completely or they can have no effect on the visibility of something. He stated that the current yellow paint across the stepped nosings which had been added after the accident was still "very highly visible" in shadow: T197.1. Mr Adams stated that his inspection was made on a bright and sunny day when there was shadow on the steps as shown in paragraph 4 in his report: T197.21.
Mr Adams expressed the view that he was able to make a more accurate visual assessment of the stepped pathway than was available to Dr Cooke because at the time of his inspection the yellow paint had not yet been applied to the nosing of the first step: T197.46. Mr Adams confirmed his view that there would have been no sun on the pavers at all at the time of the accident based on the shadow calculations which he had prepared: T198.28. However, he accepted that there would have been ambient light or sunlight around the shadow cast by the pergola: T198.35. While accepting that there was a high level of natural lighting, Mr Adams was of the view that the visual characteristics of the step nosings were such, that for people in the position of the plaintiff who were not aware that the steps were there and who were not looking for a stairway and who had another significant cognitive demand on them through the person under their care, that the nosings were not visible to them: T198.43.
Mr Adams accepted that it was an important factor in his opinion that he assumed the plaintiff was distracted by another priority being looking after the disabled client: T199.4. On the plaintiff's evidence, this factor was not established.
Mr Adams was asked questions about the application of the Building Code of Australia and the relevant Standards to the amenities block. He was of the view that even though the Standards did not strictly apply because of the length of the landings, the "spirit" of the Standards should have been observed by the defendant as part of good safety management practise: T199.40. Mr Adams remained of the view that the Building Code of Australia had relevance to the situation even though the stepped pathway was not a complying stairway: T200.5.
Mr Adams accepted that within the shadows cast by the pergola at the time of the plaintiff's accident he assumed that the level of illuminance was "quite bright" and if measured in terms of lux would have been "very high": T200.10-.21. He agreed that it may have an impact upon what a person could see within the shadow: T200.26.
Further questions were asked of Dr Cooke assuming that the Australian Standards did not apply to the accident location. The following is set out in the transcript: "O'KEEFE: With respect, Doctor, you're not answering the question. The question is, accepting that the standards that you've referred to don't apply, nevertheless, if single steps are not good design, because people can miss them, and fall and suffer injury as a result, wouldn't it be logical to apply the precautions that are set out in the standards in order to overcome that design fault, as it were? WITNESS COOKE: Well, I - I've just said they're not in the standards. But it's - it's good practice to ensure that they are adequately lit, and that visual cues are adequate. O'KEEFE: Otherwise, you're encouraging bad design, aren't you? If you can design a stepped pathway that's not complaint with the code, such that you don't have to take all of the precautions that are required by the code and the standards, aren't you encouraging bad practice? WITNESS COOKE: I - I repeat, the - the codes and standards you refer to actually don't apply. But certainly, it's a requirement. Good practice requires adequate demarcation, adequate visual cues, and adequate lighting." (T203.13-31)
Mr Adams agreed that it was good practice to ensure that the stairs were adequately lit and that there were adequate visual cues: T203.35.

The medicolegal reports

Both parties relied on reports from medicolegal experts. The plaintiff relied on two reports of Dr J Bodel dated 9 October 2018 and 24 September 2019.
In his first report dated 9 October 2018, following an assessment of the plaintiff on 25 September 2018, Dr Bodel noted that the plaintiff's injuries were to the left elbow and left wrist. After setting out the history of the accident and the plaintiff's surgery at that date, Dr Bodel stated that the plaintiff had been left with some pain in the wrist after the wrist fusion although it had been improved by the surgery and there was some weakness in grip strength and difficulty making a full fist. He noted that the plaintiff was having extensive hand therapy which was helping. The plaintiff is recorded as saying that he did not see himself as being able to return to work and that he struggled in driving a car. The plaintiff reported pain and associated stiffness with the fusion in the region of the left wrist, a dull ache in the region of the left elbow and a loss of fine motor skills with the hand. The plaintiff was using non-prescription analgesia to help with the pain. On examination, Dr Bodel found a restricted range of shoulder and elbow and wrist movement on the left side.
Dr Bodel considered the radiological investigations and expressed the view that the plaintiff had reached a level of "maximal medical improvement". He found that there was no indication clinically of any pre-existing abnormality or condition in the left shoulder, the left wrist or the left elbow prior to the fall.
In his second report dated 24 September 2019, after an assessment on that day, Dr Bodel confirmed that the radiological evidence showed a fracture of the head of the radius and a probable injury to the "scapholunate ligament" in the region of the left wrist. He noted that the plaintiff had not been able to return to work and expressed the view that his prospects of returning to work are "somewhat limited". He noted that the plaintiff was still having physiotherapy. The plaintiff complained in the second consultation of pain and stiffness in the region of the left wrist, weakness in grip strength and numbness over the back of the hand. The plaintiff was still having hand therapy and using non-prescription analgesia.
On examination, Dr Bodel noted that the clinical findings had not altered since he had last seen the plaintiff and the plaintiff continued to have clinical signs of ongoing disability in the region of the left wrist and hand. He confirmed the radiological view as his diagnosis of the fracture of the head of the radius and scapholunate ligament injury in the region of the left wrist. He described the plaintiff's disabilities as "pain and stiffness in the left upper limb". His prognosis was guarded and he was of the view that the plaintiff was unlikely to have an altered condition over time. Conservative future treatment was recommended and Dr Bodel was of the view that there was no indication for any further surgery. Dr Bodel expressed the view that it was probable that the plaintiff's ability to return to the workforce was limited. He expressed the opinion that the plaintiff had no real prospect of returning to work at his age and with his ongoing levels of pain. He said the plaintiff was not fit to return to work. He expressed the view that the accident left the plaintiff with his current ongoing level of disability.

The defendant's medicolegal reports

The defendant relied on reports from Dr K Edwards and Dr F Harvey.
In his first report dated 25 September 2019, after an examination of the plaintiff on that day, Dr Harvey, a surgeon, set out the plaintiff's history of the accident and the various procedures which he had undertaken. He noted that the plaintiff had not worked anywhere since the accident. The plaintiff is reported as informing Dr Edwards that he was unable to work because of marked limitation of movement and loss of strength in his left hand and wrist. The plaintiff stated that he still attends physiotherapy approximately once a month and has been doing so for three years. The plaintiff is reported as saying that his wife did all the housework and she would not allow anyone in the house to help her. This is relevant to the occupational therapist issue to be decided in the proceedings. It is recorded that the plaintiff gets occasional soreness in his left shoulder since the fall and had applied for hundreds of jobs without success. The plaintiff stated that his son-in-law mowed the lawns and his daughter assisted with some housework. The plaintiff said he had constant pain in the left wrist with some limitation of movement in the left elbow which was occasionally sore.
After reviewing various radiological investigations, Dr Edward stated that the plaintiff suffered a fracture of the left radial head in the fall and symptoms in his left wrist. In relation to the fracture of the left radial head, Dr Edwards said the plaintiff had a good prognosis for this injury. In relation to the plaintiff's ongoing wrist symptoms in his left wrist, Dr Edward said that the prognosis for the wrist fusion was "generally good". In relation to arthritic change in the wrist revealed in an MRI of the left wrist dated 20 July 2016, Dr Edward said this was likely to represent a pre-existing condition involving degenerative changes. He accepted that the need for the various wrist operations "may have been due to the accident" because of the chronological connection. He expressed the view that the plaintiff's elbow injury does not stop him working. He accepted that the plaintiff's problems with his left wrist would prevent him carrying out work which required use of the left wrist. In relation to ongoing treatment, Dr Edwards expressed the view that the plaintiff did not require any including the ongoing physiotherapy which he had for over three years.
In his second report dated 3 March 2020 which involved a review of substantial additional material, Dr Edwards noted a review of the various reports of Dr Kadir, the treating orthopaedic surgeon of the plaintiff. Dr Edwards expressed the view that the additional material did not cause him to change the views expressed in his first report dated 25 September 2019.
Dr Harvey, an orthopaedic surgeon, in his first report dated 25 September 2019 following an examination of the plaintiff on that date, provides some history in relation to the plaintiff's early treatment including that a half cast was applied that immobilised the elbow and the left wrist, and the plaintiff's left arm was put in a sling and he was allowed to go home (presumably from the Hospital). Considerable detail in relation to the plaintiff's subsequent treatment, his departure from work, and his commencement on the New Start allowance, is set out. The plaintiff is reported as taking non-prescription pain medication on a daily basis with some breaks. In the social history recorded the following is stated: "He states before the accident, he mowed the lawn and his wife did the gardening. He says he rarely did any domestic work within the home. He says he hasn't been able to mow the lawn since his accident and now this is done by his son-in-law".
The plaintiff complained to Dr Harvey about a lack of strength in the left hand and difficulty doing finer manipulative tasks. He reported intermittent pain including some pain in the left shoulder since the accident. It is recorded that the plaintiff had no history of previous injury or disability affecting the left arm prior to the accident. It is also noted that since 2009 the plaintiff had been on medication for anxiety and depression.
The examination revealed limitations in the range of movement in the plaintiff's left arm, left elbow and left shoulder.
After reviewing the radiological evidence, Dr Harvey diagnosed a fracture of the head of the left radius and soft tissue injuries to the left wrist in the accident. He stated that due to persisting wrist pain, the plaintiff eventually had a wrist arthrodesis. He accepted that the injuries could have been caused in the fall described by the plaintiff and that the stiffness of the fingers may well have resulted from the immobilisation of the wrist following surgery.
Dr Harvey expressed the view that due to the ongoing disabilities in the plaintiff's left hand and in the shoulder, he would be unfit for heavier manual work or work which involved the left arm above the shoulder level. He expressed the opinion that the plaintiff would be unfit to return to his pre-accident work looking after the disabled but may be fit for other work such as administrative work or sedentary work but stated that it was unlikely that he could find such light employment at the age of 65. He was of the view that it was reasonable for the plaintiff to see his own doctor every two to three months as he has been doing.
Dr Harvey expressed the view that the plaintiff's condition was now permanent and static and that the loss of movement in the wrist would be permanent. He noted a slight loss of movement in the forearm and some loss of movement in the left shoulder. In relation to the pain in the wrist Dr Harvey expressed the view that the arthrodesis appears to be quite solidly united and there was a non-organic component to the plaintiff's complaints. He stated that it was apparent that Mr Williams had a pre-existing developmental lengthening of the ulnar in relation to the radius but this may have remained asymptomatic had there been no injury. He was of the view that despite the plaintiff's conditions he saw no value in the plaintiff having any further active intervention.
In his second report dated 3 March 2020, Dr Harvey considered the report of Dr Bodel and said that on the main issues they were largely in agreement. He agreed with Dr Bodel's view that the plaintiff's condition was unlikely to alter over time and that his continuing treatment should be conservative and there was no indication for further surgery. Although he was of the view that the plaintiff did have some limited work capacity, at the age of 65 years there was little likelihood of his being able to find alternative lighter work.
In relation to the claim of seven hours of domestic assistance per week, Dr Harvey states that the plaintiff made it clear to him that before the accident he was not involved in any domestic work within the home and that all he did was to look after the garden. He saw no need for the plaintiff to see an orthopaedic specialist annually or in having continuing physiotherapy and hand therapy.

Joint conclave

A joint telephone conclave was held between Drs Bodel, Harvey and Edwards on 6 July 2020. There was substantial agreement between the three medicolegal experts. Their views on significant issues were as follows: 1. All experts agreed that the plaintiff suffered a fracture of the head of the radius and soft tissue injury of the wrist with the possibility that he may have had a fracture to the capitate bone in the wrist; 2. All experts agreed that the plaintiff has a completely fused wrist and some slight loss of movement in the fingers and shoulder as a consequence of the accident; 3. All experts agreed that the plaintiff had a developmental positive ulnar variance which may not have been symptomatic before the accident and a serious weight problem; 4. All experts agreed that the plaintiff had significant impairment although his condition was stable and static and his prognosis was that his condition is unlikely to change in the future; 5. All experts agreed that the plaintiff could not return to his previous fulltime employment but would be fit for lighter work although his prospects of finding this type of lighter work at his age were poor; 6. All experts agreed that the treatment of the radius was reasonable and necessary. They expressed the view that it was not clear why the plaintiff required the sequence of operations which he had on the region of the left wrist leading to a full wrist fusion; 7. All experts agreed that no further active intervention was required at the moment but if anything should change the plaintiff should consult his general practitioner on an as needs basis.

The occupational therapy evidence

Each party relied on a detailed written report from an occupational therapist. Whilst there were some relevant differences in opinion in the reports, apparently largely due to inconsistent alleged information provided by the plaintiff, there was also a degree of agreement following a conclave meeting between the occupational therapists.
The occupational therapy assessment report relied on by the plaintiff was dated 8 October 2019 following an assessment on 20 August 2019 and was prepared by Ms Marie Lucas. In paragraph 1 of her report, Ms Lucas sets out a summary of the costs of her recommendations for past and future care which are recorded in more detail in paragraph 10 of her report. Ms Lucas sets out the detail of what she perceived was past necessary care and assistance including with transport as well as substantial weekly recommended future domestic assistance and garden care and home maintenance. A weekly amount for exercise physiology is recommended as well as once off amounts for occupational therapy and exercise physiology. There are also recommendations made as to equipment to assist the plaintiff and a home modification by the supply and installation of a hand rail at the front stairs of the plaintiff's house. Ms Lucas is of the view that a handrail on each side of the steps is necessary. There is already an existing handrail on the outer side of the steps. Both the plaintiff and his wife were present during the assessment undertaken by Ms Lucas. The assessment was undertaken at the plaintiff's home.
The plaintiff reported to Ms Lucas that he experienced pain in his left wrist which was worse during the cooler months of the year and that the pain was aggravated by activity or if his left hand was bumped. An assessment of grip strength showed that the plaintiff had considerably less grip strength in his left hand compared to the right. Detailed descriptions were made of pre- and post-injury tasks within the plaintiff's household. It is noted that Ms Lucas allows a substantial amount for lawnmowing and garden care (edging) which it is stated that his son-in-law now does.
Of note was that the plaintiff's wife is about five years older than him and has a neurodegenerative disorder and other health problems (see paragraph 12.2 of the report). Ms Lucas recommends that Mr Williams is provided with domestic assistance as his wife could at any stage experience a significant change in her functional capacity and ability to do domestic tasks around the house. A recommendation of the provision of 7.75 hours per week is made for domestic assistance as well as 1.7 hours per week for home maintenance and garden care assistance. The cost of the various items is set out in a schedule.
A detailed report is relied on by the defendant from the occupational therapist, Ms Sanja Zeman, dated 17 April 2020 following an assessment on 17 March 2020. Ms Zeman provides an executive summary of her recommendations for past and future care in paragraph 1 of her report with the detail provided in paragraphs 16-17 of the report.
The main differences between the occupational therapists are considerably reduced recommendations made by Ms Zeman as to past care and future care, including if the plaintiff's wife is unavailable to undertake tasks that she has been undertaking to date for the plaintiff in their shared living arrangements. This particularly relates to external and yard maintenance.
In paragraph 6.19 of her report, Ms Zeman notes that the plaintiff stated that he returned to work at the House With No Steps on two half days undertaking administrative duties but with his left limb problems he struggled with the tasks and ultimately resigned. In paragraph 8.5 of her report, Ms Zeman sets out the recommendations of Ms Lucas in her report. In paragraph 12.7, Ms Zeman sets out the plaintiff's wife's impairments in her health. In paragraph 13.2.5, the plaintiff's lesser grip strength in his left hand was noted. In paragraph 15.1.4, the plaintiff is recorded as stating that he worked long hours prior to the accident and his wife assumed primary role responsibility for domestic and yard maintenance including responsibility "for all tasks including garden and lawn maintenance".
In paragraph 15.1.5, the plaintiff is recorded as saying that he was responsible for whipper snipping of the garden and would assist with the lawns if he was available from his busy work. At present, his wife "continues to adopt primary role responsibility for residential maintenance and gardening": paragraph 15.2.2. A photograph of the steps at the front of the house where Ms Lucas has recommended an additional rail is at paragraph 29 of Ms Zeman's report.
In paragraph 15.6.2, recommendations were made if the plaintiff's wife was unable to continue to assume her premorbid roles within their shared living arrangements.
In paragraph 18.4, Ms Zeman assesses that the plaintiff has no ongoing requirement for physiotherapy/hand therapy to improve his function and there would be some limited need for occupational therapy to assist the plaintiff.
In paragraph 21, equipment recommendations are made. These were considered in a joint conclave between the occupational therapists.

Conclave evidence

Ms Zeman and Ms Lucas met on 17 July 2020 to discuss the opinions in their various reports. In relation to the plaintiff's disabilities and restrictions, both experts agreed that the plaintiff incurred a fractured left radial head as a result of the accident on 17 May 2016. Surprisingly, there is no reference to the plaintiff's wrist injury although the experts set out the five procedures undertaken by the plaintiff. They agreed that the plaintiff's requirement for the five surgical procedures resulted in a requirement for post-operative recovery and rehabilitation associated with each procedure. They also agreed that the plaintiff would have required a period of care following each surgical procedure with post-operative recovery and rehabilitation.
The differences between the occupational therapists seem largely to be based on their view that they were provided with a substantially different account of the plaintiff's premorbid engagement in activities of daily living being domestic and property maintenance tasks. Ms Lucas asserted that she had been provided with information from the plaintiff reporting a significantly higher level of engagement across a broad range of activities of daily living. The position of Ms Zeman about the plaintiff's involvement in whipper snipping and lawn mowing is substantially similar to the plaintiff's evidence in chief although the plaintiff's evidence was that he would undertake the lawn mowing unless he was not available when his wife would do it. He gave evidence that his wife undertook all internal housework and would be critical of him if he attempted any. Ms Lucas stated that she considered the plaintiff would have required assistance with domestic, handyman and garden care tasks and transport based on his reported pre-injury performance of those tasks. Ms Zeman's estimate of the plaintiff's contribution to lawn mowing and whipper snipping prior to the accident was 0.5 hours per week whereas the plaintiff indicated one and a half to two hours per week unless he was unavailable.

Submissions of the parties

Counsel for both parties provided the court with detailed written submissions. In addition, submissions were made orally in relation to a number of points. The court was assisted by the various submissions made and notes that everything that could possibly reasonably have been said in support of each of the parties' positions was stated in the submissions.
It is unnecessary for the purposes of these reasons to set out in detail the various submissions that were made. Substantial attention was given in the various submissions to liability issues. Reliance was placed on the expert opinions of Mr Adams (in the case of the plaintiff) and Dr Cooke (in the case of the defendant). In addition, each party pointed to numerous factors which, apart from the expert evidence, indicated support for their contentions on liability.
The plaintiff, in general summary, submitted as follows: 1. As to the lay witnesses, the plaintiff, Mrs Williams and the plaintiff's daughter, Mrs Iera, should be accepted as accurate and reliable witnesses and witnesses of truth apart from the plaintiff's error with respect to the time of the accident on 17 May 2016. As to that issue, the detail in the New South Wales Ambulance Service records should be preferred: Exhibit G; written submissions paragraphs 2-3; 2. The defendant's lay witness, Mr Graeme Cook, did not give evidence which assisted the defendant. He had no recollection of the first time that he had used the stepped pathway and he was unaware of any incidents in relation to the pathway. The latter does not assist the defendant because clearly somebody at the Council was aware of the plaintiff's injury and took a photograph of the stepped pathway on the day of the accident which became Exhibit K in the proceedings. The inference should be drawn that the Council did not maintain any or any accurate records in relation to incidents that may have occurred on the stepped pathway. In addition, Mr Cook was only present at the Park once or twice a week. Some of his evidence assisted the plaintiff such that the stepped pathway was the shortest way to the disabled toilet from the carpark and he was given a direction to paint the steps with bright yellow paint after the accident. Mr Cook had no idea who had taken the photograph which became Exhibit K and he did not receive any notification about the plaintiff's accident. He was not aware of any Occupational Health & Safety risk assessment at the Park since 2009 despite being responsible for maintenance and doing public safety checks. No evidence was given by the person who took the photograph which became Exhibit K or as to any system maintained for the recording or noting of incidents or complaints with respect to accidents including at the Park. A Jones v Dunkel inference should be drawn against the defendant in relation to these matters as well as concerning its employed landscape designers and architects and occupational health and safety experts as to the hazard exposed by a single step: written submissions paragraphs 4-17; 3. Mr Adams and Dr Cooke accepted that a single step posed a risk of harm and should be avoided as part of good design: written submissions paragraph 15; 4. The plaintiff sustained significant disabling injuries to his left arm in the accident and there was joint agreement between all the medicolegal experts as to the injuries. The plaintiff is left hand dominant. By reason of his injuries the plaintiff could not return to his fulltime employment with the House With No Steps. The five operations which he had all resulted from the injury sustained in the 17 May 2016 accident. In addition, the plaintiff has had many years of physiotherapy to his hand and continues to have serious symptoms. The injuries sustained by the plaintiff have had a significant impact upon his life including his family life and his pastimes. The plaintiff experiences frequent pain, an impairment of function of his dominant left hand and there is no further treatment which can be provided to him. The accident has resulted in the plaintiff being unable to undertake the mowing and edging tasks which he previously did at his property: written submissions paragraphs 33-45; 5. Following a period of rehabilitation and surgery to his hand and wrist, the plaintiff attempted to find alternative employment but despite making hundreds of applications he was unsuccessful in finding alternative employment: written submissions paragraph 46. The plaintiff's wife Mrs Williams and his family have given him considerable assistance in personal care and cleaning and lawn mowing/whipper snipping tasks: written submissions paragraphs 44-45 and 47; 6. Ms Lucas, the occupational therapy expert, should be preferred to Ms Zeman in relation to past attendant care services. In addition, the plaintiff needs to be compensated because there is a real chance that his wife will be unable to provide future domestic assistance: written submissions paragraphs 52-55; 7. On all the evidence, it should be found that the defendant breached its duty of care owed to the plaintiff in relation to the stepped walkway. It should have painted the nosings of the steps or otherwise highlighted them or placed tactile indicators before the first step and a hand rail or other precautions. The entrants to the Park included disabled persons and the stepped pathway led to the disabled toilet at the toilet block. Overall, the opinion of Mr Adams should be preferred to that of Dr Cooke. This was the case even if the various Standards, the Building Code of Australia and other statutory provisions were not applicable to the stepped pathway: written submissions paragraphs 56 and following. The opinion of Dr Cooke was unpersuasive in all the circumstances: written submissions paragraphs 96-116; 8. In this case, the duty of care was owed to entrants to the Park including disabled persons who were specifically encouraged to use the facilities at the Park. Consideration had to be given to the risk exposed to all entrants including disabled persons by the stepped pathway: written submissions paragraphs 118-132. There was a substantial risk of harm in the present case. Shading of the pathway needed to be taken into account and reasonable precautions that ought to have been taken in response to the risk of harm included one or more of the matters identified by Mr Adams and pleaded in the particulars of negligence: written submissions particularly at paragraph 131; 9. Causation is established in the present case as if the precautions had been taken there would have been no accident: written submissions paragraph 132; 10. The risk in question in the present case was not obvious to a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment: written submissions paragraph 134; 11. There should be no deduction to the claim for past economic loss because of any risk that the plaintiff would have retired earlier; 12. There should be no finding of contributory negligence. If it was found, it should be assessed at no more than 10%.
The submissions of the defendant, in general summary, were as follows: 1. Many of the allegations of breach of duty of care by the plaintiff related to failure to warn allegations. The plaintiff's case was largely one of a failure to warn. The risk was obvious, and accordingly, the defendant has a defence under ss 5F to 5H of the CLA and there was no duty to warn of the risk. If, contrary to the defendant's submissions, the risk was not obvious to a reasonable person in the plaintiff's position, the defendant submits the risk of harm did not require a response to discharge the duty of care owed having regard to all of the circumstances including the obviousness of the steps, invariable lighting conditions, the temporary nature of any adverse lighting conditions and the lack of evidence of past incidents of injury or reports of injury. The upgrade which occurred in 2006 related to the lookout; 2. There was an obvious change in the surface of the stepped pathway where there were steps; 3. There were no statutory requirements for the stepped nosings to be marked or highlighted such as under the Building Code of Australia or Australian Standards. Also hand rails were not required. There was an accessible path of travel provided to the toilet facilities by the semi-circular ramp. Tactile indicators were not required and the risk of harm of injury due to a misstep on the top step due to an entrant not seeing it in shade cast by the pergola structure was not foreseeable, not significant and a reasonable person in the defendant's position would not have taken the alleged or any precautions: written submissions paragraphs 2-8; 4. The fact the toilet block was on a lower level was plain to see and an entrant would know the path involved descending to the level of the toilet block. The stepped walkway was delineated by different paver configurations which were clearly visible in shade or full sunlight and the step was obvious by the paver configurations. The fact that there were precautions at the lookout did not mean that that they were needed on the stepped walkway: written submissions paragraphs 13-15; 5. The plaintiff did not properly look or check the path despite knowing he was about to go down what he assumed was a ramp or sloping path: written submissions paragraph 22; 6. The shade has not been established to have inhibited vision of the pavers and steps. The shade when the plaintiff walked along the stepped pathway was consistent and not dappled or uneven: written submissions paragraphs 23. There was adequate lighting and visual cues in the context of an observer having a three-dimensional view; 7. The plaintiff was not distracted by his client. He did not look where he was going. No response was required to discharge the duty of care owed: written submissions paragraphs 32-34; 8. In this case there was no requirement to take measures to make the visual cues which existed more obvious as part of complying with the duty of care owed to entrants to the Park: written submissions paragraphs 35-41; 9. The single steps were not a danger and the defendant was entitled to expect an entrant would see and negotiate the steps which were obvious. This was the case even if the steps are in temporary shade on a bright sunny day: written submissions paragraphs 42-51; 10. The risk posed by this step was an obvious risk and no duty to warn existed: written submissions paragraphs 52-62; 11. In relation to the failure to carry out a risk assessment, there was no suggestion that any step or precaution would have been reasonably implemented if an assessment had been made. A handrail was not required beside the stepped walkway as well. The removal of the steps was not a reasonable precaution: written submissions paragraphs 64-68; 12. The steps did not pose a foreseeable risk in all the circumstances: written submissions paragraphs 69 to 71; 13. Dr Cooke's expert opinion should be preferred to Mr Adams: written submissions paragraphs 72-74; 14. In relation to causation, the addition of paint or other marking on the nose of the step and the placement of tactile indicators would not have prevented the accident. The same position existed with handrails: written submissions paragraphs 75-87; 15. Detailed written submissions were also made in relation to damages issues including in relation to any amount allowed for non-economic loss. In relation to past economic loss, there should be a 50% discount for the possibility that the plaintiff would have retired before his due retirement date from his position even if the accident had not occurred: written submissions paragraphs 88-106; 16. The threshold requirements for past care were not established: written submissions paragraphs 107-112; 17. In relation to future commercial care or gratuitous care, the plaintiff's wife and family members are likely to continue to provide the domestic services they always have: written submissions paragraphs 113-121; 18. In relation to contributory negligence, if a breach is found any damages awarded to the plaintiff should be reduced by 50%.

Factual findings

I make the following findings of fact: 1. The plaintiff was born in March 1954 and at the time of the accident on 17 May 2016 he was 62 years of age. He is married to Mrs Williams who was born in November 1949 and is 70 years of age. At all relevant times, they lived in a rented house in a suburb in Wollongong owned by the Aboriginal Housing Corporation. That body does not maintain the garden or yards at the house where the plaintiff lives; 2. Although the plaintiff left work at an early age and has no tertiary qualifications, he has a lengthy and substantial work history since leaving school at the age of 15 in 1968. The plaintiff's work history was established by the evidence and is set out earlier in these reasons. From 1992 to 2009, the plaintiff was employed in a workshop for the disabled by Greenacres in Wollongong in various positions. From 2009 to the date of the accident, the plaintiff worked as a disability support mental health worker for the House With No Steps: T39.23. That position involved respite care for persons with responsibility for looking after disabled persons. The work the plaintiff undertook from 2009 to the date of the accident required him to be physically fit and being capable of caring for disabled persons including undertaking household maintenance and cleaning activities as well is personal care for the disabled persons where required. This position on occasions required the plaintiff to complete substantial overtime. He was well paid for his work; 3. Prior to the accident, the plaintiff was responsible for mowing lawns and trimming edges with a whipper snipper at home while his wife was responsible for indoor house maintenance, cooking and washing activities, the preparation of meals, and general simple home maintenance and window cleaning. 4. Prior to the accident, the plaintiff undertook various social activities including golf, lawn bowls and fishing. The plaintiff was and is a large man, weighing in excess of 120kg prior to the accident. However, this did not appear to affect his ability to undertake his work duties. 5. The defendant owned, controlled and maintained the Park at all relevant times. Maintenance staff, including Mr Graeme Cook who was employed as a horticultural supervisor by the defendant (T157.27), visited the Park for maintenance activities once or twice a week and stored tools there. 6. The Park can be accessed by roadway. There is an asphalted area near a lookout providing car parking spaces. There are nearby picnicking areas with picnic tables and various lookouts and bush walks. 7. Well prior to the accident, the defendant constructed an amenities block at the Park with men's and women's toilets and a disabled toilet. There were various signs at the Park directing users of the Park to the toilets. The signs included an indication of disabled toilet facilities. 8. There was substantial documentary evidence establishing a series of landscape improvements and alterations by the defendant at the Park. In the 1990s, the stepped pathway where the plaintiff sustained his fall and an adjacent curved ramp without any steps were constructed. These were made using brick pavers laid in a herringbone pattern save for the edge courses of the bricks which were laid in a "soldier" course. 9. There has been set out above in these reasons reference to the improvements to various parts of the Park between 2004 and 2006. These improvements, largely to the area at and approaching the lookout areas, included ramps, railings and tactile indicators. These are shown in various photographs which were in evidence. 10. The documentary evidence establishes that the defendant was concerned in ensuring safety measures for users of the new development including the provision of steel handrails, a disabled ramp and tactile indicators. In particular, various documents established that the defendant wished the design to address safety issues and provide access for the disabled. Accordingly, the defendant in its redevelopment from 2004-2006 was attempting to provide facilities which would be used by entrants to the Park including disabled persons. 11. It was reasonably to be expected by the defendant at all relevant times that entrants to the Park, including disabled persons, would use the toilet facilities at the Park including the disabled toilet. 12. The material shows that relevant officers of the defendant were aware at all relevant times (including its relevant landscape architects) of the need as a matter of good practise to provide adequate visual cues to entrants to the Park including disabled persons to the presence of steps and ramps. 13. At the time of the accident, near the toilet amenities block, was a pergola. At various times of the day, the pergola cast a shadow over areas near the amenities block. In addition, there was substantial vegetation in the Park, as would be expected, including vegetation which cast shade, including dappled shade, over areas at and near the stepped pathway where the plaintiff fell. This is shown in various photographs. See Exhibits D, F, K, L and N. However, the shade was not consistent throughout the day and varied depending on the time of the day and obviously the weather conditions. It is clear on the evidence that as at about 11:15am on the day of the accident, the pergola would have virtually entirely shaded the pathway including the first step of the pathway where the plaintiff fell: Exhibit L (opinion of Mr Adams). Dr Cooke confirmed that this was the case from 11am to 11:15am. The New South Wales Ambulance Service records, which became Exhibit G, show that the accident occurred shortly before 11:17am on 17 May 2016. The plaintiff was in error in his evidence that it was about an hour later. 14. The amenities block, which included the disabled toilet, was at a lower level than the top of the stepped pathway. There was a semi-circular ramp leading from the top of the stepped pathway down to the disabled toilet area of the amenities block. At some stage, there was another stepped pathway to the north-east of the amenities block and further to the north than the stepped pathway. This was removed by the defendant at some time prior to the accident. Why and in what circumstances is not clear. 15. Mr Cook, who was the horticultural supervisor in charge of the team which did regular maintenance at the Park, had been undertaking that maintenance since at least 2009. Mr Cook gave evidence that he had seen people use the stepped walkway by walking down the steps and had never seen a person have an accident on the steps while using them: T161.43. He also indicated that since 2009 he had not heard of any incidents: T161.46. 16. On the day of the accident, the plaintiff drove to the Park with a disabled adult client. It appears from all the evidence and the New South Wales Ambulance records that this likely occurred sometime around 10am. The plaintiff gave evidence that it was a bright sunny day. After attending the lookout with the disabled client, the plaintiff and the disabled client sat at a picnic table and had lunch or morning tea. The disabled client, who had limited vocabulary due to an acquired brain injury, indicated that he wished to go to the toilet and then proceeded, without waiting for the plaintiff, in the direction of the amenities block. How he knew that was where the amenities block was located is unclear. He proceeded off at a fast pace and the plaintiff followed about 10 to 15 feet behind him. The plaintiff noted that the client was walking towards the ladies' toilet and he directed him not to go into that toilet but to proceed to the disabled toilet. I accept the plaintiff's evidence that he saw the client walk past the entrance to the ladies toilet and walk towards the entrance to the disabled toilet. 17. The plaintiff took the photograph which is Exhibit D. The plaintiff said that this was the view he had as he was walking down towards the disabled toilet. It is noted that Exhibit D appears to be taken in the asphalt car park area and not on the paved surface. The paths of travel of the plaintiff and the disabled client are generally marked in Exhibit E. 18. I find that anyone looking at the stepped pathway from the side or from the amenities block would clearly be able to see that there was a stepped pathway involving steps. 19. The plaintiff in his perception observed what he thought was a straight brick pathway heading at a slope directly towards the door of the disabled toilet. I accept the plaintiff's evidence that he had never encountered any steps on any pathway leading to a disabled toilet in his years of experience working with disabled people. The plaintiff did not perceive that there was a stepped walkway. The plaintiff tripped on the first step and fell to the ground on his left hand side injuring himself. The path where he fell was the landing after the first step. The plaintiff indicated that he looked at the pathway as he walked across the asphalt and could not recall looking at the pathway again as he walked onto the brick pavers towards the disabled toilet: T80.44. I accept that evidence. After the plaintiff fell, he looked around and observed the step over which he had fallen. 20. The plaintiff received assistance and an ambulance was called. He was conveyed to Wollongong Hospital for assessment. 21. A photograph was taken on the day of the accident at 12.33pm: Exhibit K. This photograph ended up being in the defendant's records and was ultimately produced to the plaintiff. It shows the stepped pathway, certain shadowing from the pergola, and certain shadowing from vegetation including on the stepped pathway and at the top of the stepped pathway. 22. At some stage after the accident and following the inspection of the accident site by Mr Adams but before the inspection by Dr Cooke, the defendant through its employees arranged for the "soldier" course nosing at the top of each of the three steps in the stepped pathway to be painted with bright yellow paint: see Exhibit N. The different pattern in the pathway and the steps and the similar colour of the pavers is indicated clearly in a number of photographs including Exhibit N. 23. No written records were produced by the defendant relating to the plaintiff's injury at the Park. Initially, the photograph in Exhibit K was not produced but later it was produced. There is no evidence that the Council maintained any records in relation to accidents that may have occurred on or near the stepped pathway. Although Mr Cook did not see or know of any incidents, he only attended the Park once or twice a week. 24. The defendant at all relevant times employed landscape architects and occupational health and safety inspectors. The defendant did not call any evidence from any present or past employee as to any system maintained for the recording or noting of accidents or complaints with respect to the Park including the stepped walkway. I draw a Jones v Dunkel inference that any evidence from any present or available past Council employee would not have assisted the defendant on this issue: Newell v De Costi [2018] NSWCA 49 at [78]; Jones v Dunkel (1959) 101 CLR 298 at 321. However, I am not willing to draw an inference in accordance with Jones v Dunkel against landscape designers and architects and occupational health and safety experts employed by the council that it was widely known that the construction of a single step posed a not insignificant degree of risk of harm as the plaintiff submits, in the light of the expert liability evidence tendered and called before the court: plaintiff's written submissions paragraphs 13-15. I am also not willing to draw a Jones v Dunkel inference in relation to the removal of a stepped pathway to the north of the accident site in about 2007 as the evidence is simply unclear on this issue. It is also unclear whether that pathway bore any real similarity to the pathway in dispute in the present case.

Medical and related findings

I make the following medical and related findings in the proceedings: 1. The evidence showed the plaintiff had a lengthy and continued working history prior to the accident; 2. Since 2009, the plaintiff had worked at the House With No Steps and this required him to undertake a considerable amount of physical work in relation to the disabled clients; 3. There is no evidence that prior to the accident the plaintiff had any relevant injuries or restrictions in relation to his left wrist or left arm; 4. Prior to the accident, the plaintiff had a number of other medical issues. He suffered from depression and was prescribed the medicine Zoloft. He had problems with sleep apnoea. He had problems with his knees including osteoarthritis with his left knee involving pain on occasions. I accept the evidence of the plaintiff that none of these conditions had prevented him undertaking his work and that he had never taken a day off in sick leave in relation to problems with these conditions: T124.43. The sleep apnoea had also not been a problem which prevented the plaintiff from staying over at the facilities providing respite care for the disabled clients: T105.43; 5. Following the accident, the plaintiff had problems with bursitis in his right arm. The plaintiff said that this was due to excessive use of his right arm instead of his injured left arm. He agreed that he had an old injury which he suffered as a teenager to his right elbow. The plaintiff also agreed that he had a problem with his right shoulder after the accident: T116.29-T117. There is no evidence to show that the plaintiff's bursitis in his right arm would have prevented him undertaking his pre-accident duties or that the condition would have been aggravated absent the injury to the left arm. In relation to the problems with the plaintiff's right shoulder, I am not satisfied that there is any compelling evidence showing that this was a disabling condition or would have caused the plaintiff any likely problems until the age of 66. The plaintiff effectively denied that the issues with the right shoulder were of any real relevant significance in his day-to-day activities and I accept that evidence; 6. As is clearly established, the plaintiff suffered injuries in the accident on 17 May 2016. I find that following the accident the plaintiff had five operations to his left elbow and left wrist. These are set out in the operation notes of Dr Kadir and are helpfully summarised in paragraph 1.2 of Ms Zeman's report: Exhibit B page C27 referring to the operation reports of Dr Kadir. In relation to the second operation on 29 September 2016, this involved an ulnar shortening osteotomy partially due to a congenital defect. However, there is no evidence that this area was anything other than asymptomatic prior to the accident. Although the medico-legal experts state that the plaintiff had a "developmental positive ulnar variance which may not have been symptomatic before the accident" (Exhibit B page D2), there is no evidence that it was symptomatic. I find that the second operation was caused by the accident and undertaken by Dr Kadir as a result of the accident and would not have occurred but for the accident. 7. The plaintiff was a very large and overweight man at the time of the accident but there is no evidence that his weight caused him any particular difficulty in undertaking his employment. Although the accident occurred on 17 May 2016, it was not until 31 May 2016 that Dr Kadir performed the first operation which was an open reduction and internal fixation of the left radial head fracture and bone grafting. 8. There is an issue whether the plaintiff fractured a bone in his hand as well as fracturing the left radial head in his elbow. Dr Kadir believed the plaintiff did suffer such a fracture: Exhibit B page B43. The medico-legal experts agree that the plaintiff suffered a fracture of the head of the radius and soft tissue injury of the wrist "with the possibility that [the plaintiff] may have had a fracture to the capitate": Exhibit B page D2. 9. The court is unable on the evidence to reach a conclusion on this issue. However, it is clear that in any case the plaintiff suffered a considerable soft tissue injury to his wrist which resulted in a number of operations which have been referred to. 10. The injury to the plaintiff's left elbow and left wrist has caused him considerable pain and ongoing restrictions and symptoms including a loss of fine motor skills, frequent pain and restrictions, occasional swelling of the hand, a loss of grip strength and changes in temperature to the hand. It has meant in relation to duties around the house, that he cannot undertake pre-accident lawn mowing or the use of a whipper snipper on garden edges. He has a completely fused left wrist and some slight loss of movement in his fingers and shoulder on the left side as a consequence of the accident. The plaintiff has a significant impairment, although his condition is stable and static and his prognosis on the medico-legal evidence is that his condition is unlikely to change in the future. As a result of the injuries which the plaintiff suffered in the accident, it is established that the plaintiff could not return to his previous fulltime employment but was fit for lighter work although his prospects of finding this type of lighter work at his age were regarded by the medical experts as poor. The injury to the plaintiff on the left side is significant as he is left hand dominant. 11. As well as the five operations with associated scarring, the plaintiff has had many years of physiotherapy to his hand and continues to experience symptoms in his hand including swelling and changes in temperature and intermittent pain. The plaintiff wore a special glove whilst he gave his evidence to assist with these issues. The plaintiff adopted a chronology which became Exhibit A in the proceedings setting out details of medical and allied health consultations. The plaintiff no longer has hand therapy with physiotherapy but conducts his own exercises at home. 12. The plaintiff gave extensive evidence in relation to the impact of the accident upon his life. I accept that evidence and find that the impact has been significant. The plaintiff suffered from depression prior to the accident although it did not affect his working. His depression became worse after the accident and his medication was increased but in due course was reduced back to the previous level. He could no longer continue with his work at the House With No Steps. He has applied for numerous jobs with the assistance of a rehabilitation officer after his resignation from the House With No Steps with no success. Suitable part-time or lighter duties on a fulltime basis were not offered to the plaintiff by the House With No Steps. There is no evidence before me that as a practical matter there was the availability of work where the plaintiff could have exercised residual earning capacity. 13. I accept that the plaintiff's pain and restrictions have caused difficulties with his relationship with his wife and have also impacted on his relationship with at least one of his grandchildren. The plaintiff can no longer engage in his pre-accident sporting activities of golf, bowls and fishing due to the lack of grip strength and fine motor skills. I accept the plaintiff's evidence that he has become short tempered and feels "a failure" because of his inability to work despite his age. I also accept that the plaintiff has some left upper limb restrictions as a result of the accident, probably associated with the immobility of the lower limb. 14. The plaintiff has two adult children and six grandchildren. His adult son lives in Dubbo and his adult daughter lives nearby. There is frequent contact between the plaintiff's daughter and her parents. She assists with some housework particularly when Mrs Williams is away. The son-in-law assists with the lawn mowing and whipper snipping as well as some associated gardening. The plaintiff has provided support to his son who is in the throes of a custody dispute and in relation to providing moral and social support to a grand-daughter who was ill and was admitted to Westmead Children's Hospital; 15. The plaintiff's wife is four years older than the plaintiff. She was diagnosed with breast cancer in about 2015 and required radiotherapy for that disease and is monitored regularly by specialists. Mrs Williams also suffers from torticollis in the neck which causes uncontrolled spasms in the muscles of the neck which also result in uncontrolled shaking of the head. This causes Mrs Williams discomfort and tiredness in manual activities. She is under the care of a specialist in Sydney and receives Botox injections into the neck on a three monthly basis. Mrs Williams continues to do the domestic duties around the house despite her conditions but she is now unable to do lawn mowing. 16. There is an issue as to whether these conditions will possibly prevent her doing her household activities for the plaintiff in the future. In my view, having seen Mrs Williams give evidence with her uncontrolled spasms evident, there is a real risk that this will occur and this will be considered further below. 17. Having considered the evidence carefully on the issue, I accept that the plaintiff resigned his employment with the House With No Steps for various reasons but his injuries in the accident were significant. I find that he would not have resigned his employment but for the accident and injuries. He was not offered suitable alternate duties by his employer. 18. Evidence was given by the plaintiff and Mrs Williams as to personal care assistance which was provided by Mrs Williams to the plaintiff since the accident. I accept that evidence. I accept that personal care assistance was provided for about three months following each operation and in the period between the accident and the first operation. I accept that initially care was provided by Mrs Williams to the plaintiff in relation to a number of personal care issues but that this lessened and the plaintiff was able to get in and out of the shower himself while continuing to need other assistance such as with meals where the nature of the meal required the use of utensils. I also accept that Mrs Williams drove the plaintiff to appointments, to and from hospital and provided other transport where necessary. This appears to be not in issue in the report of the occupational therapist briefed on behalf of the defendant, Ms Zeman. 19. In short, the plaintiff suffered serious injuries in the accident. He had as a result five operations. Although his position has improved, it has plateaued and no further improvement can be expected. He has a number of ongoing difficulties and restrictions and it has substantially impacted his quality of life.

Findings in relation to the expert liability evidence

I find that both Mr Adams and Dr Cooke are experts in relation to the matters on which they expressed opinions. Both were highly experienced and qualified experts.
I have set out above a summary of the areas of agreement of the two experts and the areas where they differed.
Exhibit L establishes that the stepped pathway was almost entirely in shade from the pergola at the time of the accident. There was no dispute about this.
Initially, Mr Adams was of the view that there were various breaches by the defendant of the Building Code of Australia and various Standards. Dr Cooke took the opposite view. At the end of the day, it seems, in substance, that Mr Adams no longer pressed that matter. Certainly, counsel for the plaintiff did not suggest there were breaches. However, counsel for the plaintiff submitted that the requirements for the use of coloured nosings, handrails and tactile indicators in various areas including on stairways (as opposed to stepped pathways) constituted evidence of good practice which should have been applied to the stepped pathway in question in the present case.
Mr Adams pointed to various matters including: 1. His inspection of the area; 2. The fact that almost the entirety of the area of the pathway would have been covered in shade from the pergola at the time of the accident: Exhibit L; 3. The dappled shade at various times in other areas at or near the stepped pathway; 4. The difficulties in perception of the steps in the stepped pathway on approaching the pathway; 5. The same colour used in the pavers; 6. His view that the altered patterns in the pavers were not obvious as a visual cue to the steps of the stepped pathway on his inspection; 7. The inconsistent use of tactile indicators and handrails throughout the Park and how this would have been relevant to a user of the Park who had already walked in areas where there were handrails and tactile indicators; 8. The substantial effect as a visual cue of the painting of the nosings of the steps since the accident; 9. A single step in a pedestrian area being a potential hazard if it is not marked by adequate visual cues; 10. There were signs directing people generally and people with disabilities in particular from the car park to the toilet block with the stepped pathway being the most direct route.
Dr Cooke pointed to various matters including: 1. That photographs of the area can be deceptive as a viewer walking down the pathway would see it in three-dimensional terms; 2. His inspection of the stepped pathway indicated that the steps were obvious; 3. There was a high degree of illuminance of the area including in shade; 4. The whole of the pathway at the time of the accident was in shade. There was not dappled shading of the particular area which may have created some greater difficulty; 5. The changes in pattern in the pavers made the steps obvious particularly the use of the soldier course on the nosings; 6. The toilet block was clearly at a lower level than the top of the stepped pathway; 7. The Standards indicate where tactile indicators should be used and they should not be used except where required; 8. Overall, the stepped pathway was clear and obvious to anyone exercising proper care for their own safety.
There were many photographs in evidence including in the reports of the two experts. These photographs showed various aspects of the area where the accident occurred including the stepped walkway and shaded areas. There are many appellate authorities which point to the need for caution to be exercised in assessing photographs. In Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [54], Sackville JA (with whom McColl JA agreed) stated as follows: "Courts have repeatedly warned about the dangers of relying on photographic evidence, particularly in relation to perspective and distance…Lawyers are not experts in reading or construing photographs and thus should generally not adopt their own interpretation of the photographic evidence on contested issues."
I have taken that warning into account in reviewing the photographs. However, here, the court has had the benefit of evidence from the plaintiff, Mr Cook, Mr Adams and Dr Cooke as to the area where the stepped pathway is located.
Having reviewed the lay evidence, the expert reports, the conclave evidence and taking into account the submissions of the parties, I prefer the expert evidence of Mr Adams that there were not sufficient visual cues in existence as to the steps on the day of the accident to provide a reasonable indication of them to users who were exercising reasonable care for their own safety. While giving due respect to the opinions of Dr Cooke and the items he referred to, the matters I particularly note as significant are as follows: 1. The similar colour of the pavers; 2. Whilst I acknowledge the different patterns being the soldier course compared to the herringbone pattern in the pavers, that does not appear to me to be a strong (or decisive) visual cue in all the circumstances particularly where there was varying shade; 3. There were tactile indicators and handrails used in other parts of the Park. To a first time user of the Park (as the plaintiff relevantly was in relation to the amenities block area), there was inconsistency in use of tactile indicators and handrails between the new development area and the existing development area; 4. The stepped pathway was the shortest pathway to the amenities block. It went straight to the disabled toilet. There were signs directing persons to the toilets including a sign indicating a disabled toilet. There was a sign indicating a disabled toilet on the door of the toilet. As Mr Cook gave evidence, the stepped pathway was the shortest way from the car park to the amenities block; 5. Although there was a curved ramp to the right of the stepped pathway, I do not consider that that would necessarily have indicated to a reasonable first time user the difference between it and the stepped pathway; 6. While I accept there was a high degree of illuminance at all relevant times, a person walking down the path such as the plaintiff would likely have gone from dappled shade to (immediately or soon after) total shade and this would have raised some issues with perception to a person exercising reasonable care; 7. The experts agree that a single step in a pedestrian area is a potential hazard if not marked by adequate visual cues; 8. The fact the amenities block was on a lower level was not inconsistent with the reasonable perception of a sloped pathway without steps; 9. In my view, the matters indicated by the experts lead me to the conclusion that there were not reasonable and adequate visual cues to a user of the Park and wishing to walk down the stepped pathway to the presence of the steps. I accept the opinion of Mr Adams to that effect; 10. In addition, apart from the evidence of Mr Adams, I have undertaken my own assessment of the various pieces of evidence in the light of the oral evidence and have come to the same conclusion. In my view, as a matter of good practice, further visual cues should have been inserted or placed in the present case by the defendant prior to the accident. I accept the plaintiff's submission that at the least there should have been a highlighting of the nosings of each of the steps as occurred when the defendant arranged the painting of them with bright yellow paint. In the alternative, and in my view preferably, having regard to the use of these items elsewhere within the Park, there should have been the placement of tactile indicators before each step in the appropriate place and the placement of a hand rail for use down and up the steps in the stepped pathway.
In summary, I generally accept the opinion of Mr Adams in preference to that of Dr Cooke. The fact that these additional visual cues were not required by the Building Code of Australia or the Australian Standards as a matter of technical construction (which I accept having reviewed Dr Cooke's reports on this issue), does not indicate in my view that the use of some of them would not have been good and reasonable practice in the light of the potential hazard of a single step in the present case. This is particularly the case having regard to the alterations in shading in the area and the direct path of the stepped pathway to the disabled toilet.

Consideration

Significant issues in the proceedings are the scope of the duty of care owed by the defendant to the plaintiff and whether there was a breach of the duty of care on the evidence before the court.

Duty of care and breach of duty of care

The parties do not dispute that the defendant owed the plaintiff a duty of care as an entrant to the Park owned, controlled and managed by the defendant. In paragraph 1 (g) of the Amended Statement of Claim, the plaintiff pleads that the defendant owed a duty of care to entrants to the Park to take reasonable care to avoid foreseeable risks of injury.
In paragraph 2(b) of the Defence filed on 7 August 2020, the defendant admits it owed entrants, being members of the public, a duty to exercise reasonable care but otherwise did not admit the duty as pleaded by the plaintiff.
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]."
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."
In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [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"."
In Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [103], Sackville AJA considered the duty of care owed by a cleaner to a patron in a shopping centre as not being absolute. What was required was an exercise of reasonable care to detect and remove potential hazards to patrons. The standard to be attained was described as that expected of a cleaner discharging his or her duties of inspection with reasonable diligence and care although a failure to detect a particular hazard did not necessarily involve a breach of that duty. Whether it did so or not depended on all the circumstances of the case.
Taking into account the above authorities, in my view the defendant owed the plaintiff who was a member of the public as an entrant to the Park which it owned, controlled and managed, a duty to take reasonable care to avoid a foreseeable risk of injury to him arising from the state of the Park near the amenities block, on the assumption as an element contained in the scope of the duty of care that the plaintiff would exercise reasonable care for his own safety.
The case is to be determined under the CLA. The authorities establish that it is necessary for the court to identify correctly the risk of harm to the plaintiff in the present case. Under s 5B(1)(c) of the CLA, the issue to be determined is what a reasonable person in the position of the defendant would have done in response to the risk identified. That must be considered prospectively. The fact that the defendant later painted with bright paint each of the steps involved in the stepped pathway does not of itself give rise to or affect the liability of the defendant in relation to any risk identified and does not of itself constitute an admission.
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.""
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."
In paragraphs 47-48 of Lloyd v Thornbury, 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)."
In my view, in the light of the above authorities, the relevant risk of harm in the present case is the risk that an entrant to the Park, exercising reasonable care for their own safety, would not perceive the stepped nature of the pathway where the accident occurred and trip on a step and injure themselves. As stated by Leeming JA in the Patrick Stevedores case at [50] and by Gleeson JA in Lloyd v Thornbury, above at [44], what the defendant must do to discharge the defendant's duty of care is what a reasonable person would, in the circumstances, do by way of response to a foreseeable risk as identified. As stated, that must be considered by the court prospectively.
The expert evidence establishes that there were measures that could readily have been taken by the defendant to avert or diminish the risk that actually materialised to the plaintiff. However, that does not necessarily establish a breach of duty of care by the defendant. The duty of care owed has the expectation that users of the Park in the present case, will exercise reasonable care for their own safety. Of relevance, as will be considered further below, is that the stepped pathway in the present case leads directly to the toilet block although that fact must be considered in the context that there was a circular ramp also leading to the toilet block.
Whether there has been a breach of the duty of care by the defendant in the present case must be considered in the light of ss 5B and 5C of the CLA. Under s 5 of the CLA, "negligence" in the context presently under consideration means a failure by the defendant to exercise reasonable care and skill: s 5 of the CLA.
Sections 5B and 5C of the CLA provide as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
Addressing the elements in s 5B of the CLA (in the light of s 5C) in the present case: 1. The risk was foreseeable, that is it is a risk of which the defendant knew or ought to have known - there is no clear indication that the defendant was aware of the risk posed by the stepped pathway in the present case. It had not made or sought a risk assessment of the immediate area and Mr Cook was not aware of any other accidents nor had he seen any. However, a member of the public as an entrant to the Park not perceiving that the pathway was a stepped pathway and falling and injuring themselves was in my view a foreseeable risk of which the defendant ought to have known. The pathway led to the toilet block. It led, in particular, directly to the disabled toilet. At various times of the day, the pathway was shaded either totally or partially (including in dappled shade). The pavers were patterned but of the same colour. Some areas of the Park had railings and tactile indicators and others did not. The steps posed a potential hazard unless they were marked by adequate visual cues. Persons of varying abilities would use the steps to the toilet; 2. The risk was not insignificant - in the light of all of the evidence, in my view the risk in question was a fairly small one. However, in my view for the reasons given in the analysis of the liability expert evidence, the risk was not insignificant. This conclusion is assisted by the fact that the stepped pathway led straight to the toilet facilities and persons, including disabled persons, were directed by signs to those facilities. The stepped pathway was the shortest direct route from the car park; 3. In the circumstances, a reasonable person in the defendant's position would have taken the precautions alleged - the defendant had already sought a formal risk assessment of the Park for the purposes of, it appears, primarily fire risk to the buildings. The defendant had constructed in 2004-2006 the lookout and adjacent area with the use of ramps, hand railings and tactile indicators. Other areas of the Park had also been altered. See the pathway from the car park towards the amenities block as shown in Exhibit 1 and Exhibit B pages C90-C93. Tactile indicators were also used with handrails at other older areas of the Park, not near a lookout: Exhibit B page C94. In other areas, it appears handrails alone were used: Exhibit 2. In my view, a reasonable council in the position of the defendant would have arranged for a risk assessment of the entire Park where there were paved areas, particularly near amenities open to the public. In my opinion, this would have likely revealed a potential problem with the stepped walkway in question which would have required rectification. Quite apart from that analysis, as considered in the liability expert findings above, in my view a reasonable council in the position of the defendant would have taken the precautions which I indicate there in all the circumstances to improve the visual cues of the presence of the steps. This stepped pathway led directly to the toilet facilities, including the disabled toilet. It was the most direct route from the carpark. Persons with various abilities were likely to walk down to the toilets. They may have had the care of others including children or elderly users; 1. The probability that the harm would occur if care were not taken - in all the circumstances I do not believe that it was probable that falls would occur if the precautions indicated were not taken. However, I consider there to be a real risk of falls having regard to the nature and location of the pathway; 2. The likely seriousness of the harm - in my view, a serious injury as occurred here would likely occur if there was a fall on the steps; 3. The burden of taking precautions to avoid the risk of harm - the painting of the nosings with bright paint or the installation of tactile indicators and a railing were not a serious burden to impose on the defendant Council. When the alterations were made by the Council to the lookout and related areas, there was no apparent issue about the insertion of tactile indicators and hand railings as a matter of safety even though some cost was involved. The obtaining of a risk assessment report was also not a particular burden as one had already been obtained; 4. The social utility of the activity that creates the risk of harm - the making available of park facilities is an important function in the case of the defendant. However, that availability in the context of users of the Park of various physical abilities, the encouragement and expectation of the defendant that disabled persons would use the Park and the provision of disabled toilet facilities created a foreseeable and not insignificant risk as I have found. The social utility was not such in my view as to outweigh the risk in question.
Taking into account all the matters which I have set out above in my liability expert findings and liability analysis, in my view a reasonable person in the position of the defendant in the present case would have taken the precautions which I have found to be reasonable. In the light of all these matters, in my view there was a breach of duty of care by the defendant in the present case. From the documentation, the defendant wished to provide equal access to entrants to the Park including disabled persons. It provided ramps, railings and lookout facilities for entrants to the Park which would have included people of various abilities. It provided a disabled toilet. It was therefore reasonably to be expected that people using the Park would want to use the toilet facilities. The photographic evidence clearly shows that the stepped walkway was shaded whether it was with dappled shade or total shade at various times during the day. The stepped walkway was the most direct route from the car park to the toilet facilities. The stepped walkway directly ended at the disabled toilet. There was the use of handrails and tactile indicators in other areas of the Park thus creating some inconsistency in their failure to be used at the stepped walkway. All of those matters in my view indicate that a reasonable council in the position of the defendant would have taken the precautions which I have indicated.

Obvious risk

In paragraph 9 of the Defence to the Amended Statement of Claim the defendant pleads that the risk of harm posed by the plaintiff negotiating the stepped pathway involving three steps at the Park and, in particular, the first step on which the plaintiff fell, was an "obvious risk" for the purposes of the CLA. As a consequence, it is pleaded that the plaintiff is presumed to have been aware of the risk of harm, to have voluntarily assumed the risk of harm, that there was no duty of care to warn the plaintiff of the risk and the defendant is not liable for the materialisation of the harm.
Sections 5F, 5G and 5H of the CLA provide as follows: "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."
I note that under s 5F of the CLA, a risk can be an obvious risk even if the risk or a conditional circumstance that gives rise to the risk is not prominent, conspicuous or physically observable.
The plaintiff has given evidence that he thought the stepped pathway was a sloping pathway without steps to the disabled toilet. The question to be determined is whether the stepped pathway posed a risk that in the circumstances would have been obvious to a reasonable person in the position of the plaintiff at the time of the accident.
In my view, the risk in the present case to the plaintiff was not an obvious risk within s 5F of the CLA as it would not have been obvious to a reasonable person in the position of the plaintiff taking reasonable care for their own safety. In my view, the risk was not an obvious risk for the following reasons: 1. The pathway led to toilets including a disabled toilet. A reasonable person in the position of the plaintiff would not expect a pathway leading to a disabled toilet and which had a sign directing a park user to the disabled toilet, to involve steps that were not clearly delineated with adequate visual cues including highlighting or tactile indicators and handrails; 2. Exhibit L establishes that the area would have been in shade at the time and the plaintiff would have been proceeding from bright sunlight to shade (perhaps with some dappled shade), although there was adequate light within the shade; 3. A reasonable person in the position of the plaintiff having used other parts of the Park, particularly near the lookout, would have been aware that there were the use of tactile indicators and handrails near stairs; 4. A reasonable person in the position of the plaintiff would expect there to be some consistency in the use of tactile indicators and handrails within the Park; 5. The stepped pathway was the most direct path from the car park to the amenities block and the disabled toilet in particular. In my view, a reasonable person in the position of the plaintiff would be looking ahead and may well not have noticed the curved ramp to the right of the stepped pathway; 6. I accept the plaintiff's evidence that he had never used the stepped pathway or the amenities block previously. Accordingly, a reasonable person in the position of the plaintiff would have had no prior knowledge to turn to; 7. While the pavers did vary with the inclusion of the soldier nosing course, the pavers were the same colour and in my view the delineation of the pattern was not clearly conspicuous, particularly in the shade. In my view, a reasonable person in the position of the plaintiff would not have been focusing on the pattern; 8. Exhibit D is of some, although not decisive, relevance. The plaintiff sought to recreate his view as he proceeded towards the stepped pathway. Although considerable caution should be exercised in using photographs, the plaintiff confirmed that this was his approximate view as he looked where he was going. In the light of the evidence, I find that it was not obvious to a reasonable person in the position of the plaintiff from that perspective, that there was a stepped walkway.
In my view, for these reasons sections 5F, 5G and 5H of the CLA are inapplicable as the risk was not obvious as defined in the present case.

Causation

The issue of causation in an action in negligence under the CLA is to be determined in accordance with ss 5D and 5E of the CLA. Those sections 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."
The plaintiff accordingly has the onus of proving on the balance of probabilities any fact relevant to the issue of causation. The determination of factual causation required under s 5D(1)(a) of the CLA involves the application of a "but for" test of causation - that is to say, a determination that in accordance with the section, negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]. The issue of causation is retrospective and seeks to identify what actually happened and why. In the case of an accident causing injuries, the plaintiff must establish on the balance of probabilities that the failure to take the alleged precautions was a necessary condition of the occurrence of the harm: Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [95]-[96]. It was not suggested in the submissions of either of the parties that the present case was an exceptional one for the application of the approach in s 5D (2): see Lloyd v Thornbury, above at [82].
The plaintiff submits that causation is established in the present case: written submissions paragraph 133. The defendant submits that causation is not established: written submissions paragraphs 75-87.
In my view, the submissions of the plaintiff should be preferred on this issue. I find that if the step had been painted a bright colour as it was painted after the accident or tactile indicators and a hand railing had been inserted before at least the first step, the plaintiff would have been alerted to the presence of the first step as he proceeded towards the pathway, even though it was entirely in shade, with the result that he would have taken precautions in going down the stepped pathway and would not have been injured. In my view, these additional precautions would have made the steps so apparent that the accident would have been avoided. The plaintiff's evidence was that he was not distracted by the disabled adult client at the time. In relation to the tactile indicators, despite the plaintiff stating that they may indicate either steps or ramps (T84.46), the plaintiff also noted at T72.7 that he understood at the time that they identified a hazard such as a step. I find that the plaintiff would have realised that there were tactile indicators if he had stepped on them and this would have alerted him to pay particular attention to where he was proceeding down the stepped walkway. That attention would have revealed the hazard of the steps in the stepped walkway. The accident would have been avoided. A similar conclusion applies if the nosings of the steps had been painted with bright paint. Accordingly, causation is established in my view.

Contributory negligence

The defendant has pleaded contributory negligence in paragraph 12 of its Defence to Amended Statement of Claim. The particulars of contributory negligence are failing to take any or any reasonable care for his own safety, failing to keep a proper lookout, failing to avoid an obvious hazard and failing to exercise the requisite care when descending the step.
The plaintiff pleads that no contributory negligence should be found against him in all the circumstances of the case.
Sections 5R and 5S of the CLA are as follows: "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."
In paragraphs 92-94 of Lloyd v Thornbury [2019] NSWCA 154, Gleeson JA (with whom Meagher and White JJA agreed) stated as follows: "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)."
Whether a person has been guilty of contributory negligence is thus to be assessed objectively by determining whether the plaintiff has taken that degree of care for his safety that an ordinary reasonable person would have taken. The defendant has submitted that the stepped pathway in question was clear, obvious and apparent. The plaintiff submitted the contrary. He pointed to among others matters, the shade over the pathway (confirmed by the opinion of Mr Adams with whom Dr Cooke agreed) and the lack of appropriate visual cues.
Section 5R of the CLA provides 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 relevant risk of harm. The standard of care required under the section from the person who suffered harm is that of a reasonable person in the position of that person to be determined on the basis of what that person knew or ought to have known at the time. I accept the evidence of the plaintiff that he did not know that the steps were there and he believed it was a sloped pathway. The plaintiff has given evidence which I accept that he has never seen in his years in disability services any steps leading down to a disabled toilet.
I consider the circumstances of the accident by 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 - the plaintiff was not aware of the risk of the stairs. However, he was aware that there were stairs and steps in other parts of the Park as he had gone to the lookout. The plaintiff ought to have known that stairs could have been used in the Park and that if reasonable care was not taken for his own safety that he might have an accident; 2. It was reasonably to be expected by the plaintiff that there were steps in the Park. I find that there was not a proper basis for concluding that the risk of stairs and falling was insignificant; 3. In the circumstances a reasonable person in the person's position would have taken those precautions - in my view, a reasonable person in the position of the plaintiff would have been careful where there was sun and then a shaded part to take precautions to see whether there were any steps or uneven surfaces in the shaded part. That may require slowing his onward steps to better see his path of travel; 4. The probability that the harm would occur if care were not taken - there is a probability that harm would occur if care were not taken by the plaintiff; 5. The likely seriousness of the harm - serious injury could occur if care were not taken by the plaintiff; 6. The burden of taking precautions to avoid the risk of harm - the burden was minor; 7. The social utility of the activity that creates the risk of harm - the social utility of carers taking disabled persons to a park is significant. However, in my view it does not outweigh the need to exercise reasonable care, particularly when the pathway was higher than the toilet facilities.
In my view, the defendant has established contributory negligence on the part of the plaintiff in the present case. The plaintiff was aware that there were steps and other uneven surfaces in the Park. He was aware that the ground was sloping and that the amenities block was on a lower level. He was going from sunlight into shade. Caution needed to be exercised in these circumstances.
A relevant factor is that the plaintiff had under his care an adult disabled person. However, the plaintiff's evidence, which I have accepted, is that the disabled client had come past the ladies toilet and was heading towards where Mr Williams had asked him to go. Therefore, the plaintiff was not distracted by the disabled client: T50.45-T51.5. The plaintiff was thus in a position to determine where he was walking without distraction from the adult client.
Applying the principles in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494, in all the circumstances of this case, I would reduce any damages awarded by 15 percent to take account of the contributory negligence.

Damages

As I have found that there was a breach of duty of care by the defendant, and causation has been established, the issue of damages must be considered. The plaintiff seeks: 1. Non-economic loss; 2. Past out-of-pocket expenses - these were agreed; 3. Future out-of-pocket expenses - these were agreed; 4. Past economic loss including past loss of superannuation; 5. Fox v Wood damages; 6. Past domestic assistance/attendant care services; and 7. Future domestic assistance - attendant care services on a commercial basis.
The amounts submitted by each party as the appropriate sums for damages to be awarded under the various heads if liability is established by the plaintiff are as follows: Head of damages Plaintiff Defendant Non-economic loss $263,000 (40% of a most $151,500 (30% of a extreme case) most extreme case) Past out-of-pocket Agreed at $126,769.41 Agreed at $126,769.41 expenses Future out-of-pocket Agreed at $4,979 Agreed at $4,979 expenses Past economic loss $315,966.23 $47,633.10 reduced by 50% Past loss of superannuation $35,230.23 $5,311 reduced by 50% Fox v Wood $15,922 Estimate of $2,400 (but reduced) Past domestic $18,173.60 Nil - does not meet the assistance/attendant care statutory threshold Future domestic $81,134.20 $16,660 assistance/attendant care Equipment $5,522.18 plus $2,500 for $5,522.18 handrail modification

Non-economic loss

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 assessed by the court as being 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 the section. Under the Civil Liability (Non-Economic Loss) Amendment Order 2019 the maximum amount of damages which may be awarded for non-economic loss under s 16 at the present time is $658,000.
It is important to consider the definition of "non-economic loss" in s 3 of the CLA. In the CLA it is defined as meaning pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. In the present case under consideration, there was no evidence or claim of a loss of expectation of life. In relation to disfigurement of the plaintiff, the various medical reports refer to the plaintiff having a number of significant operation scars on his elbow and in the hand/wrist area: for example Exhibit B pages C4 and C17. These must be taken into account.
In relation to pain and suffering and loss of amenities of life, these matters have to be considered in the light of my medical findings which have been set out above. There was no medicolegal evidence before the court that the plaintiff suffered a psychiatric injury as a result of the accident. At one stage the plaintiff's medication which he had been taking for depression prior to the accident was increased but he later accepted that it went back to its original level. Both the plaintiff's wife and his daughter describe a change in mood in the plaintiff which appears largely to be as a result of his injuries and his continued disabilities.
The plaintiff had five operations following the accident. Although the second operation was partly to address a pre-existing congenital issue, the evidence establishes that this issue was asymptomatic at the time of the accident. The only relevant conclusion, which was not really disputed on the balance of the evidence, is that the second operation was as a result of the accident. Certainly the evidence establishes that the second operation was recommended by Dr Kadir, the plaintiff's treating orthopaedic surgeon.
The medical reports and the plaintiff's evidence (which I accept on this point), establish that the plaintiff suffered considerable pain and restriction as a result of the accident including the need for the five operations and following rehabilitation. In the conclave report, all experts agreed that the plaintiff suffered a fracture of the head of the radius and soft tissue injury of the wrist with a possibility that he may have had a fracture to the capitate in his hand. The experts agreed that the plaintiff has a completely fused wrist with some slight loss of movement in the fingers and left shoulder as a consequence of the accident. The experts also agreed that the plaintiff has a significant impairment although his condition is stable and static and his prognosis is that his condition is unlikely to change in the future. The injuries meant that the plaintiff was unable to return to his previous fulltime employment.
As stated, the defendant submits that the plaintiff's claim is 30% of a most extreme case whereas the plaintiff submits that a 40% assessment is appropriate. The defendant refers to other cases in its written submissions. I take into account the age of the plaintiff at the time of the accident and final hearing: Reece v Reece [1994] NSWCA 259. This is relevant in the light of the plaintiff's pre-accident issues with his knees and depression and his other issue with his right shoulder condition. However, I also take into account the plaintiff's evidence which I accept that he did not take a day off work due to any of his pre-existing complaints prior to the accident. I also take into account that the plaintiff had an active personal life with golf, bowling and fishing which have been affected by his injuries.
Having regard to all the matters which I have referred to above, I assess that the appropriate percentage of a most extreme case in the case of the plaintiff is 32% which produces damages for non-economic loss (as a proportion of the maximum amount that may be awarded for non-economic loss of $658,000) of 30% being $197,400 which pursuant to s 16(4) of the CLA is rounded to $197,500.

Past out-of-pocket expenses

These have been agreed by the parties at $126,769.41.

Future out-of-pocket expenses

These have been agreed by the parties at $4,979.

Past economic loss

At the time of his accident, the plaintiff was working fulltime as a disability support mental health worker: T39.23; T39.45. Substantial overtime was involved in the plaintiff's position: T39.48.
It was agreed between the parties that the plaintiff was earning $1,587.77 net per week at the time of the accident. The plaintiff submits that he has been unable to return to work since the date of the accident and claims the sum of $1,587.77 net per week to his retirement age of 66 on 8 March 2020 being 199 weeks and totalling $315,966.23. A claim for past loss of superannuation at 11.15% totalling $35,230.23 is also made. The defendant accepts a loss of net wages as agreed from the date of the accident until his retirement from the employment with House With No Steps on 20 December 2016, being 30 weeks together with appropriate superannuation on this sum.
In my view, the figures claimed by the plaintiff with a modest discount should be awarded. First, I accept the plaintiff's evidence that because of his injuries he did not believe he could have performed his pre-accident duties: T60.37-T61.7. This is established by the medical evidence and his position description. Secondly, the court accepts the joint expert conclave opinions of the medico-legal experts that the plaintiff could not return to his previous fulltime employment but would be fit for lighter work although his prospects of finding this type of work at his age are poor: Exhibit B page D2. This summary is generally consistent with the medico-legal reports in evidence. Dr Bodel stated in his second report dated 24 September 2019 that the plaintiff had no real prospect of returning to work at his age with his levels of pain: Exhibit B page B11. See also the opinions of the medico-legal experts relied on by the defendant at Exhibit B page C7 and C11 (Dr Edwards) and Exhibit B page C23 (Dr Harvey).
Thirdly, I accept the evidence of the plaintiff that the limited two half days of work provided to him by his former employer did not in substance benefit him or his employer: T60.22 and T61.17. The House With No Steps did not offer the plaintiff any other type of duties and he resigned in December 2016. I also accept his evidence that if there had been an offer of some form of light duties on a fulltime basis that he would have attempted the work: T61.28-.39. I accept the evidence of the plaintiff that he was offered rehabilitation assistance together with a back to work co-ordinator and that he applied for many different jobs without success: T61.43-T62.10.
The cross-examination of the plaintiff at T107-T108 did not alter my view of this evidence. I accept the plaintiff's evidence that he wanted to continue working for as long as he could because he enjoyed his work, although he was concerned about his wife: T107.40. See also T108.11.
The plaintiff was still looking for work at the time of his family problems and wanted to work: T108.49; T109.45.
Fourthly, although the plaintiff had a number of other health problems including problems with his knees, sleep apnoea and his right shoulder (T102.14-T104.34), I accept the plaintiff's evidence that these did not affect the performance of his work: T105.43; T124.22-.43. The plaintiff did not have any time off work from the House With No Steps between 2009 and 2016 for any of the conditions that were put to him in cross-examination, being conditions affecting his knees, right shoulder or sleep apnoea. There was also no suggestion that the plaintiff's depression which he had prior to the accident had any effect on his capacity to work having regard to the substantial overtime which he did before the accident.
Fifthly, although some medical opinion suggested that the plaintiff had some limited capacity for work (the reports of Dr Harvey at Exhibit B pages C19 and C23), the weight of the medical opinion was that there was little likelihood at his age of being able to find alternative lighter work. The efforts of the plaintiff with the assistance of a back to work assistant did not assist him in being offered any lighter work.
The defendant submitted that even if the court was satisfied that it was very likely that Mr Williams would have continued working at the House With No Steps but for the accident until he turned 66, that it is appropriate that a discount be made of 50% for the possibility that the plaintiff would have retired before his retirement age even if the accident had not occurred: written submissions paragraphs 95-106. Reliance was placed on Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-643 in the joint judgment of Deane, Gaudron and McHugh JJ. The defendant points to the plaintiff's pre- and post-accident medical conditions, the need to provide assistance to his son in relation to his divorce/custody issues, the illness of the plaintiff's grand-daughter which required an admission to Westmead Children's Hospital and his support and the health issues of the plaintiff's wife.
The plaintiff submits that there should be no discount at all because the plaintiff always intended to work, he had a good work history, he had continued to work up to the date of the accident despite his wife's health problems and financially he had a strong incentive to keep working.
In my view, any discount at 50% places far too much weight on the plaintiff's limited health problems and his family issues. There is also the question why the plaintiff would have retired earlier than his statutory retirement age if he had no financial means to maintain himself and his family in this period. The plaintiff gave evidence that he had limited superannuation. Ultimately his evidence was that he went on the New Start allowance only because his workers compensation payments finished after he resigned.
Assessing the matter as a whole and taking into account the various issues which the defendant has relied upon, in my view there should be only a 10% discount as to the claimed past wages and past superannuation. The plaintiff had continued working despite his wife's illness and his medical problems; he was undertaking considerable overtime; he needed to obtain some income; and he had a good history of employment. However, the risks of his medical conditions and his family problems are relevant.
Accordingly, the amounts I allow are: 1. Past wages: $284,369.61 (being 90% of $315,966.23); 2. Past superannuation $31,707.21 (being 90% of $35,230.23).

Fox v Wood damages

I have discounted the plaintiff's claim for past loss of wages and past loss of superannuation to take account of the possibility that the plaintiff may have resigned earlier than he did because of his own health and family problems. It is unclear whether as a practical matter this would have affected the Fox v Wood component. The parties should consider this issue and relist the matter if agreement cannot be reached as to it.

Loss of future earning capacity

Although the plaintiff's position changed during the hearing, in final submissions this was not pressed.

Past domestic assistance/attendant care services

The plaintiff claims $18,173.60 for past domestic assistance/attendant care services relying on the opinion of Ms Lucas set out in the joint report of Ms Lucas and Ms Zeman dated 17 July 2020 at Exhibit B page D9. This is claimed for the period from the date of the accident until 9 May 2017.
The defendant says that no amount should be allowed as the plaintiff's claims do not meet the statutory threshold.
Section 15(1)-(3) of the CLA provides as follows: "15 Damages for gratuitous attendant care services: general (1) In this section - attendant care services means any of the following - (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services - (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that - (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided) - (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months."
The calculations of Ms Zeman, the occupational therapist whose report was relied on by the defendant, may be found at Exhibit B page D8. It is to be noted that very minor breaks are set out in Ms Zeman's calculations which are consistent with the periods when the plaintiff was undertaking medical procedures in hospital. The defendant submitted that s 15(3)(b) of the CLA requiring attendant care services "for a period of at least six consecutive months" is not satisfied where a plaintiff enters into hospital to obtain medical treatment including operations for injuries received in an accident.
That would be an extremely surprising and harsh result of the legislation. This means that if a very seriously injured plaintiff who had received substantial gratuitous care by a member of his family had to enter into hospital for an urgently required medical procedure as a result of the accident and stayed there for a number of days, that attendant care services could not be compensated for because there was a break in the provision of the services due to the fact that the plaintiff was receiving services from nursing and medical staff and not from members of his family. Reliance was placed by the defendant on the decision of the Court of Appeal in Hill v Forrester [2010] NSWCA 170. This point appears to have been left open by members of the Court of Appeal: see at [14]-[16] and [72(ii)].
In my view, the preferred construction of the section in the light of the objectives of the section (inferred from the section especially s 15(2)) read with the Act as a whole requires attendant care services to be provided for at least six hours per week and for a period of at least six consecutive months where the plaintiff is available on his or her then current health to be provided such services. If the plaintiff cannot be provided such services because he or she is staying in hospital for a medical procedure for a limited period relating to the accident then the duration requirement may still be satisfied if such services are resumed and provided to the plaintiff when they leave hospital.
However, recognition must be made of the fact that attendant care services cannot be awarded for a period when the plaintiff is in hospital instead of being at home: see Nicholson v Nicholson (1994) 35 NSWLR 308.
In addition, Mrs Williams gave evidence, which I accept, that she provided the plaintiff with assistance on the days of his operations before he arrived at the hospital: T144.23-.31. This evidence must be taken into account. There were also limited overnight stays: Exhibit B page C27.
I also accept the plaintiff's submission that one must not look at the duration requirement on a daily basis but rather on a weekly basis consistent with s 16(3)(a).
For these reasons, the seven periods relied upon by Ms Zeman in her report as set out in the joint report at Exhibit B page D8 should be used in the consideration of past gratuitous attendant care services. Consequently, no attendant care services damages can be awarded for the very minor overnight periods two and four as set out by Ms Zeman because on those days the plaintiff was undergoing medical procedures with overnight stays: see Exhibit B page D6 where Ms Lucas and Ms Zeman set out the operation dates. This would apply on the second days only as Mrs Williams provided her usual help to the plaintiff on the day of admission.
The question then turns to the periods numbered one, three, five, six and seven in Ms Zeman's periods and whether the intensity and duration requirements in s 15(3) of the CLA are satisfied in those periods.
The plaintiff's evidence was that he primarily had the role of lawn and edge maintenance and his wife took care of other domestic duties within the house including all cleaning and cooking duties: T120.42. The plaintiff also gave evidence, which I accept, that after the accident and after the plaintiff's various operations, he received substantial personal care assistance from his wife: T63 and following and T65; see also T143-T144. The plaintiff gave evidence, which I accept, that after about three months he could get in and out of the shower but he still needed assistance with other personal care activities: T64.7. The cross-examination on this point did not persuade me that the plaintiff's evidence should not be accepted as to the degree of assistance provided by his wife to him as a result of his injuries sustained in the accident: T121.28-T122.7. I also accept his wife's evidence on this point. She appeared a careful and honest witness. Relevantly, the plaintiff gave evidence which I accept that when he was home he mowed the lawns and did the edges and that it took one and a half to two hours to do these tasks: T65.31-.41. This was a per week calculation during summer and about every three weeks in winter: T65.40.
Having regard to this evidence, it seems to me that the times allowed for assistance with bathing, showering, personal grooming, dressing and feeding in Ms Zeman's report in the relevant periods (Exhibit B pages C62-63) are too limited whereas the hours allowed by Ms Lucas in her report appear excessive in the light of the evidence. Doing the best I can on all of the evidence, I would allow one hour per day for assistance to the plaintiff for personal care by his wife after the accident, half an hour per week for external/yard maintenance and three hours per week for transport/community access being 10.5 hours per week. This figure on the evidence should reduce to 7.5 hours per week three months after each operation consistent with the plaintiff's evidence at T64.7 which I consider to be more reliable having regard to the inconsistency between the occupational therapists' reports. The plaintiff's evidence, which I accept, was that he did not require assistance getting in and out of the shower after three months following each operation. I accept the average rate per hour of $30 for the attendant care services provided by the plaintiff's wife as submitted by the plaintiff.
The parties should calculate the appropriate amount consistent with the above reasons. Accordingly, I find that the intensity and duration requirements in s 15(3) of the CLA are satisfied from 17 May 2016 until 9 May 2017. Compensation should be provided with the exception of those limited periods when the plaintiff was in hospital for an overnight stay for the purposes of his operations.

Future domestic assistance/attendant care

Ongoing equipment expenses were agreed by the parties to be $5,522.18.
The plaintiff also claimed home modification expenses in the sum of $2,500 for a handrail at the front stairs of the plaintiff's home. There is already an existing handrail on the right hand side as someone climbs the stairs.
I prefer the report of Ms Zeman on behalf of the defendant that the handrail modification is not required in the light of the existing handrail. I accordingly disallow the claim for $2,500 made as to the handrail by the plaintiff.
At present, the plaintiff's wife continues to undertake virtually all the domestic duties around the house. The plaintiff's daughter assists to a limited degree when the plaintiff's wife is away. The plaintiff's son-in-law presently undertakes the lawn mowing and the edges at the plaintiff's house. This additional assistance per week is less than the threshold of six hours under the CLA.
The question is whether any allowance should be made for the plaintiff's future care on a commercial basis in accordance with the joint report of the occupational therapists Ms Lucas and Ms Zeman in the event that the plaintiff's wife is unable to continue gratuitous care. See their joint report at Exhibit B page D11 of 4.87 hours per week.
This issue has to be considered in the light of the plaintiff's evidence that he could undertake some simple domestic duties within the house limited by his hand and wrist restrictions and the limitations to his shoulder. In relation to his wife, Mrs Williams undertakes the domestic duties referred to by the occupational therapists at present (page D11) but she is four years older than the plaintiff, is recovering from breast cancer and has a significant torticollis injury with neck spasms which make her head and neck shake uncontrollably (this was clear when she gave evidence in the witness box).
In Miller v Galderisi [2009] NSWCA 353, the Court of Appeal said that commercial domestic assistance damages should not be awarded where there was no evidence that the gratuitous assistance being provided to the plaintiff would cease. This was effectively on the basis that there was no evidence that commercial care was necessary. The court referred at [18] to "a need for commercial domestic assistance likely to arise in the future". See also White v Benjamin [2015] NSWCA 75 at [85]-[88] and Smith v Alone [2017] NSWCA 287 at [72]-[78]. In Smith v Alone Macfarlan JA asked the question whether commercial care was "necessary" (at [73]) and whether commercial care would be "needed in the future": at [75].
I am not satisfied on the evidence that it is likely or even that there is some real possibility that the existing gratuitous assistance by the plaintiff's daughter and son-in-law in relation to the house and lawns and garden will cease. The plaintiff's daughter appears to be devoted to her parents and the son-in-law has provided the lawn and gardening assistance for a number of years. In my view, there is no evidence that commercial care for these tasks is necessary.
However, I must consider the possibility of the plaintiff's wife being unable to attend to some of the domestic duties claimed in the future.
The plaintiff claims future care damages on a commercial basis in accordance with the joint report of Ms Lucas and Ms Zeman dated 17 July 2020 on the basis of 4.87 hours per week x $50 per hour x multiplier 666.4 equalling $162,268.40. See Exhibit B page D11. The plaintiff then reduces this sum by 50% as it is contingent on the plaintiff's wife being unable to attend to the domestic duties claimed arriving at the final sum of $81,134.20. The defendant only allows the 30 minutes of care per week provided by the plaintiff's daughter totalling $16,660.
The plaintiff's sum is calculated on the tasks which Mrs Williams does at present: see Exhibit B page D11. Mrs Williams gave evidence of having a number of health problems including continued treatment for breast cancer and a torticollis condition which requires regular specialist review and injections. As indicated above, in the witness box Mrs Williams had what appeared to be uncontrollable jerking movements of the head and neck. Mrs Williams is also about four years older than the plaintiff.
Section 13 of the CLA provides as follows: "13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
In my view, there should be some award of damages for possible future commercial care having regard to the real risk that Mrs Williams will not be able to undertake the duties which she presently undertakes to which Ms Lucas and Ms Zeman refer in their joint opinion. It is difficult to assess the degree of the risk on the evidence. In my view, some significant discount should be made to any sum in accordance with the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 and Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [159]-[160]. Doing the best I can on the evidence, in my view the figure proposed by the plaintiff of $162,268.40 should be reduced by 70% not 50% as the plaintiff submits. The figure arrived at with this percentage reduction for future domestic assistance on a commercial basis is $48,680.52 (4.87 hours per week x $50 per hour x 666.4 x 30%). I award that sum.
I do not accept the defendant's submission that if the plaintiff's wife could not undertake the activities that his daughter would. His daughter has a young family and is in employment.

Summary of damages

Accordingly, the damages which I allow are as follows: Non-economic loss $197,500 Past out of pocket expenses $126,769.41 Future out of pocket expenses $4,979.00 Past economic loss Loss of wages $284,369.61 Past loss of superannuation $31,707.21 Provisionally $15,922.00 Fox v Wood (to be calculated by the parties and subject to agreement as to a lesser amount) Past domestic assistance/attendance to be calculated by the parties care Future domestic assistance/attendant $48,680.52 care services on a commercial care Agreed equipment $5,522.18

The total figure should be reduced by 15% for the contributory negligence found.

Determination

Accordingly, for the above reasons I make the following orders: 1. Judgment for the plaintiff. 2. The defendant is to pay the plaintiff's costs as agreed or assessed. 3. The parties are to bring in agreed short minutes of order consistent with the court's reasons within 14 days. 4. Any application to vary the costs order in order (2) above is to be made within 14 days. 5. Any party may relist the matter on 3 business days' notice. 6. Exhibits to be retained until further order.

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: 25 September 2020

Williams v Wollongong City Council

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