Willis v Orange City Council

Before: Russell SC DCJ

Decision: (1) Judgment for the Plaintiff against the Defendant for $133,751.
(2) Order the Defendant to pay the costs of the Plaintiff.

Catchwords: NEGLIGENCE – risk was foreseeable – risk was not insignificant – reasonable person in the position of the council would have taken precautions – significant probability that the harm would occur – serious harm could result – minimal burden to take precautions – social utility – factual causation established – scope of liability extends to the harm so caused
DAMAGES – non-economic loss – past and future out of pocket expenses – future domestic assistance
OTHER – trip in hole in nature strip – council had actual knowledge

Legislation Cited: Civil Liability Act 2002 (NSW), ss 3, 5B, 5D, 16, 42, 43A, 45

Category: Principal judgment

Parties: Peter Warren Willis (Plaintiff)
Orange City Council (Defendant)

Representation: Counsel:
P Macarounas (Plaintiff)
S Glascott (Defendant)
Solicitors:
Rickards Whiteley (Plaintiff)
McCulloch & Buggy (Defendant)

File Number(s): 2023/00213330

JUDGMENT

Introduction

1. On 9 July 2020 the plaintiff Mr Peter Willis was walking in Byng Street in the city of Orange, when he tripped on a hole in the grass verge between the footpath and the kerb. A parking sign had been installed in the grass verge many years before, but it had been removed, leaving the hole. The hole was not apparent, as grass had grown over it. Mr Willis put out his arms to break his fall. He injured his right shoulder. The defendant Orange City Council (the Council) was the local government authority in the city. It had control over and responsibility for the roadway, the footpath, and the grass verge in Byng Street.

2. By a Statement of Claim filed on 4 July 2023 Mr Willis has sued the Council in negligence seeking damages for his injuries, disabilities, loss and expenses. The Civil Liability Act 2002 (NSW) (the CLA) applies to both liability and quantum. Both were in dispute. In addition, the Council raised issues under ss 43A and 45 of the CLA, which apply to public authorities such as the Council. While s 42 of the CLA was pleaded, reliance on this provision was abandoned in final submissions.

Witnesses Called for Mr Willis

Mr Peter Willis

3. Mr Willis gave evidence that he is a retired plant operator. He was born in 1948 and is presently 76 years of age. He gave the following evidence concerning his past medical history. In 2002 Mr Willis had a melanoma removed from his left arm. He went back to his GP because he could not lift his left shoulder. He was told that he had torn some ligaments in his left shoulder. He was put off work for two weeks and then went back on light duties. After about a month he returned to full duties.

4. Mr Willis said that he had problems with his right shoulder about five years before the incident in Byng Street. In the middle of 2014 he suffered stiffness in his right shoulder. He did not take any time off work. He had two cortisone needles. Mr Willis said that after these injections his right shoulder came good and there was nothing that he was not able to do with his right shoulder. He resumed normal activities including work around the house.

5. Mr Willis retired in March 2015. After his retirement he injured his left shoulder in December 2017. He had an MRI and surgery was performed by Dr Kwa, orthopaedic surgeon. This was to repair the torn ligaments and the rotator cuff in the left shoulder. His recovery took about six weeks. Mr Willis said that after that the left shoulder was “really good”. He was able to do all of his work around the house. This included handyman work and helping with the cleaning and housework. He did all of the mowing on a large property and performed a lot of manual labour looking after a small herd of 12 ewes. While he had retired, he was still doing work for a few days every two or three months driving a grader.

6. Mr Willis and his partner Ms Barbara Beach have a large blended family including many grandchildren. Mr Willis used to take the grandchildren and some great-grandchildren to activities in Orange during school holiday time. He was a keen tenpin bowler and could bowl a “300 game”, which is a perfect score.

7. The incident the subject of these proceedings occurred on 9 July 2020. Mr Willis had driven to Byng Street and parked over the road from a café where he bought some takeaway food for lunch. He walked back across Byng Street towards his motor vehicle. He stepped onto the grass verge on the passenger side of his utility vehicle, opened the door and put the food on the floor. Mr Willis said that the grass verge had not been recently mowed, and the grass was quite long. After he closed the door he took a step forward and “the next thing I was falling forward”. Mr Willis put out his right arm to brace his fall. His right arm landed on concrete, and he felt a sharp pain in his right shoulder. Mr Willis looked around to see why he had fallen and that is when he saw a hole in the grass. He described it as “100mm round”.

8. Mr Willis drove home and told Ms Beach that he had a fall. They ate their lunch and then drove to Orange Hospital. The hospital X-rayed the shoulder and put on a sling. Mr Willis was advised that if he still had pain in a few days to make an appointment with his GP.

9. After leaving the hospital Mr Willis and Ms Beach drove back to the scene of the incident. Photographs were taken. They then drove to the Council office further down Byng Street and reported the incident. They drove home.

10. The pain in the right shoulder did not improve so after a few days Mr Willis went to his GP Dr Holmes. Dr Holmes sent Mr Willis for an MRI and gave him a referral to see Dr Kwa again. He advised Mr Willis not to wear the sling.

11. Surgery was performed on the right shoulder by Dr Kwa on 26 August 2020. After that surgery Mr Willis was very restricted in his movements and had to have assistance from Ms Beach for everyday tasks such as dressing, washing and eating. After the surgery he wore a sling, which incorporated a type of “pillow” for about six weeks. After the sling came off Mr Willis started physiotherapy for about six weeks. He could not drive during that period.

12. Mr Willis returned to driving at the end of February 2021 after getting a “clearance from Dr Kwa”. He returned to using the ride on mower in about March 2021. Mr Willis demonstrated in court that he could not lift the right arm fully. He was no longer able to bowl as he had. Mr Willis gave evidence that he had trouble lifting heavy weights into the back of his utility. He can no longer make the bed or assist with the vacuuming.

13. Mr Willis said that if he received medical opinion that he should have a right shoulder reconstruction, he would accept that opinion “if it was going to fix the shoulder”.

14. Mr Willis was first cross-examined about the incident which occurred. He said that he thought his boot had made the impression in the grass which enabled him to see the hole after the incident. Mr Willis was unsure whether he stepped into the hole with his left foot or right foot.

15. I will deal with cross examination on medical issues below, under the heading “Medical Evidence”.

16. I accept the evidence of Mr Willis regarding the incident, its aftermath, and the effects of the injury upon him. Mr Willis gave his evidence in a straightforward manner, without embellishment, and without exaggeration.

17. I find that Mr Willis was not entirely reliable in relation to evidence concerning his past medical history. This was not due to any attempt on his part to be untruthful, but rather was a reflection of the fact that there were a number of medical problems pre-accident, and Mr Willis did not have a good memory of just when those problems occurred. In relation to the pre-accident medical history, I will make findings of fact based upon the documentary material which is discussed in detail below, under the heading “Medical Evidence”.

Ms Barbara Beach

18. Ms Beach is a retired nurse who has been living with Mr Willis for about 15 years. She gave unchallenged evidence regarding the interactions between Mr Willis and his grandchildren. They used to play a lot, including cricket, soccer and tenpin bowling.

19. Ms Beach gave evidence that on the day of the incident Mr Willis came home, having bought some takeaway lunch, and reported that he tripped in a hole and fell on his arm. Ms Beach said they would have to go to the hospital, and she drove him there. Ms Beach gave evidence that after the hospital they went to the Council and reported the hole. They then went and “checked out the hole and I measured it”.

20. Photographs of the hole, taken on the day of the incident, show Ms Beach putting her arm into the hole to show its depth. The evidence was that it was about 26 centimetres deep.

21. Ms Beach gave evidence that after the incident she had to give assistance to Mr Willis in relation to showering and washing and preparation of meals. Ms Beach gave evidence that Mr Willis gets very emotional about his injury, as he is not able to do things that he could do before the incident. She said that he feels “like he’s useless”.

22. In cross examination Ms Beach said that when she went to the scene of the incident, she could see the hole as Mr Willis showed her where it was. Ms Beach took some of the photos on the day of the incident. She said that she could get her hand in the hole, but she had to pull the grass aside to get her hand into it. In re-examination Ms Beach described the grass as quite long and dry, so that it was drooping a bit into the hole.

23. I found Ms Beach to be a reliable and credible witness. There was no exaggeration. There was really no challenge to the veracity of her evidence.

Ms Rachel Bastik

24. Ms Rachel Bastik gave evidence by AVL. She is the owner of a coffee shop called “Coco’s”, which is close to where Mr Willis had his fall. It is a different coffee shop to the one attended by Mr Willis on the day of the incident.

25. Coco’s was closed between 20 December 2019 and 3 January 2020. Ms Bastik was still going into the business on those dates to do work. Ms Bastik employed Ms Susan Noon as a cook. One day Ms Noon came in and said that she had fallen into a hole “out back near the bins”. This identified a site on Byng Street where Coco’s bins were placed for collection. Ms Bastik did not go and look for the hole. She did see a parking sign lying on the grass and the pole was out of the ground. Ms Bastik said that the concrete ball at the end of the pole was about 10 or 15 centimetres in length. Ms Bastik made this observation of the sign lying on the ground when the café was closed over the Christmas/New Year period. Ms Bastik said (Tcpt 77/8) that the sign was only lying on the ground “for a short time” before it was removed.

26. Ms Bastik gave evidence that the bins put out on Byng Street are collected each Wednesday morning. There was also a metal bin next to her café which was emptied weekly by the Council. Ms Bastik said that the grass verge was mowed by Mr Carl Jaeger, who was a person who worked for Penhall Funerals, a nearby business.

27. In cross examination Ms Bastik repeated that she did not look at or see the hole, but she did see the sign lying on the ground and assumed there was a hole there because the sign was out of the ground. Ms Bastik had seen the sign on the ground before Ms Noon had her fall.

28. Ms Bastik was cross-examined about her memory of the size of the concrete ball on the end of the pole. She said that it might have been a bit bigger – about 20 centimetres or a bit less in circumference. She clarified this to say that she thought that the length of the concrete ball on the pole was about 15 to 20 centimetres, on the end of the pole. Finally, Ms Bastik agreed in cross examination that her memory of the events was not very good because of the lapse of time.

29. I find that Ms Bastik was doing the best she could to recall events from several years ago which were of no moment to her. I do accept her evidence that she saw a pole lying on the ground, during the Christmas/New Year shut down period, and that Ms Noon reported that she had fallen into the hole. I do not propose to rely upon her fleeting impression of the size of the concrete ball attached to the end of the pole. Ms Bastik had no particular reason to have detailed regard to the size of the concrete ball attached to the end of the pole. Further, her evidence as to the amount of concrete at the end of the pole conflicts with the standard practice of Mr Whitton and Mr Costello (discussed below) when they gave evidence about the amount of concrete they put into a hole to stabilise a pole, a practice which they have been following for the last 20 years.

Mr Craig Ostini

30. Mr Ostini gave evidence by AVL that he is a funeral director and a manager of a funeral home in William Street, Orange. This is near the intersection of Byng and William Streets. There was a driveway from the funeral home onto Byng Street. The name of the business is Penhall Funerals. The business used to be operated by Norman and Dierdre Penhall. Mr Penhall passed away about four years ago. Mr Ostini worked for Penhall Funerals on two occasions. He worked for five years and then had a break from the business. He has worked for Penhall Funerals for the last 17 or 18 years. Mr Penhall was the proprietor when Mr Ostini was working there.

31. Mr Ostini was aware of a parking restriction sign next to the driveway from Penhall Funerals onto Byng Street. He said there was a 15 minute parking restriction on the Coco’s side of the sign (ie nearest to William Street) and on the other side of the sign it was a red no standing zone.

32. Mr Ostini gave evidence about becoming aware that the sign had come out of the ground. He said that Mr Penhall was talking about it and mentioned it to him. Mr Ostini recalled seeing the sign not in the ground, after this was drawn to his attention. Mr Ostini said that he could not remember whether the sign was lying on the grass or the concrete. He said, “I could just barely remember the fact that the sign, you know, was missing and that it was laying there.”

33. Mr Ostini gave evidence on the voir dire concerning oral statements made by the late Mr Penhall. At the conclusion of the case, the defendant informed my Associate, via email dated 24 March 2025, that the evidence taken on the voir dire could be admitted for all purposes and that no ruling in relation to that evidence was required.

34. Mr Ostini gave the following evidence:

“MACAROUNAS

Q. I'll repeat the question. Sorry, Mr Ostini. The question was what, if anything, did you hear Mr Penhall say about reporting the sign to council?

A. He was going to call council regarding the sign and then as the day went on I heard him having conversations, usually with himself, he would talk to himself in a loud manner, or talking to one of the girls in reception, that he had spoken to council and getting them to get rid of the sign, or to let them know that the sign was out.” (Tcpt 103/29-37)

35. Mr Ostini also gave the following evidence:

“MACAROUNAS

Q. Can you tell his Honour what Mr Penhall's ‑ prior to that time ‑ usual practice was in terms of issues concerning the council?

A. Norm Penhall is someone who would ‑ if there was any problem with anything, with the building or any circumstances surrounding the building on council land, he would report it. If there was a pothole in the road or a crack in the footpath or a branch down on a tree nearby, he was very quick to always, you know, report any problems to council.” (Tcpt 103/45-104/3)

36. Mr Ostini gave evidence that Mr Penhall usually spoke to the Mayor (who he knew), and sometimes to a clerk regarding cemetery business. Her name was Maureen Innes. Her married name is Maureen McPherson.

37. Mr Ostini was not sure how long the sign was lying on the ground before it was removed, but he thought it was one, two or three days (Tcpt 104/8).

38. In cross examination Mr Ostini said that his evidence concerning who Mr Penhall spoke to at the Council was based upon his experience of who Mr Penhall had spoken to at the council for other reasons. The suggestion was made to Mr Ostini that his memory was not good about these events and he said:

“A. Yeah, so I agree with that, other than knowing that he spoke about it at the time, yeah, that was all.” (Tcpt 106/10-11)

39. Mr Ostini said that Mr Penhall did not have a direct conversation with him about reporting the sign to the Council, but that Mr Ostini heard Mr Penhall saying that, either to himself or the receptionist or the office staff. Mr Ostini said that he had a clear recollection of Mr Penhall “talking about it all day” (Tcpt 106/30).

40. Mr Ostini also recalled that on the day that Mr Penhall was talking about reporting the sign to the Council, Mr Penhall told Mr Jaeger, who mowed the lawn, to be careful of the hole in the ground when he mowed the lawn.

41. Finally, Mr Ostini gave the following evidence:

“Q. Is it possible that Mr Penhall said he was going to call the council about it, but didn't get around to doing it?

A. Oh absolutely not. But Norm Penhall was still conducting funerals up until two weeks before he died.” (Tcpt 107/26-29)

42. I accept the evidence of Mr Ostini concerning his memory of Mr Penhall, both as to the personality of Mr Penhall, and as to what Mr Penhall said about reporting the sign lying on the ground to the Council. It is apparent from the description given by Mr Ostini that Mr Penhall was not a person to let Council issues go through to the keeper. I accept the evidence of Mr Ostini that Mr Penhall was, although elderly, a very capable businessman, and that he had an invariable practice of referring matters to the Council when he noticed them. There is corroboration for this in the Council documentation which records Mr Penhall reporting a sewerage issue to Ms McPherson (discussed below).

43. Mr Ostini knew Mr Penhall well, having worked for him for a considerable period of time. While Mr Ostini did not remember some of the fine detail surrounding the sign, he was absolutely certain about his evidence concerning Mr Penhall reporting the matter to the Council.

44. There is no suggestion that Mr Ostini had a connection with Mr Willis, or that he even knew that Mr Willis alleged that he had fallen in a hole. I see no reason at all to doubt the evidence of Mr Ostini concerning what Mr Penhall said and did about reporting the fallen sign to the Council.

45. It is a fact that there is no written record held by the Council of such a report. However, I accept the evidence of Ms Bastik, that the fallen sign, and its removal, would have happened in the Christmas/New Year period of 2019-2020. Evidence discussed below shows that in this period the signs team was off on leave, and one might expect that the Council had other employees off on leave. The impression I had from Mr Ostini is that if Mr Penhall tried to report the matter to the Council, and could not make himself heard, he would not shrug his shoulders and leave it at that. Mr Penhall was the kind of person who was very intent on keeping the Council up to the mark.

Dr Donald Cawthorne

46. Dr Donald Cawthorne provided medicolegal reports tendered by the plaintiff and participated in a conclave with Dr Smith, a medicolegal expert retained by the defendant. Dr Cawthorne gave oral evidence, which will be discussed below in relation to the medical evidence generally.

Witnesses Called for the Council

Mr Jason Lewis

47. Mr Jason Lewis is employed by the Council as an assets engineer. He has held that position for over seven years. He is a qualified civil engineer and a chartered professional engineer. Mr Lewis drafted the Council’s “Transport Asset Management Plan”. That document includes a table showing when the Council plans to inspect its various assets. In 2020 residential roads were inspected every two years. Kerbs and gutters were inspected every two years. Footpaths were inspected every 18 months. In 2020 during the pandemic there were departures from this schedule.

48. Mr Lewis identified a map of the Orange CBD. The point on Byng Street where the incident occurred is a few hundred metres outside the eastern edge of the Orange CBD.

49. Mr Lewis said that nature strips next to paved or concrete footpaths are not categorised as an asset and the nature strip is not specifically inspected as an asset.

50. Mr Lewis explained the system for recording complaints and problems reported to the Council. This was done on a Customer Relationship Management system (CRM). The CRM also recorded safety inspections carried out in relation to roads and footpaths. Traffic signs and the poles on which signs are situated were not the subject of the asset inspection regime. Mr Lewis said that asset inspectors report any dangers observed, if they were of major significance or were a major risk.

51. Mr Lewis said that rubbish bins are emptied by Council contractors. The contractor is not obliged to check for defects in the vicinity of bins when they collect the garbage. Parking officers patrol the Orange CBD where there is timed parking and from time to time they patrol other areas on request.

52. In cross examination Mr Lewis said that an audit of Council assets is done every ten years, which includes Council signs. If there was a report of a sign leaning over, then the Council would go and have a look at it. Mr Lewis said that a leaning sign may not fall over and it may be stable for many years.

53. An inspection of the road network in the vicinity of the incident was carried out in 2019. This inspected the road condition and the road pavement, but not the footpath.

54. Mr Lewis was taken to a series of photographs which showed the sign in Byng Street, which eventually came out of the ground and led to the hole created in the grass verge. Those photographs are described below in relation to consideration of documentary evidence. Mr Lewis conceded that certain of the photographs showed the sign leaning to a considerable extent and that if the Council was aware of that, it would have the sign inspected and repaired if necessary. Mr Lewis drove regularly along Byng Street, but he had never noticed the leaning sign.

55. Mr Lewis said that an inspection of the roadway would not include the footpath, as the inspector would be focused on the condition of the vehicular roadway. If an inspector did notice a problem or danger adjacent to the road then it would be reported. Mr Lewis said that if there was a footpath inspection and the inspector saw a hole adjacent to the footpath the asset inspector would report that, if it was visible. This accords with the evidence of Mr Twomey (discussed below).

56. Mr Lewis said that there was no register of street signs and no regular inspection of street signs.

57. Mr Lewis expected that if there was a hole in the grass verge it should have been repaired if it was detected. Council work trucks had dirt and could fill in a hole. They also had yellow marking paint which could mark a hole and they had witches hats. Yellow pit lids were available in the depot which could have been used to cover a hole. Posts and tape could be put up around a hole to warn of the hazard. There was no budgetary reason why a hole could not be filled in or made safe as it was not an expensive process.

58. I accept Mr Lewis as a credible witness. In relation to inspection practices, I will rely principally on the evidence of Mr Callum Twomey (an inspector). In relation to the installation of signs, I will rely principally on the evidence of Mr Twomey (an inspector) and Mr Bradley Whitton and Mr Robert Costello (the signs team).

Mr Callum Twomey

59. Mr Twomey gave evidence by AVL. Mr Twomey was employed by the Council as an assets officer in 2021. Prior to that he had been in training. He carried out inspections of roads and footpaths in 2020. Mr Twomey said that footpath inspections take place between the kerb and gutter and the boundary of the adjoining properties. They were done every 18 months as per the asset management plan. Any defects in the footpath were noted but anything on the verge was also noted. Missing signs or broken poles were reported. Water leaks were reported. If the inspector picked up any sort of problem adjacent to the main focus of the inspection, which was the concrete footpath, that would be reported.

60. Mr Twomey was asked about his training in relation to leaning signs. He said that what was done with leaning signs depended on the extent of the lean and whether there was a danger to anyone. If the lean was not too bad or it was not in a place where someone could run into it, then nothing would be done, but if the leaning sign created a danger, then the Council would look at it.

61. In cross examination Mr Twomey said that the area of Byng Street where the incident happened was outside the CBD, but that at that point Byng Street was still a busy road.

62. Mr Twomey said in cross examination that if a defect was picked up on the inspection then this would be recorded on Council software. Mr Twomey said that in 2020 there was no system in place for identifying a particular sign at a particular location. There was no numbering or code on the back of a sign to identify where it had been standing.

63. Mr Twomey was cross-examined about leaning signs and said that any concern would only arise depending on how close the sign was to the footpath. He said that if it was 200 or 300 millimetres out of alignment then that did not pose a risk to the footpath if the sign was right on the kerb. However, if it was leaning at 45 degrees then this would have been an indication that the sign was loose in the ground. If that was seen, then a photo would be taken of it and it would be recorded.

64. I accept Mr Twomey as a credible witness. He is no longer with the Council. He appears to have been properly trained by the Council in asset inspection, and he did that job for several years before he left the employ of the Council.

Mr Bradley Whitton

65. Mr Whitton gave evidence by AVL. Mr Whitton has been employed by the Council for 26 years as a member of the signs and maintenance team. The other employee of this team in 2020 was Mr Costello. They had worked together as the signs team since 2005. Both reported to a works engineer in the works department.

66. Mr Whitton recalled replacing a sign in Byng Street at the scene of the incident near Coco’s café. He got a phone call to go there. He and Mr Costello put up a new sign, being the pole, the brackets and the sign. He had no knowledge of a sign that was previously at that location.

67. Mr Whitton said that the standard practice was to dig a hole 600mm deep by 300mm wide. The sign was fixed into the hole with a 20kg bag of rapid set concrete.

68. Mr Whitton sometimes received customer requests for collection of a sign which had been damaged or which had fallen over or been pushed out of the ground. Such a request came in by phone or by a piece of paper put into a tray in the office. Mr Whitton and Mr Costello usually collected such signs. Sometimes early morning street sweepers saw fallen signs and brought them back to the depot. If a sign was pulled out of the ground and was lying on the ground, the usual practice was to just concrete it straight back into that location. Sometimes signs were dragged up the road and the team did not know where they came from. Old signs which were dropped off at the depot were dismantled and recycled.

69. Mr Whitton said that if he saw a sign which was a hazard, he would identify it as a hazard. He did not go looking for damaged signs, but if he came across one, he would ring through to customer service and report it. There was no record kept of signs which were brought back to the Council depot. Such signs were left dumped on the ground along a fence and were recycled by Mr Whitton and Mr Costello.

70. Mr Whitton was taken to his leave records. He was away from work on various forms of leave between 16 December 2019 and 10 January 2020.

71. Mr Whitton confirmed that in the truck or the ute driven by the team, they had witches hats, pit lids, dirt for filling in holes and bags of quick set concrete.

72. Mr Whitton agreed that if he saw a problem and thought that it was dangerous he would try and fix it or make it safe. A leaning sign would need to be pretty bad for him to ring it in. It would have to be impeding traffic or leaning over a footpath. A sign leaning on an angle would not be something he would worry about otherwise. Mr Whitton said that he would go and look at any leaning sign, touch it and see whether it was moving in the ground.

73. Mr Whitton agreed that a ball of concrete on the end of a pole about 15 or 20cm long and 20cm in circumference was not an acceptable way to install a sign. He said that neither he nor Mr Costello would install a sign that way.

74. Mr Whitton was also taken to the series of photographs showing the leaning sign. He acknowledged that when the sign had a considerable lean that would indicate that it was probably loose in the ground. On the photos he saw, he thought the sign was leaning over badly enough to need fixing. Mr Whitton said that such a sign should be straightened up and more concrete poured in to stabilise it.

75. In re-examination Mr Whitton said that vandalism of signs was something which occurred all the time. Vandals sometimes steal signs, pull them out or bend them. Sometimes the Council loses signs altogether because vandals have taken them.

76. I accept Mr Whitton as a credible witness. He and Mr Costello have worked together as a team and done the same job for 20 years. In particular, I accept his evidence concerning the standard way in which a sign would have been installed. This is why I prefer his evidence, and that of Mr Costello, to the fleeting observation made by Ms Bastik concerning the amount of concrete on the end of the pole which she saw lying on the ground.

Mr Robert Costello

77. Mr Costello gave evidence by AVL. Mr Costello is employed, along with Mr Whitton, in the Signs and Maintenance Team at the Council. He has worked there for 20 years with Mr Whitton. The team is responsible for installation, removal and replacement of traffic signage for the Council. Work is allocated from within the office at the works depot. The team spends a lot of its time in a truck or a ute carrying out work as requested or directed by the depot office.

78. Mr Costello recalled getting a phone call to install a sign on Byng Street near the scene of the incident. He said that he and Mr Whitton went there and could not find a sign. They walked up and down Byng Street and did not see too much wrong, until they recognised that a sign on one pole was not matching a sign on the nearest adjacent pole. They then realised where the sign had to go. They used a handheld digger and a crowbar to dig a new hole about 300 or 350mm wide and 600mm deep.

79. In cross examination Mr Costello said that when they were installing the new sign they did not see a hole in the vicinity. He said they walked up and down Byng Street and did not see a hole. Mr Costello said there was no hole there, so they had to dig a fresh hole. Mr Costello said that sometimes street sweepers picked up poles when they are driving around in the morning and they brought them back to the depot. Mr Costello said there was no marking on signs in 2020, such as a number or something like that. In recent times supervisors have put a note on signs to let them see where they have come from.

80. Mr Costello confirmed that in the work truck the team had dirt, witches hats, and spray paint which could have marked a hole. Mr Costello said that work is usually done from a CRM report. He said that if the team was driving around and they saw a sign pulled out, they would report it on the CRM and then finish the job if it was dangerous. If there was a hole which they saw, they would “get that safe as possible as quick as possible”.

81. Mr Costello was also taken to the photographs showing the leaning sign. He agreed that the leaning sign in the photographs should have been straightened and then the hole filled with quick set concrete. Mr Costello could not remember doing any work on this particular sign involving straightening it or correcting the lean.

82. Mr Costello was taken to his leave records, which showed that he was away on various forms of leave from 23 December 2019 to 3 January 2020.

83. I accept Mr Costello as a credible witness. He and Mr Whitton have worked together as a team and done the same job for 20 years. In particular, I accept his evidence concerning the standard way in which a sign would have been installed. This is why I prefer his evidence to the fleeting observation made by Ms Bastik concerning the amount of concrete on the end of the pole which she saw lying on the ground.

Mr Adrian Cisco

84. Mr Cisco gave evidence by AVL. Mr Cisco is employed by the Council as a senior parking officer. Council parking officers regularly patrol the CBD area. A search of parking officer activities in 2019 and 2020 did not find any record of activity by parking officers in the vicinity of the incident location.

85. In cross examination Mr Cisco said that he used the CRM to report problems. If he was driving around and noticed something he would call the information counter and they would log it on his behalf. Mr Cisco said that he often drove along Byng Street, but he was not keeping a look out for street signs or any abnormalities. Mr Cisco said that if he saw a sign that was leaning, he would definitely report that. Mr Cisco was shown the photographs of the sign but said that he would not have reported a sign leaning to the extent shown in the photographs. Mr Cisco said that if he noticed a hole where the sign had been he would definitely report that because it was “a trip hazard”.

86. The evidence of Mr Cisco was uncontroversial, and I accept it. He had made a search of parking officer activity and found no recorded activity on Byng Street near the site of the incident. I accept his evidence.

Ms Maureen McPherson

87. Ms McPherson gave evidence by AVL. Ms McPherson has been employed by the Council for 24 years as an administration officer. She works in the Building Department of Development Services. Part of her role is to make bookings for burials. In the course of her employment she regularly dealt with Mr Penhall. However, Ms McPherson said she usually spoke to Ms Penhall rather than Mr Penhall. On occasions Mr Penhall did contact her. Ms McPherson said Mr Penhall could have phoned her for other matters, but she could not specifically recall any.

88. Ms McPherson said that if she received a call which involved a request or a complaint about Council services she would put a customer request in the system. Ms McPherson had no recollection of any conversation with Mr Penhall about a sign being knocked out or lying on the ground near the funeral home in Byng Street.

89. Ms McPherson said that it was “absolutely important” to her that any complaint about a Council matter was reported in the CRM.

90. In cross examination Ms McPherson said she could not recall Mr Penhall making a complaint to her in May 2020 about a sewerage issue at the border of his property. She was taken to an entry in the CRM dated 5 May 2020 where Ms McPherson was the person noted as receiving such a call from Mr Penhall. Having seen that note Ms McPherson accepted that “obviously he did speak to me about it”. After that document was drawn to her attention, Ms McPherson acknowledged that perhaps Mr Penhall did call her about a street sign which had fallen over and she simply did not remember it. She also accepted that she may have not put an entry into the CRM system because she had been busy dealing with other matters.

91. I was impressed by Ms McPherson as a conscientious administrative employee of the Council. Part of her job was to pass on any complaints received or enter those complaints into the CRM. However, Ms McPherson did acknowledge that if Mr Penhall had raised complaint with her about the sign she may not have recorded that complaint or may have been busy with other work and not recorded the complaint. Given the time of year when Mr Penhall contacted the Council, this would be understandable.

92. In any event, there was no evidence given by Mr Ostini that Mr Penhall spoke to Ms McPherson. She was a person to whom Mr Penhall spoke about burial and cemetery matters, and occasionally about other Council issues. The evidence of Ms McPherson shows that there were times when matters were reported to the Council, but those reports were not recorded or entered into the CRM.

Documentary Evidence

93. The parties handed up a joint Court Book (CB) of four volumes and several thousand pages at the start of the case. I am grateful to counsel for cutting the number of documents down to those essential to their cases. The end result was a much smaller bundle of documents which fitted well within one lever arch folder. The documents tendered from time to time are listed in MFI 5. This was a list prepared by my Associate but agreed as accurate by both parties. The extraneous documents are held by my Associate and will be returned to the parties.

94. The four folders were marked PX1, PX2, PX3 and PX4, so that they could be referred to by their exhibit numbers during oral evidence. Since the documents fit now within one folder, I will refer to documents in the CB in the following way: “CB [page number]”. The original of the court book has tabs to delineate PX1, PX2, PX3 and PX4.

Medicolegal Evidence

Dr Cawthorne

95. The plaintiff was examined for medicolegal purposes by Dr Donald Cawthorne, orthopaedic surgeon. He first saw the plaintiff on 19 July 2023 and provided a report dated 24 July 2023 (CB 29-36). He took a history as follows:

96. Mr Willis went to Orange Base Hospital where he was given a sling. He was discharged to see his GP.

97. On review by the GP, pain was continuing, and an MRI scan was performed which showed rotator cuff injuries to the right shoulder.

98. The plaintiff was sent to Dr Kwa, orthopaedic surgeon, who advised surgical intervention to repair the torn rotator cuff tendons. This surgery was performed at Orange Base Hospital on 26 August 2020.

99. Dr Kwa found fraying of the biceps tendon with a partial tear to the upper fibres of the subscapularis and full thickness tearing to the supraspinatus with retraction.

100. After surgery Mr Willis was managed in a sling with an abduction pillow and he commenced physiotherapy.

101. The final review by Dr Kwa was on 16 February 2021 when Mr Willis was noted to have no pain, was sleeping at night and was able to mow the lawn and perform other jobs without problems.

102. Mr Willis did have a restricted range of motion of elevation of the shoulder, external and internal rotation, with some weakness in abduction.

103. Dr Cawthorne took a history that Mr Willis is unable to perform tasks requiring abduction or forward flexion of the right shoulder with weight. Dr Cawthorne recorded a history of earlier injury to the left shoulder in December 2017 which resulted in an operation to that shoulder carried out by Dr Kwa. There was no limitation with the left shoulder.

104. Dr Cawthorne offered the opinion that Mr Willis had suffered an “acute on chronic” rotator cuff tear on the right side after falling on an outstretched hand. Function and pain had improved since the operation, but Mr Willis was not back to baseline. He was restricted in range of motion with some associated pain while performing everyday activities. The injuries had stabilised.

105. Dr Cawthorne said that there was pre-existing rotator cuff pathology even before the fall, based on the MRI findings of atrophy. Dr Cawthorne thought the fall on the grass verge was most likely an “acute on chronic injury” which had exacerbated the pathology. Dr Cawthorne thought that Mr Willis would not improve and there was a possibility that he might suffer worsening pain. Dr Cawthorne thought that over time Mr Willis would develop rotator cuff arthropathy. This would require anti-inflammatory and pain medication until such time as he required a shoulder replacement.

106. The cost of a shoulder replacement was in the range of $25,000 to $30,000 at today’s rates. Dr Cawthorne thought that it was unlikely that any further surgery to repair the rotator cuff would be successful. The need for a shoulder replacement could be in five to 10 years time. Such an operation would require three months of supervised rehabilitation with physiotherapy weekly at a cost of around $3,000. Dr Cawthorne thought that there needed to be a repeat MRI to assess the degree of tearing which may have occurred since the surgery.

107. Dr Cawthorne confirmed the limitations about which Mr Willis gave evidence, such as gardening, handyman tasks, and being unable to lift his grandchildren and participate in activities with them.

Dr Smith

101. The defendant obtained a report from Dr Anthony Smith, orthopaedic surgeon dated 6 March 2024 (CB 37-45). He saw Mr Willis on 16 February 2024.

102. Dr Smith noted an MRI report of the right shoulder undertaken on 18 July 2020. This showed tears, muscle atrophy and degeneration. There was arthritis in the AC joint.

103. Dr Smith offered the opinion that Mr Willis had an aggravation to his pre-existing glenohumeral joint osteoarthritis in the right shoulder. Dr Smith thought the rotator cuff tears and degeneration predated the accident on 9 July 2020. He thought that there was a re-rupture of the repaired rotator cuff and that the current symptoms emanated from the osteoarthritic right shoulder.

104. Dr Smith thought that the shoulder joints would not get any better and would slowly get worse. He said that the left shoulder would also become a problem sooner or later.

Dr Cawthorne in Response

105. Dr Cawthorne provided a supplementary report dated 26 August 2024 (CB 77-78). Dr Cawthorne agreed that the initial presence of joint osteoarthritis would not be the result of the accident. He agreed that some changes in the MRI dated 18 July 2020 predated the injury. Dr Cawthorne also agreed that there had most likely been a re-rupture of the repaired rotator cuff.

Oral Evidence of Dr Cawthorne

106. Dr Cawthorne gave oral evidence by AVL and was cross-examined. In cross examination Dr Cawthorne said that Mr Willis had a pre-existing rotator cuff injury and the consequence of that would be joint arthritis. Dr Cawthorne was of the view, based upon the MRI scan in 2020, that Mr Willis did not have arthritis at that time. Dr Cawthorne accepted it was possible that with pre-existing rotator cuff pathology the patient would develop arthritis over time.

Expert Conclave

107. Both orthopaedic surgeons participated in a conclave held on 6 March 2025 which resulted in a Conclave Report of that same date (CB 79-82). Both surgeons agreed:

108. Mr Willis had sustained an injury to his right shoulder in the incident.

109. Mr Willis would not improve from his present state.

110. Future treatment options for the right shoulder were conservative measures, a shoulder replacement or an arthrodesis.

111. Mr Willis would not be able to engage in activities involving overhead work or which required full strength.

112. It was impossible to determine the natural course for Mr Willis, with known pre-existing rotator cuff pathology, had he not sustained his injury on 9 July 2020.

Medical Evidence

108. The Court Book contained original medical evidence as follows:

109. MRI dated 18 July 2020 (CB 1305)

110. Radiology (CB 1296-1298)

111. MRI dated 14 August 2023 (CB 514)

112. GP Notes (CB 713-714)

113. Notes of Dr Kwa (CB 716, 734-737)

114. Hospital Notes (CB 996-998, 1000-1005, 1018-1020).

115. I will also take into account the defendant’s folder of medical material (DX 2).

116. In July 2003 Mr Willis suffered from left rotator cuff tendonitis. He said the use of his left arm was restricted. The injury caused him to be off work for one month.

117. From January 2004 until November 2013 Mr Willis obtained treatment from Dr Holmes for continuing problems related to gout in both of his ankles.

118. In 2007 Mr Willis was referred to a physiotherapist by Dr Holmes for left knee pain. The left knee pain has not recurred since then.

119. In October 2012 Mr Willis was seen by Dr Horton, an ear, nose and throat surgeon about chronic nasal problems. In cross examination Mr Willis said that this was a lifelong problem.

120. In July 2014 Mr Willis was seen by Dr Holmes in relation to right shoulder pain with no apparent cause, for six weeks. Further investigation was undertaken by way of X-ray and ultrasound. The imaging indicated:

“full thickness partial width tear in supraspinatus with accompanying bursitis and impingement, non-specific mildly increased glenohumeral joint and LH biceps tendon sheath effusion, moderate AC joint OA” (MFI 3)

115. While he did not remember it, Mr Willis accepted that he was probably told that the X-ray and ultrasound showed some degeneration or wear and tear in the right shoulder. Mr Willis had an ultrasound-guided cortisone injection into his right shoulder in July 2014, and again in October 2014.

116. Mr Willis has experienced ongoing issues related to his breathing caused by asthma and pneumonia. This is a lifelong condition and can restrict his physical activity because he suffers from shortness of breath. Mr Willis has had several medical scans of his chest over many years to investigate the breathing problems that he was experiencing. In October 2020 Mr Willis had a three-day hospital admission at Tweed Hospital with pneumonia.

117. In November 2017 Mr Willis had some diabetes education provided by Mr Wayne Burgess through the Orange Health Service.

118. On 13 December 2017 Mr Willis injured his left shoulder when he threw a ball at some cockatoos (DX 2, p 27). Mr Willis had an MRI to investigate the injury and it detected a rotator cuff tear. Mr Willis was referred to Dr Kwa, who carried out a left arthroscopic rotator cuff repair on the left shoulder.

119. In early 2018 Mr Willis underwent a period of rehabilitation and physiotherapy after the surgical procedure on his left shoulder. By 8 May 2018 Mr Willis was still unable to drive due to the injury. His left shoulder was stiff and had a limited range of motion. By 15 June 2018 the range of motion in Mr Willis’s left shoulder was restricted to 70 degrees with regard to flexion and abduction. He also experienced significant shoulder hitching. By 3 July 2018 Mr Willis could still not lift above shoulder level with his left shoulder and had a 1kg lifting weight limit.

120. In cross examination Mr Willis said that his left shoulder has “come good and I have no problem with my left shoulder at all now” (Tcpt 63/31). The exception, he explained, was that his left shoulder still aches in cold weather which can affect activities he needs to do around the house such as washing and cleaning.

121. On 9 July 2020 Mr Willis injured his right shoulder in the incident which is the subject of these proceedings. Mr Willis went to hospital and had an X-ray. On 16 July 2020 he had an MRI that reported a complete tear of the supraspinatus and infraspinatus with significant muscle atrophy, grade 4.

122. On 20 July 2020 Mr Willis was referred to Dr Kwa by Dr Holmes.

123. On 7 August 2020 Mr Willis was seen by Dr Kwa. Mr Willis stated that his right shoulder was painful and he could not lift it. There was not much pain at night. Dr Kwa advised that an operation was required and that Mr Willis’ arm should remain in a sling until that time.

124. On 26 August 2020 Mr Willis underwent a right arthroscopic cuff repair, subacromial decompression and bicep tenotomy with Dr Kwa. Dr Kwa observed “fraying of biceps tendon, partial tear to upper fibres of subscapularis, full thickness tear to supraspinatus with retraction”.

125. On 9 September 2020 Mr Willis was referred for physiotherapy and went through a period of rehabilitation of the right shoulder.

126. On 20 October 2020 it was noted that Mr Willis was no longer requiring pain medication for his right shoulder. Mr Willis said that he took enough medication for other things. Pain was not a problem if he avoided aggravating activities such as reaching above his shoulder. He reported some bicep anterior shoulder region pain when performing aggravating activities.

127. On 3 November 2020 Mr Willis was seen by Dr Kwa for a progress assessment on the right shoulder. Dr Kwa wrote to Dr Holmes:

“The shoulder is going well but slowly which is to be expected. There is only some mild aching. With assistance he could elevate to 80º, externally rotate to 40 [sic] and internally rotate to his buttock.” (DX 2, p 51)

128. On 12 November 2020 it was reported in the Orange Community Health Centre records from a physiotherapy appointment:

“[A]ble to do some light gardening weeding and helped plant trees on the weekend (did not lift plants or dig holes). Reports pain has been well controlled, no issues.” (DX 2, p 53)

129. On 15 December 2020 Mr Willis was seen by Dr Kwa again for a progress assessment on the right shoulder. Dr Kwa reported to Dr Holmes:

“His shoulder is stiff but this is not a major concern at this stage. He should continue to progress with his exercises as tolerated.

He has asked about driving a bulldozer. Whilst handling the controls are [sic] not a major issue I do not feel that his shoulder is strong enough to be able to climb up into the dozer at this stage.” (DX 2, p 55)

130. In cross examination Mr Willis said that the reference to a bulldozer should instead be to a grader. He otherwise accepted that this was advice that he was given by Dr Kwa.

131. Mr Willis said he was given clearance to drive the grader in February 2021. On 1 February 2021 it was reported in the Orange Community Health Centre record of a physiotherapy appointment:

“[Patient] reports shoulder is good, has been doing a lot of lifting recently in order to prepare to move houses.

[Patient] only reports pain/stiffness at the end of the day

Currently not in any pain” (DX 2, p 56)

132. In cross examination Mr Willis said that he was not doing all the big heavy lifting and that he only lifted light stuff.

133. On 9 February 2021 it was reported in the Orange Community Health Centre records from another physiotherapy appointment:

“[Patient] reports shoulder has been feeling “alright”

Reports he has not noticed any pain over the past week.

[Patient] felt good after last session and used the ride on mower and reported nil problems” (DX 2, p 59)

134. On 16 February 2021 Mr Willis was seen by Dr Kwa for a further progress assessment. Dr Kwa wrote to Dr Holmes:

“I reviewed Peter today, six months following his surgery. All is well, he has no pain. He can sleep at night. He has been doing a lot of lawn-mowing and other jobs without problems. He is keen to get back to doing some driving of a small bulldozer. This is only a small machine and does not require climbing into a high cabin and three points of contact. He does that just casually to help out. He is otherwise retired.” (DX 2, p 62)

135. Mr Willis said in cross examination that in February 2021 he could also perform house jobs such as vacuuming, washing, food preparation and bed-making as long as he did not need to reach overhead. Mr Willis said that Ms Beach was protecting him by doing more tasks than she needs around the house.

136. On 29 April 2022 Mr Willis was seen by Dr Brown, a urological surgeon regarding prostate rebore treatment.

137. On 30 April 2022 Mr Willis fell over some bricks causing lacerations and extensive bruising to his left hand and forearm. These injuries healed.

138. On 1 August 2022 Mr Willis was seen by Dr Holmes in relation to some bilateral leg swelling after a caravaning trip to Western Australia (DX 2, p 76). Mr Willis was sent by Dr Holmes for an ultrasound on his lower legs. The swelling resolved itself.

139. In cross examination Mr Willis said that he did a significant amount of driving during the caravaning trip to Western Australia in 2022. Mr Willis was able to connect and disconnect the caravan from the vehicle with the assistance of Ms Beach. Ms Beach assisted with moving the tongue of the caravan because it was too heavy and Mr Willis would wind the jockey wheel with his right arm.

140. In 2024 during a second caravaning trip to Western Australia Mr Willis assisted with the cooking by barbecuing while Ms Beach prepared the vegetables. Mr Willis also took the washing to the washing site but did not hang up clothes on the washing line because of his restriction with above-shoulder activity.

141. On 19 July 2023 Mr Willis was seen by Dr Cawthorne for the purpose of the present proceedings. It was recorded that Mr Willis can complete personal cares without concern about his right shoulder. Mr Willis can push a trolley but he cannot carry more than two kilograms in bags. He is able to push a lawn mower but reported he does not start the lawn mower as a precaution against the possibility that it kicks back.

Other Documentary Evidence

Incident Report Form

142. As previously recited, Mr Willis and Ms Beach attended the Council offices on the day of the incident and made an oral report. The Incident Report Form was signed by Mr Willis on 28 August 2020, but noted that on the day of the incident Mr Willis had reported the incident and his trip to hospital to Mr Hyde, a legal and property officer of the Council.

143. The Incident Report Form is at CB 107-108. That form contains a description of the incident entirely consistent with the version put forward by Mr Willis in his oral evidence. It includes a statement that the grass verge was not mowed and he was unable to see the hole. The hazard was recorded to be a hole 300mm deep and 100mm wide. It was 300mm in from the kerb line and 300mm from the concrete driveway.

Pre-Incident Photographs

144. A number of pre-incident photographs were tendered showing the sign present in Byng Street before the incident (CB 83-89, 94).

145. The photographs show the parking sign in situ near the kerb and located in the grass verge between the kerb and the footpath. The sign is visibly leaning, first one way and then another. What matters is not what can be discerned as to the lean of the sign from the photographs, but the fact that it was leaning. Other evidence which is important concerning the leaning sign is the evidence summarised above from various Council officers concerning whether or not they regarded the leaning sign as a hazard.

Photographs Taken on Day of Incident

146. When Mr Willis and Ms Beach returned to the scene of the incident later the same day, two photographs were taken. They are poorly reproduced as the top two photographs at CB 92 and 109. At my request the original photographs were tendered and became PX 6. One of the photographs shows Ms Beach kneeling down and leaning forward with her right arm pushed down into the hole. The other photograph shows the hole visible in the grass. As Ms Beach said in evidence, the hole was made visible by Ms Beach parting the grass to take a photograph of the hole itself.

Post Incident Photographs of the Sign

147. When the sign was replaced, Mr Willis and Ms Beach took photographs of the new sign. These are the two lower photographs at CB 92 and 109. A clear photo of the replacement sign is at CB 132. This shows the new hole dug in the grass by the signs team (their truck is adjacent to the sign). It also shows Coco’s Café further down the footpath, at the intersection of Byng Street and William Street.

Other Council Documents

148. The Court Book contains other Council documents being CRM records, GIPA documents, CRM inquiries and documents concerning council’s inspection regime. In view of the fact that these matters were covered in oral evidence and were uncontroversial, I do not propose to review those other Council documents.

Engineering Evidence

149. The plaintiff tendered an expert report from Mr Denis Cauduro dated 10 April 2024 (CB 46-76). Mr Cauduro is a qualified ergonomist and safety professional. In his Executive Summary Mr Cauduro said that Mr Willis suffered a fall injury when his foot collapsed into a visually indistinct hole in a turfed nature strip. He said that the cost to fill the hole with soil would have been no more than $50 and would have taken no longer than 15 minutes.

150. Much of the expert report of Mr Cauduro concerns his opinion that the sign was inadequately installed in the first place. In view of conclusions to which I have come, relating to both the risk of harm posed to Mr Willis, and the observations made briefly by lay witnesses concerning the pole and the sign when it was out of the ground, I do not propose to deal with that part of the report. The material to which I refer is discussed in detail below.

Findings of Fact

151. I make the following findings of fact:

152. For many years prior to early 2020 there was a parking sign erected in Byng Street, Orange, east of the intersection with William Street.

153. The parking sign was close to the kerb in Byng Street and was situated on the grass verge between the kerb and the footpath in Byng Street.

154. For many years the sign was loose in the ground, and photographs show it leaning one way and then another.

155. Leaning signs were not uncommon, and were only regarded by the Council as a hazard if they were leaning over the roadway or towards a footpath, where a pedestrian might come into contact with them.

156. If Council employees noticed a leaning sign, then the signs team would take steps to straighten the sign and fix it into the ground with additional concrete.

157. Between 20 December 2019 and 3 January 2020 the parking sign came out of the ground and was lying in the vicinity of its original location.

158. There was concrete still attached to the pole of the parking sign, and there was a hole in the grass verge where the sign had come out of the ground.

159. Ms Noon fell into the hole on a day between 20 December 2019 and 3 January 2020

160. Ms Bastik saw the parking sign lying on the ground in that time period.

161. Ms Ostini saw the parking sign lying on the ground in that time period.

162. Mr Norman Penhall rang the Council and reported that the sign had come out of the ground and was lying on the ground.

163. The report made by Mr Penhall was an oral report and was not recorded in the written records kept by the Council.

164. There were occasions when oral reports were not recorded in writing.

165. The report by Mr Penhall that a Council sign was lying on the ground logically also informed the Council that there was a hole created in the grass verge.

166. Mr Penhall told Mr Jaeger that he should be careful when mowing the lawn as there was a hole in the ground left by the sign.

167. Ms Bastik recalled the sign remaining on the ground just a short time before it was removed.

168. Mr Ostini recalled the sign lying on the ground for a day or two or three.

169. The fallen sign was removed from Byng Street within a short period of time after Mr Penhall made his call to the Council.

170. I infer, because of this sequence of events, that it was the Council who took the fallen sign away. Removal occurred very shortly after Mr Penhall made his report to the Council.

171. There was no replacement sign erected after the report made by Mr Penhall and before the July 2020 incident.

172. There was no step taken by the Council to fill in or cover the hole or warn pedestrians of its presence.

173. By July 2020 the hole in the grass verge was not obvious or visible, as grass had grown over it.

174. The hole in the grass verge was still there on 9 July 2020, when Mr Willis tripped on the hole and fell forward, injuring his right shoulder.

175. After Mr Willis had his fall he made an oral report to the Council which was later confirmed in writing.

176. After the report of the fall and injury made by Mr Willis, the signs team, being Mr Whitton and Mr Costello, went to Byng Street to install a new sign.

177. Mr Whitton and Mr Costello could not find a hole in the grass verge, so they dug a new hole and installed a new sign in approximately the same location as the old sign.

178. A hole in a grass verge, particularly one covered by grass, was regarded by Council employees as a hazard which should have been reported and fixed.

179. Available steps to guard against such a hazard included: filling the hole in with dirt; marking the area with spray paint; installing witches hats around the hole; installing a pit lid over the hole; or putting up poles and tapes around the hole.

180. The cost to take any of those steps was minimal and the time required for any of those steps was negligible.

181. Council signs were not regarded in 2020 as an asset which required regular inspection.

182. Council did have a program for inspecting roadways every two years and footpaths every 18 months.

183. Any person inspecting a roadway was concentrating on the trafficable road surface and was not particularly looking for problems off the road.

184. Any inspector of a footpath was primarily concerned with inspecting the concrete footpath.

185. If any footpath inspector noticed a problem adjacent to the footpath, for example in the grass verge, that would be reported.

186. While Council employees regularly drove along Byng Street to the Council depot or the Council chambers, they were not looking for problems at the side of the road and none were noticed by the witnesses who were called.

Liability: Consideration

152. Section 5B of the CLA deals with “General Principles”. Section 5B provides 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.

Risk of Harm

153. The Statement of Claim pleads risk of harm in two ways, in the alternative. Paragraph 23 of the Statement of Claim pleads, “there was a risk of harm that a pedestrian might step into the hole, trip, and suffer injury loss and damage”.

154. Paragraph 24 of the Statement of Claim pleads as follows:

“In the alternative, and at all material times, there was a risk of harm that a parking sign that was not upright might fall and leave a trip hazard either by the fallen sign or the void in which the sign was erected upon which pedestrians might trip and suffer injury, loss and damage.”

155. The first step in the consideration of liability is to identify the appropriate risk of harm.

156. The alternate risk of harm pleaded in par 24 of the Statement of Claim is not the appropriate risk of harm faced by Mr Willis. It is a fact that the parking sign was, for several years, leaning one way and then another. This would indicate that either the sign was not installed in a proper manner in the first place, or for reasons unknown, the foundation of the sign had been damaged. This could have happened by a vehicle striking the sign, by the ground around the sign eroding or becoming soggy, or by human action including vandalism.

157. Parking signs should be upright as a matter of good practice. However, the evidence of Council employees was that leaning signs were not unusual, and that unless the sign in its leaning state posed a hazard there was no need to do anything to rectify it. There is no evidence that this leaning sign created a hazard while it was in the ground. Nor is there any evidence as to how the sign came out of the ground. It is fanciful to suggest that it might ultimately have fallen, or been blown over by the wind. The more likely reason for the sign coming out of the ground is that someone pulled it out. Even after the sign came out of the ground it was lying on the ground near its original position, and it was removed many months before Mr Willis had his accident.

158. The simple fact is that there was a hole in the grass verge that Mr Willis tripped on, which caused injury. That is the risk of harm which is applicable in the present case.

Foreseeability

159. That risk of harm was foreseeable. All council employees who were asked on that topic said that one of many simple steps could have been taken and should have been taken to obviate the risk of what was effectively a concealed trap in the grass verge.

160. In accordance with my findings of facts set out above, Council knew of the risk posed by the hole, because it knew of the fallen sign, having been informed of that by Mr Penhall. Any sign which has come out of the ground necessarily leaves a hole in the ground – the Council signs team knew that for 20 years, and thus the Council knew it. I find that s 5B(1)(a) of the CLA is satisfied.

Risk Not Insignificant

161. The risk posed by a hole in the grass verge, which became covered by grass and which became invisible, created a risk which was not insignificant. There was evidence in this case that somebody had already tripped in the hole long before Mr Willis did. Any trip into a concealed hole carries a risk which is not insignificant. Thus s 5B(1)(b) of the CLA is satisfied.

Precautions

162. Having regard to the factors listed in s 5B(2) of the CLA, I make the following findings:

163. There was a significant risk or probability that harm would occur if care were not taken – s 5B(2)(a) of the CLA.

164. Serious harm could result from a failure to take precautions – s 5B(2)(b) of the CLA.

165. The burden of taking precautions to avoid the risk of harm was minimal – s 5B(2)(c) of the CLA.

166. The Council had responsibility for the grass verge, which was used by pedestrians to traverse from cars to the footpath or the road. It was made available by the Council for all members of the public to use – s 5B(2)(d) of the CLA.

167. I find that a reasonable person in the position of the Council would have taken precautions to guard against the risk of harm posed by the concealed hole. The grass verge was available for pedestrians to walk upon it, and this being a commercial area, on a relatively busy street, one could expect that vehicles would be parked and the occupants of those vehicles would be walking to or from their vehicle across the grass verge. There was a significant foreseeable risk that harm would occur if reasonable precautions were not taken to guard against the risk of harm created by the concealed unguarded hole.

168. I have found that the alternative risk of harm, involving detailed consideration of installation of the parking sign and inspection of the parking sign, is not an issue which needs to be considered. In any event, while criticism was made of the Council’s systems for inspecting signs, there was no evidence called as to what a reasonable Council would have done to guard against risks, if any, caused by inadequately installed signs.

169. I find that the Council was negligent, taking into account the general principles set out in s 5B of the CLA.

Causation

166. Section 5D(1) of the CLA provides 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).

167. I find that factual causation is established, as the negligence of the Council was a necessary condition of the occurrence of the harm. Failure to take appropriate steps to fill in the hole, or to warn pedestrians of the existence of the hole, was a necessary condition of the occurrence of the harm.

168. I find that it is appropriate that the scope of the Council’s liability extends to the harm so caused. The Council was the local government authority responsible for the land where the incident occurred. Thus s 5D(1)(b) of the CLA is satisfied.

Liability: Conclusion

169. I make the following findings:

170. The Council was negligent.

171. The Council’s negligence caused the harm suffered by Mr Willis.

172. The Council is liable in damages to Mr Willis.

Section 45 of the CLA: Consideration

170. Section 45 of the CLA provides as follows:

45 Special non-feasance protection for roads authorities

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

(2) This section does not operate—

(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

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

(3) In this section—

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

roads authority has the same meaning as in the Roads Act 1993.

171. The Defence filed for the Council pleaded s 45. The response to this by counsel for the plaintiff was to argue that s 45 had no application, because work involving the parking sign did not meet the statutory definition of “carry out road work”. I find it unnecessary to determine this interesting legal issue. If s 45 applies, then the plaintiff must show that the Council had “actual knowledge of the particular risk the materialisation of which resulted in the harm”. I have found above that the Council did have actual knowledge. The “special non-feasance protection” in s 45 does not provide immunity to the Council, since it did have actual knowledge of the particular risk.

Section 43A of the CLA

172. Section 43A of the CLA provides as follows:

43A Proceedings against public or other authorities for the exercise of special statutory powers

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2) A special statutory power is a power—

(a) that is conferred by or under a statute, and

(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.

173. The Council pleaded reliance on s 43A of the CLA in its Defence. The response to this by counsel for the plaintiff was to argue that there was “no special statutory power necessary for the Council to take appropriate steps to guard against the risk posed by the hole”.

174. I find it unnecessary to consider this legal issue, as the Council employees who were called as witnesses thought that, if a concealed hole in the grass verge was known to Council, steps should have been taken to exercise their power to guard against the risks posed by the hole. There was nothing in the case to suggest that the omission of the Council to take steps in relation to the concealed hole was so unreasonable that no authority could properly consider such omission to be a reasonable failure to exercise their power to take appropriate precautions against the risk of harm. Thus s 43A of the CLA provides no protection to the Council in light of the facts found.

Damages

Non-Economic Loss

175. Section 3 of the CLA defines non-economic loss to include pain and suffering, and loss of amenities of life.

176. Section 16 of the CLA deals with determination of damages for non-economic loss. Such damages are calculated as a percentage of “a most extreme case”. For percentages below 33%, the Table in s 16(3) of the CLA reduces the damages further.

177. I take into account the following matters:

178. Mr Willis is almost 77 years old, and on the Medium Life Expectancy Tables he has a life expectancy of 11 years.

179. While Mr Willis had various health problems before the incident, which are discussed in detail above, he was generally a fit and healthy person who was able to do all sorts of handyman work around the house, and to engage in vigorous activities with his grandchildren.

180. Mr Willis has been left with restriction of movement in his right shoulder, and pain at the extremes of movement.

181. Immediately after the incident Mr Willis was quite disabled in his everyday activities and required assistance from Ms Beach. He had to undergo an operation by Dr Kwa and there was a considerable period of recovery from that surgery. Mr Willis has never been able to return to the level of activity he enjoyed before the incident.

182. On all the medical evidence, Mr Willis will not improve, and it is likely that he will deteriorate further. His pain will increase to the point where he probably will require a shoulder replacement.

183. The original submission made by counsel for the plaintiff was that Mr Willis should be assessed at 31% of a most extreme case. This was modified in written submissions (MFI 9, par 148) to a range of 29% to 31% of a most extreme case. Counsel for the defendant submitted (MFI 7) that Mr Willis should be assessed at 22% of a most extreme case.

184. Having regard to the matters set out above, I assess damages for non-economic loss at 28% of a most extreme case, which is a dollar figure of $106,500.

Out of Pocket Expenses

180. The parties agreed that past out of pocket expenses of $591 should be awarded.

181. The evidence of Dr Cawthorne is that if Mr Willis comes to a shoulder replacement, that will cost between $28,000 to $33,000 at today’s rates (including supervised rehabilitation with physiotherapy). Dr Cawthorne said that the need for a shoulder replacement could be in five to ten years time.

182. The deterioration of the right shoulder cannot be predicted, as agreed by the two orthopaedic surgeons. Mr Willis may never come to the need for a shoulder replacement. On the other hand, he could arrive at that point sooner rather than later if his arthritis in the right shoulder continues to increase. There is also the question of whether, even if Mr Willis was advised to have a right shoulder replacement, he would have it. His evidence was that he would almost require a guarantee that the shoulder replacement was going to fix his problems. No orthopaedic surgeon gives a guarantee like that.

183. The original submission of counsel for the plaintiff was that future out of pocket expenses should be assessed at $20,000 (MFI 2). This submission was maintained at the conclusion of the case (MFI 9, par 151). Counsel for the defendant put forward a figure of $16,660 (MFI 7, pg 7), which was calculated by taking $25,000 and deferring it for five years, minus a 15% discount for vicissitudes.

184. In my view, the calculation put forward by the defendant is to be preferred. There will probably not be a shoulder operation earlier than five years from now, and the additional discount for vicissitudes reflects the fact that the shoulder replacement may not occur, although it probably will. There will be an award for $16,660 for future out of pocket expenses.

Domestic Assistance

185. While a claim was initially put for past domestic assistance, this was abandoned in final submissions (Tcpt 309/40).

186. Counsel for the plaintiff initially put forward a claim for future domestic assistance by way of a buffer of $50,000 (MFI 2). In final submissions this was reduced to a range of $30,000 to $35,000 (MFI 9, par 156). Counsel for the defendant submitted there should be no award for future domestic assistance (MFI 7, pg 4) relying upon the Conclave Report.

187. However, the Conclave Report said (CB 81, par [5] and [6]):

“The Plaintiff will not be able to engage in such activities that are overhead or require full strength and … the Plaintiff should confine his activities to waist height and below.”

188. Ms Beach is not without her own medical problems. Further, she is not young. I find that Mr Willis will need some commercial assistance with heavy activities in the future. Such a need will increase as his shoulder gets worse, heading towards an operation. After an operation one expects that he will continue to require assistance with heavier activities. I must take into account that as the plaintiff ages, in any event he would sooner or later require assistance with heavy activities.

189. I find that it would be appropriate to award a buffer for future domestic assistance. I select the modest figure of $10,000.

Damages: Summary

190. I assess damages as follows:

191. $106,500 for non-economic loss (28%)

192. $591 for agreed past out of pocket expenses

193. $16,660 for future out of pocket expenses

194. $10,000 as a buffer for future domestic assistance.

195. The total of these amounts is $133,751.

Orders

192. The orders of the court are:

193. Judgment for the Plaintiff against the Defendant for $133,751.

194. Order the Defendant to pay the costs of the Plaintiff.

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Amendments

02 July 2025

Amendment to Cover sheet (correction made to spelling of plaintiff's solicitor from Whitely to Whiteley)