Wollongong City Council v Williams

Court of Appeal (NSW)|2021-06-15|Before: McCallum JA, Adamson J, Callum JA

Solicitors: McCulloch & Buggy Lawyers (Appellant) Nikolovski Lawyers (Respondent) File Number(s): 2020/291058 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: Williams v Wollongong City Council [2020] NSWDC 564 Date of Decision: 24 September 2020 Before: Dicker SC DCJ File Number(s): 2019/154842

Judgment

McCALLUM JA: I have had the benefit of reading in draft the judgments of Adamson J and Simpson AJA. I agree with Adamson J that the appeal should be dismissed for the reasons stated by her Honour. As to the cross-appeal, which her Honour would also dismiss, I have reached a different conclusion. The cross-appeal challenges the primary judge's conclusions as to contributory negligence and the discount to be applied to the award of damages for past economic loss. I would uphold both grounds. My reasons concerning the challenge to the primary judge's finding of contributory negligence are set out below. As to the discount to be applied to the award of damages for past economic loss, I agree with Simpson AJA for the reasons stated by her Honour.
Mr Williams fell on the first of three individual steps in the downhill path to the public toilets. The effect of his evidence at the trial was that he simply did not see or perceive that step. He said that, as he approached the toilets from the car park, he "envisaged" a path (by which he clearly meant a path with no steps). He walked towards it "not thinking or even worrying about steps being there, because it looked exactly like a path leading down to a disabled toilet." He said in 23 years working in the disability field he had never encountered steps leading to a disabled toilet. The primary judge accepted each aspect of that evidence: at 222. His Honour also accepted the evidence of the expert retained by Mr Williams, Mr Adams, whose opinion was 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 safety": at [232]. On that basis, he found that negligence was established.
The primary judge then concluded that contributory negligence was also established. It is not suggested that, in reaching that conclusion, his Honour applied a wrong principle. The relevant principles were carefully set out in the judgment. His Honour noted s 5R of the Civil Liability Act 2002 (NSW), which 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 risk of that harm. He noted that those principles include the general principles stated in s 5B of the Civil Liability Act. He further noted that, in accordance with those principles, the question whether a person has been guilty of contributory negligence is 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. He addressed each of the matters specified in s 5B at [268] on that basis.
The critical finding is recorded at [269] of the judgment where his Honour said: "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."
The primary judge was evidently fortified in that conclusion by the further finding at [270] that Mr Williams was not distracted by his client at the time he fell and was thus in a position to determine where he was walking without distraction.
The first reason stated by the primary judge for his conclusion (that Mr Williams was aware that there were steps and other uneven surfaces in the park) may be put to one side. Senior counsel for Wollongong Council very fairly conceded, consistently with his primary argument in the appeal, that the existence of steps and uneven surfaces elsewhere in the park was largely irrelevant to the question of contributory negligence. However, he submitted that the balance of the reasoning in [269] was sufficient to sustain the finding of contributory negligence, the simple point being that if Mr Williams only glanced at the ramp when he was on the asphalt in the car park and did not look down again when he got to "the actual steps", that would amount to contributory negligence. The reference to "the actual steps" must be taken to refer to the step where Mr Williams fell. The path had three separate, single steps; there was not a continuous flight of stairs. The distinction is not unimportant. The experts were in agreement as to the desirability of providing demarcation and visual cues for single steps in particular.
The principal argument on this aspect of the cross-appeal was that the finding of contributory negligence was contradicted by the finding on the question of liability.
Obviously, a finding of negligence on the part of a defendant does not of itself contradict a finding of contributory negligence on the part of the plaintiff; that would deny the existence of the entire doctrine. As it was put by Lord Ellenborough CJ in Butterfield v Forrester (1809) 103 ER 926, which has been described as "the foundation case for the doctrine of contributory negligence" (Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 at [122] n 217, citing Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 at [21]): "One person being in fault will not dispense with another's using ordinary care for himself."
That foundational proposition is reflected in the principle that pedestrians are not owed a duty of care to make a path safe in all circumstances; the test is whether the path is safe for users exercising reasonable care for their own safety. The primary judge expressly applied that principle, determining liability "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": at [241]. His Honour thus identified the relevant risk of harm at [246] as "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."
I do not accept Mr Williams' contention that the finding of contributory negligence was contradicted by the finding that the Council breached a duty of care framed in those terms. Even accepting that the scope of the Council's duty of care contemplated that the plaintiff would exercise reasonable care for his own safety, it was theoretically possible to find contributory negligence as well as negligence on the part of the Council. However, having accepted that the step was not readily visible to a person who was exercising reasonable care for their own safety, it was necessary to identify some basis for the conclusion that Mr Williams failed to perceive the step because he wasn't. Contributory negligence consists in a failure on the part of the plaintiff to take reasonable care for his or her own protection: Astley v Austrust Ltd at [21]. That is a statement of the position under the common law but there is no lesser requirement under the Civil Liability Act. In accordance with s 5B of the Act, a person is not negligent in failing to take precautions against a risk of harm unless, among other things, a reasonable person in the position of (in this context) the plaintiff would have taken those precautions.
Butterfield v Forrester provides a useful comparison in this context. In that case, the defendant had obstructed part of a public road with a pole. The plaintiff was riding home from a nearby tavern in the evening at a time when there was still enough light to discern the pole at a distance of 100 metres. However, he was proved to be riding through the streets of Derby "as fast as his horse could go". His action failed because, although the obstruction in the road was the fault of the defendant, it was established that there was a "want of ordinary care to avoid it" on the part of the plaintiff.
In the present case, there was no evidence of any want of reasonable care on the part of Mr Williams that might have contributed to his failure to perceive the step. It was not suggested, for example, that, having failed to perceive the steps when he started walking towards the toilet block, Mr Williams was walking forwards down the path with his head turned in a different direction watching something else, as one sometimes sees small children doing before they bump into things. As already noted, the primary judge accepted that Mr Williams was not distracted at the time he fell. His only fault was that he did not happen to look down towards his feet, as opposed to looking ahead in the direction in which he was walking, at the point when he reached a step to the existence of which he was oblivious, due to the Council's negligence.
The Council submitted that Mr Williams was negligent because, rather than looking down as he approached the step, he made an assumption that the path had no steps. It was submitted that the evidence established that Mr Williams "had a look at the path and then he kept walking towards it and then he was looking at the building. He didn't look at the pavers once he got close enough to discern the steps". It was submitted on that basis that Mr Williams' own evidence demonstrated that he did not do what a reasonable person would do, which was "to continue to monitor, not look at your feet only, not stare fixedly at the ground, but as you're moving off the asphalt on to the pavers, to continue looking".
In my respectful opinion, that submission ignores the fact that any assumption made by Mr Williams was based on his perception of the pathway, which was held to be one that could be reached by a person exercising reasonable care. Mr Williams perceived he was about to walk down a path with no steps because, as the primary judge found, the Council had failed to take the precautions a reasonable person would have taken against the risk that a person exercising reasonable care for their own safety would not perceive the stepped nature of the pathway where the accident occurred and would trip on a step and injure themselves.
In that respect, as submitted by Mr Williams, the finding on contributory negligence failed to grapple with the expert evidence as to what a pedestrian taking reasonable care tends to do in such circumstances. Adamson J has noted the opinion of Mr Adams, the expert retained by Mr Williams, that although the steps were not "actually invisible", they were "not sufficiently conspicuous in the overall circumstances to generate a high probability of them being seen by people who were not aware of them and not actively looking for them." Mr Adams further noted as a matter of "common experience and understanding" that people often see what they expect to see. He said that a person in the position of Mr Williams who was not aware that there were steps would be "likely to interpret the visual information that they had obtained from making the usual type of rapid scan of the situation on their approach as being supportive of that expectation."
Dr Cooke, the expert retained by the Council, similarly accepted that pedestrians taking reasonable care "tend to make a quick visual assessment of the nature of the surface on approach and modify their behaviour accordingly if they perceive a hazard." He accepted in cross-examination that Mr Williams acted consistently with that description.
The critical conclusion of the primary judge was that Mr Williams needed to exercise caution because he was "aware that the ground was sloping and that the amenities block was on a lower level" and because "he was going from sunlight into shade". But that is not a finding of negligence; it is a description of the circumstances in which negligence had to be established. The evidence did not support a finding that Mr Williams failed to take a precaution that a reasonable person in his position would have taken. He was not running or looking sideways. He was not distracted by his client. He had made a visual assessment of the nature of the surface on approach and was walking straight ahead with the perception that he was walking down a path with no steps.
Accordingly, the orders I propose are: 1. that the appeal be dismissed; 2. that the cross-appeal be allowed; 3. that the parties bring in a form of order calculating the judgment amount within 7 days; 4. that the appellant pay the respondent's costs of the appeal and the cross-appeal.
SIMPSON AJA: I have had the advantage of reading in draft the judgment of Adamson J in which the relevant facts are comprehensively stated. I agree, for the reasons given by her Honour, that the appeal should be dismissed. I take a different view with respect to grounds 5-8 of the cross-appeal, by which the respondent challenges the discount applied by the primary judge to the award of damages that represent past economic loss.
The respondent was born in March 1954 and was 62 years of age at the date of the injury. He had worked in disability services since 1992 and, prior to that, in various other positions.
The respondent gave evidence that the House With No Steps had no formal retirement age and that he had hoped to work to 68 years of age, in 2022. Damages for past economic loss were, however, claimed on the basis that he would have retired in March 2020, when he became eligible to receive the age pension at age 66. The respondent in fact retired in December 2016, at the age of 62. The claim made on his behalf for damages for past economic loss was therefore for the period from December 2016 to March 2020.
The appellant contended that the amount so represented should be discounted, on the principles stated in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, to allow for what it claimed to be the likelihood that a combination of various circumstances in the respondent's life would have brought him to retirement at an earlier date. The appellant contended that the discount should be as high as 50%. It pointed to a number of disparate circumstances that, it asserted, made early retirement likely. These were:

the respondent's own state of health: he has suffered since 2008 from depression; he was significantly overweight; he had been diagnosed with osteoarthritis in his left knee; and he suffered from sleep apnoea;
the respondent's wife's state of health: she had breast cancer in 2015; she suffered from a condition called torticollis; she had been diagnosed as having ovarian cancer markers;
family issues: the respondent's son was experiencing domestic problems, and was engaged in what the respondent agreed was "a custody battle"; and the respondent's granddaughter was ill and was admitted to Westmead Children's Hospital for several months in 2019.

In cross-examination it was repeatedly put to the respondent, and repeatedly rejected by him, that he wanted to retire for reasons other than the injury the subject of the present proceedings. It was suggested to him that it suited him to retire at the time of his wife's diagnosis of ovarian cancer markers, which he denied; it was put to him that he wanted to retire for reasons other than the impact of the injury, to which he replied: "No, I did not want to retire at any stage in that regards. I wanted to continuing [as recorded in the transcript] work for as long as I could because I did enjoy my work but I was concerned about my wife's health."
It was then put to him: "The situation I am going to suggest to you is this, that you wanted to retire. It was an opportune time to spend more time with your family particularly when you had concerns about your wife's health and your son's problems and you were happy to remain unemployed but continued [sic] to receive the workers compensation and for that purpose to obtain certificates, workers compensation certificates."
The respondent answered (as recorded in transcript): "I completely disagree with that. If you go back and look over my work history over my lifetime I have worked. I have worked many jobs, two and three jobs at a time. I've always been there to do anything when asked by any employer and I have always wanted to work. When I went off was injured I applied for numerous jobs. I mean lots and lots and lots of jobs through different agencies and the lady that was supporting me at the time and I think I got one or two replies back and no-one else has answers you and those replies were sorry. Now, I am not one to be a bludger. Never have been. Never will be. I work. I will work and I've done that for all my life since I started work at 15 and I have tried to provide for my family as best I could."
In answer to another question along the same lines, the respondent again expressed his disagreement and added: "And I only retired this year when workers compensation ceased. No, I have not wanted to retire, because I couldn't afford to retire at the time, anyway."
The primary judge found the respondent to be a "convincing" witness who was "forthright, direct and honest". He expressly accepted that:

the respondent had a lengthy and continued working history prior to the accident;
the respondent had worked at House With No Steps since 2009, undertaking a considerable amount of physical work with disabled clients;
none of the respondent's pre-existing medical conditions (depression, sleep apnoea, osteoarthritis) had prevented him undertaking his work;
he had never taken a day off in sick leave in relation to problems with those conditions; there was no evidence that the respondent's excessive weight had caused him any particular difficulty in undertaking his employment;
the respondent would not have resigned from his employment but for the accident and injury.

The primary judge referred to the appellant's contention that the award of damages for past economic loss should be discounted to allow for the possibility that, even uninjured, the respondent would have retired before the age of 66. He expressly referred to the decision in Malec, specifically the passage in the joint judgment of Deane, Gaudron and McHugh JJ under the heading "Assessing Damages for Future or Potential Events". Their Honours said (at 642-643): "When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. … If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. … Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. … The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
The primary judge made no express finding of the degree of probability that the respondent would have retired by reason of circumstances other than the injury before he attained the age of 66. The nearest he came was to say (in the final sentence of [294]): "However, the risks of his medical conditions and his family problems are relevant."
That followed rejection of the appellant's claim that the discount should be 50%, and an expressed view that "there should be only a 10% discount …", and the observation that: "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."
I do not read the final sentence of [294] as a finding that there was a probability (of any dimension) that the respondent would, by reason of circumstances other than the injury, have retired before the age of 66. Rather, it seems to me, that the primary judge was deflected, by the appellant's submissions, from the task posed by Malec, of assessing the degree of probability that early retirement would have occurred, into assuming that some discount was required, and determining only the quantum of discount without determining whether any discount should be applied. All of the evidence, which his Honour accepted, contradicted the prospect of early retirement. The respondent had no source of income other than income from his employment; he had continued to work through all of the adversities on which the appellant relied. In my opinion the discount of 10% was inconsistent with positive findings made by the primary judge.
I would uphold the cross-appeal to the extent that it complains of error in this respect.
Since preparing these reasons I have had the benefit of reading, in draft, the judgment of McCallum JA with respect to grounds 3 and 4 of the cross appeal (contributory negligence). I agree, for the reasons given by her Honour, that those grounds should be upheld. Accordingly, I agree with the orders proposed by McCallum JA.

The evidence in the Court below on the question of liability

The evidence in the Court below included a number of photographs and diagrams which depicted the layout of the carpark from which the respondent and his client began their descent to the toilet block. The asphalt surface of the carpark abutted an area paved with brick, which comprised two paths. The first path was straight and led directly down the hill to the toilet block. It included three steps which each had a rise of .16m. The walkway was approximately 4.8m long and approximately 1.3m wide. There was a pergola and trees in the vicinity of the first pathway, which cast shadows over it at certain times of the day.
The second path was curved to the right of the straight path (from the position of the carpark) and was in the form of a ramp: that is, it sloped steadily downwards but did not include any steps. The edges of the path were paved with bricks in what was described as a "solider" configuration, which I understood to mean that the bricks were oriented side by side, with the long side of the brick abutting the long side of the bricks on either side. This pattern was to be contrasted with the bricks on the paths proper, which were laid in a herringbone pattern.
It was common ground that, although the photographs were useful for some purposes, they were potentially misleading and could not be used to determine definitively the respondent's view of the pathway from the asphalt of the carpark when he looked down towards the toilet block.
The trial judge found the respondent to be, except in a respect which is presently immaterial, credible. The respondent gave evidence about the circumstances in which he fell. The appellant called Grahame Cook, whom it employed as a horticultural leading hand. Mr Cook visited the park on average once or twice a week and had done so since 2009. He was responsible for both maintenance and public safety checks. Every time Mr Cook needed to visit the store room, he used the pathway where the respondent fell because it was the quickest way of getting from the carpark to the store room. He used the stepped pathway pre-dawn, post-dusk and at various times during the day. He had never fallen on the steps and was not aware of anyone apart from the respondent having fallen on the steps.
His Honour was critical of the appellant's failure to keep records of accidents or incidents within the park generally and relating to the pathway on which the respondent fell in particular. His Honour noted that the appellant must have been aware of the respondent's fall because one of its employees took a photograph of the pathway on the day of the accident. However, Mr Cook was not made aware of the incident and had no idea of who had taken the photograph. The appellant had no records which noted its occurrence. His Honour noted that no evidence was given by the person who took the photograph on the day of the fall or as to any system maintained for the recording or noting of incidents or complaints with respect to accidents including at the Park. On this basis, his Honour drew the inference that the appellant did not maintain any or any accurate records in relation to incidents that may have occurred on the stepped pathway.
At some stage after the respondent's accident, Mr Cook was directed by his superiors to paint the "nosings" of the three steps on the path with bright yellow paint. Some of the photographs in evidence at the trial depicted the appearance of the stepped path with the yellow paint along the nosing of the steps. Mr Cook agreed that the application of the yellow paint to the nosing made the steps "much more obvious … to the naked eye".
The respondent relied on the expert evidence of Mr Adams. The appellant relied on the expert evidence of Dr Cooke. They produced a joint report and gave concurrent evidence at the trial. The experts agreed, in their joint report, on the following: "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)."
Dr Cooke and Mr Adams agreed that at the time of the respondent's fall (which was accepted to have occurred between 11.10am and 11.15am), the shadows cast by the roof of the pergola and the branches of the trees in the vicinity would have cast the stepped path into complete or substantial shade, thereby rendering the steps on the path less visible than they would have been but for the shading. The experts agreed that, at the time of the respondent's fall, the top step (on which he fell) would have been in complete shade. They also agreed that the shade would make the configuration of the bricks, and the differences between the soldier and herringbone patterns less marked.
The experts agreed that, as a matter of principle, the number of stair rises in a stairway substantially affects the likelihood of an accident occurring. They also agreed with the research which indicated that the failure on the part of a pedestrian to notice a one- or two-riser stairway was one of the leading causes of stair accidents and agreed that these factors were relevant to stepped pathways such as the one on which the respondent fell.
The experts agreed that single steps represented a hazard to pedestrians. Mr Adams considered tactile ground surface indicators to be useful on pathways, including one such as the stepped pathway on which the respondent fell, to alert pedestrians to the presence of the single step. Mr Cooke disagreed that it would be good practice to install such indicators before a single step (as distinct from a stairway) although he accepted that he had given evidence previously, in other cases, that such indicators could be used to provide a visual cue to pedestrians as to the existence of a step.
Dr Cooke's opinion was that "pedestrians taking reasonable care tend to make a quick visual assessment of the nature of the surface on approach and modify their behaviour accordingly if they perceive a hazard".
Mr Adams said in his written report: "Although it would have been possible for the steps to be detected by visual means (ie. they were not actually invisible), they were not sufficiently conspicuous in the overall circumstances to generate a high probability of them being seen by people who were not aware of them and not actively looking for them."

The trial judge's findings

The trial judge preferred the evidence of Mr Adams to that of Dr Cooke and found 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". His Honour listed matters considered to be significant, which included the fact that the pavers (of the steps and the landings) were of a similar colour; the difference between the soldier and herringbone patterns did not amount to "a strong (or decisive) visual cue", particularly when there was variable shade; and the presence of tactile indicators and handrails elsewhere in the park. His Honour also regarded as significant the circumstance that the stepped pathway was the shortest route to the toilet block from the carpark. Although the area was sunny at the time of the fall, a person in the respondent's position would have had to go from dappled to total shade, which would have diminished the capacity of such a person to detect the first step.
His Honour considered that "as a matter of good practice", further visual cues should have been installed, such as highlighting the nosings of the steps with bright yellow paint (as occurred after the accident), or, preferably, the placement of tactile indicators before each step "in the appropriate place" and the placement of a handrail beside each step on the pathway.
Neither his Honour's reference to the applicable provisions of the Civil Liability Act 2002 (NSW) (the Act) nor his summary of the relevant authorities was the subject of challenge. His Honour identified the risk of harm for the purposes of ss 5B and 5C of the Act as "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." His Honour accepted that the duty of care involved the "expectation that users of the Park will exercise reasonable care for their own safety".
His Honour separately addressed the integers referred to in s 5B of the Act. Of these, the following were not in issue: the risk was foreseeable; the risk was not insignificant; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity that creates the risk of harm. The matters challenged by the appellant were those in s 5B(1)(c) and s 5B(2)(a): namely whether a reasonable person in the appellant's position would have taken the precautions alleged; and the probability that the harm would occur if care were not taken. His Honour found that a reasonable person in the appellant's position would have taken the precautions earlier outlined to improve the visual cues of the presence of the steps. His Honour found that although it was not probable that falls would occur if the precautions indicated were not taken, there was nonetheless a "real risk of falls having regard to the nature and location of the pathway".
His Honour found that the risk posed by the stepped pathway was not a risk that would have been obvious to a reasonable person in the position of the respondent at the time of the accident. This finding was supported by several reasons, as follows: the destination (the pathway led to a toilet block which included a disabled toilet) was such that a reasonable person would not expect a pathway, which was the most direct route, to involve steps which were not clearly delineated; the shading over the steps at particular times of the day; the presence of tactile indicators at other locations in the park; the variation in the pattern of the bricks (between the soldier pattern on the edges and the steps and the herringbone on the landings) was not "clearly conspicuous, particularly in the shade"; and that a reasonable person surveying the path ahead from the carpark would not appreciate that the pathway was stepped.
His Honour found that, had the nosings of the steps been painted with a bright colour, or had tactile indicators or a hand rail been installed before the first step, the accident would not have happened because the respondent would have been alerted to the presence of steps.
His Honour's reasons for the discount of 15% for contributory negligence were as follows: "269 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. 270 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. 271 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."

Consideration

Mr Sexton argued that the relevant standard of care owed to a pedestrian who was taking reasonable care for his or her safety was set out in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 (Brodie) at [5]-[6] (Gleeson CJ); [163] (Gaudron, McHugh and Gummow JJ) and [247] (Kirby J).
Mr Sexton argued that the step could be seen and that, accordingly, a person in the respondent's position who was taking reasonable care for his or her own safety would have detected the step and would not have fallen. He submitted that a pedestrian in the respondent's position who was taking reasonable care for his or her own safety would do more than merely survey the path from the carpark and assume that it sloped steadily as if it were a ramp rather than a stepped pathway. He contended that such a person would review the state of the pathway at regular intervals to ascertain whether there were steps or other hazards in the immediate path, particularly in circumstances where part of the pathway was in shade. He submitted that the question was to be determined as a matter of fact which did not require expert evidence. He argued that the trial judge was not obliged to accept the expert evidence in circumstances where the presence of a step was a matter of "ordinary observation" and not one which called for expert opinion: Brodie at [355] (Callinan J).
Further, Mr Sexton submitted that the trial judge fell into error by making findings about what constituted "good practice" since neither the standard of care, nor its breach was to be determined by "good practice" but rather by reference to what precautions were reasonably required to be taken by a person in the appellant's position to alert him or her to the presence of steps on the pathway down to the toilet block.
Mr Sexton also submitted that because the respondent had failed to adduce evidence of how the accident happened (since he could not say precisely how or why he had fallen), the trial judge could not conclude that the accident would have been prevented had the appellant taken any of the steps identified by the experts (painting the nosings with bright paint or installing tactile ground indicators or handrails). He argued that, apart from the handrail, all of the precautions for which the respondent contended (painted nosings or tactile indicators) required a pedestrian in the respondent's position to be looking where he or she was going. Further, Mr Sexton argued that his Honour found, in substance, that the respondent "expected" or "assumed" that there would be no steps, whereas reasonable care required the respondent to do more than have expectations or make assumptions since it required him to survey the ground in front of him to ascertain whether there were any hazards which might cause him to lose his footing or balance and fall.
Mr Sexton emphasised the height differential between each step and the landing, which amounted to the height of two bricks (laid horizontally). He submitted that this differential would have been obvious to pedestrians who were looking where they were going, although not to someone who was merely making assumptions as to what the surface would be like. He submitted that the step was an obvious risk and that, therefore, no warning was required: ss 5F and 5H of the Act. He particularly relied on s 5F(4), which provides that a risk can be an obvious risk even if the risk or the circumstance that gives rise to the risk is not "prominent, conspicuous or physically observable."
Although the proceedings in the Court below could have been run without expert evidence, his Honour was obliged to have regard to the whole of the evidence and was entitled to take into account the opinions of the experts, which included several matters which were agreed (including that single steps were a hazard). In substance, the question for his Honour was whether there were sufficient visual or other cues provided to alert a pedestrian who was taking reasonable care for his or her own safety to the presence of a single step when descending the stepped pathway from the carpark to the toilet block on a day when the path was shaded. It is significant that the trial judge found the respondent to be a witness of credit who maintained that he was taking care when descending from the carpark to the toilet block and was not distracted by his client. It is also significant that the experts agreed that single steps presented a particular hazard because they could be missed by pedestrians who were adjusting both their gait and the regularity with which they monitored the surface of the ground beneath their feet after reviewing the scene generally.
I reject the appellant's submission that the reason the respondent did not see the step was because he was not paying attention. The trial judge was entitled to accept that the respondent made an assessment of the pathway and inferred, on a reasonable basis, that it was a ramp (that is, there were no steps) and modified his behaviour accordingly. I regard this finding as reflecting, at least in part, the trial judge's advantage in seeing and hearing the respondent give evidence: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan, Gaudron and McHugh JJ); [1993] HCA 78.
While the evidence of Mr Cook was that he had never had any difficulty in ascending or descending the stepped pathway, this does not inform the situation of the first-time user, particularly one who is descending from the carpark to the toilet block and is travelling from a sunlit area to a shaded area. Once one is made aware of the steps, they are obvious but this awareness is, at least in part, the product of hindsight. Having been made aware that the most direct route from the carpark is a pathway with steps, one is unlikely to assume their absence. It was open to his Honour not to place weight on Mr Cook's evidence that he was not aware of any other falls on that pathway, since the evidence did not establish that the appellant had any system for recording complaints or incidents such as would enable Mr Cook to know whether any complaint had been made or incident occurred. If complaints which did not lead to claims for damages were not recorded, it could not be assumed that none was made, in the absence of such a system.
I do not regard his Honour's findings as deviating from the provisions of the Act or from the dicta in Brodie since his Honour expressly found that the respondent was taking reasonable care for his own safety and that he fell as a consequence of the appellant's negligence in not providing a sufficient cue to alert him to the presence of steps which were, in the circumstances, not obvious. The trial judge's references to "good practice", while superfluous, do not demonstrate that his Honour did not correctly apply the Act or the applicable law. Indeed, his Honour's reasons indicated that the correct law was applied. While this Court was referred to several decisions of this Court which had involved claimant's slipping, falling and injuring themselves on various surfaces and in various locations, I am not persuaded that it is necessary to refer to them, except to note that each case turns on its facts. Thus, it is not necessary to address Mr Sexton's argument that this Court's decision in Ratewave Pty Limited v Illingby [2017] NSWCA 103 (in which the respondent was injured when he tripped over the corner of a raised timber platform while walking across the lobby area of the appellant occupier's hotel) was wrongly decided.
It was not fatal to the respondent's case that he could not say precisely how or why he fell, since the inference could readily be drawn (and was drawn by the trial judge) that he had fallen because he had not appreciated that there was a step on the path: see the authorities referred to in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 317E (Mason P). Had the nosings of the steps been painted bright yellow, it can reasonably be inferred that the respondent would have been alerted to their presence when he looked down in the direction of the pathway towards the toilet block from the carpark.
I am not persuaded that his Honour was in error in finding that the appellant failed to take reasonable precautions against the risk of harm and was negligent or that the appellant's negligence caused the respondent to fall. In these circumstances, it is not necessary to address the notice of contention.
For these reasons, none of the grounds of appeal has been made out.

The finding that the respondent's damages ought be reduced by 15% for contributory negligence

His Honour found that the respondent ought to have known that there were "steps and other uneven surfaces" elsewhere in the park and that if reasonable care was not taken for his own safety he might fall. His Honour also found that a reasonable person in the respondent's position would have taken precautions to ascertain whether there were any steps on the part of the pathway which was shaded and slowed his or her gait to better see his path of travel, particularly as the ground sloped down to the toilet block and he was going from a sunlit area to one that was shaded. His Honour accepted the respondent's evidence that he was not distracted by his client when he fell. His Honour discounted the respondent's damages by 15% for contributory negligence.
Mr Sheldon argued that the presence of "other uneven surfaces" in the park was irrelevant because the stepped pathway was even and therefore likely to induce a pedestrian to believe that there were no steps and no reason to look down at one's feet at every step. Further, Mr Sheldon relied on his Honour's finding that, at the time of the fall, the respondent was not distracted by his client but was taking reasonable care to descend from the carpark to the toilet block. Mr Sheldon also submitted that it had not been put to the respondent in cross-examination that he needed to exercise caution when walking down the pathway to the toilet block in circumstances where he was walking from sunlight to shade on sloping ground.
The relationship between, first, the requirement that the duty owed to pedestrians must be calibrated by reference to a person who is taking reasonable care for his or her own safety and, second, the question whether there ought be a deduction for contributory negligence, is one which requires different factors to be balanced. In Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19, the Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) said at [37]: "The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration."
Thus, the same issues which were relevant to the appellant's liability (the sloping path, the individual steps, the gradient and the lighting) were also relevant to contributory negligence. In these circumstances, there was plainly an issue about the materiality of these factors as to both of these issues, which were, in any event, evident from the pleadings. I am not persuaded that there was any need for the appellant's counsel to put, in terms, to the respondent that he failed to take reasonable care for his own safety: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 23-26 (Hunt J).
In my view, his Honour was entitled to find that the respondent took reasonable care for his own safety (and that, accordingly, the appellant was negligent in failing to take reasonable precautions for such a person) and that his fall was caused by the appellant's negligence but that, had the respondent been more diligent, he would have detected the step and not fallen. His Honour considered that in the circumstances where the path was descending and it was shaded, greater caution was called for than was displayed by the respondent, although he exercised reasonable care. The judgment as to the percentage discount for contributory negligence was open to his Honour. I am not persuaded that there was any error in his Honour's reasons or assessment which would call for this Court's intervention.

The reduction of past economic loss by 10%

The appellant argued at trial that the respondent's damages ought be discounted by 50% to take account of the possibility that he would have retired early by reason of his pre-existing medical conditions, the need to provide assistance to his son relating to his divorce/custody issues, the illness of the respondent's granddaughter and his support of his wife, who had health issues. The appellant relied on Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 (Malec v Hutton).
His Honour found that before the accident the respondent had several medical issues, including depression (for which he was prescribed Zoloft), sleep apnoea and osteoarthritis in his left knee. Prior to the accident, none of these conditions had restricted the respondent's earning capacity in his position at the House with No Steps. Although the respondent was "a very large and overweight man", there was no evidence that his weight caused him any particular difficulty in undertaking his employment. The evidence established that the respondent's net weekly income of $1,587.77 (not including superannuation of 11.5%) reflected his total working hours of 67 hours per week, which comprised his usual hours together with significant overtime.
As a result of the fall, the respondent suffered injuries to his left upper limb, which was his dominant limb, which required him to have five operations to his left elbow and left wrist. He could not return to his pre-accident employment. Although he was fit for suitable duties, his age (62 at the time of the fall) meant that his prospects of finding suitable employment were poor. Indeed, his Honour found: "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."
His Honour made the following findings about the respondent's wife's health: "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."
His Honour found that "the figures claimed by the plaintiff with a modest discount should be awarded". The trial judge reduced the damages for past economic loss by 10% (being the modest discount) to reflect the possibility that the respondent would not be able to continue earning his pre-accident income until his intended retirement age of 66 years in March 2020. After reciting the evidence of the various factors and the arguments of the parties, his Honour set out his conclusions on the amount of the discount as follows: "292 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. 293 In my view, any discount at 50% [such as was contended for by the appellant] 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. 294 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."
Mr Sheldon argued that there was insufficient basis in the evidence for such a discount and that his Honour should not have applied the discount, having regard to the respondent's expressed wish and intention (which his Honour accepted) to continue working until the age of 66 years. Further, he submitted that his Honour's reasons were inadequate to explain the discount.
I regard the trial judge's application of a 10% discount as consistent with the principles in Malec v Hutton. The assessment of what the situation would have been from the date of the accident until the date of the hearing required consideration of a past counterfactual. In other words, his Honour was obliged to assess, what, but for the fall, was the chance that the respondent would have continued to earn for the four years from age 62 to 66 the income which he had earned immediately prior to the accident. As Brennan and Dawson JJ said at 639 in Malec v Hutton: "Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur."
To similar effect, Deane, Gaudron and McHugh JJ said, at 643: "[I]n respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. …Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. … The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
The probabilities of the respondent working until the age of 66 but for the accident required an assessment of a past counterfactual: that is, a past hypothetical fact. The assessment of those probabilities required the trial judge to conjecture by reference to known factors (the respondent's pre-existing medical conditions, his wife's medical conditions and family issues). What actually occurred in the four years between the accident and the respondent turning 66 was not determinative since he did not, in fact, work during that time. The trial judge was obliged to work out the probabilities so as to avoid both overcompensation (on the assumption that the respondent would have worked 67 hours a week until the age of 66, notwithstanding the other matters which may have adversely affected his earning capacity) and under-compensation (based on the figure of 50% for which the appellant contended at trial). I discern no error in the selection of the figure of 10%.
It is also necessary to consider the submission that his Honour's reasons for the deduction of 10% were inadequate. As referred to above, his Honour's reasons make it clear that the award for past economic loss was based on the respondent working for an average of 67 hours a week. His Honour addressed and set out the evidence of factors that had the potential to affect these hours, but for the accident, either by causing the respondent to retire early or reducing his hours. The factors which had that potential were varied and disparate and related to the respondent's own health problems, his wife's health problems and other family issues. Although there is no statutory equivalent to s 13(1) of the Act (which prohibits a court from making an award for damages for future economic loss unless the claimant first satisfies the court as to his or her most likely future circumstances but for the injury) which applies to past economic loss, it is clear from the dicta set out above from Malec v Hutton that there are substantial analogies between past hypothetical facts and future possibilities. This Court has interpreted the edict in s 13 of the Act as authorising a "buffer" award in certain circumstances as outlined in the following passage from the reasons of Giles JA in Penrith City Council v Parks [2004] NSWCA 201 at [5] (Cripps AJA agreeing): "I consider that it is still open to assess damages by way of a so-called 'buffer'. The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference can not be determined otherwise than by the broad approach of a buffer. Section 13(1) can be fulfilled, and the assumptions as to exercising earning capacity before injury can be stated."
I consider that his Honour's approach in the present case was sufficient to comply with the duty to give reasons. The circumstances were not such as to determine with any degree of certainty or even probability whether, for example, the respondent would work until the age of 66 but that his working hours would be reduced, on average, by 10% of the 67 hours a week he was working at the time of the accident; or whether he would retire a few months short of his 66th birthday, when 90% of the period between the accident and his 66th birthday had elapsed; or whether his working hours would be reduced intermittently during that period by reason of one or more of the several factors identified by the trial judge. When a buffer award is appropriate, it does not make the reasons any more "sufficient" to outline the various possibilities which could lead to a 10% reduction since each, as the Court said in Malec v Hutton, involves some element of conjecture. His Honour's reasons are to be read fairly as a whole. It would not be fair to parse and analyse only what his Honour said in paragraph [294] above (of which, arguably, only the last sentence constitutes a finding as such) since the findings regarding the potential of the various factors to affect the respondent's earning capacity between the ages of 62 and 66, despite his desire to work until at least the age of 66, are to be found elsewhere in the judgment. I am not persuaded that the trial judge's reasons were insufficient to explain the reason for the 10% reduction in the award for past economic loss.

Costs

For the reasons given above, I consider that the appeal and the cross-appeal ought be dismissed. The appeal and cross-appeal took about equal time. In these circumstances, I propose that there be no order as to costs. However, as the parties have not been heard on this question, I would grant liberty to apply, with the intention that any application for a different order be determined on the papers.

Proposed orders

For the reasons given above, I propose the following orders: 1. Dismiss the appeal. 2. Dismiss the cross-appeal. 3. Subject to a written application being made within seven days, order that each party pay his, or its (as the case may be), costs of the appeal and the cross-appeal.

Amendments 23 July 2021 - correction to name of law firm - coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2021

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