Wright v Perpetual Limited & Ors

Nature of case 1Rosemary Wright ("the plaintiff"), has brought these proceedings for damages for personal injury in which she alleges negligence against Charter Hall Retail Management Limited and Charter Hall Real Estate Management Services Pty Limited ("the defendants"), as occupiers of the premises known as the car park to the Kings Langley Shopping Centre. The plaintiff's claim is that the defendants were negligent in allowing a vestigial and protruding low cut tree stump to remain in a raised landscaped garden bed of the car park when that tree stump was in an area that the defendants ought to have foreseen would be used by pedestrian traffic within the car park premises. At about 11.00am on Saturday 1 September 2007, the plaintiff tripped over the tree stump and fell whilst traversing the area on her way to the shops at the centre, and in doing so, she sustained a serious fracture to the tibial plateau of her left knee, which has left her with significant ongoing disability.

Issues 2At the outset of the trial, the defendants admitted that they were occupiers of the car park area at the relevant time. The remaining liability and causation issues to be determined in these proceedings may be conveniently outlined as follows: Issue 1 : Whether the risk encountered by the plaintiff in connection with the exposed tree stump was an obvious one within the meaning of s 5F of the Civil Liability Act 2002 [" CL Act "]. My findings on this issue are set out between paragraphs [45] - [49] of my reasons for judgment; Issue 2 : Whether the defendants are liable for the plaintiff's injuries as a result of a breach of duty of care owed to the plaintiff, and if so, whether such a breach of duty of care should be characterised as negligence on the part of the defendants. My findings on this issue are set out between paragraphs [50] - [94] of my reasons for judgment; Issue 3 : Whether the plaintiff has established that her injuries were caused by the negligence of the defendants. My findings on this issue are set out between paragraphs [95] - [98] of my reasons for judgment; Issue 4 : Whether there was any contributory negligence on the part of the plaintiff, and if so, to what extent. My findings on this issue are set out between paragraphs [99] - [111] of my reasons for judgment. 3The issues arising in respect of the plaintiff's entitlement to damages will be addressed in relation to each of the claimed heads of damage.

Array of evidence 4The plaintiff gave evidence of her background situation, the circumstances of her injury, the effects of her injuries upon her, and the details of her post-injury need for domestic assistance. That evidence was supported by evidence given by her son Stephen Wright, her daughter-in-law Pauline Wright and her daughter Laurie Popple. The plaintiff tendered 2 reports from Mr Paul Laverty, an arborist, and from Dr Neil Adams, a liability expert. The plaintiff also tendered a bundle of medical reports from treating and assessing medical practitioners and from a psychologist. A number of photographs of the scene of the injury were tendered, along with a pre-injury risk assessment carried out by the defendants. The author of that report, Mr Trevor Burrows, was called to give evidence in the case for the defendants. A number of photographs and documents that described the scene of the plaintiff's fall were also tendered.

Credit 5I consider that the plaintiff, her son, her daughter and her daughter-in-law who were called to give oral evidence gave inherently credible testimony that was not the subject of material challenge. I have accepted them as being credible and truthful witnesses. No credit issue arose from the expert evidence of Mr Burrows, whose evidence had to be analysed according to the nature of his expertise and the content of his report.

Summary of findings 6I have found the defendants, as occupiers of the premises, were negligent in permitting the low cut tree stump to remain in the position in which it was located at the time when the plaintiff received her injury. I have found that such negligence was the relevant and material cause of the plaintiff's injury. I have found the plaintiff has fulfilled the requirements for proof of negligence and legal causation, as is required by the application of the CL Act to the circumstances of her injury. I have found that there was contributory negligence on the part of the plaintiff, which I have assessed at 40 per cent. Accordingly, I have assessed the plaintiff's entitlement to compensatory damages in the sum of $480,319.85. The plaintiff's damages are to be reduced to $288,191.91 on account of contributory negligence.

Assessed heads of damage 7The plaintiff claimed 5 individually identified heads of damage for assessment. The parties made quite disparate submissions on quantum, based on their differing perspectives and assumptions that emerged from the evidence. The heads of damage claimed by the plaintiff, and the effect of the monetary submissions of the parties are listed below, together with paragraph references to my assessment of the various heads of damage claimed. Head of Damage claimed by plaintiff Plaintiff's Submissions Defendant's Submissions Assessment Paragraphs (a) Non-economic loss $175,500.00 $32,500 $175,500.00 [130] - [134] (b) Past gratuitous domestic assistance $54,418.00 $30,176 $38,640.00 [135] - [148] (c) Future paid domestic assistance $320,689.00 $18,993 $229,064.00 [149] - [155] (d) Future treatment $40,000.00 $5,000 $35,000.00 [156] - [163] (e) Past out-of-pocket expenses $2,115.85 $2,116 $2,115.85 [164] Totals $592,722.85 $88, 785 $480,319.85

B. FINDINGS - BACKGROUND FACTUAL MATTERS 8In the paragraphs that follow, I set out my factual findings on the plaintiff's background circumstances, her pre-injury health and domestic situation, the events of the incident in question, and matters concerning a pre-injury risk audit of the premises carried out on behalf of the defendants in October 2005.

The plaintiff 9The plaintiff was born in 1938. She is presently aged 72 years and has retired from the workforce. In 2007, at the time when she was injured, she was aged 68 years. She had married in 1956 when she was aged 18 years. That marriage ended in 1973. She has lived independently since that time. She has 4 adult children who have given her 7 grandchildren and 3 great-grandchildren. 10Before her retirement, the plaintiff had successfully pursued a working career. She has been employed as a bookkeeper, an office manager and as an accounts receivable clerk for various large companies. Before her injury she lived independently in her own home which had a large garden, and she managed the week to week housework, home maintenance and gardening tasks that were required without significant assistance, apart from engaging some paid assistance for someone to mow the lawns around her home. 11Before her injury the plaintiff's own perception was that she was in reasonably good health. The post-injury hospital records state that she had a pre-injury history of elevated blood pressure, a history of transient ischaemic attacks, as well as elevated cholesterol. Before her injury she was taking preventative medication for each of these conditions. There was no evidence that suggested the plaintiff was actually unwell or was functioning other than successfully in her day-to-day life. She was living independently and without restrictions or apparent problems. 12Before her injury, in addition to being physically active, the plaintiff had also actively pursued intellectual pursuits, and was enrolled in an adult education programme with the University of the Third Age, taking an active interest in Australian history and genealogy. 13Before her injury she had no difficulty associated with the physical tasks involved in playing with her grandchildren. She was involved in babysitting activities and she also took an interest in the sports activities of her grandchildren by attending their basketball, cricket and football games, wherever they happened to be playing. She also looked after her grandchildren during school holidays. She took them on outings without difficulty. The plaintiff also participated in and enjoyed outdoor activities with her family. 14Before her injury she was frequently out of the house on most days. She derived pleasure from taking care of her large garden and maintaining her house, which she had assisted in building herself some 28 years ago, when she had taken out an owner builder's licence. At that time she had performed some of the physical building work herself. 15The plaintiff also carried out all of her pre-injury domestic duties without experiencing any difficulty. She had no significant previous accidents or hospitalisations. She used to go shopping independently, and did so as often as she required.

Circumstances of the plaintiff's injury 16At about 11.00am on Saturday 1 September 2007, the plaintiff drove her vehicle to the Kings Langley Shopping Centre. After parking her vehicle, with its nose facing into the marked parking adjacent to a garden bed in the car park of those premises, she alighted from her vehicle in order to walk to the shops as she had done on a number of previous occasions. She was familiar with the environs of that centre over the course of many years. 17The plaintiff had intended to walk to the pedestrian crossing on the tarmac leading to the shopping centre entrance. However, on this day, she was aware of busy vehicular traffic conditions in that area of the car park and she was aware of several nearby cars with their doors opening for people to alight from them. In those circumstances she chose to walk across a raised landscaped garden bed that served to divide portions of the car parking area. She chose this route as she had used it on prior occasions and had also seen others walk across it on previous occasions. She saw no obstacles to her doing so on this occasion. In order to take that route, she recognised that she had to step up and over a paved kerb and onto a raised section of landscaped but otherwise flat garden bed, in order to walk towards the shops she was intending to visit. 18As the plaintiff proceeded to walk across the garden bed, the surface of which was covered by wood bark chips which were commonly used to landscape the surface of public parks, gardens, median strips and the like, her left foot tripped over a vestigial low cut but raised tree stump which had been protruding some 4 - 6 inches above the ground. The appearance of the tree bark chips was greyish and the appearance of the tree stump blended in with the colour of those bark chips. The plaintiff's fall occurred whilst she was looking ahead of her in order to ascertain the direction in which she would be walking towards the shops. In these events the plaintiff tripped on the tree stump in the garden bed after kicking it with her foot. She then fell onto her left knee. In these events she sustained a painful injury to her left leg and knee. 19At the time these events occurred, the plaintiff had been wearing her running shoes, but she was not in a hurry. She had been to this shopping centre on many occasions beforehand over the previous 20 years. 20The plaintiff had previously known of the existence and location of the tree stump within the garden bed and that she had on previous occasions taken care to step over it. On this particular occasion she had been looking in a generally forward direction and whilst she had intended to step around or over the tree stump, she misjudged her footstep because she was preoccupied or focussed on where she was ultimately going and had not observed where she was placing her foot. She was more concerned with keeping an eye on the vehicular traffic in the vicinity. 21The plaintiff had made the judgment that she considered that it was safer for her to cross in that area and over the garden bed than to walk on the roadway of the car park area where traffic was moving and where car doors were being opened. At the time it was a bright sunny day. The plaintiff agreed that whilst she could have waited for the traffic to clear in the car park, she also saw no reason for her not to use the route she had embarked upon just before she encountered the tree stump and tripped and fell. After she had fallen, people came to her aid. An ambulance was subsequently summoned and the plaintiff was taken to Blacktown Hospital. 22Some time after the plaintiff's fall, the protruding tree stump had some yellow paint applied to it. This had the effect of drawing attention to tis presence as a contrast to its location : Exhibit "G".

Medical evidence 23In the paragraphs that follow, I summarise the evidence from within the medical reports that were tendered in the plaintiff's case. The defendant has conceded that on 15 December 2009 Professor Michael Ryan, a consultant orthopaedic surgeon, had medically examined the plaintiff, at the request of the defendant. In the proceedings, no report of that examination was tendered from Professor Ryan. I infer from this that Professor Ryan's opinion was not contradictory of any medical evidence tendered by the plaintiff, or contradictory of any evidence given by the plaintiff with respect to her injuries or the ongoing disabilities that she described in her evidence : Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. This position has fortified my conclusion that I should accept the evidence of the plaintiff on the issues concerning her injuries and the effects of those injuries upon her.

Ambulance report 24The ambulance transport report contained within the hospital notes indicated that an ambulance attended the scene at 11.50am, treated the plaintiff and then left the scene to transport the plaintiff to hospital. The report of the ambulance attendance described the plaintiff had suffered a fall and sustained a left knee and leg injury that required medical assistance. She was given pain-killing drugs, including morphine. A splint was applied to her left leg and she was taken to Blacktown Hospital for medical investigations and treatment. At the hospital the plaintiff was triaged at 12.24pm and she was then left in the care of the hospital staff at 12.37pm.

Blacktown Hospital clinical notes 25At Blacktown Hospital the plaintiff was initially assessed as having a swollen and reddened left leg with a fractured left tibial plateau. When the plaintiff was triaged the history was noted that the plaintiff had tripped over a tree stump and was complaining of pain in her left knee. The plaintiff was recorded as providing a history that she felt her left knee had cracked and had given way after she had tripped, and this was followed by the immediate onset of pain in that region. 26An x-ray of the plaintiff's left knee revealed an undisplaced fracture of the left tibial plateau with an abnormality of the medial cortex of the tibia and discontinuity of the lateral tibial cortex. Following a CT scan of the left knee, the fracture was treated with splinting and immobilisation. It was noted that the articular surface of the knee was well preserved. It was decided to treat the fracture conservatively. 27After the initial splinting, the left knee fracture was ultimately treated by the application of a full-length leg plaster. The plaintiff then remained as an inpatient at Blacktown Hospital for 11 days until 12 September 2007. During this time she was treated with both legs elevated and some physiotherapy. 28At the time of discharge planning it was noted that there were some logistical difficulties over the plaintiff's need for assistance with the activities of daily living and it was also noted that she needed some remedial equipment for showering at the home of her son and her daughter-in-law. Some safety equipment was hired and the plaintiff was discharged. The instructions on discharge were for the plaintiff to elevate her leg and to refrain from weight bearing on the left leg for " 6 weeks +" and to return to the fracture clinic for review. 29On the plaintiff's re-presentation to the hospital on Wednesday 14 November 2007, the plaster was removed. On Friday 17 November 2007, the plaintiff again re-presented at the hospital. There had been swelling and reddening of the leg. The plaintiff was placed on anti-coagulant therapy because it was thought there was clinical evidence that she had suffered a deep venous thrombosis. She was admitted overnight to supervise that anti-coagulant therapy.

Dr Christine Tan - treating general practitioner 30Following her discharge from hospital the plaintiff consulted her general practitioner, Dr Christine Tan, for assistance, care and advice. The first post-discharge consultation took place on 24 November 2007. Following her examination of the plaintiff, Dr Tan described the plaintiff's disabilities as being an inability to kneel properly on her left knee, an inability to walk more than 50 metres without having to rest due to pain and discomfort in the left knee, and an inability to do some of the household duties as she used to do. 31In her short report dated 17 June 2009, Dr Tan expressed the opinion that the plaintiff would not be able to achieve her pre-injury level of mobility and activities following the fall on 1 September 2007. On 17 June 2009, Dr Tan thought the prognosis for the plaintiff's left tibial fracture to be guarded due to the location of the fracture, and due to the advancing age of the plaintiff. 32On 25 March 2010, Dr Tan provided a supplementary letter that indicated the plaintiff had consulted her on a total of 12 further occasions between 17 June 2009 and 12 March 2010. Dr Tan indicated that of these consultations, the consultation on 24 June 2009 related to the plaintiff's complaint of painful knees and shoulders secondary to post-traumatic or secondary osteoarthritis. Dr Tan's letter did not make clear whether a connection existed between the shoulder problems and the fall. The plaintiff explained that her right knee had become symptomatic due to compensatory weight bearing upon it, due to the damaged condition of her left knee. 33Dr Tan outlined the plaintiff's problems as being a reduced range of movement in flexion of her left knee, an inability to properly kneel on the left knee and an inability to walk long distances without having to rest. Dr Tan reiterated the guarded prognosis she had earlier expressed with regard to the plaintiff's ongoing problems.

Dr Peter Conrad - consultant surgeon 34On 3 November 2009, the plaintiff was medically examined by Dr Peter Conrad, a consultant surgeon, at the request of her solicitors. Dr Conrad's report on that consultation was dated 4 November 2009. 35After reviewing the history of the incident, the plaintiff's own pre and post- injury history, Dr Conrad noted the plaintiff walked with a slight limp, a slight loss of extension in the left leg and a limited range of extension in that leg, limited to 103 degrees. He noted that the left calf was swollen by 1.25 cms compared to the right. 36Based on his findings, his review of the history and his review of the Blacktown Hospital notes, Dr Conrad expressed the view that the plaintiff would develop progressive arthritis in her left knee. Dr Conrad expressed the opinion that the plaintiff would require ongoing physiotherapy and specialist consultations with some associated annual expense. Dr Conrad expressed the opinion that the plaintiff would need at least 6 hours per week of domestic assistance due to her inability to attend to aspects of housework, home and garden maintenance.

Dr Y Kai Lee - consultant orthopaedic surgeon 37On 10 May 2010 the plaintiff was examined by Dr Y Kai Lee, a consultant orthopaedic surgeon, at the request of her solicitors. Dr Lee's report of that consultation was dated 4 November 2009. 38After reviewing the plaintiff's history and the above medical reports, Dr Lee recorded that the plaintiff's main complaint was of lack of mobility. He recorded the complaint by the plaintiff that she found it difficult to work in the garden, kneel or squat down and walk very far. She also complained of cramping. I infer from the context that this related to the plaintiff's left leg. 39Dr Lee's findings on examination of the plaintiff revealed that the plaintiff walked with an antalgic (pain avoidant) gait. The left knee was straight without swelling but there was pain reported in the left knee on flexion and rubbing the patella-femoral compartment, with flexion being limited to 100 degrees, compared to flexion in the right knee at 130 degrees. In his opinion, Dr Lee confirmed the plaintiff had pain and limitation in her mobility. He confirmed that the plaintiff required help with her housework and gardening. He thought the prognosis for the plaintiff's left knee was guarded, and he thought she would probably require an operation for replacement of her left knee in the not too distant future, which, if performed, would involve an estimated cost of $20,000. He supported a claim for weekly domestic assistance.

Mr Gerard Glancey - consultant clinical psychologist 40On 28 May 2010 the plaintiff was examined by Mr Gerard Glancey, a consultant clinical psychologist, at the request of her solicitors. Mr Glancey's report from that consultation was issued on the same date. In his assessment, the plaintiff's presentation was without exaggeration. After reviewing the history of the plaintiff's injury, its treatment, and the plaintiff's history of frustration and difficulty in coping with the effects of her injury, extending to having suffered depression, as well as self-doubts about her ability to care for herself independently. 41Mr Glancey reported the plaintiff's feelings of uncharacteristic anger, and of being referred to a psychologist for 6 sessions of treatment, which she found helpful. A loss of confidence was also reported. Mr Glancey recounted the plaintiff's history of reporting low mood, helplessness, anxiety and loss of confidence concerning the integrity of her injured knee, together with apprehensiveness and changed self-image. The plaintiff's own report of depression was that it had continued until approximately December 2009. 42Mr Glancey's analysis was that the plaintiff's anxiety was being reinforced by recurring pain associated with physical exertion and fatigue following exertion. He thought that psychological treatment would be of little benefit to the plaintiff but he recommended physiotherapy treatment in the context of rehabilitation which may improve the plaintiff's functioning and improve her confidence and challenge anxiety.

Pre-injury risk audit of the premises undertaken in October 2005 43In October 2005, a risk audit of the shopping centre premises was undertaken by Noel Arnold and Associates Pty Ltd at the request of the defendants. That risk audit was carried out by Mr Trevor Burrows, who was called as a witness in the defendant's case. In his evidence Mr Burrows could not recall the full circumstances or the detail of the audit he had carried out. The report of the audit stated that it was carried out to establish compliance with key OHS, environmental and fire safety requirements, and involved walk-through inspections of the key common areas and the exterior of the premises, including the car park and environs. I shall refer to the explanatory evidence of Mr Burrows in some detail when analysing the arguments concerning foreseeability of harm and alleged breach of duty of care on the part of the defendants.

C. FINDINGS - LIABILITY ISSUES 44In the paragraphs that follow, I set out my consideration and findings concerning the liability and causation issues that call for decision in these proceedings.

Issue 1 - Obviousness of the risk : ss 5F, 5G and 5H of the CL Act 45A question arises as to whether in this case, in its particular location, the tree stump in question should be considered to have been an obvious risk, within the meaning of ss 5F, 5G and 5H of the CL Act . 46In my view, because of the extent to which the tree stump protruded from the ground, and therefore interrupted the flatness of the raised garden bed as a potential walkway, it must be regarded as constituting an obvious risk as a tripping hazard. I come to this view because I consider that a reasonable person in the position of the plaintiff would have recognised the risk of tripping over the tree stump as being an obvious one, and one in respect of which due care should be taken : s 5F(1) of the CL Act . 47The consequence of this finding is that the plaintiff must have been presumed to have been aware of the risk of tripping: s 5G(1) of the CL Act . That position is consistent with the plaintiff's own candid acknowledgment of her awareness of the presence of the tree stump and the related need to avoid it when walking in its vicinity. In view of that acknowledgment, the fact that the tree stump may have been shaded by nearby overhanging branches is not a relevant consideration. 48The implication of these findings is the consequential finding that the defendants were not obliged to warn the plaintiff of the existence or presence of the tree stump as a tripping hazard : s 5H(2) of the CL Act . 49Notwithstanding these conclusions concerning the obviousness of the risk, consideration is still required as to whether the defendants were in breach of their duty of care as a result of failure on their part to remove or to isolate the tree stump, because it posed a tripping hazard.

Issue 2 - Breach of duty of care and negligence Duty of care 50The defendants properly conceded that the plaintiff was owed a relevant duty of care. This required that the defendants take reasonable care to protect entrants onto the premises from risks that could be foreseen and avoided : Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 per McColl JA at [90], citing Hackshaw v Shaw [1984] HCA 84, (1984) 155 CLR 614 at page 663. The measure of the discharge of that duty was what a reasonable person would, in the circumstances, do by way of response to becoming aware of a risk that was foreseeable : Stojan (No 9) Pty Ltd , at [90]. 51A conventional common law analysis for determining whether negligence has been established requires an application of the test formulated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1979 - 1980) 146 CLR 40, at [90]; page 48; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [18]. That analysis must proceed in conjunction with the requirements of s 5B of the CL Act . 52The question of whether the defendants acted reasonably so as to discharge the duty of care owed to the plaintiff is a matter that must be evaluated according to the circumstances of the case : Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 , at pp 487 to 488 per Mason, Wilson, Deane and Dawson JJ. The analysis of this question must proceed prospectively : Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, per Hayne J at [126], page 46. The analysis must also proceed in accordance with the requirements of s 5B of the CL Act . This requires a contextual and balanced assessment of the reasonable response to a foreseeable risk, not the more stringent test of prevention : Dederer , at [69]. 53The requirement in s 5B(1)(b) of the CL Act is that for negligence to be established, a risk must be assessed to be "not insignificant" . This has been determined to involve a slightly more demanding test than that required by an application of the formulation in Shirt : Shaw v Thomas [2010] NSWCA 169 per Macfarlan JA at [44]. 54The starting point of the analysis involving the foregoing principles requires a consideration of the appearance of the scene where the plaintiff fell, the defendant's state of knowledge of the scene, and the implications that flow from those considerations. Appearance of the scene 55The general configuration of the car park and the garden bed where the plaintiff fell is apparent from the photograph on page 4 of Exhibit "2", which is reproduced below. 56The circled vehicle shown in the above photograph is shown to be in the same location where the plaintiff had parked her vehicle on the day she was injured, but unlike the vehicle in the photograph, the plaintiff's vehicle was parked with its nose facing into the kerb. The plaintiff had alighted from the driver's side of her vehicle and had taken a few steps across the garden bed to her right when she tripped and fell 57The general location and appearance of the tree stump within the garden bed of the premises at the time of the plaintiff's fall is apparent from the photograph Exhibit "E" that is reproduced below. 58I accept the evidence of the plaintiff that at the time of her injury, relative to the surrounding tree bark chips that covered the surface of the garden bed, the tree stump shown in Exhibit "E" was of a similar appearance to that shown in the photograph which appears immediately above. Defendants' state of actual or imputed knowledge of the tree stump 59On 27 September 2005, a property risk audit inspection of the defendants' premises was undertaken on behalf of the defendants by Mr Trevor Burrows of Noel Arnold & Associates Pty Ltd. A report of that inspection was prepared and dated October 2005. It was tendered in the proceedings as Exhibit "2". 60That inspection was undertaken in the course of a " walk-through " inspection. The resultant report dealt with many safety-related issues. The section of Exhibit "2" that dealt with traffic management considerations concluded that protection was provided for pedestrians in the form of marked crossings, kerbing, footpaths, barriers/guardrails and signage. The risk level was assessed as being low and " acceptable " : Exhibit "2", p 29. 61Photograph 12 within the report comprising Exhibit "2" identified a trip hazard for pedestrians on the roadway of the car park : Exhibit "2", pp 12 and 32. 62The report by Mr Burrows did not address the garden bed areas. In his oral evidence Mr Burrows explained that his audit included the car park area of the shopping centre, but not the garden bed area unless there was something he saw as being a risk. Mr Burrows said he thought he had looked at the garden beds in the car park. His inspection dealt with what was referred to in the report as " key OHS " risks, including in the common areas. In evidence, Mr Burrows was unable to explain what was meant by the descriptor " key OHS " risks. 63Mr Burrows stated that when looking at the garden beds he would not have made a written note of the tree stump in question. He conceded the tree stump might pose a hazard to pedestrians. He agreed that if the stump was in a walkway it would be a danger to pedestrians but he distinguished the walkway classification from the case of a garden bed. 64Mr Burrows agreed that if the area in question was assumed to be where pedestrians might walk, the tree stump was not of a highly visible character. Mr Burrows conceded that it was in an area that pedestrians might walk, either as an access walkway, or as a pedestrian refuge. He agreed that in such circumstances it would be " a prime trip hazard that they might not see ". 65Mr Burrows agreed that the raised surface of the garden bed was highly likely to be used by pedestrians. I agreed with and accept that observation. It seems to me that someone parking their vehicle in the position where the plaintiff's vehicle had been parked on the day in question could foreseeably use the raised garden bed as an access way to the pedestrian crossing leading to the shopping centre, including as a convenient short cut. 66I infer from the described appearance of the tree stump in the garden bed, and from the evidence of Mr Burrows, which I have summarised above, that if the defendants did not know that the tree stump was located in the described position, they ought to have known of that fact. 67The defendants had in fact arranged for garden maintenance to be carried out on the premises before the plaintiff's injury : Exhibits "F", "G" and "H". This indicates that the defendants had given some consideration to the need for a regime of inspection and maintenance in the area in question. In the 3 years from 1 April 2004 the defendants had contracted to pay the sum of $120,243.60 plus annual CPI increments for maintenance services at the Kings Langley premises : Exhibit "H", p 5. This included the removal of rubbish from garden beds : Exhibit "H", p 12. I infer from this latter consideration, that apart from issues to do with hygiene and aesthetics, one of the considerations for rubbish removal involved matters of safe access and egress relating to the areas likely to be used by pedestrians. 68Of particular relevance to the defendants' state of knowledge of the hazardous nature of the location of the tree stump is the inspection carried out on 10 September 2007, at the request of the defendants. That inspection was 9 days after the plaintiff's injury. The resultant inspection report comprising Exhibit "G", at p 3, refers to the identification of hazards and the taking of corrective action in respect of such hazards, in the following terms: "Tree stump has been identified and marked" 69In infer from that statement and find that this was the occasion on which the yellow paint markings appeared on the tree stump after the plaintiff had tripped over it. 70Whilst I find that the steps of identifying and marking the tree stump could have reasonably been achieved by the defendants at a time well before the plaintiff's injury, that finding is of diminished importance in this case in view of my earlier finding that the risk of tripping on the tree stump in question was an obvious one. Expert evidence 71The defendants had arranged for the area where the tree stump had been located, to be inspected on 3 March 2010. That inspection was carried out by an expert arborist, Mr Paul Laverty : Exhibit "1". The essence of the opinion of Mr Laverty was that the tree stump in question was the result of a tree removal that had occurred approximately 15 to 20 years ago, if not earlier. He based that view on a photograph that had been supplied to him on behalf of the defendants. That photograph is reproduced below. 72The photograph that appears immediately above was taken sometime after the plaintiff's fall and before the tree stump had been removed from the site. The photograph reveals that at the time it was taken, the tree stump still retained some of the yellow marking paint seen in Exhibit "C" and referred to in Exhibit "G". 73The plaintiff tendered reports dated 24 June and 21 October 2010 from Dr Neil Adams, a safety management consultant : Exhibit "B". Dr Adams was of the opinion that at the time of the plaintiff's fall, the tree stump would have presented a significant tripping hazard. He was of that view because of the absence of a strong visual contrast between the stump, the surrounding soil and the faded bark chips, with the possible phenomenon of shade from a nearby tree. Dr Adams made the following comment at page 9 of his first report: "The area where Mrs Wright tripped and fell is clearly close to a busy circulation roadway. As noted previously, because that roadway is one where there will obviously be a heavy concentration of vehicular traffic, and because aspects of the situation will inevitably require driver's to focus their visual attention away from pedestrians (eg. vacant parking bays, vehicles moving into and out of parking bays, other vehicular movements), the area towards which Mrs Wright had initially been walking (before she attempted to walk through the raised non-parking area) cannot be regarded as a safe crossing point. Further, her revised path of travel (when she decided to walk through the raised non-parking area) took her directly towards the safest location at which she might cross that circulation roadway - the marked pedestrian crossing. As there were neither relevant signs nor barriers around the raised non-parking area, her decision to attempt to walk through it was entirely appropriate. In addition, there were no markings on the ground, or on the stump itself, that might have drawn the attention of pedestrians to the potential obstacle that was present in that area and which protruded into the most direct path of travel for Mrs Wright to take as she walked across it. It is well known that even minor objects can create tripping hazards, particularly if they are situated very close to floor level " 74At page 16 of his first report, Dr Adams went on to express the following opinion: "I assume that Mrs Wright sustained injury as a consequence of the trip and fall that is discussed in this report. I would regard the unexpected contact between her leading foot and the low and unmarked stump that was present within an area in which she was permitted to walk as the primary or proximal cause of the injurious trip and fall that she experienced. Among the more fundamental or distal causes I would place most emphasis on the apparent failure of the relevant defendant(s) to have implemented systems for the identification of risks and control of potential hazards to safe pedestrian movement at ail locations to which visitors to the car park might be expected to gain access from time to time, including within the raised non- parking areas, and specifically to the area in which the low stump was present. I would also include as distal causes the associated failure of the relevant defendant(s) to have provided safer pedestrian access at all times, either by consistently eliminated any significant trip hazards from that type of location, or by effectively preventing customers from gaining access to any such potentially hazardous areas. 75Dr Adams considered that before the plaintiff's fall, the defendants would have had at their disposal reasonable means by which the risk of tripping on the tree stump could have been controlled, if not entirely eliminated. 76Those means were set out at page 16 of the first report of Dr Adams, and are set out below: (i) The tree stump could have been either fully removed, or ground down to at least ground level, when the tree was initially removed. The reasonableness of this suggestion is highlighted by the fact that this has since been done; (ii) Alternatively, the stump could have been left protruding from the ground by a significantly greater distance (eg. at least one metre) such that it would be much more visually obvious to pedestrians; (iii) The remnant stump could have been painted a brightly contrasting colour, to increase the likelihood that it would be seen and avoided by pedestrians. The reasonableness of this suggestion is highlighted by the fact that action of this type was undertaken after Mrs Wright's trip and fall. However, I would note that painting the stump in this manner would not have eliminated the hazard, and that pedestrians might still be expected to trip on it (especially if they walked in that area at night); (iv) Effective barriers could have been permanently erected to prevent pedestrians from attempting to walk across the raised non-parking area; (v) Temporary barriers could have been erected around the subject area until the stump was removed or otherwise made safe; (vi) Appropriate signs could have been erected in the immediate vicinity, warning of the presence of a potential trip hazard, and the ensuing need for pedestrians to exercise an increased level of care when walking in that area." 77The second report prepared by Dr Adams was a commentary on the report prepared by Noel Arnold & Associates Pty Ltd, and as such requires no further analysis. Breach of duty of care 78I consider that for some considerable period of time before the plaintiff's injury, the risk of a person such as the plaintiff tripping over the tree stump was a foreseeable risk for the defendants because the risk was not insignificant and a reasonable person in the position of the defendants ought to have known of the risk : s 5B(1)(a) and (b) of the CL Act . I have come to that view independently of expert opinion however I consider that my view in that regard is confirmed by the concessions made by Mr Burrows and in the cited opinions of Dr Adams, which I accept. 79Dr Adams has identified a number of precautions which I consider a reasonable person in the position of the defendants would have implemented well before the plaintiff's injury : s 5B(1)(c) of the CL Act . 80Those precautions included either removal of the tree stump or grinding it down to at least ground level, or at the least, painting in a bright contrasting colour. It is significant that at various stages after the plaintiff's injury, these steps were in fact taken. As to the non-painting of the tree stump, in view of my earlier finding concerning the obviousness of the risk that is not a relevant factor in my consideration of whether or not there was a breach of duty of care. 81Alternatively, further measures could have been implemented, such as the placement of effective barriers to pedestrian traffic over the area where the stump was located if the earlier cited measures were deemed to involve too much effort or cost. 82The measures I have outlined must be viewed against the factors required to be considered pursuant to s 5B(2) of the CL Act . That consideration is as follows. 83I find, that a reasonable person considering the location, size, colouring and juxtaposition of the tree stump would have regarded the probability of someone such as the plaintiff tripping on the tree stump to be a real and not insignificant risk : s 5B(2)(a). 84It s well recognised in the community that serious harm or injury can occur if someone, especially an older person, sustains a fall : s 5B(2)(b) of the CL Act . 85I consider that the requirement of taking precautions of the kind identified by Dr Adams, and which I have cited above, was not an undue burden on the defendants as the occupiers of a substantial shopping centre, as is the case here : s 5B(2)(c) of the CL Act . 86The question of social utility of the activity that created the risk needs to be considered : s 5B(2)(d) of the CL Act . Here, no relevant contra-indications arise to militate against a liability finding in favour of the plaintiff. The social utility of providing an accessible shopping centre for members of the public, albeit for the profit of the occupiers of the premises, is a significant one, however, a key consideration is that the premises should be safely accessible, and not contain tripping hazards to those entering upon the premises for the contemplated utility. 87In concluding my review of the requirements for determining whether or not a breach of duty of care has been made out, I am satisfied that there has been a relevant breach of duty of care in the lead-up to the plaintiff's fall. I consider this to be so for a number of reasons. 88First , the raised garden bed area was flat and located in an area between the car parking bays and the pedestrian crossing which would have invited pedestrians to use it as a shortcut, particularly at times of busy traffic conditions. 89Secondly , the relatively undifferentiated colouring of the tree stump relative to its surroundings on the ground posed a significant tripping hazard to persons traversing the area especially if, due to a momentary inattention, such persons had their attention distracted away from recognising the presence of the tree stump, either due to misjudgement, or otherwise. 90Thirdly , trips, slips and falls are not uncommonly encountered events in publicly accessible areas, and prudence requires that reasonable steps be taken to avoid foreseeable causes of slips and falls. 91Fourthly , the suggested measures of avoidance of the risk of foreseeable injury occurring were not unduly burdensome on the occupiers in this case. I consider this to have been evident from the relatively speedy step taken to apply bright coloured paint to the tree stump shortly after the incident, as is apparent from Exhibit "C", and the subsequent removal of the entire protruding portion of the stump at some later time. That said, in view of my findings on the obviousness of the risk of tripping, I exclude the coloured paint factor from my consideration. 92I do not regard the subsequent action of removal of the tree stump to be excluded from consideration by the terms of s 5C of the CL Act because although the subsequent removal of the tree stump is not considered to be an admission, it is nevertheless confirmatory of what expert evidence suggested as being a prudent course to be adopted in the circumstances. 93On the foregoing analysis, I am satisfied that the defendants were in breach of the duty of care owed to the plaintiff in the circumstances of her trip and fall. Negligence 94Before there can be any finding on negligence in this case, the requirements of s 5B of the CL Act must be established. For the reasons I have identified, I have concluded the plaintiff's injury was caused by the breach of duty of care of the defendants according to the requirements of the CL Act . No circumstances have been shown that would otherwise preclude a finding that the breach of duty of care so found, should be characterised as negligence on the part of the defendants. I am therefore satisfied that the plaintiff's injury was caused by the negligence of the defendants.

Issue 3 - Causation 95The plaintiff must satisfy the causation requirements of the CL Act : s 5D-5E. In my view the plaintiff has discharged the burden of demonstrating both factual and legal causation for her injury, as required by those legislative provisions. 96In this regard, the breach of duty I have identified was clearly a necessary condition for the harm to occur. In that regard, it would have been most unlikely that the plaintiff would have tripped over the tree stump and fallen if the tree stump was removed or barricaded from access : s 5D(a) of the CL Act . 97There is no dispute that the scope of the liability of the defendants should extend to the harm occasioned to the plaintiff : s 5D(b) of the CL Act . It is only appropriate that this be so because the defendants conducted a substantial shopping centre business on the premises where the reasonable expectation would be that the occupier of such premises should be the subject of a duty of care owed to customers entering the premises for mutual commercial purposes. 98On the evidence I have cited as to the cause of the plaintiff's injury, the plaintiff has demonstrated that the cause of her fall and her subsequent injury was " more likely than not" due to the breach of duty of care on the part of the defendants: Woolworths Limited v Strong & Anor [2010] NSWCA 282, per Campbell JA, at [70]. Accordingly, I find that the plaintiff has satisfied the legal requirements for establishing causation in these proceedings.

Issue 4 - Alleged contributory negligence 99The defendants submitted that the evidence of the circumstances surrounding the plaintiff's fall justified a finding that there was contributory negligence on her part. The defendants submitted such contributory negligence should be assessed at 50 per cent. In contrast, the plaintiff argued there should be no contributory negligence finding, or alternatively, no more than 15 per cent. 100In evaluating and weighing the contributory negligence issue, it is relevant at the outset to recite a portion of the cross-examination of the plaintiff in which she made concessions concerning her familiarity with the scene and her knowledge of the existence and location of the tree stump at the time of her injury. That evidence was as follows: "... Q. And on previous occasions you had stepped over the stump is that right? A. Or around it yes. Q. And how many times do you think you had walked around it or over it? A. Dozens or possibly more. Q. And so on this occasion did you forget that it was there did you? A. Not really no. Q. You didn't remember that it was there did you? A. I would have remembered that it was there yes. Q. When you say you would of, you tripped over it didn't you? A. Yes. Q. And so you didn't take any care to step over it or around it did you? A. Yes I did, I was looking forward to where I was going and I must have misjudged. Q. So you say you saw it that day? A. I knew it was there yes. Q. But Mrs Wright that's not my question to you? A. I'm sorry. Q. Did you see it that day before you stepped over it? A. I can't answer that I'm sorry, I don't know, I can't recall it. I can remember kicking it and then falling. Q. Do you remember trying to avoid it that day? A. Yes. Q. That day? A. Yes. Q. What did you do to try and avoid it? A. It's the angle you walk through there, it's very close to the trolley bay so you walk a little further down which is my common practice. Q. When you say you do that is that what you did that day? A. Yes it is. Q. You tried to walk a line that would avoid it is that right? A. Yes. Q. And did you try and step over it or not? A. No I misjudged it, I can't remember stepping over it, I was looking ahead to see which direction I would take towards the pedestrian crossing. Q. When you say you were looking ahead to see which way to go to the pedestrian crossing by that do you mean your eyes were up rather than looking at where your feet were falling? A. There were two cars parked and I was looking to see if I would fit in front of the cars or walk to the back of them. Q. But you appreciate the difference that I'm talking about looking up with your eyes at something ahead in the distance as opposed to looking down just in front of you to where your feet are about to go, do you understand that distinction? A. Yes. Q. You were looking with your eyes up were you? A. I wasn't looking at the ground no. Q. There was nothing to your knowledge that was blocking your view of the stump on the day that you fell is that correct? A. There wasn't no. Q. And it was a bright and sunny day? A. Yes it was. Q. The surface of the ground in that area where you fell was bark chips on that day is that correct? A. That's correct yes. Q. And you had to step up off the asphalt surface onto that bedded area is that right? A. That's right." 101It is plain from the foregoing extract of the evidence of the plaintiff that she had more than just a fleeting awareness of the existence of the stump in the garden bed, which she was traversing when she tripped and fell. It is also plain that in looking ahead in a forward direction, she misjudged the position of the stump as she was attempting to step over it. 102The plaintiff argued that the appropriate analogy for the contributory negligence issue in this case is to be found in Sutherland Shire Council v Henshaw [2004] NSWCA 386, where, on the facts of that case, it was considered that the Trial Judge's finding that the screeching of brakes of a passing vehicle so as to momentarily divert attention, was not considered to amount to contributory negligence : per Bryson JA at [45] and following. In my view, that case is distinguishable on the facts here, as at the time she was walking on the raised garden bed, the plaintiff was only concerned with where she was going, and there was no evidence of such distracting noises. In the circumstances, she was obliged to take care for her own safety by looking where she was placing her feet, because, unlike the position in Henshaw , she was not on a formed footpath but had chosen to use the raised garden bed as a walkway. 103In my view, the plaintiff's misjudgement of her footstep could only have occurred as a consequence of a failure on her part to keep a proper lookout as to where she was placing her feet. In this regard, in one sense she was properly looking out for where she was going, but in another sense of greater relevance, she was not looking where she was placing her feet on the ground. This point assumes a greater relevance because she was not crossing the garden bed on what might be considered to have been a normal pedestrian walkway. If she had been on a normal pedestrian walkway she could perhaps have been excused for a momentary inattention to placing her feet whilst looking ahead if she was not aware of a hazard before her and in her chosen pathway. 104In my view the evidence that I have cited demands a finding of contributory negligence on the part of the plaintiff. I come to this view after making due allowance for inadvertence : Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) CLR 512, per Gaudron, McHugh and Gummow JJ at [163]. 105An apportionment for contributory negligence requires a reasoned comparison of the respective culpabilities or responsibilities that have relevantly contributed to cause the plaintiff's injury : Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; at [10] . The apportionment must be reasoned, just and equitable. 106The negligence of the defendants was to permit the raised vestigial tree stump to remain, without significant colour differentiation from the surrounding garden bed colouring in circumstances where it was reasonably foreseeable that entrants on the premises were likely to walk over the garden bed as a trafficable route towards the shopping centre. That was a relevant and significant departure from the required standard of care in these circumstances. 107Concurrent with such negligence on the part of the defendants was the plaintiff's own conceded misjudgement and failure to look down at the area where she knew a tree stump was located. This was in circumstances where she was knowingly walking in an area where she knew there was a protruding tree stump and where the area was not specifically designated for pedestrian traffic, but nevertheless in an area where pedestrians were known to use as an access route. 108In weighing the respective culpabilities or responsibilities of the parties, I consider that they are unequal in their causative impact. 109In the case of the defendants, the want of care was systemic and static in its nature and effect. The presence of the tree stump in the premises was not variable. That condition of the premises created or primed the opportunity for a pedestrian to become injured. There were no steps taken to remove or to isolate the tree stump as a tripping hazard, especially where it must have been foreseeable that pedestrians do not always look down when they are walking. 110Although the plaintiff's want of care for herself, by not looking down at the location of the tree stump that she knew to be there as she walked in the vicinity, was a significant cause of her injury, it was nevertheless a momentary misjudgment due to her being distracted by focus on her destination. In those circumstances I do not consider her lapse of attention to have been the equal or major contributing cause. 111In these circumstances, where the contributions are to be assessed as being unequal but nevertheless still significant in the case of the lesser contribution, I assess the plaintiff's contribution to be 40 per cent. Accordingly, in my assessment the just and equitable apportionment of the respective apportionment of legal responsibility for the plaintiff's damages is 40 per cent on the part of the plaintiff and 60 per cent on the part of the defendants.

D. FINDINGS - DAMAGES ISSUES 112In the paragraphs that follow I set out my findings concerning the plaintiff's injuries, the mitigation undertaken by the plaintiff, the disabilities that remain, the effect of the plaintiff's remaining disabilities on her day to day domestic and related functioning, and the plaintiff's remaining probable life span. In arriving at those findings I have had regard to the content of the medical evidence, because the plaintiff's evidence and those reports were essentially unchallenged : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.

Injuries 113In the fall the plaintiff suffered an undisplaced fracture of the tibial plateau of her left knee. This was associated with swelling and redness of the left knee.

Treatment and mitigation 114The plaintiff was taken to Blacktown Hospital where she remained for 15 days. She was treated conservatively with immobilisation of her left leg in an ankle to thigh plaster. She was gradually mobilised, first in a walking frame, which she used for about 4 months, followed by reliance on a wheelchair for a further 4 months, followed by the use of a walking stick, which she still uses. Whilst in hospital it was suspected that she had a deep venous thrombosis in her left leg. 115Following the discharge of the plaintiff from hospital, she has been under the care of her general practitioner, Dr Tan. There is nothing that emerges from within the medical and allied evidence tendered in these proceedings to suggest that the plaintiff has failed to take appropriate steps to mitigate the effects of her injuries.

Disabilities that remain 116Although the plaintiff's level of activity has increased over the years since her injury, she still experiences significant problems with her left knee and with mobility. 117The plaintiff has never been without knee pain since the time of her fall. She nevertheless puts up with the pain as she recognises the need to keep active. Although she can drive a car for about an hour she still has significant knee pain. She limits her driving to periods of 15 - 20 minutes. As a result of the pain in her injured left knee, which she has tended to favour, she feels, and I accept, she has tended to overuse the right knee for support, and this has caused her to suffer pain in that knee as well. 118The plaintiff now has only limited capacity for physical activity and exercise. She still occasionally resorts to using a walking stick. She undertakes exercise on a flat surface at shopping centres. This is because her neighbourhood comprises hilly terrain. The shopping centres also provide her with the opportunity to obtain support whilst walking by using shopping trolleys that assist her with balance and with posture. This also, to a degree, assists with relieving the pain she experiences in her left leg. 119The plaintiff walks with a limp and her left knee is stiff, with limited flexion capacity. Her walking tolerance has been reduced. She has mild crepitus in her left knee. Her left leg muscles have a degree of wasting compared to the right leg. She has difficulty negotiating stairs and her house has stairs outside, which she finds difficult. Her likely prognosis is to develop post-traumatic osteoarthritis in her left knee. She has a much reduced level of mobility and agility. She walks with an antalgic or pain avoidant gait. She has a limitation in her range of left knee movements. 120The plaintiff still experiences frequent pain in her left leg. Although the initial post injury experience of severe pain gradually improved, she still regularly experiences pain, which she rates as either 6 or 7 out of 10, depending upon her level of activity. In this context, she tries to limit her use of her left leg. 121The plaintiff limits her outings. She is apprehensive of engaging in physical activity with her grandchildren. She limits her visits to her family at Warilla where two of her children live near a lake. Previously, she would travel to Warilla and stay there for 3-4 days every few months, and whilst there she would enjoy fishing and outdoor activities on the lake and its surrounds. She can no longer undertake walks on the rocky shoreline of the lake and she cannot access the lake's edge. Since her injury she now only rarely travels to that area. 122The plaintiff cannot kneel or squat for significant lengths of time. This hinders her ability to undertake gardening activity at her home or to access the bottom of her cupboards. She cannot climb up in order to change light globes or to carry out a variety of housework activities, including tending to curtains and the like. The plaintiff gave evidence of other restrictions she experienced in connection with her household activities. Those problems will be reviewed and considered in context of the effects of the plaintiff's injuries on her domestic activities. 123The plaintiff experiences a tingling sensation from her left knee downwards and this is also associated with numbness and a feeling of a degree of insecurity in relying on that leg for support. She became frustrated and depressed because her lifestyle has changed so much, and because her self-image and her independence had been reduced. She stated that she had obtained counselling for her depression and said that this had helped her and that it had given her reassurance. The plaintiff still gets teary when discussing the effects the injury has had upon her and upon her life. No reports were tendered concerning that counselling, but the defendants did not challenge the plaintiff's own evidence in that regard. 124The plaintiff seems to have recovered from the effects of the suspected deep vein thrombosis that followed her initial hospitalisation and her reduced mobility. Her remaining disabilities have however significantly and deleteriously affected her life and lifestyle. Her pre-injury level of activity and independence has undergone significant and profound change due to the effects of her injury. She faces the prospect of ongoing physiotherapy and medical treatment for the remainder of her life, as well as a probable knee replacement in the short term. The unchallenged medical opinion is that her prognosis is uncertain.

Effects on leisure and domestic activities 125Although the plaintiff has recovered from the more severe limiting effects of her injury the plaintiff has nevertheless been unable to resume the full extent of her pre-injury domestic activities. 126During the more acute phase of her incapacity she received the assistance of a number of members of her family. Her daughter Laurie took holidays from her work in order to stay with her for the initial 3 weeks following her discharge from hospital to assist her with the shopping, cooking, cleaning and arranging other things for her, including her medications. A person from the hospital also came to her home to assist her with bathing and dressing, as well as some vacuuming and washing of floors. 127As earlier observed, in more recent times she has increased her level of activity to a degree and has been able to shop in smaller quantities, she can drive for short periods, she can undertake some cooking, cleaning up the kitchen after herself, and she can attend to the washing of her own clothes. Nevertheless, the plaintiff has continued to require domestic assistance with tasks that she was hitherto ordinarily able to do for herself.

Probable life span of the plaintiff 128An assessment of the plaintiff's entitlement to future damages first requires an assessment of the years that probably remain for the plaintiff. Having regard to the current prospective life tables, at age 72 years, this being the plaintiff's age at trial, and having regard to the fact that there is no medical or other evidence suggesting the plaintiff may have an actually decreased life span, for the purposes of a damages assessment, I assess the plaintiff's probable life span to be in the rounded down figure of a remaining 17 years.

E. ASSESSMENT OF DAMAGES 129In the paragraphs that follow, I set out my assessment of the various components of the heads of damages that have been claimed by the plaintiff in these proceedings.

Non-economic loss 130On behalf of the plaintiff it was submitted that her entitlement to an award for non-economic loss pursuant to s 16 of the CL Act should be assessed at 35 per cent of a most extreme case according to s 16. On the currently indexed table of s 16 damages, this equates to the sum of $175,500. 131In contrast, on behalf of the defendant it was submitted that the appropriate percentage assessment of s 16 damages is 25 per cent, which equates to the sum of $32,500. 132I have set out my findings on the plaintiff's injuries and the consequent effects of the plaintiff's injuries upon her, at paragraphs [113] to [127] of these reasons and those matters do not require reiteration here other than to record my finding that such effects have had substantial and adverse physical and emotional effects upon the plaintiff. Such adverse effects will continue to a marked degree, and will extend to the plaintiff having to attend to her future treatment needs on an ongoing basis. It is also relevant to record that at her age, the plaintiff's loss of the amenity of her life in her twilight years has a significantly profound and disruptive effect in circumstances where she would have otherwise remained fit, active and independent in her day to day activities. 133In those circumstances I consider that the plaintiff's submission for non-economic loss is correct and appropriate. I therefore reject the defendant's non-economic loss submission as representing inadequate compensation for her losses. 134Accordingly, I assess the plaintiff's entitlement to damages for non-economic loss pursuant to s 16 of the CL Act in the amount of $175,500 .

Past gratuitous domestic assistance 135The plaintiff makes a claim for the value of past attendant care or domestic services that have been gratuitously provided to her by her son Steven, her daughter-in-law Pauline and her daughter Laurie, following her injury. The services were provided to her from the time of her discharge from hospital until the present time, to varying degrees as was described in evidence. 136After her injury the plaintiff received these domestic assistance services gratuitously from her daughter, her son and her daughter-in-law. She did not require such assistance before her injury. The services related to all household, domestic, gardening and home maintenance activities. The plaintiff was self-sufficient in these areas before her injury. 137The plaintiff seeks to quantify the value of the assistance provided to her in the sum of $54,418. The submitted basis for calculation of that sum is an assumed level of such assistance at 14 hours per week over 3.25 years from the date of injury until the commencement of the trial, at the rate of $23 per hour. 138The defendants have submitted that the assessment of damages for past domestic assistance should be in the lesser sum of $30,716. That sum was calculated on the basis of an assumed 8 hours of services per week over 164 weeks at the rate of $23 per hour. 139The first stage of the analysis of this component of the claim requires a consideration of whether there was a reasonable need on the part of the plaintiff for such services to be provided to her: s 15(2)(a) of the CL Act . The second stage of the analysis requires a consideration of whether the plaintiff's need for the claimed services had arisen solely because of the injury in question: 15(2)(b) of the CL Act . The third stage of the analysis requires a consideration of whether or not the services in question would not have been provided to the plaintiff but for the injury: 15(2)(c) of the CL Act . The fourth , or assessment stage of the analysis, is to determine whether the minimum threshold of 6 hours per week for 6 months or more has been satisfied as required by 15(3) of the CL Act , and that the selected rate does not exceed the amount specified in s15(4) of the CL Act . 140In this regard, a survey of the medical evidence concerning the ability of the plaintiff to carry out domestic activities is revealing. 141In June 2009, Dr Tan expressed the view that the plaintiff would not be able to return to her pre-injury level of mobility and daily activities. In November 2009, Dr Conrad expressed the view that the plaintiff might need at least 6 hours per week of home care assistance. In May 2010, Dr Kai Lee noted that the plaintiff was receiving 2 hours per fortnight of paid help at $61 per visit, limited by financial constraints, and that family members were assisting with housework and gardening activities. Dr Kai Lee indicated that it would be better for the plaintiff to have 8 hours per fortnight in respect of that assistance. In the context of the evidence as a whole, I do not regard the hours of care referred to by the medical experts to be prescriptive or definitive of the plaintiff's needs. In this regard I prefer the evidence of the plaintiff, her son, her daughter and her daughter-in-law, as it is factually descriptive and inherently reasonable in its content. 142A consideration of this medical evidence, together with the plaintiff's own evidence, and that of the other witnesses who gave evidence on these issues persuades me that the plaintiff had a reasonable need for such services, and this was solely caused by the injury in question, and such that the services under consideration would not have otherwise been provided to the plaintiff, were it not for her injury: s15(2) of the CL Act . 143The plaintiff's son Steven presently attends upon her need for assistance 4 hours per visit on 2 occasions per week. Her daughter-in-law Pauline also attends upon her needs for an additional 2 hours per week. The total of those services amounts to 10 hours per week. Her daughter Laurie, who stays with the plaintiff overnight every fortnight, provides between 6 to 10 hours of services each fortnight. This reveals a total of about 13 hours of services provided each week. This has been the case for the last 18 to 24 months. Before that, in the period immediately following her injury and during her recuperation, the plaintiff's needs required the provision of a greater number of hours for such services but those hours lessened as she gradually become more independent with some of the lesser demanding tasks. 144The services provided to the plaintiff covered a range of activities she was unable to carry out herself as a result of her injuries. These services included meal preparation, shopping, laundry, washing, ironing, internal housework, changing bed linen, washing floors, vacuuming, as well as home and garden maintenance tasks. Of those services, in the last 18 months the plaintiff has been able to attend to her own laundry needs, some meal preparation, and some minor shopping in small amounts. 145In the light of that evidence, I am satisfied the plaintiff required and received such services for more than 6 hours per week for more than 6 months: s 15(3) of the CL Act . 146Having reviewed and considered the evidence of the hours of domestic assistance provided to the plaintiff to the date of the trial, I consider that the amount claimed by the plaintiff requires some discounting to reflect the fact that, understandably, some small degree of the time spent by family members in assisting the plaintiff had a non-service or social component, that must therefore be excised from the consideration. The identification of that discount may perhaps be somewhat arbitrary, but it must nevertheless be applied. Having due regard to this factor, I consider that the appropriate assessment of hours for this component of the claim is 10 hours per week over the 168 weeks of the pre-trial period. The remaining task is to undertake the assessment within the requirements of s15(4) of the CL Act . 147The parties have identified a rough average rate of $23 per hour over the pre-trial period. Applying that rate, 10 hours per week quantified at $23 per hour over 168 weeks amounts to $38,640. 148The Appendix to these reasons demonstrates that the s 15(4) rate for the pre-trial period should be assessed at no more than $39,931, and that the rate of $23 per hour relied upon by the parties does not exceed the hourly rate specified by s 15(4), I therefore assess the plaintiff's entitlement to damages for past gratuitous domestic services in the amount of $38,640.

Future paid domestic assistance 149The plaintiff makes a claim for the cost of assistance with future domestic, gardening and home maintenance tasks, which she would have otherwise attended to herself, and for which she now requires assistance as a result of her injuries. The plaintiff seeks to quantify the future cost of such services by claiming 14 hours per week of future care at the rate of $38 per hour, or $532 per week, projected at 5 per cent over 17 years (x 602.8) to yield an amount of $320,689. 150In contrast to the claim made by the plaintiff, the defendants submitted that the appropriate sum to be awarded to the plaintiff as representing the likely projected cost of such assistance is $18,993. The defendants have arrived at that amount by allowing 2 hours per week at $23 per hour over 10 years and discounted by 5 per cent for vicissitudes. 151In my view, on several levels of analysis, the defendants' approach is necessarily flawed in its application to this case, and must therefore be rejected. First , the selected rate is a non-commercial statutory rate, which only applies to the valuation of past services. Secondly , the allowance of 2 hours per week is a manifestly inadequate allowance for the plaintiff's need for domestic assistance on the evidence I have accepted. Thirdly , the submitted projected period of 10 years is arbitrarily too short in respect of the plaintiff's permanent impairment and is disconsonant with the plaintiff's probable future life span of 17 years. Fourthly , as the actuarial tables used for projection already contain a discount component for mortality, and there is no evidence that the plaintiff's condition is likely to improve with treatment so as to remove or lessen her need for future domestic assistance, the submitted discount is inappropriate. 152Dr Conrad expressed the view that the plaintiff's prognosis was uncertain. That evidence together with the plaintiff's evidence, leads me to the view that the plaintiff's need for domestic assistance will continue indefinitely. The defendants did not tender any medical evidence to the contrary. 153The regime of attendance on the plaintiff for domestic assistance has been stable for some time. However, having regard to the evidence of the plaintiff's family it is plain that the provision of such services to the plaintiff has been accompanied by a good deal of inconvenience on their part. Accordingly, I consider that it would be unreasonable to assume that these services would continue to be supplied indefinitely. That leads me to the view that she should be compensated for the value of such services at the conceded commercial rate of $38 per hour rather than the statutory rate for gratuitous services : Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 : Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245. Based on the current regime, as discounted, I assess the plaintiff's continuing need for domestic services at 10 hours per week. This is the equivalent of $380 per week. 154The projection of $380 per week at 5 per cent over 17 years (x 602.8) yields an amount of $229,064. 155Accordingly, I assess the plaintiff's entitlement to damages for future paid domestic assistance in the amount of $229,064.

Future treatment 156The plaintiff makes a claim for the cost of future treatment comprising medical consultations, pain relieving medications, physiotherapy and possible surgical treatment. The plaintiff seeks to quantify this component of her claim by seeking a lump sum buffer allowance of $40,000. In contrast, the defendants submitted the evidence disclosed that a buffer of $5000 was a more appropriate allowance for future treatment. 157The evidence did not disclose that the plaintiff was currently receiving any significant ongoing treatment. The plaintiff said that she took Panamax for pain relief. She indicated that she would accept reasonable recommendations for surgical treatment if such recommendations were made by doctors in whom she had faith. The evidence as to the plaintiff's future treatment needs was relatively sparse, as is apparent from the following evidence review on this topic. 158The evidence discloses that the plaintiff had some physiotherapy treatment recommended to her whilst she was in hospital. She apparently had that treatment at the Blacktown Hospital physiotherapy outpatient's department in the period between 15 November 2007 and 19 February 2008. 159The opinion of Dr Tan was that the plaintiff experiences a restricted use of her left knee with a restricted range of movement due to the injury in question. Dr Tan was of the view that the plaintiff's prognosis was for post-traumatic osteoarthritis to develop in that knee. Dr Conrad confirmed that the prognosis for development of arthritis in the left knee was a probability in the plaintiff's circumstances. Dr Conrad considered the likely ongoing combined cost of physiotherapy, general practitioner treatment, medication and specialist consultations would be in the vicinity of $1,500 per annum, which is the equivalent of $28.84 per week. He identified the plaintiff's overall prognosis as being uncertain. That opinion was not relevantly challenged. 160Dr Kai Lee expressed the view that the plaintiff's prognosis was guarded. He stated that the plaintiff would probably require a future knee replacement in the not too distant future, and the cost of this would be of the order of $20,000. That opinion was not relevantly challenged or contradicted. 161Mr Glancey considered the question of whether the plaintiff's psychological problems of anxiety and depression, which were associated with pain, frustration and a diminished quality of her life, merited psychological treatment. He noted these problems were related to the underlying left knee problems. In those circumstances he thought psychological counselling would be of little benefit to the plaintiff. 162On the foregoing evidence I accept as reasonable the estimation provided by Dr Conrad. The sum of $28.84 per week projected at 5 per cent over 17 years (x 602.8) yields an amount of $17,384. When the cost of knee replacement surgery of $20,000 is added, this yields a total sum of $37,384. I propose to round this sum down to $35,000 to allow for a short term deferral of the cost of the knee replacement procedure that was identified by Dr Kai Lee. 163Accordingly, I assess the plaintiff's entitlement to damages for future treatment in the amount of $35,000.

Past out-of-pocket expenses 164The plaintiff made a claim for past out-of-pocket expenses in the amount of $2115.85. This amount was ultimately agreed to by the defendants. Accordingly, I assess the plaintiff's entitlement to damages for past out-of-pocket expenses in the amount of $2115.85 .

Summary of damages assessment 165My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $175,500.00 (b) Past domestic or attendant care $38,640.00 (c) Future domestic and attendant care $229,064.00 (d) Future treatment $35,000.00 (e) Past out-of-pocket expenses $2,115.85 Total $480,319.85

166This damages assessment requires an apportionment on account of my finding concerning the plaintiff's own contributory negligence.

Disposition and costs 167The plaintiff has succeeded in establishing her entitlement to damages in the assessed sum of $480,319.85. After giving effect to the apportionment of 40 per cent contributory negligence on the plaintiff's part, this results in judgment in her favour in the sum of $288,191.91. The plaintiff is therefore entitled to an order for her costs of the proceedings to be paid by the defendants on the ordinary basis unless otherwise ordered.

Orders 168I make the following orders: (1) The plaintiff's damages are assessed in the sum of $480,319.85; (2) After apportioning the plaintiff's contributory negligence and the defendant's negligence in the ratio 40 per cent : 60 per cent, verdict and judgment is entered in favour of the plaintiff in the amount of $288,191.91; (3) The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; (4) The exhibits may be returned; (5) Liberty to apply on 7 days notice if further orders are required. APPENDIX CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO CIVIL LIABILITY ACT 2000, s 15(4) [10 hours per week] PERIOD WEEKS WEEKLY s.15(4) RATE HOURLY s.15(4) RATE AMOUNT FOR 6 HOURS PER WEEK 1 01.09.2007 to 16.11.2007 11 $929.70 $23.24 $2,556.40 2 17.11.2007 to 15.02.2008 12.85 $929.30 $23.23 $2,985.05 3 16.02.2008 to 16.05.2008 12.71 $937.80 $23.44 $2,979.22 4 17.05.2008 to 15.08.2008 12.85 $921.60 $23.04 $2,960.64 5 16.08.2008 to 21.11.2008 13.85 $933.50 $23.34 $3,232.59 6 22.11.2008 to 20.02.2009 12.85 $938.50 $23.46 $3,014.61 7 21.02.2009 to 15.05.2009 12 $946.40 $23.66 $2,839.20 8 16.05.2009 to 21.08.2009 13.85 $939.00 $23.48 $3,251.98 9 22.08.2009 to 20.11.2009 12.85 $959.90 $23.99 $3,082.71 10 21.11.2009 to 19.02.2010 12.85 $969.40 $24.23 $3,113.55 11 20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $3,179.09 12 22.05.2010 to 29.11.2010 27.28 $986.90 $24.67 $6,729.97 TOTAL 168 $39,931.01

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: 17 June 2011