Addison v The Owners - Strata Plan No. 32680

[2010] NSWDC 251

CITATION:	Addison v The Owners – Strata Plan No. 32680 [2010] NSWDC 251
HEARING DATE(S):	22 July 2010
JUDGMENT DATE:	6 October 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Judgment for the plaintiff for the sum of $154,651. (2) Defendant pay plaintiff’s costs. (3) Liberty to restore re costs. (4) Exhibits retained for 28 days.
CATCHWORDS:	TORT - negligence - pathway across strata home units in use for many years as a short cut between a primary school and the main road - pathway visible at night for a short distance due to street lighting but otherwise unlit - plaintiff falls into a drain culvert which is visible during the day but not on a dark night - duty of care - whether duty of care breached - nature and extent of any obligation of the defendant to trespassers using the pathway at night - whether drain structure an obvious risk - contributory negligence - damages
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5F, 5H, 5I, 5G and 5S
CASES CITED:	Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874; [2007] NSWCA 4 Doubleday v Kelly [2005] NSWCA 151 Edson v Roads & Traffic Authority (2006) 65 NSWLR 453 Fallas v Mourlas (2006) 65 NSWLR 418; (2006) Aust Torts Reports 81-835; [2006] NSWCA 32 Miller v Galderisi [2009] NSWCA 353 New South Wales v Broune [2000] NSWCA 3 Perrett v Sydney Harbour Foreshore Authority; Wine & Vine Personnel Pty Ltd v Same [2009] NSWSC 1026 Phillis v Daly (1988) 15 NSWLR 65 Roads and Traffic Authority of NSW v Dederer (2007) 81 ALJR 1773 Russell v Rail Infrastructure Corporation [2007] NSWSC 402 Schubert v Lee (1946) 71 CLR 589 State of NSW v Moss (2000) 54 NSWLR 536 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Talbot-Price v Jacobs [2008] NSWSC 189 Temora Shire Council v Stein (2004) 134 LGERA 407; [2004] NSWCA 236 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234; (2005) 214 ALR 452; (2005) 79 ALJR 904; (2005) Aust Torts Reports 81-795; [2005] HCA 19 Wyong Shire Council v Shirt (1980) 146 CLR 40; (1980) 60 LGRA 106; (1980) 29 ALR 217; (1980) 54 ALJR 283 Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754; [2004] NSWCA 247
PARTIES:	Plaintiff: Dean Andrew Addison Defendant: The Owners – Strata Plan No. 32680
FILE NUMBER(S):	2844 of 2009
COUNSEL:	Plaintiff: Mr A Lidden SC / Ms M Fraser Defendant: Mr N Polin
SOLICITORS:	Plaintiff: Brydens Law Office Defendant: Curwoods Lawyers

Judgment

Introduction

[1] The plaintiff by statement of claim filed on 30 June 2009 brings proceedings for damages for an accident he suffered on 10 August 2007 while walking along a path on an area of common property owned by Strata Plan No. 32680. The path along which he was walking, as is demonstrated by the photographs (see in particular Exhibit E and F and aerial photographs) is a well-used track or pathway going from the road leading to Leumeah Primary School across the defendant’s common property to a white zebra crossing at the main road exit from the pathway.

An overview of the case and the injury

[2] The plaintiff, who was born on 21 October 1987 and was 19 at the time of the accident, had been visiting a friend who lived near this pathway. He left at 8 pm to visit his girlfriend, who worked at West Leagues Club. He commenced walking from his friend’s home at about 8 pm and entered the pathway across the defendant’s property, intending to arrive at Leumeah Road so that he could travel along Leumeah Road to West Leagues Club.

[3] Although there are street lights at both ends of the pathway, there is no artificial lighting. Although he had been using the pathway since he was 10 years old, the plaintiff said that this was the first time he had used this pathway at night, and he did not realise that the illumination at the commencement of the path would not continue as he walked along it. In addition, it was a particularly dark winter night, as there was no moon.

[4] As the plaintiff walked along the path, it became more and more difficult to see. He was aware that there was a pit in the middle of the pathway, near a brick retaining wall. He did his best to avoid the pit, but fell in it. This pit, which is described in further detail in this judgment, was quite deep, and the plaintiff struggled to get out. Two young women who were using the pathway saw and heard him and started screaming, thinking he was an intruder.

[5] The plaintiff realised that he was seriously injured and went home, where his family immediately took him to the casualty section of the Campbelltown Hospital. He was admitted on 10 August 2007, then transferred to Liverpool Hospital on 11 August 2007 where he was placed in intensive care. On 16 August 2007, he underwent a splenectomy. He was not discharged from Liverpool Hospital until 23 August 2007. While in Liverpool Hospital, he commenced antibiotic treatment on 11 August 2007, which he continues to this day.

The nature of the plaintiff’s claim

[6] The plaintiff relies upon the following particulars of negligence:

(a) Failing to take any or any adequate precautions for the plaintiff’s safety;

(b) Putting the plaintiff in a position of peril in the circumstances;

(c) Providing a trap (to wit the said pit) to persons walking along the path;

(d) Failing to illuminate by means of a flood lamp the area where the said pit intersected the said path;

(e) Failing to prevent by means of ropes, barricades or otherwise persons from tripping over the edge of the said pit and falling therein.

[7] The plaintiff suffered the following injuries:

(a) Ruptured spleen requiring a splenectomy;

(b) Injury to his chest and ribs;

(c) Other internal injuries;

(d) Shock.

[8] The plaintiff particularises the following continuing disabilities:

(a) Requirement to undergo splenectomy (now performed);

(b) Scarring to abdomen;

(c) Pain and restricted movement to chest (now largely resolved);

(d) Difficulties when breathing after heavy exertion;

(e) Increased susceptibility to infection and early mortality due to spleen removal;

(f) Embarrassment over scarring;

(g) Requirement to consume antibiotic medication on a lifelong basis;

(h) Possible future side effects to long term consumption of antibiotic medication including increased susceptibility to infection and digestive problems;

(i) Likely future requirement to undergo lengthy periods of treatment and hospitalisation in respect of recurrent infections;

(j) Risk of early mortality;

(k) Sleeplessness;

(l) Disturbed family relationships;

(m) Increased moodiness and irritability;

(n) Fear of dark spaces;

(o) Increased late complication rate as a consequence of the immunodeficiency resulting from loss of lymphoid tissue in the spleen;

(p) Increased risk of infections by both common and rare organisms with an increased mortality as a consequence;

(q) Increased requirement to make use of prophylactic antibiotics;

(r) Possible low levels of circulating immunoglobulin associated with greater risk of secondary infection;

(s) Requirement for long term antibiotics;

(t) Requirement for additional boosting with vaccines.

[9] The plaintiff brings a claim for past and future loss of earning capacity, including superannuation, and a claim for future domestic assistance.

[10] The defendant denies negligence by reason of ss 5B and 5C Civil Liability Act 2002 (NSW), claims that any injuries suffered by the plaintiff is not causally connected to the acts or omissions of the defendant (s 5D) and pleads that the pit in question was an “obvious risk” as set out in s 5F and there was no duty to warn pursuant to s 5H. Further, any risk of injury to the plaintiff from walking off the path into the pit was an “inherent risk” (s 5I). The defendant further relies upon s 5G and says that the plaintiff ought to have been aware of any risks of harm associated with the path pursuant to s 5G Civil Liability Act.

The issues in these proceedings

[11] In practical terms, the issues in the case are:

(a) the nature and extent of any duty of care the body corporate had to persons such as the plaintiff, who were trespassers;

(b) whether there was any breach of that duty and whether the risk was obvious (i.e. the primary argument concerning liability relates to s 5B);

(c) contributory negligence; and

(d) quantum.

The plaintiff’s evidence

[12] The plaintiff, who was born on 21 October 1987, was 19 at the day of the accident. Apart from a hand injury at the age of 12, he had enjoyed good health. He completed year 10 of the School Certificate at Leumeah High School in late 2003 and commenced work as a labourer with underground power contractors, following which he commenced a pre-apprenticeship plumbing TAFE course and obtained an apprenticeship in plumbing. In or about March/April 2007 he changed his occupation and from May 2007 to the date of the accident, he was working first as a casual glazier and then full time for Alltec Glass & Aluminium Pty Ltd.

[13] The plaintiff was familiar with the pathway as he had been using it since a primary school student. Leumeah Primary School is immediately adjacent and the plaintiff’s evidence was that school children used this pathway to reach the school. The plaintiff said he and his friends spent some time in the area around the pathway, which suggest that they were playing in the area and not simply crossing from one side of the property to another. The common property area is unfenced and there are a number of trees dotting the pathway. I infer from the plaintiff’s description of the property that it would have been an attraction to young people in that suburban area which was away from the main highway. The attraction of areas of natural bush areas, and their role as a lure to young persons, was referred to briefly in the submissions on behalf of the plaintiff, but there was no evidence led about this.

[14] On the night in question, the plaintiff went to visit his friend, Jason, at about 6 pm. They watched television and did not drink any alcohol. He left Jason’s home at about 8 pm and walked the distance between Jason’s home and the West Leagues Club, which was approximately 1 km.

[15] In order to reach West Leagues Club, the plaintiff took the pathway from the Leumeah Road to the primary school which he had so often used in the past. This was, however, the first time he had used it at night. He said that between his friend Jason’s home and Parkhill Avenue and Leumeah Road, this was the most direct route.

[16] As he walked along the road and entered the pathway there was streetlights, but as he walked along the path it became “pitch black”. When he reached the spot just before he fell, he could barely make out what was in front of him. He knew he had to go around the pit. When he set about going around the pit, the next step he took there was “nothing there”, and he fell in. He remember being conscious of falling, and that the cover of the pit struck his ribs. He remained there for a while, and then set about trying to get out. As he was crawling out, two girls who were using the pathway went past, and as they saw him, they screamed, fearing he was going to attack them. He reassured them and managed to get to his feet.

[17] According to the hospital note (Exhibit A), the plaintiff arrived at the emergency department at Campbelltown Hospital at 10.25 pm. He described his injuries as resulting from a fall for approximately 1 m into a storm water drain.

[18] The medical reports tendered by the plaintiff (Exhibit A) and by the defendant (Exhibit 1) differ very little on many issues. The plaintiff’s account of the circumstances of his accident are consistent, and his injuries clearly relate to the events in question. The dispute concerning quantum, as will be apparent from the medical reports summarised below, relates essentially to the extent of his ongoing disabilities and whether or not he suffered any psychological sequelae. These are considered in more detail in the section of this judgment concerning quantum.

[19] Although in the defence the defendant did not admit it was the occupier, this was admitted at the hearing. The issues in dispute on liability are whether there was a duty of care and a breach of that duty of care to the plaintiff (who was asserted to be a trespasser) and whether the absence of illumination, as the plaintiff reached the middle of the path, was an “obvious risk” within the meaning of s 5F Civil Liability Act 2002 (NSW) of which s 5G presumed him to have been aware. Contributory negligence is also an issue.

The expert’s report

[20] A report prepared by HL Burn and Associates dated 15 December 2009 provides some helpful photographs and a description of the site.

[21] The drainage structure in question has a 3,700 mm long northern wall, with the wall’s top varying in height above the ground at the storm water pit site from 400mm at one end to 1,050 mm where the plaintiff fell. The western short wall at 2,090 mm long is above ground level and the southern wall (which is 3,570 mm long) varies from 260 mm above ground at its end to 1,030 mm near the stormwater inlet pit. The top of the bricks reaches 120 mm above ground level. There are some missing bricks in another part which is level with the ground. There is a timber surround for the pit.

[22] The earth mount running parallel with the western property boundary has a path which runs along the top, and this is the part which the plaintiff fell on.

[23] Mr Burns says (p. 3-4) that from the shape and general arrangement, the drainage structure appears to be the outlet of the stormwater detention basin for the stormwater runoff for the body corporate.

Use of the pathway

[24] Mr Polin for the defendant submitted to me that the only evidence I had as to the use of the area was that school children used it at 3.00 or 3.30 pm in the afternoon. That is not the case. First of all, the plaintiff’s evidence was that two young women were on the path shortly after he fell. Secondly, although there was evidence that children walked from schools, apparently in large numbers, using this pathway as a shortcut, in the afternoon, common sense would dictate that it was likely that at least some of these school children could well have used this pathway in the morning. The degree of usage of the path can be established by the very worn state of the path. There is no information before me to explain why it is that the local council had placed a zebra crossing at the Leumeah Road exit from the path, but these factors gives the impression to pathway users that this is a pathway for public use.

The level of lighting along the path

[25] It is not in dispute that there is no lighting along the path. There are streetlights at both ends of the pathway, namely in Leumeah Road and Lostock Place. As it was winter, it was likely that people in the home units had their curtains shut and they were unlikely to be using their backyard so there would be no lighting spilling over from the residential dwellings on the common property. There were no exterior lighting visible to the expert and it would appear that there were no exterior lighting for this part of the property at all.

[26] On the night in question, sunset was at 5.23 pm. The moonset at 2.40 pm that afternoon and there was no moon that night (see attachment A to Exhibit B). According to Mr Burns, who visited the premises, there was sufficient light only to make out the edge of the brickwork at ground level but not the fact that there was a depression behind the brickwork (Exhibit B, pages 4-5).

[27] Mr Burns’ conclusions as to usability were as follows (Exhibit B, page 5):

“Under ambient conditions when looking along the route of the path through Parkview Court knowing the drainage structure to be ahead neither the drainage structure nor the associated depression behind it was visible from a distance of around 15 m to the north (the direction of approach taken by Mr Addison). At this distance it was difficult to make out some of the darker barked trees surrounding the drainage structure I knew was there. At around 10 m north from the drainage structure is [sic] was just possible to make out the edge of the brick work at ground level but not the fact there was a depression behind the brickwork. During my visit I was looking out to see how difficult or otherwise the drainage structure was to see at night in the dark, a person simply walking along the path would not be as intent on examining the path ahead.”

[28] Mr Burns says at page 8 of his report that the accident would be preventable if solar or other electric lighting was provided for the pathway, or if exterior vandal proof fluorescent lighting at the exit door to units 13 to 18, similar to the light already in place at the rear exit to units 43 to 48 provided spillover lighting. In addition, or in the alternative, the provision of a safety fence at the top of the brick wall to prevent persons inadvertently stepping over the wall could be installed.

[29] The pit in question has been in place for more than 30 years. There is no evidence of any other accidents during that time.

Issues on liability

[30] The defendant, as owner and occupier of a residential property, is not in the same position as a road authority. It is submitted that the plaintiff was effectively a trespasser whilst crossing the property.

[31] The duty of care that an occupier owes to take care is what is reasonable in the circumstances, and reasonable conduct will vary with the circumstances of the plaintiff’s entry onto the premises: Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 at 487 – 8 per Mason, Wilson, Deane & Dawson JJ; Phillis v Daly (1988) 15 NSWLR 65 at 67-68 per Samuels JA. In Phillis, Samuels JA explained, in relation to trespassers, that the “degree of care appropriate for a trespasser, whose entry may fall at any point in a long continuum of knowledge, perception and expectation on the occupier’s part, may be much less than that which can reasonably [be] demanded by the business visitor, whose appearance is anticipated and welcomed, and less than that owed to someone whose entry is anticipated but merely tolerated.”

[32] The path across the defendant’s property is a very well-worn one, and there is a pedestrian crossing at the Leumeah Road exit.The plaintiff’s evidence (confirmed by the expert in his report and evidence) was that school children use this area as a shortcut to and from the primary school. The defendant conceded this, but said they only used the path during the day. This evidence was however inconsistent with the evidence of the plaintiff in relation to the night in question, as his unchallenged evidence was that there were two girls using the path shortly after he had his accident.

[33] If the plaintiff is a trespasser, that does not necessarily mean his action would fail; it simply makes it “more difficult to succeed”: Talbot-Price v Jacobs [2008] NSWSC 189 at [109] per Basten JA. However, as Basten JA goes on to note, if the area entered by the trespasser was “an attractive feature of the premises” or an “allurement” (Roads and Traffic Authority of NSW v Dederer (2007) 81 ALJR 1773 at [64] per Gummow J; Edson v Roads & Traffic Authority (2006) 65 NSWLR 453 at [96] per Ipp JA) that may be a relevant feature in relation to a finding of duty of care.

[34] In Talbot-Price the lessor told the lessee not to use the ladder to the loft because the ladder should not be there, and the lessee knew it was dangerous; the Court of Appeal (see Ipp JA at [100]) found that this was enough to discharge the “generalised duty”. However, there is no such evidence in this case. As senior counsel for the plaintiff pointed out in submissions, no oral evidence was called by the defendant, and there was no evidence that anyone living in the premises had ever made the slightest objection to children (in sufficiently large numbers to make the path so well-worn) crossing and re-crossing its property on foot or bicycle for a considerable period of time at least twice a day on school days. Nor was there any evidence that the defendant had objected to the placing of a pedestrian crossing directly in front of this pathway; it can clearly be seen on the photographs of the path leading to the site of the plaintiff’s accident. No fence was put up to keep the plaintiff and all these other trespassers out of an area which, like the nature strips and verges beside railway lines, are known to be attractive to children (see the cases collected in Russell v Rail Infrastructure Corporation [2007] NSWSC 402 at [71] by Bell J).

[35] In Edson v Roads & Traffic Authority (2006) 65 NSWLR 453 at [24] Ipp JA noted a “long-established practice” of local residents to walk across a dangerous freeway, noting:

“[23] A well-worn path was established where pedestrians had walked across from the gap in the noise wall to the gap in the fence. This is graphically demonstrated in photographs, which show the path to be very clearly defined through fairly thick vegetation. The vegetation had been destroyed by the feet of pedestrians. Human traffic has been so heavy that problems of soil erosion have occurred.”

[36] The RTA had in fact taken steps to prevent this use. No such attempts to prevent use of this pathway by trespassers were undertaken. While there is no evidence as to whether or not the pathway was used by residents, senior counsel for the plaintiff pointed out in submissions that it was close to the garage area.

[37] What was the risk to be foreseen? A matter relied upon by the defendant to establish lack of risk is a report of the body corporate, unrelated to the accident, dated July 2008, in which the body corporate was seeking recommendation as to risk assessment on the common property of the body corporate. Although that report identities a number of other potential risks, there is nothing concerning the area that was the subject of the accident.

[38] No evidence was led concerning why no reference to examination of this area is included. However, during the course of the hearing, counsel for the plaintiff drew to my attention the initial pleading that ownership of the property was not admitted, and submitted that there was no evidence that the risk report author had been asked to look at this part of the common property. The letter of instruction to which this report (Exhibit 2) is the reply was not tendered.

[39] The first matter that is put in relation to s 5B is that there was no positive evidence, or indeed evidence at all, that the body corporate knew that the plaintiff or any other person was using this area as some means of access at night time. It was put to me that this was an area with trees that was, to use the words of counsel, “perilously dark” because of the overhang of trees and if any person had been using this area at night, there was going to be a problem because you simply cannot see in front of you.

[40] What was put to me was that from the point of view of the defendant it was simply “not foreseeable that someone would be stupid enough” to walk along this path in conditions of perilous darkness.

[41] I do not accept this submission. The unchallenged evidence was that large numbers of young persons were using this pathway on a daily basis over an unknown period of years, and there was nothing to stop them doing so after it became dark. The obligation of an occupier of land to a trespasser is explained in Edson v Roads & Traffic Authority at [100] by Ipp JA. Land that is “open to or used by the public” can be used to describe “a factual condition consisting of any real use of the place by the public as the public” as distinct from use by licence, or a particular person, or casual or occasional use: Schubert v Lee (1946) 71 CLR 589 at 592 per Latham CJ, Rich and Dixon JJ. In Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [112] – [113] McColl JA, referring to Schubert, considered a lane in the park could be open to the public, as could a car park to pedestrians, even though those persons were not there to use the premises. On the facts of this case, even if the plaintiff were a trespasser (which I find he was not) he would be one who was owed the duty of care explained in Edson v Roads & Traffic Authority and Stojan (No 9) Pty Ltd v Kenway.

[42] The defendant submits that if I find there was a duty of care, there is no breach because of the obviousness of the risk. Obviousness of the risk may be relevant both to the existence of a duty as well as to breach (Edson v Roads & Traffic Authority at [100]).

“Obvious risk”

[43] The question of what is an obvious risk depends upon the facts of the case. In Sutherland Shire Council v Henshaw [2004] NSWCA 386 at [88] Bryson JA said:

“88 The concept of an obvious risk is very elusive. What is obvious depends first on what the risk physically is. What is obvious also depends greatly on physical conditions: night, day, fog, driving rain; and on what the pedestrian is doing, which may or may not be reasonable, or sensible: walking, running for a bus, chasing a toddler, jogging, running from the police, carrying an armload of goods, dodging a bicycle, responding to a noise which could indicate a danger, marching in step in a procession: and on characteristics of the pedestrian: infant, aged, sober, drunk, blind, lame. The pedestrian might be blind outside a Blind Institution where obviously there are many blind pedestrians, and might be drunk outside a hotel.”

[44] The starting point for consideration of “obvious risk” is Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234; (2005) 214 ALR 452; (2005) 79 ALJR 904; (2005) Aust Torts Reports 81-795; [2005] HCA 19, where the High Court said at [36] and [37]:

“[36] The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community’s standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings.

[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 one 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.”

[45] The defendant submits that on the plaintiff’s evidence, he was unable to see the trap in front of the drainage pit which was in his path. The obvious risk consisted of continuing down this path in circumstances where he was walking from an area where he started off being able to see the ground but then found that he could not do so. This is what is asserted to constitute the obvious risk.

[46] The defendant referred me to Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754; [2004] NSWCA 247, in which the Court of Appeal explained that a danger is obvious where both the condition and the risk are, in the individual circumstances of the case, apparent to and would be recognised by, a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. The Court said at [161]:

“[161] At this point it is appropriate to comment that, according to my research, none of the Australian cases attempt to define what is meant, at least generally, by an obvious risk. This is not to say that the authorities referred to above are inconsistent in approaching the question of whether a risk is, in fact, obvious in a given circumstance. However, I see no reason not to adopt the definition found in the commentary to §343A of the Restatement (Second) of Torts (1965) (Rest 2d Torts §343A). This definition is consistent with the Australian authorities discussed above which have emphasised the importance of an individual taking care for his or her own safety. In the commentary, "obvious" is defined as follows:


’Obvious’ means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence, and judgment.”

[47] In Edson v Roads & Traffic Authority at [103], in relation to a trespasser crossing a dangerous highway, Ipp JA explains the concept of obviousness of the risk.

[48] However, the first question is whether the risk was in fact obvious. A number of cases dealing with obvious risk claims relate to the visibility of a risk that can be seen during the day but not at night. The parties drew my attention to Temora Shire Council v Stein (2004) 134 LGERA 407; [2004] NSWCA 236, although this case must be treated with some caution because it is a highway case. The plaintiff who was aware of a race driveway (and in fact previously tripped on it), knowing it was very dangerous, tripped and fell while using the pathway at night. The plaintiff did not describe the illumination of the driveway or the visibility of the driveway, nor did she say she was unable to see, or even that she failed to see, what she had tripped on (at [15]). An expert report noted that there would have been little illumination of the site, but this report was rejected by the Court of Appeal for a number of reasons, including a failure to take into account a light pole on the other side of the street.

[49] Giles JA noted that it would have been easy for the plaintiff to give evidence that the illumination of the driveway was such that it was not visible to her and that by reason of poor illumination the hazard was not obvious, and in the absence of knowledge of the illumination and visibility, it was not shown to have been in the nature of a trap (at [51]-[53]).

[50] The defendant relied strongly upon this decision, but one of the problems in the case was the lack of evidence about the visibility of the driveway at night, as Giles JA noted. Hodgson JA made the same point about lack of evidence in a dissenting judgment at [59]-[61]:

“[59] In cases such as the present, where the magnitude of the risk could be very different for different classes of pedestrians, it is in my opinion appropriate to consider the question of breach having regard to the foreseeable risk of injury to a class including the plaintiff that is narrower than the class of pedestrians generally. In the present case, the relevant class would in my opinion be pedestrians of normal physical capacities using the footpath at night.

[60] Thus, the question in this case is whether it was shown that a reasonable person in the Council’s position would have foreseen that the raised edge of the driveway involved such a risk of injury to pedestrians of normal physical capacity using the footpath at night, and exercising reasonable care for their own safety, that such a reasonable person would have taken remedial action prior to the accident.

[61] This in turn requires a judgment as to how obvious the raised edge was at night. There was evidence that the nearest street light was on the other side of the road, but no evidence from the appellant or any other witness as to the visibility of the edge at night. In those circumstances, in my opinion the evidence did not justify a finding that the raised edge was not readily visible at night to persons taking reasonable care for their own safety, or that it involved such a risk of injury that the Council, knowing of it, should have remedied it.”

[51] The approach to take concerning the interrelationship of “obvious risk” as defined in the Civil Liability Act 2002 (NSW) with concepts of breach of duty is set out by McCallum J in Perrett v Sydney Harbour Foreshore Authority; Wine & Vine Personnel Pty Ltd v Same [2009] NSWSC 1026, explaining the allowances of this issue by the Court of Appeal in Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874; [2007] NSWCA 4 and I adopt and apply the approach set out in those decisions and by Giles JA in Temora Shire Council v Stein, supra (which is referred to by McCallum J at [39]ff).

[52] Another case dealing with visibility problems is Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364, although obvious risk was not in fact raised. The plaintiff, like Mr Addison in these proceedings, had a choice of alternate routes, and those other routes were much shorter than the alternative route Mr Addison had the choice of taking in these proceedings (the measurements are set out in Stojan (No 9) Pty Ltd v Kenway at [6]). Mrs Kenway also took the shortest route, which in her case was a stairway where the lighting was inadequate. Her evidence was that there was light coming from the car park and the plaza which provided some illumination to the first steps that she was taking as she was walking up the stairs. When she got to the middle she found it was “impossible to see” (at [122]), as some bins were obscuring the light, but she continued, as she knew that at the top of the stairs there was another light so she would be going into a lighted area after she had negotiated the stairs. Although “obvious risk” was not raised in Stojan (No 9) Pty Ltd v Kenway, it is factually similar to the present situation, in that members of the public who use stairs or lanes in public areas where they are in frequent use may not stop to ponder whether some public authority is responsible for its upkeep; in the absence of “keep out” or “private property” signs, a stairway or lane in frequent public use is not readily identifiable as private property.

[53] The question of whether there is an obvious risk depends upon the facts of the case. When considering whether or not the defendant was negligent, I should take into account the factual description of the persons using this pathway. The overwhelming majority of persons using the pathway were children attending school and young persons such as the plaintiff and the two young women whom he encountered on the pathway on the night in question. As already noted, the attraction of young children and teenagers to items such as trampolines (Doubleday v Kelly [2005] NSWCA 151 at [10], [17] and [18]), railway culverts, bush areas and the like has been considered in a number of cases. In Doubleday v Kelly, supra, at [28], Bryson JA noted:

“[28] By s 5L “obvious risk” has the same meaning as it has in Div 4, that is the meaning given to it by s 5F: see s 5K. In support of the contention counsel argued that getting on a trampoline while wearing roller skates was a dangerous recreational activity engaged in by the respondent. That aspect can be left on one side. Whether the respondent’s injury was suffered as a result of the materialisation of an obvious risk requires reference by way of s 5K to subs 5F(1) and to whether the risk was “ … a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.” It was contended: “ … the full force of s 5L applies to children as though they were adults.” It was the meaning of this contention that when addressing who is, for the purposes of s 5F(1) “a reasonable person in the position of (the respondent),” the fact that the respondent was a child of seven is not relevant, and the reference is to a generalised reasonable person. In my view this submission does not accord with the meaning of subs 5F(1), which requires consideration of the position of the person who suffers harm and whatever else is relevant to establishing that position. The characteristics of being a child of seven with no previous experience in the use of trampolines or roller skates, who chose to get up early in the morning and play unsupervised, is part of that position.”

[54] In the present case, there was no fencing of any kind or indication that the property in question was private property. There was plenty of lighting at the commencement of the path, from both directions. This was as a result of the street lighting. It was only when the plaintiff arrived towards the middle of the path that he found himself in difficulties. That risk would not have been obvious from the street at either end of the pathway; it was only obvious after the plaintiff had started along the path.

[55] As noted by Basten JA in Fallas v Mourlas (2006) 65 NSWLR 418; (2006) Aust Torts Reports 81-835; [2006] NSWCA 32 at [152], one of the difficulties in determining whether a risk is obvious is to know the level of particularity with which the relevant risk should be identified. The contention put on behalf of the plaintiff here was that this well-worn path which led alongside buildings and the body corporate garage area (see the report of Mr Burns, Exhibit B) was in regular use not only during the day but at night, and the defendant knew or ought to have known this, particularly since some of the school children could have been riding a bicycle, or running along and jostling one another. The calculus in Wyong Shire Council v Shirt (1980) 146 CLR 40; (1980) 60 LGRA 106; (1980) 29 ALR 217; (1980) 54 ALJR 283 requires a consideration of whether there is a risk that is not far-fetched or fanciful.

[56] The plaintiff submits that there is a risk of significant and severe harm, in circumstances where simple and inexpensive methods would have been capable of being taken to resolve it (see the suggestions of Mr Burns in Exhibit B). The plaintiff further submits that as a practical matter, a path that is likely to be used by many persons during the day time is going to be used at night time, particularly in residential premises such as a block of units which are in use 24 hours a day.

[57] The hazard in this case, it should be noted, is only in the very dark area in the middle where the trees overhang; in other parts of the path, it was still possible to walk without difficulties, especially at the points of entry and exit. I note the reference to the “natural human inclination to minimize effort” (Stojan (No 9) Pty Ltd v Kenway at [150]) in continuing when encountering the risk, which the court considered should have been taken into account by the defendant, as well as the possibility that a person arriving at the dark part of the path could be at some risk going back (Stojan (No 9) Pty Ltd v Kenway at [150]). The defendant should have appreciated the risk of injury at night without lighting, and could have taken the steps outlined by Mr Burns to obviate the risk at very little cost.

[58] I have taken into account the fact that there is no prior record of injury at this site. The persons using this lane would have been regular users, like the plaintiff, who were careful to avoid the pit. The likelihood of injury when the pit could not be seen was nevertheless one which should have been appreciated by the defendant.

Conclusions concerning liability

[59] The danger to the plaintiff lay from the fact that having commenced along the pathway because the lighting was adequate, he reached a portion of the pathway where his path both ahead and back was difficult, if not impossible to see. There was nothing to warn him that this portion of the path was particularly dark. The opportunity to appreciate this was limited by the suddenness with which he found himself in complete darkness due to a combination of factors, namely the moonless night and the fact that it was a dark winter evening. This risk was not obvious when he commenced walking along the path, and the extensive use of this path by other members of the public meant he took for granted that it was safe for him to use it.

[60] The competing consideration of expense, difficulty and inconvenience of taking action to alleviate the risk, is not an issue about which I received any submissions from the defendant.

[61] The plaintiff accordingly succeeds on liability.

Contributory negligence

[62] The matters relied upon by the defendant to establish contributory negligence are:

(a) Failing to maintain a proper lookout;

(b) Failing to take precautions for his own safety.

[63] The defendant submits that this was a case where s 5S could well apply, in that contributory negligence was sufficiently great to defeat the claim entirely. The plaintiff got to a point where it was so dark he could not see where he was going, and could have turned back and walked to the lighted roadway, but did not. The plaintiff was aware that there was a grate in this area; he was endeavouring to avoid it when he fell. He was aware that it was dark on the path, and continued to go forward as opposed to going back.

[64] In New South Wales v Broune [2000] NSWCA 3 the plaintiff knew that an already poorly lit stairway (at [36]) was even darker than usual because the lights were out and the stairway was dark. Other means of egress existed, but were not within the vicinity, and her car was parked near the bottom of the stairs. The plaintiff believed she could safely go down the stairs by holding the handrail. The trial judge found that the plaintiff proceeded with such a degree of caution as not to amount to contributory negligence.

[65] The Court of Appeal dismissed the appeal from the trial judge’s refusal to find that there was contributory negligence, noting that the plaintiff’s injury was the very hazard which proper lighting was designed to avoid, as the fire stairs had irregular steps.

[66] The plaintiff referred to Sutherland Shire Council v Henshaw [2004] NSWCA 386, where the plaintiff fell into a large hole in a much-travelled road near a school. The Court held (at [40]) that the hole and drop were a hazard to pedestrians, and that if they had been observed by the road authority they would have been repaired in a short time, and that there was therefore no contributory negligence.

[67] A more apposite case is Stojan (No 9) Pty Ltd v Kenway, supra, where there were similar facts to the present. As was the case in these proceedings, the defendant at trial contended the contributory negligence was so great that s 5S should apply. The Court of Appeal found that contributory negligence should be assessed at 50%. Although it was not negligent for her to have gone “the long way round” in the first place, or in failing to turn back, the plaintiff had “let go of the handrail and charged forward in circumstances where she acknowledged in cross-examination that had she been more cautious and felt with her foot she could have avoided the fall” (at [151]). Once she realized she could not see where she was going, she ought to have known (s 5R(2)(b)) that by moving forward hastily without holding onto the rail she could fall.

[68] No such concession was made by the plaintiff here. He was doing his best to avoid the pit when he fell. The issues for contributory negligence in submissions were that he should not have used the path at all, and that he should have turned back when he realised it was too dark.

[69] The difference in fact between these two cases, in my view, is that the plaintiff knew there was a hazard in his path, namely the pit, yet he elected to keep going even when he could not see properly. This is a situation very similar to Edson v Roads & Traffic Authority, where the Court of Appeal (at [132] – [137]) assessed contributory negligence at 40%. The reasons for this included that the plaintiff had been warned not to cross this dangerous road (even though, as the Court found, around 25,000 local residents were doing this each year).

[70] The plaintiff had no such warning, and it should be recalled that he was a young man not out of his teens who had been using this path since he was ten years old, albeit not at night.

[71] The level of contributory negligence is not as severe as in Edson v Roads & Traffic Authority. However, there is still a significant degree of contributory negligence, and I propose to assess this as 30%.

[72] I now consider the issue of damages.

Damages

[73] The parties provided me with an outline of damages as follows:

Plaintiff’s Schedule of Damages

(a) Non-economic loss 38%	$180,000
(b) Past out-of-pocket expenses	$230
(c) Dr Conrad estimate of: (i) 2000 per year – 40 x 1017.5 = $40,700 (ii) Scar revision, hernia operation, long periods of hospitalisation, counselling = $50,000	$90,700
(d) Past wage loss (i) 500 per week for 33 weeks = $16,500 (ii) 300 per week for 2.3 years = $35,880	$52,380
(e) Future wage loss – 500 per week until age 67	$401,412
(f) Future domestic assistance	$30,000
Total	$754,722

Defendant’s Schedule of Damages

(a) Non economic loss (24%)	$26,000
(b) Past out of pocket expenses	$280
(c) Future out of pocket expenses	$5,000
(d) Past wage loss	$5,000
(e) Future wage loss	$25,000
(f) Future domestic assistance	Nil
Total	$61,280

[74] I have addressed these claims in more detail below.

General Damages

[75] The report of Dr Garsia, a clinical immunologist, dated 5 December 2008, explains the nature and extent of the plaintiff’s injury as follows:

“Splenectomy is associated with an increased late complication rate as a consequence of the immunodeficiency that results directly from loss of lymphoid tissue in the spleen. The severity of that immunodeficiency depends on whether a splenunculus is present and able to hypertrophy to regenerate some immunological structure analogous to the spleen. I am unaware whether a splenunculus was present and indeed if present whether it was able to be preserved.

People with splenectomy are at increased risk of infections both by common and rare organisms and there is an increased mortality as a consequence. Some of that increased mortality can be reduced by prophylactic antibiotics. The risk is greatest in the first two years after splenectomy and somewhat diminishes thereafter, although in an unpredictable way.

Some patients after splenectomy can develop more severe immunodeficiency and low levels of circulating immunoglobulin and this is thought generally to be associated with an even greater risk of secondary infection. Splenectomy is not usually associated with an increased risk of malignancy.

The treatment that Mr Addison has received would seem quite appropriate for his injury. It is likely that he will need long term antibiotics though it is somewhat controversial how long that should be continued. He will also need additional boosting with vaccines in the future and may not make an adequate response to some of those depending on the nature of the vaccines in the future.

Should Dean develop infection, particularly with a bacteremic phase or with organisms which have a capsule he will be at increased risk of serious complications from them. They should therefore be treated early and he is likely to have additional medical assessments as a consequence. His treatment for bacterial infection is likely to need to be prolonged if he does have a bacteremic illness.” (Exhibit A).

[76] Dr Conrad refers to a “very disfiguring scar” for which surgical revision would cost $4,000. He makes similar comments concerning the impact of a splenectomy on general health to those of Dr Garsia. He adds that due to the extensive scarring of his abdomen he is at risk of an incisional hernia and recommends reducing his lifting limit to 10 kgs (Exhibit A).

[77] The report of Dr Kim Edwards, served by the defendant, agrees (at p. 4) with Dr Garsia, although he says that the plaintiff is otherwise fit and healthy. He provides some additional comments to the effect that the plaintiff does not require any home assistance.

[78] There are reports from Mr Glancey, a psychologist (Exhibit A), and Dr Lee, a psychiatrist (Exhibit 1), but since the plaintiff’s medico-legal psychologist’s report described his prognosis as “optimistic” and his mood as “buoyant” as “normality returned to his life”, there is no evidence of problems other than the physical disabilities discussed above. This is important, because for a young man to be told that his injury could shorten his life could have had a significant impact.

[79] The plaintiff is leading a normal life in every respect. He is working full time, and has disregarded the warning not to lift more than 10 kgs, to date without any adverse results.

[80] Taking all of the medical evidence into account, as well as the plaintiff’s return to a normal and pain-free life, I propose to accept the 24% estimate of the defendant.

Past and future out of pocket expenses

[81] Past out of pocket expenses are agreed at $230.

[82] Future out of pocket expenses claimed by the plaintiff are the sums set out in Dr Conrad’s report for scar revision ($4,000) and the increased cost of seeing a doctor for the infections and other health problems which may develop ($40,700).

[83] I accept the claim of the plaintiff in relation to these items. The additional claim of $46,000 (contained in the matters particularised in (c)(ii) above) for “long periods of hospitalization”, “counselling” and “hernia operation” are, however, not allowed. The allowance of $40,700 would include some of these expenses, and there is no reason why the plaintiff would have “long periods of hospitalization”. On the evidence of Dr Lee and Mr Glancey, I do not consider he is likely to need counselling.

[84] Accordingly I allow $44,700 for future out of pocket expenses.

Home assistance

[85] There is no evidence of the plaintiff requiring assistance after his scar revision surgery, or of being likely to suffer from illnesses so debilitating that he will require home assistance. I note the opinion of Dr Edwards to this effect.

[86] As to future home assistance, the evidence is similarly vague. The plaintiff’s mother’s evidence showed her to be a caring mother who would do anything for her son. There is no evidence that the plaintiff will need to pay for assistance and having regard to the threshold and to Miller v Galderisi [2009] NSWCA 353 I decline to make any provision for damages under this head.

[87] However, the plaintiff’s income earning capacity is likely to be affected by future health problems, and I now consider the submissions on this issue.

Past and future economic loss

[88] The plaintiff was a very young man at the time of the accident and on the threshold of his working life. As two years have passed since his surgery, he has got through what Dr Garsia regards as the most dangerous period, but there is the risk of recurrent infection, the need to take medication for these infections, and the problem of hernia arising from his abdominal scars, which impacts on his ability to lift. What is not clear to me is whether the surgery proposed by Dr Conrad will cure this. Dr Conrad’s report does not say that the hernia problem will continue despite the surgery. I accordingly need to exercise some caution when taking these comments into account.

[89] The plaintiff and his employer were under sustained attack in cross-examination concerning the very informal bookkeeping methods used. The plaintiff was not working for two months before the accident, according to his mother (who was called on the home care issue) although he said that he was.

[90] The plaintiff’s work history as set out in his tax returns (Exhibit H) shows the typical low income of a young man performing physical labour. It shows a steady pattern of employment and it was clear from his evidence that he enjoyed working. He is self-employed and there is no superannuation claim, nor was there a claim for Fox v Wood.

[91] I note Mr Polin’s submission that I should take into account the fact that the plaintiff’s employer pays him in cash and keeps no records. Senior Counsel for the plaintiff submitted that even if I find the plaintiff’s evidence about losing his income records unsatisfactory, he is still only 23 years old and in the early part of a long earning career.

[92] While I might need to give this some weight in relation to the claim for past economic loss, it is of little relevance to future economic loss. The appropriate way for me to assess damages is in accordance with State of NSW v Moss (2000) 54 NSWLR 536.

[93] In relation to past economic loss, the estimate by the defendant of $5,000 is completely unrealistic. This is a young man who has had a serious injury and who has had to reorganize his working life. I propose therefore to accept the plaintiff’s estimate but, since the plaintiff’s financial records are unreliable, to make a very small reduction of this sum to $50,000 to take into account the defendant’s complaints.

[94] In awarding this sum I have taken into account Dr Garsia’s opinion that the first two years of the plaintiff’s life after his surgery is the time when his medical condition will have the greatest impact upon him. The plaintiff during this period of time needed to rethink his future and while he decided to continue working in a trade he enjoys, the disruption to his working life caused by this unexpected and quite serious injury should be given full credit by the court.

[95] As to future economic loss, the claim of $500 per week to the age of 67 by the plaintiff is excessive in circumstances where he is likely to be in full employment for about 80 – 90% of this time. The appropriate step to take is to award a cushion, and I note the defendant has proposed this, although for a sum that is very small. A more appropriate figure, having regard to the value of the plaintiff’s future employment to him, would be to award a cushion of $100,000. This figure (which I note represents approximately a quarter of the sum sought by the plaintiff) more accurately reflects the financial loss he will suffer for the periods in the future when he will be off work due to his scar revision, or for infections where he is too ill to work, or for periods of time when an infection means he cannot work full time.

Schedule of damages

[96] I award the plaintiff a total of $154,651 calculated as follows:

General damages --- $26,000
Past out of pocket expenses --- $230
Future out of pocket expenses --- $44,700
Past economic loss --- $50,000
Future economic loss --- $100,000
Domestic assistance --- NIL
Subtotal --- $220,930
Less 30% for contributory negligence
Total --- $154,651

(1) Judgment for the plaintiff for the sum of $154,651.
(2) Defendant pay plaintiff’s costs.
(3) Liberty to restore re costs.
(4) Exhibits retained for 28 days.

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