Burling v Optus Fixed Infrastructure Pty Limited

[2019] NSWDC 54

District Court

New South Wales

Medium Neutral Citation:

Burling v Optus Fixed Infrastructure Pty Limited [2019] NSWDC 54

Hearing dates:

6, 7 and 8 March 2019

Date of orders:

15 March 2019

Decision date:

15 March 2019

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the plaintiff against the defendant for $156,026.19.
(2)   Order the defendant to pay the plaintiff’s costs.
(3)   Grant leave to the parties to approach my Associate if either party seeks a different costs order.

Catchwords:

TORTS – negligence – plaintiff slipped on metal telecommunications pit lid resulting in fracture to left leg

 

TORTS – negligence – duty of care – whether there was a duty of care in relation to installation only or also a duty in relation to inspection and repair – failure to take reasonable precautions – s 5B Civil Liability Act 2002

 

TORTS – negligence – causation – s 5D(1) Civil Liability Act 2002

  TORTS – damages – non-economic loss – past out-of-pocket expenses – future out-of-pocket expenses – domestic assistance and care – past and future economic loss

Legislation Cited:

Civil Liability Act 2002 (NSW)
Telecommunications Act 1997 (C’th)

Cases Cited:

Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Mamo v Surace [2014] NSWCA 58; 86 NSWLR 275
Rickards v Australian Telecommunications Commission (1983) 3 NSWLR 155

Category:

Principal judgment

Parties:

Garry Burling (Plaintiff)
Optus Fixed Infrastructure Pty Limited (Defendant)

Representation:

Counsel:
E Walsh with P Macarounas (Plaintiff)
R Perla (Defendant)

 

Solicitors:

  Brydens Lawyers (Plaintiff)
Hunt & Hunt Lawyers (Defendant)

File Number(s):

2018/22719

Judgment

Introduction

1. The plaintiff slipped and fell in Bligh Street, Sydney on 7 March 2017. He fractured his left leg. He alleges that he slipped upon the metal lid of an Optus telecommunications pit located on the footpath on the western side of Bligh Street.

2. Bligh Street runs roughly north to south between Bent Street and Hunter Street. On the eastern side is the rear of the Wentworth Hotel. On the day of his accident the plaintiff parked his car in the Wentworth Hotel and emerged onto the eastern footpath of Bligh Street. He crossed Bligh Street at about its mid-point and went to the western footpath. The plaintiff then walked south on Bligh Street towards the traffic lights at the corner of Bligh Street and Hunter Street. He was intending to cross at those lights and go on towards a business appointment in Pitt Street.

3. By an Amended Statement of Claim filed on 9 March 2019 the plaintiff alleged that the defendant was the owner and occupier of the telecommunications pit and its lid. This was admitted by the defendant in the Defence filed on 2 August 2018.

4. The plaintiff also pleaded that the pit lid was bowed and was slippery when wet. This was denied by the defendant.

5. The plaintiff pleaded that as the owner and occupier of the pit and its lid, the defendant was responsible to ensure that the lid was reasonably safe for pedestrian use. In its Defence, the defendant admitted this.

Lay evidence regarding the accident

6. The plaintiff said that he was walking along a narrow section of the footpath on the western side of Bligh Street. He walked past the point where the footpath becomes wider and headed to his left, in order to walk towards the lights at the intersection of Bligh Street and Hunter Street. He said (T22/32):

“I was walking along the footpath and I trod onto the stainless steel grid and within a split second, my left leg just shot clean from underneath. It went sideways and I fell down onto my side.”

7. In his evidence-in-chief the plaintiff said that the lid was like stainless steel and there were pools of water in the middle of it (T22/50).

8. The plaintiff marked a photograph by drawing an arrow (PX5, arrow 2) pointing to where he put his foot on the lid when he fell.

9. In cross-examination it was pointed out to the plaintiff that there were two Optus pit lids at that point in Bligh Street. The plaintiff was quite sure that he slipped on the northern pit lid.

10. In cross-examination the plaintiff said that there was quite a dip in the pit lid, and it was full of brown muddy water, which he got all over his shirt and his suit. He said that the muddy water was in the middle of the pit which had the dip in it. He said that when he was lying on the footpath his left foot was still lying on the lid and he had muddy water all over him.

11. The plaintiff’s daughter Ms Simek gave evidence. She worked in the same industry as her father and was due to meet him in Pitt Street on that day. She became concerned that he was late so she rang his mobile phone. She discovered that he had been involved in the accident and she went to the scene. She saw her father “screaming with pain”. People around him had their umbrellas up.

12. When asked what she saw, Ms Simek said:

“I saw the grate in the picture and it had some pooling of water on it. A dip with pooling of water on it.”

13. Another co-worker Ms Hampton gave evidence, but she was not asked anything about her observations of the scene of the accident. She held an umbrella over the ambulance officer.

Photographic evidence of the site

14. The plaintiff marked his path of travel on a photograph PX4. He walked down the left-hand side of the narrow part of the footpath in Bligh Street, and where the footpath widens he headed towards the left, with a view to reaching the traffic lights at the intersection of Bligh Street and Hunter Street.

15. A photo taken looking from south to north (PX5) was also marked by the plaintiff. Initially the plaintiff was confused about the orientation of the photo. However, from later evidence it was clear that he marked his direction of travel from the top of the photo towards and onto the lid and he numbered that mark and that arrow “2”.

16. In that photograph there can be seen, on the pit where the plaintiff says he slipped, a circular discolouration near the southern end of the pit, in about the middle of it.

17. Photographs taken by the plaintiff’s daughter on the day after the accident were tendered as Exhibit PX8. Also tendered was the metadata attached to those photographs, which shows that they were taken at 9.22am on 8 March 2017. A photograph taken looking south to north shows the lid upon which the plaintiff says he slipped towards the top of the photograph. Again, there can be seen a round dark circular mark towards the southern end of the lid. There is also a red circle apparent in the photograph, also looking south to north, which the plaintiff’s daughter marked to indicate the lid on which her father fell.

18. It is to be noted that the pit in the foreground of both photographs, which is to the south of the pit where the fall occurred, also has a dark mark upon it. The dark mark extends from the middle of the lid on its western edge, down to the southern end of the lid. The mark is triangular in shape and is darker than the surrounding lid.

19. Also tendered were photographs taken a considerable time after the event. The photograph PX2 was taken looking south, and part of the lid where the plaintiff slipped is only visible in the bottom corner of the photograph in the centre. Photograph PX3 shows the lid, on which the plaintiff says he slipped, removed from the pit and placed on the footpath adjacent to the pit. A person in a Hi-Vis vest is sitting on the tailgate of a white van with cables in his hand. These cables extend into the pit. There is no marking on the van. It can be seen that the right rear wheel of the van is resting on the Optus pit which was to the south of where the plaintiff fell. The traffic lights at the intersection of Bligh Street and Hunter Street can be seen behind the van, and this helps to understand why the plaintiff walked towards the left when he emerged onto the wider section of the footpath – by doing so he was then walking straight towards the traffic lights where he intended to cross.

20. Another photograph which was tendered and marked PX17 was a Google street view taken in August 2014. This appears to have been taken from a camera situated to the east of the western footpath. A man in a work top wearing work boots is walking south, just to the east of the pit where the plaintiff says he fell. He has not yet reached the southern Optus pit. The northern pit (where the accident occurred) in that photograph has a dark mark upon it, which extends from about half way down the pit towards the southern end of the pit lid, largely on the western side of the lid.

21. The only other photographs of the pit were part of PX9, being a bundle of documents obtained by the plaintiff from the defendant. There is a photograph of the two Optus pits, taken looking south in Bligh Street. On the northern pit (where the accident happened) there is a large light coloured mark which is roughly circular in shape. It is in the south western quadrant of the pit lid. The southern pit, which is further away in the photograph, does not appear to have any mark upon it.

22. There is a second photograph taken of the Optus pits, again looking south. It appears to have been taken from a slightly higher angle than the first such photograph. This is even clearer in showing the light-coloured mark on the southern end of the pit lid, extending from about the centre of the pit towards the western edge.

23. There is also a black and white photograph of the two Optus pit lids, but little can be discerned from that photograph.

Documentary evidence concerning the pit lid

24. The two Optus pit lids were installed on 23 October 2007. This is established from the Optus documents Exhibit PX9. Work was done on the Optus pits, according to the defendant’s records, on many occasions between the installation of the pit and the date of the plaintiff’s fall. Without reciting all of those dates, they show that in 2014 the pit was accessed by the servants or agents of Optus on five occasions. In 2015 there were 10 occasions when work was done to the pit and in 2016 there were three occasions when the pit was accessed. In that year Optus had worked on the pit on 7 January 2016, 20 September 2016 and 27 September 2016. This was the last date of Optus accessing the pit prior to the plaintiff’s fall. The records also show access to the pit by Optus, on five occasions subsequent to the accident, and before the lid was replaced.

25. In March 2018 Optus created a request for the pit lid to be replaced and the concrete collars reinstalled. This then occurred.

26. The plaintiff served the defendant with a Notice To Produce, requesting documents concerning the defendant’s policy and procedure for inspecting and maintaining pit lids, in place at the time of the accident.

27. In response the defendant tendered an email which became Exhibit DX1, which said:

“Optus carries out inspections on its infrastructure such as pits on an opportunity basis eg. when staff or contractors visit a particular pit or where a report is received that a pit is damaged etc. This is likely to be consistent with other Carriers and Utilities with large amounts of infrastructure installed over many years.”

28. Exhibit PX18 was a collection of rainfall data recorded at Sydney Observatory Hill and Sydney Botanic Gardens. I take judicial notice of the facts that these readings were taken in the Sydney CBD at locations relatively close to Bligh Street. The rainfall data was summarised by a schedule which appears at the front of PX18. On five of the occasions between April 2015 and September 2016, when Optus accessed the pit, there was rain recorded at the nearby locations. On 7 January 2016 and 19 September 2016, when Optus had access to the pit, there was significant rainfall at the nearby locations. Thus on two of the last three occasions when Optus did work on the pit, before the plaintiff’s accident in March 2017, there was rainfall on the day.

Expert evidence on liability

29. The plaintiff tendered a report by Mr Denis Cauduro dated 13 October 2017 (PX11). Mr Cauduro is a consultant in relation to safety management, ergonomics and building. He attended the scene in Bligh Street, together with the plaintiff, on 4 September 2017. The Optus pit lid which he observed was “damaged and bowed, which means it holds water and silt when it rains, the pit cover slopes both ways, 1.5 degrees longways and 2.3 degrees crossways”.

30. The report of Mr Cauduro contained photographs of the pit lid with a spirit level sitting upon it. It can be seen in photograph 1, photograph 2 and photograph 3, that the bottom edge of the spirit level does not sit on the pit lid, and that there is a gap between the bottom of the spirit level and the lid. In photograph 2, the spirit level sits crossways on the lid, towards the southern end of the lid. The gap underneath the spirit level is quite noticeable.

31. Mr Cauduro conducted measurements of slip resistance on the metal lid, using a small amount of clean water to wet that surface during the course of conducting tests in accordance with AS 4663.2013 – Slip Resistance Measurement of Existing Pedestrian Surfaces. He used a pendulum device of the type specified in that Standard, conducting his measurements of the co-efficient of friction on five different locations on the plate. Four of those five measurements failed the required level of slip resistance within the Australian Standard. He measured the plate to be 1.3 metres long and 600mm wide.

32. Criticism was made by counsel for the defendant of the report of Mr Cauduro, because he did not marry up the measurements and samples in Table 1 with the photographs in his report. However, the most likely inference concerning those photographs, is that they were placed in the report in the same sequence as the samples set out in the table. Thus the four samples (out of five) which failed to produce a reading in accordance with the Australian Standard were taken right in the middle of the plate (photograph 6), to the left of the middle of the plate (photograph 8), towards the north-western quadrant of the plate (photograph 12) and at the south-eastern edge of the plate (photograph 14).

33. Mr Cauduro said (paragraph 2.2.10) that the metal cover plate was assessed as likely to be slip resistant when clean and dry.

34. Mr Cauduro pointed out (paragraph 3.2) that it is not appropriate to infer that a surface is “safe” or “unsafe” solely on the basis of measured co-efficients of friction, “because the likelihood of pedestrians experiencing slips on a surface is only partly dependant on the surface characteristics”.

35. In paragraph 3.8 of his report, Mr Cauduro said:

“As discussed in the appendix, it is well known that there is a significant risk of slipping when there is a transition from a higher to a lower area of slip resistance – as occurs for example when a pedestrian is walking on the dry surfaces upon a pavement and then unexpectedly encounters a water contaminated area such that the localized area on which their foot lands is significantly less slip resistant than the areas across which they have just walked without incident.”

36. In paragraph 4.15 of his report, Mr Cauduro set out his opinion as to the reasonable preventative measures that could have been implemented, including:

1. pit covers could have been constructed from materials that were adequately slip resistant;

2. the damage and bowed pit cover could have been replaced immediately;

3. the pit covers could have been made from concrete;

4. slip resistive treatments could have been reapplied periodically; and

5. grip tape could be installed over the pits and replaced as it wears.

37. Mr Cauduro pointed out (paragraph 5.2.2) that it is very unlikely that a slip will occur in circumstances in which the pedestrian surface, in combination with the pedestrians’ footwear, provides adequate frictional contact. He said that if the surface of the lid had met longstanding recommendations in relation to slip resistance of pedestrian surfaces, it is unlikely that the plaintiff would have slipped and fallen at the subject location.

38. Mr Cauduro was not required for cross-examination on his report.

39. The defendant tendered a report by Dr Andrew Short (DX2 pp 137-205), who has a Doctor of Philosophy in Orthopaedic Engineering. He was not instructed until June 2018, by which time the pit lid had been replaced by the defendant.

40. Dr Short pointed out that there were Australian Standards for pit lids, being AS 3396. There was a 1992 version and a 2006 version. The critical difference between the 1992 standard and the 2006 standard was that the 1992 version did not include a requirement for slip resistance.

41. Dr Short also made reference to Australian Standard 4663 2013 Slip Resistance Testing. Section A5.4.2 deals with testing materials which have a surface pattern of a non-uniform texture. He described the surface of the Optus lid probably in place at the time of the incident as a tetrahedron pattern.

42. Dr Short referred to Australian Standard 1470. On page 21 of his report he referred to that part of the standard which says “Rapid changes in the co-efficient of friction can lead to problems where people can slip”. The standard also said:

“Surfaces on which persons stand or walk should be sufficiently even to afford a safe foothold, with consideration being given to the inclusion of permanent non-slip surfaces. The surfaces should… not be allowed to become slippery through wear, spillage of water, oil, or other material.

…

Where a number of different materials are used on walking surfaces, rapid and significant changes in the co-efficient of friction of the surfaces should be avoided. The influence of liquids on walking surfaces should be taken into account.”

43. Dr Short agreed, on page 23 of his report, with Mr Cauduro’s measurements of the slope of the pit lengthwise and widthways. Dr Short arranged for tests to be carried out on the adjacent (southern) pit lid, which was the same in form as the pit lid upon which the plaintiff slipped, but which had been replaced by the time Dr Short went to the scene. This lid was stamped “1992”. When dry, that pit lid had a co-efficient of friction of 0.55, which complied with the Australian Standard. The test on that second pit lid offered up slip resistances values of 36, 33, 31, 29 and 30. These were similar to the values obtained by Mr Cauduro in his September 2017 test of the actual pit lid upon which the fall occurred.

44. In section 5.2 of his report, Dr Short said that “it is very unlikely that water pooling would have occurred if the lid was flat”. (Emphasis added) In that same section of the report, he said that it was possible that a small amount of water pooling could occur at the end of the pit lid at the bottom of the slope. Again, that opinion is necessarily predicated upon the assumption that the pit lid was flat.

45. Dr Short noted in section 5.5 of his report that he could not measure any bowing in the pit lid, as it had been replaced before his visit. He said that it was not possible that a van, such as that in the photograph (PX 3) tendered in the case, could by placing a wheel on such a pit lid, cause it to bow. These pit lids are required by the Australian Standard to be subject to loading tests of 8 tonnes. The likely force of one wheel of a van being placed on a lid is about 700kg, which is nowhere near the 8,000kg weight that the pit lid can bear.

46. Dr Short consulted records from the Bureau of Meteorology, which indicated that there was rainfall in the relevant area on the day of the accident, at around 11.00am. He said that the “three redeeming features” of the relevant pit lid were the voidage in the pattern of tetrahedrons, that such pattern has points that go into the soles of shoes, and that the pattern of the pit lid is capable of integrating with the grip of the sole of footwear.

47. Dr Short attended for cross-examination. He said that he was not given any instructions in preparing his report that the pit lid was in a damaged condition at the time of the accident. He was shown the photographs contained in PX8 (the ones taken by the plaintiff’s daughter the day after the accident). He initially agreed that he could see a puddle on the pit, but then said that it was discolouration and he didn’t know if it was a puddle or just discolouration. He said that if there was a pool of water on the surface of the pit that means that there was some significant deformation of the surface of the pit lid. He said that when a pool of water dries up it is possible to see a coloured or darker mark on metal.

43. Dr Short said that if the pit lid was buckled so that it could carry a pool of water, that might have happened through a big load just at one time, or it might have been a lesser load many times. He had not been told that the lid was replaced because it was damaged.

44. Dr Short acknowledged that the difference between the 1992 standard and the 2006 standard, was that the earlier standard did not include a skid resistance requirement. He said “If it’s a 2006 pit lid, then it has to have a, a skid resistance of 45-54”. He acknowledged that the one he tested (the southern existing pit lid was “well short of that”.

45. Dr Short acknowledged that if the pit lid was bowed, then the co-efficient of friction would be lower on an angled section of the pit since the requirement for friction on a slope is greater than a flat surface.

46. Dr Short agreed that if there was a pool of water there, then the pit lid was not flat, but if he did not assume it was a pool, that it was just a dark discolouration from moisture.

47. Dr Short said that the peaks of the tetrahedrons were designed to provide some slip resistance, but he could not see from the photograph whether the pool of water (if it was a pool) was above or below the peaks of the tetrahedrons. He did agree with the proposition that anyone walking at an angle across the plate, rather than straight up and down it, would be exposed “to the surface which had the lowest co-efficient of friction”.

48. Dr Short said that the height of the tetrahedrons was 2mm.

Findings of fact on liability

54. Subject to one qualification, I accept the evidence of the plaintiff regarding the occurrence of the accident. I do not accept that part of his evidence in which he said that he noticed on the day of the accident that there was a dip in the pit lid and that it was full of brown muddy water which he got all over his shirt and his suit. I reject that evidence because of the evidence of the plaintiff’s daughter, that when she came to the scene of the accident she found her father screaming with pain. She was unable to even speak to him because of his distress.

55. I accept the evidence of Ms Simek and Ms Hampton concerning the scene of the accident. I accept the evidence of Mr Cauduro and Dr Short, concerning their observations made at the scene of the accident and the objective measurements and testing which they carried out.

56. I make the following findings of fact:

1. The plaintiff was walking south on the western footpath of Bligh Street, Sydney on 7 March 2017 when he slipped and fell, fracturing his left leg.

2. It was raining that morning and the area where the plaintiff was walking was wet from the rain.

3. The plaintiff slipped upon the metal lid of an Optus telecommunications pit located on the footpath in Bligh Street. This was the more northern of the two Optus pits, situated just after the footpath widened.

4. The lid upon which the plaintiff slipped was bowed. I make this finding because on the day after the accident Ms Simek looked at the lid upon which her father had slipped and saw “a dip with pooling of water on it”. She was not challenged in cross-examination about that part of her evidence.

5. The metal pit lid had a tetrahedron pattern on it, and if the lid had been flat, water would not have pooled on the lid. I accept the evidence of Dr Short in this regard.

6. The plaintiff stepped from a bitumen part of the footpath onto the metal pit lid. In doing so, he stepped from an area (the bitumen) which had a relatively high co-efficient of friction which provided a grip for his shoes onto the wet metal pit lid, which had a lower co-efficient of friction.

7. In those circumstances, where he was stepping from one surface onto another, there was a risk of a slip and fall. I accept the evidence of Dr Short and Mr Cauduro in this regard.

8. Mr Cauduro tested the actual pit lid upon which the plaintiff fell and Dr Short tested an adjacent Optus pit lid, which was of the same design and configuration as the one involved in the accident.

9. The tests conducted by both experts showed that there was a co-efficient of friction at several points on the lid which resulted in the lid, when wet, being slippery and dangerous.

10. The tetrahedrons were 2mm high. If the lid had been flat, those tetrahedrons would have been showing above any water level on the pit (contained in the “voidage”) and would have provided grip for the sole of the plaintiff’s shoes. The peaks of the tetrahedrons would have been submerged below any water pooling in the bow in the lid photographed by Mr Cauduro.

11. The plaintiff was wearing rubber-soled shoes on the day of the accident. This was a fact agreed between the parties.

12. The lid upon which the plaintiff slipped was one stamped “1992”, as was the Optus lid to the south of the accident site. They were installed at the same time, and the southern lid was stamped “1992”.

13. On the day of the accident there was water which had come from the rainfall which had pooled on the surface of the pit lid, roughly in the middle and extending towards the southern edge of the pit lid.

14. The plaintiff stepped upon this pool of water and slipped, resulting in his injuries.

15. Because the bowing in the pit lid resulted in that part of the lid being on a steeper angle than the rest of the lid, there was an even lower co-efficient of friction in the area where the plaintiff stepped i.e. into the bow and into the pool of water sitting on the bow.

16. The lid upon which the plaintiff slipped was installed in the footpath by Optus in October 2007.

17. On many occasions after installation, Optus did work in the pit, which gave its servants or agents the opportunity to observe the condition of the pit lid.

18. The last times Optus did work on the pit prior to the plaintiff’s accident was on 7 January 2016, 19 September 2016 and 27 September 2016. On the first two of those occasions there was a moderate level of rainfall in the local area on the day the work was done.

19. In March 2018 the pit lid was replaced, and by the time Dr Short went to the site, the lid upon which the plaintiff slipped was gone, but the similar adjacent lid was still there.

20. The system of inspection which Optus adopted was “on an opportunity basis e.g. when staff or contractors visit a particular pit or where a report is received that a pit is damaged etc”.

21. Such a system of inspection is consistent with the methods adopted by other carriers and utilities with large amounts of infrastructure installed over many years.

57. An important matter upon which a further finding of fact must be made, is just how long the pit lid had been in a bowed condition. I accept the evidence of Dr Short that if the pit lid was flat, then the tetrahedrons combined with the capacity for voidage, would mean that any water would not make the lid unduly slippery. The tetrahedrons would contact a rubber-soled shoe and provide grip, and those tetrahedrons would be poking up above any water temporarily sitting on the pit lid before it drained away.

58. The photographs in Exhibit PX5 and Exhibit PX8 show a dark roughly circular mark on the pit lid. It is not possible to discern from the photographs whether or not the mark is a pool of water, or as Dr Short suggested as a possibility, a dirt mark left after water has pooled and evaporated. Whatever the mark be in those photographs, they show that water could pool and had pooled in a dip in the pit lid. That was the dip observed by Ms Simek on the day after the accident, as to which her evidence was unchallenged.

59. Photographs which are part of the Optus documents being Exhibit PX9 also support that finding. The two photographs taken just north of the pit where the accident occurred show a large light brown mark roughly centrally, on the southern half of the pit lid.

60. By contrast, the pit to the south of that where the accident happened, has a lid which is unmarked in both photographs. Numerous decisions of appellate courts have cautioned trial judges about drawing too many conclusions from photographs. In the circumstances, I think that I am justified in inferring that something has been sitting on the surface of the pit lid to leave the mark shown in the two photographs in Exhibit PX9. Unlike some of the other photographs in the case, those two photographs are of quite high quality and definition. The mark looks like dirt which could have been left if water was pooling on the pit but then evaporated.

61. No other reason for those marks was advanced by counsel for the defendant. There is no evidence as to when those photographs were taken, but given that they were tendered with documents concerning replacement of the pit lid in March 2018, they could have been taken at around the same time. I do not make any finding in that regard and I do not need to. The photograph of both pit lids is before the replacement done in March 2018.

62. The only photograph of the pit lid which is dated before the plaintiff’s accident is Exhibit PX17, the Google image entitled “Street View – Aug 2014”. There was no evidence to suggest that the date on the Google street view was inaccurate. The document went into evidence without objection.

63. On the northern pit lid, where the plaintiff fell, it is possible to see a dark mark on the southern half of the pit lid, starting centrally and extending to the western side of the lid and to the south-western edge.

64. It is not possible to say what the mark was caused by. The dark mark on the pit lid in the August 2014 photograph is in approximately the same position as the marks on the pit lid in Exhibits PX5, PX8 and PX9.

65. The mark on the lid in the August 2014 photograph is in a position consistent with the lid being bowed and with water collecting in the bowed area. There was no other explanation advanced in the evidence or in submissions for that mark on the pit lid.

66. Based upon the above analysis, I find as a fact that the bow in the pit lid was present from at least August 2014 onwards, as shown in Exhibit PX17.

67. I also find as a fact that when it rained, water pooled in that bowed section of the pit lid.

68. Finally, I find that Optus worked on that pit on numerous occasions after August 2014, and that if its own system of inspection had been followed, it ought to have noticed that the pit lid was bowed and required replacement. The extent of the bowing was such, as seen in the photographs with the spirit level taken by Mr Cauduro, that a person charged with examining the state of the infrastructure could have, and should have, noticed the bowing even on days when it was not wet.

69. I add to the 21 findings of fact recorded in paragraph 56 above the following additional findings:

(22)   The pit lid was bowed as early as August 2014.

(23)   From August 2014 onwards, water pooled in the bowed section of the pit lid when it rained.

(24)   The defendant could and should have observed the bowed condition of the pit lid before March 2017 when the plaintiff fell.

Liability in negligence

70. The defendant in its written submissions (MFI 12) submitted that the Civil Liability Act 2002 (NSW) (the Act) governs questions of breach of duty and causation, leaving the question of the identification and scope of the duty as matters to be determined according to common law principles – Mamo v Surace [2014] NSWCA 58 at [48]. I accept that submission.

71. Both in its Defence and in MFI 12 the defendant accepted that it was the owner and occupier of the subject pit lid. Further, the defendant admitted that:

1. As the owner of the pit lid it was responsible to ensure that it was reasonably safe for pedestrian use; and

2. As the occupier of the telecommunications pit it was responsible for ensuring that the pit lid was reasonably safe for pedestrian use.

72. In submissions the defendant disputed that it owed a duty of care to the plaintiff, arising out of any inspection or maintenance of the pit lid. Put simply, the defendant submitted that its only duty of care arose when the pit lid was installed, and thereafter it had no duty to the plaintiff.

73. I find that these submissions cut across the clear admissions made in the Defence. If the defendant wished to allege that it was liable in respect of some aspects in relation to the pit lid (installation only), but not liable in relation to other aspects (inspection and maintenance) then it should have specifically pleaded that. It did not.

74. In any event, I find that the defendant’s submission that it is responsible only in relation to installation of the pit lid is not correct in law. The defendant relied upon the decision of the Court of Appeal in Rickards v Australian Telecommunications Commission (1983) 3 NSWLR 155. In that case it was held that a non-highway statutory authority which lawfully installed a structure in a public road was under no statutory duty to keep the structure in repair, and was under no obligation at common law to keep the structure in repair. While the case can be read that way, it is important to note that the plaintiff in that case sued in both and nuisance and negligence. The Court of Appeal held that the plaintiff failed in negligence on the facts. The plaintiff failed in nuisance because of the principle advanced in this case by the defendant.

75. The submission concerning Rickards raises the old legal distinction between nonfeasance and misfeasance. That distinction was effectively abolished by the decision of the High Court in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512. The defendant submitted that this decision did not prevent it from arguing nonfeasance, as “the defendant is not the occupier of the footpath or the statutory roads authority responsible for maintenance and repair of the footpath”.

76. In Brodie, the High Court dealt with a broader principle than just the duty applying to statutory authorities responsible for maintenance and repair of roads or footpaths. At paragraph [150] in the decision of Justices Gaudron, McHugh and Gummow, their Honours said:

“The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.” (Emphasis added)

77. It is clear that the judgment deals with not only roads and footpath authorities, but with “authorities having statutory powers of the nature of those conferred by the LG Act”. While the defendant is not an authority with statutory powers in relation to footpaths generally, it does have statutory powers under the Telecommunications Act 1997 (C’th). Those powers are set out in Sch 3 to that Act. In Pt 1 Div 1, cl 1, the powers are outlined. They include a power “to install a facility” and a power “to maintain a facility”. The words “facility” is defined in s 7 of that Act to mean:

“(a)   any part of the infrastructure of a telecommunications network; or

(b)   any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network.” (Emphasis added)

78. A telecommunications carrier does not simply come along and dig up a public footpath to install a pit in order to conduct its own private profitable enterprise. There are provisions in Sch 3 which require the carrier to apply for a permit to enter upon and alter land. Schedule 3, Div 5, cl 10 requires a carrier to act in accordance with good engineering practice; to protect the safety of persons and property; and to ensure that the activity interferes as little as practicable with public roads and paths.

79. Thus the defendant is an authority having statutory powers of the nature of those specifically dealt with by the High Court in Brodie. The defendant is therefore an authority with power to remedy the risk and is obliged “to take reasonable steps by the exercise of its powers within a reasonable time to address the risk”, to adopt the language of para [150] in Brodie.

80. I find that the defendant did owe a duty of care to pedestrians in Bligh Street, including the plaintiff. The defendant was under a duty to take reasonable steps by the exercise of its powers within a reasonable time to address the risk of harm to pedestrians.

81. The defendant submitted, and the plaintiff accepted, that the risk of harm to the plaintiff should be articulated as the risk of slipping and falling as a result of a pit lid that was not appropriate for pedestrian use.

82. The defendant accepted that the risk of harm was foreseeable, as required by s 5B(1)(a) of the Act – MFI 12, paras 21-23.

83. The defendant also accepted that the risk of harm was not insignificant, as required by s 5B(1)(b) of the Act – MFI 12, paras 24-26.

Liability – Precautions against a risk of harm

84. Section 5B(1)(c) provides that a person is not negligent in failing to take precautions against a risk of harm unless, in the circumstances, a reasonable person in the person’s position would have taken those precautions.

85. Section 5B(2) provides:

“In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)   the probability that the harm would occur if care were not taken,

(b)   the likely seriousness of the harm,

(c)   the burden of taking precautions to avoid the risk of harm,

(d)   the social utility of the activity that creates the risk of harm.”

86. Counsel for the defendant very fairly conceded: “There is nothing I can really point to in terms of 5B(2) that would detract from a potential finding under 5B(1)(c)” – T 200/23.

87. The reasonable precautions which were pleaded against the defendant are set out in para 17 of the Amended Statement of Claim. I accept the submission of counsel for the defendant that Particular (a) (failing to take reasonable care for the plaintiff’s safety) and Particular (b) (placing the plaintiff in a position of peril in the circumstances) are no more than generic assertions and are not proper particulars of the reasonable precautions which should have been taken.

88. Particular (c) is “failing to provide a pit lid which was reasonably safe for pedestrian use”. Once again, there is a lack of specificity in that pleaded particular. If by “provide”, the plaintiff is referring to the initial installation of the pit lid, then such allegation fails. While the pit lid was, as I have found, bowed at the time of the plaintiff’s accident, there is no evidence that it was not in a perfectly fit and proper condition when it was initially installed. Particular (c) is drafted so imprecisely, that I do not find that it can found an allegation against the defendant of failure to take precautions against the risk of harm.

89. Particular (f) is “failing to have in place any reasonable system of inspection, repair and replacement of its pit lids”. This allegation fails on the facts. There was no expert evidence called to establish what a reasonable system of inspection and repair would be. There was evidence that the defendant conducted inspections, and consequent repair, of its pit lids on an “opportunity basis”. There was also evidence that such a system was one adopted by other providers of infrastructure. I find that the defendant did have a reasonable system of inspection and repair of its pit lids in place, based upon the only evidence on that topic.

86. That leaves Particulars (d) and (e). These were considered together in the submissions of the defendant, and I propose to follow the same course. Particular (d) is “permitting a pit lid which had become bowed [to] remain in service in an area of high pedestrian traffic”. Particular (e) is “permitting a pit lid which had become damaged and slippery to remain in service in such an area”.

87. I have set out my findings of fact in paras 56 and 69 above. The pit lid on which the plaintiff slipped was bowed as early as August 2014. From at least that time onwards, water pooled in the bowed section of the pit lid when it rained. The defendant had multiple opportunities to observe the bowed condition of the pit lid before March 2017 when the plaintiff fell. In spite of regular attendance at the pit and work upon it which necessitated lifting the lid off the pit (giving the worker the chance to observe the condition of the pit lid) the defendant failed to take adequate precautions against a risk of harm. The obvious, and only, precaution which needed to be taken, was to replace the pit lid with one which was flat, and which would therefore not hold a pool of water upon which a pedestrian could slip.

88. I have recited above the defendant’s sensible approach to s 5B(2) of the Act. For the sake of formality, I find as follows in relation to the precautions pleaded in Particular (d) and Particular (e):

1. It was probable that harm would occur if care were not taken;

2. The harm was likely to be serious – any unexpected slip and fall can result in a serious injury;

3. The burden of taking precautions to avoid the risk of harm was not great – when the problem with the pit lid was pointed out to the defendant, it simply replaced the lid with a different kind;

4. The social utility of the activity which creates the risk of harm is not relevant – the defendant was engaged in a commercial operation for its own benefit, and it installed a pit and a lid upon a heavily trafficked public footpath.

93. I find that the defendant was negligent in permitting a pit lid which had become bowed to remain in service in an area of high pedestrian traffic, and also in permitting a pit lid which had become damaged and slippery to remain in service in such an area.

Liability – Causation

94. Section 5D(1) of the Act provides:

“A determination that negligence caused particular harm comprises the following elements:

(a)   that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)   that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).”

95. In the present case no submission was made by the defendant concerning scope of liability. The defendant was engaged in an operation for profit, and it is appropriate that liability extend to any harm caused by negligence of the defendant.

96. As a result of the findings of fact recited above, I have found that the plaintiff slipped because of the wet bowed section of the defendant’s pit lid. I have also found that the defendant was negligent in that it could and should have ascertained that the pit lid was in a dangerous bowed condition well before the plaintiff’s accident. It had that opportunity and it did not take it.

97. I therefore find that the defendant’s negligence was a necessary condition of the occurrence of the harm, within the meaning of s 5D(1)(a) of the Act.

98. The plaintiff will be entitled to a judgment against the defendant. While contributory negligence was pleaded, it was very sensibly abandoned in final submissions by the defendant.

Damages

99. The plaintiff was born in 1944. Since leaving school he has worked in the real estate industry.

100. On the day of the accident he was taken to St Vincent’s Hospital by ambulance. He remained there until 17 March 2017. He was then admitted to the Wolper Hospital for rehabilitation from 17 March 2017 to 3 April 2017. After his discharge from Wolper Hospital he attended Delmar Hospital at Dee Why as an outpatient.

101. The plaintiff was off work completely after his fall and returned on a limited basis in June 2017.

102. The plaintiff’s general practitioner both before and after the accident was Dr Russell of Neutral Bay. In a report dated 30 January 2018, Dr Russell said that his patient had reported ongoing disabilities including a phobia of falling when challenged when walking up steps and ladders or along narrow ledges. He could no longer run because of loss of confidence and early fatigue of muscles in his left leg.

103. Investigations at St Vincent’s Hospital showed that the plaintiff had suffered an atypical left femoral fracture. He was diagnosed with osteoporosis at 57 years of age and this condition could have played some part in the severity of his injury.

104. Dr Russell referred the plaintiff to an orthopaedic surgeon Dr Yeoh. In a report of 1 May 2017 Dr Yeoh said that x-rays showed that the hardware inserted in the leg was in good position and that the plaintiff needed to continue with physiotherapy, retraining and strengthening.

105. In a report of 9 June 2017 Dr Yeoh said that the plaintiff’s pain had subsided and he was now walking with a stick, as opposed to the crutches he used for some months after the accident.

106. The GP sent the plaintiff to see Dr Morris, an endocrinologist. He said that there had been some delay in bone healing. He changed the medication for osteoporosis.

107. The GP referred the plaintiff to see Ms Pratt, a clinical psychologist. In a report dated 13 February 2018 to the GP, Ms Pratt recorded that the plaintiff was feeling low in confidence and was still shaken from the accident. She also said: “Garry reported that he had no history of mental health problems, but that while he was in hospital after the operation he became depressed”. This history is just not accurate. I deal further with this below.

108. The inaccurate history given by the plaintiff to Ms Pratt lessens the value of her reports. However, she did note in a report dated 21 May 2018, that since the accident the plaintiff had reported a fear of falling, which caused him to withdraw from some normal work activities such as building inspections. Given the severity of the plaintiff’s initially injury, and given his age, I accept the plaintiff’s evidence to the same effect.

109. In a report dated 12 February 2019, Ms Pratt said that the plaintiff experienced a loss of functioning at work due to psychological challenges stemming from the accident. She thought that his inability to fulfil his normal work duties was triggering severe distress and his depressed mood.

110. The plaintiff tendered a report by Dr Lee, another orthopaedic surgeon. He saw the plaintiff for medico-legal purposes on 28 May 2018. The plaintiff told Dr Lee that he was able to walk without support in about January 2018. He reported occasional pain and said that he took Panadol to control it. The pain woke him up at night occasionally. Dr Lee said that there was then no need for future domestic assistance. However, when the plaintiff was still on crutches, he had required looking after.

111. For medico-legal purposes the plaintiff was seen by Dr Rikard-Bell, a psychiatrist, who provided a report dated 1 November 2018. Dr Rikard-Bell noted the interview by the psychiatry team at St Vincent’s Hospital, which will be dealt with below. He said that the plaintiff had previously dealt well with stressors and the diagnosis was “depression with a situational crisis and multiple overwhelming stressors with some melancholic features”.

112. Dr Rikard-Bell recorded that the plaintiff’s friendships had reduced but he still maintained good social contact and went out at least once a week with friends. He was lacking in self-confidence with low mood. He had anxiety as he was fearful of slipping and would not climb up ladders, go onto the top of buildings, roofs, fire stairs or car parks. He would not walk on grilles.

113. Dr Rikard-Bell said that “the relationship with his wife is reasonably good but the stress and his moodiness has caused some irritability and there has been some distance in the relationship”. That is hardly the picture painted by Ms Saul, the plaintiff’s wife, who said, in quite a hostile fashion, that she regarded her marriage as over from June 2014 onwards. The couple had been living separately and apart under the one roof since that time. The separation had to do with an investigation conducted by the Department of Fair Trading into defalcations from the trust account of the real estate agencies run by the plaintiff in 2014 and 2015.

114. Dr Rikard-Bell made the diagnosis of Major Depression and Post Traumatic Stress Disorder, both now in partial remission. He thought that the psychiatric disabilities reduced the ability to work to some extent and noted that the plaintiff was working four days instead of five per week. He thought that the plaintiff would benefit from about 20 treatments of psychological therapy at a cost of $250 per session.

115. Dr Rikard-Bell noted the MRI brain scan taken at St Vincent’s Hospital. He thought that the changes on that scan could have demonstrated cognitive difficulties, but that these were in addition to the emotional disorder caused by the accident in Bligh Street.

116. The defendant tendered material from the records at St Vincent’s Hospital. In the progress notes is a record dated 14 March 2017 by Liaison Psychiatry. The plaintiff was referred to psychiatrists at the hospital because of low mood, tearfulness and passive suicidal ideation. The plaintiff told the psychiatrists that two and a half years before, his real estate company was investigated by the Department of Fair Trading for misappropriation of trust monies. The plaintiff denied any wrongdoing. The plaintiff told the psychiatrists that he lost $500,000 and paid $400,000 in tax. He said that his wife was running the Kirribilli business where the misappropriation occurred. This was completely contrary to Ms Saul’s evidence, which was that she took no part in the running of the business when the misappropriation occurred.

117. The plaintiff told the psychiatrists that a court case was due to start, but one week prior to that he was contacted by the prosecutor who was going to call him as a witness in the case against his wife. He said that his marriage was over. He said that he was cleared of any wrongdoing in relation to the misappropriation of monies, but the businesses had to be closed and the employees terminated.

118. The plaintiff told the psychiatrist that he was coping ok, but last month he “just lost it, can’t do it any more”. He had to sell four investment properties to pay debts and legal fees. The prosecution eventually did not proceed. He described the slip and fall as the “last straw”. He said that he had been overwhelmed by family and lawyers trying to get him to start legal proceedings against his wife.

119. Also in the progress notes is an entry dated 15 March 2017. A medical student who was part of the Liaison Psychiatry team, made contact with two friends of the plaintiff, Mr Robson and Mr Edwards. They reported a gradual decline in the plaintiff’s mood over the previous two years. They thought this came back to the plaintiff’s relationship with his wife Ms Saul. The note contains much detail about the view of the two friends about the marital relationship, and the effect that conflict between husband and wife had had on the plaintiff. I will not repeat those details in this judgment, but they are to be found at pp 74-77 of Exhibit DX2.

120. One of the friends noted that the plaintiff had developed some memory deficiency in the previous 12 months. He would repeat the same stories and could not get to the point of any conversation. He had made throw away comments about suicide.

121. The picture of the plaintiff’s pre-accident psychological state which emerges from the notes summarised above is at odds with what the plaintiff told Ms Pratt, and what he said in-chief. The plaintiff told the court that he had no psychological or emotional problems before the accident. However, cross-examination quickly confirmed some of the material contained in the St Vincent’s Hospital notes. As to much of the material in those notes, the plaintiff simply fell back upon saying that he could not remember.

122. The defendant sent the plaintiff to Dr Ginsberg, an orthopaedic surgeon. He saw him on 30 May 2018. The plaintiff told Dr Ginsberg that he had lost confidence in ascending ladders, which he had to do to get up onto the roofs of buildings or car parks, as part of his building management business. Dr Ginsberg thought that there was no permanent disability from an orthopaedic point of view, and that any reduction in earning capacity appeared to be related more to a loss of confidence in performing certain activities.

123. The defendant sent the plaintiff to Dr George, a psychiatrist, on 20 August 2018. The plaintiff told Dr George that he had not had any psychiatric disorder before the fall in Bligh Street. He said that “his second marriage was supportive”. Dr George thought that the diagnosis was “adjustment disorder with anxiety and depressed mood”.

124. Dr George offered the view, based largely upon the St Vincent’s Hospital notes, that there appeared to have been a pre-existing psychological condition. He also noted the decline in cognitive function which pre-dated the accident. He thought that the adjustment disorder was related to the accident in Bligh Street and that there was a reactive component to his injury which contributed to the plaintiff’s anxiety and depressed mood.

Damages – Non-economic loss

125. The assessment of damages is governed by the Act. By s 16 of the Act, no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. If it is greater than 15%, the damages are then determined in accordance with a table set out in s 16(3), with a maximum amount which is indexed year by year.

126. The plaintiff submitted that non-economic loss should be assessed at 30% of a most extreme case (which results in a figure of $146,000). The defendant submitted that it was 20% of a most extreme case (which is a figure of $22,000).

127. I find the following facts:

1. The plaintiff was an active man before his fall, participating in several sports on a regular basis.

2. He was also active at work, being engaged full-time in the real estate industry.

3. The plaintiff suffered from osteoporosis prior to the accident.

4. The plaintiff suffered an atypical fracture to the left femur in the accident, which left him screaming in pain on the ground.

5. He required a lengthy admission to hospital where an operation was performed which inserted hardware in the broken femur.

6. He then required lengthy rehabilitation both in hospital and as an outpatient.

7. The plaintiff returned to work about three months after the accident, but was first on two crutches, then on one crutch, and then on a walking stick.

8. He needed aids to walk until about January 2018 i.e. a period of 10 months after the accident.

9. The plaintiff has been left with some residual problems from the orthopaedic injury, being occasional pain and problems in the left leg.

10. The plaintiff is tentative and uncertain in using the left leg, and has a fear of falling or being injured again.

11. The plaintiff is unwilling to engage in certain activities involved in building management, such as climbing ladders or stairs, and getting onto roofs of building and car parks. He is unwilling to do these tasks as he has suffered a loss of confidence in relation to use of his leg.

12. The plaintiff had pre-existing psychological problems of some severity in the two years before the accident. These coincided with an investigation by the Department of Fair Trading into his two real estate agencies, where monies had been misappropriated.

13. The plaintiff had a most unhappy marriage for some years before his fall, and he and his wife were living separately under the one roof during that time.

14. The plaintiff had suffered some cognitive decline in the two years prior to the accident, sufficient for it to be noticed by his friends.

15. The plaintiff has been left with anxiety and some increase in his depression as a result of his reaction to his injuries.

128. Taking into account the above matters, and the medical evidence, and the plaintiff’s age, I assess his non-economic loss as 28% of a most extreme case. This results in a figure of $89,000 for non-economic loss.

Damages – Past out-of-pocket expenses

129. These were agreed at $32,559. The award of damages will include that figure.

Damages – Future out-of-pocket expenses

130. I accept the opinion of Dr Rikard-Bell that the plaintiff would benefit from 20 treatments of psychological therapy at a cost of $250 per session. This amounts to $5,000. I will also allow an additional $1,000 for future non-prescription pain medication.

131. The total award for future out-of-pocket expenses will be $6,000.

Damages – Gratuitous attendant care services

132. The plaintiff’s wife Ms Saul gave evidence that, in spite of the difficulties in the marriage, she had provided care and assistance to the plaintiff when he was disabled and on crutches or a walking stick. I find that he did need such assistance between April 2017 when he was discharged from the Wolper Hospital and January 2018 when he stopped using a stick altogether. That is a period of nine months. Section 15(2) of the Act provides that no damages are to be awarded for gratuitous attendant care services unless the court is satisfied that:

1. there is (or was) a reasonable need for the services to be provided, and

2. the need has arisen (or arose) solely because of the injury to which the damages relate, and

3. the services would not be (or would not have been) provided to the claimant but for the injury.

133. Section 15(3) of the Act contains a double threshold, which requires a claimant to prove that the services are being provided for at least six hours per week and for a period of at least six consecutive months.

134. Ms Saul gave evidence that she provided assistance to the plaintiff for about two and a half to three hours a day during the relevant period. However, cross-examination showed that her estimate of hours was probably overstated. In addition, some of her time was spent ironing the plaintiff’s sheets. I do not regard that as a reasonable need of the plaintiff.

135. However, I accept that while the plaintiff, at his age, was getting around on crutches or a stick, he was unable to perform many of the domestic duties which he had previously carried out. I find that the plaintiff is entitled to an award for gratuitous attendant care services for one hour per day for a period of nine months. The calculation is: $31.03 x 7 x 39 = $8,471.19.

136. I find that there is no need for any ongoing domestic assistance, and indeed there has been no need for such assistance since January 2018. There will be no award for future gratuitous attendant care services.

Damages – Past and future economic loss

137. The defendant submitted that there should be no award whatsoever for these heads of damage. The plaintiff submitted that past economic loss should be $138,628, being two months at $2,692 per week and 88 weeks at $1,300 per week. For the future, the plaintiff submitted that there should be a buffer of $100,000.

138. The starting point for any analysis of economic loss is to ascertain how much the plaintiff was earning as at 7 March 2017. By this stage his real estate franchises in North Sydney and Kirribilli had been closed down, he was out of them, and he had no intention of going back to work on his own account as a licensee.

139. He was working full-time at the time of his accident in two positions. Firstly, he was a contractor for LJ Hooker Commercial in the city. Any sales he achieved resulted in commission which was split 60/40. Secondly, he was still conducting his building management business, which involved the management of strata commercial premises on the lower north shore of Sydney.

137. The documents tendered in support of the claim for economic loss were Exhibit PX14, being a bundle of Notices of Assessment, and Exhibit PX15, being a summary of the plaintiff’s tax returns. Those documents which pre-date the cessation of the North Sydney and Kirribilli franchises are of no utility whatsoever.

138. In the 2016 tax return of the plaintiff, he declared taxable income of $7,538 per annum or $144.96 per week. This was on declared salary or wages of $89,929 and gross business income of $207,183. How or why the plaintiff chose to keep working full-time for that modest return was not explained on the evidence.

139. In the 2017 tax return, which covered the eight months up to the fall and four months after it, the plaintiff’s taxable income was $4,421 or $89.01 per week. This included wages of $36,235 and gross business income of $161,279. Why both those figures were considerably lower than the 2016 return was not explained.

140. In the plaintiff’s 2018 tax return, taxable income was $20,364, giving him a nett income of $391.62 per week. In that return wages had increased to $68,406 but gross business income had dropped dramatically to $47,385. Those changes were not explained in the evidence.

141. The plaintiff gave evidence, which I accept, that he was completely disabled from going to work between March 2017 and June 2017, when he returned on a limited basis.

142. He also gave evidence, which I accept, that he has declined to climb up ladders or stairs or get onto the roofs of tall buildings or car parks, since his the injury to his leg. How that has affected his income was unexplored in the evidence. He said that he had to put a manager into the building management business to take over because he could not climb up onto the top of buildings. How often he had to do that was not explained on the evidence. Nor was it explained why, since he engaged contractors to deal with lifts, maintenance, painting and repairs, he could not simply engage a contractor, at the expense of his strata client, to get up and inspect the tops of buildings.

143. The approach to be taken to consideration of economic loss is even more unclear when one has regard to the Statement of Particulars filed on 4 March 2019. That statement asserts that at the date of the accident the plaintiff was earning $2,692 nett per week. There was absolutely no support in the evidence for that figure.

144. The Particulars also alleged that the building management business was managing five commercial premises, and that contracts were lost in respect of two specified properties. There was no mention of those properties, or of losing contracts in relation to them, in the evidence.

145. Finally, a claim was made for total incapacity for a period of two months following the accident and thereafter 50% reduction in capacity until the plaintiff’s 80th birthday.

146. The plaintiff bore the onus of proving that he had suffered an economic loss, and the quantification of that loss. There was no evidence of a reliable nature tendered to prove either of those matters. However, I have already found, in the plaintiff’s favour, that he was disabled from work for a period of three months after the accident. I also find that he was restricted in his ability to work between June 2017 when he returned on a part-time basis, and January 2018 when he was able to walk without the aid of a stick.

147. As tempting as it is, a trial judge cannot simply throw up their hands and say that it is impossible, in a case such as this, to award anything for economic loss. The plaintiff has suffered a loss, but its quantification is, to be blunt, little more than a matter of intuition and guess work.

148. In those circumstances, I award a figure of $20,000 as a lump sum/buffer for both past and future economic loss.

149. The heads of damage and the amounts awarded are set out in the following table:

Head of Damage	Amount
Non-economic loss	$89,000.00
Past out-of-pocket expenses	$32,555.00
Future out-of-pocket expenses	$6,000.00
Past gratuitous attendant care services	$8,471.19
Past and future economic loss	$20,000.00
TOTAL	$156,026.19

Orders

153. My orders are:

1. Judgment for the plaintiff against the defendant for $156,026.19.

2. Order the defendant to pay the plaintiff’s costs.

3. Grant leave to the parties to approach my Associate if either party seeks a different costs order.

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Decision last updated: 15 March 2019