Clarke v Greater Shepparton City Council

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WANGARATTA
COMMON LAW DIVISION

S CI 2011 04781

STEVEN GRAHAM CLARKE	Plaintiff
v
GREATER SHEPPARTON CITY COUNCIL	Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Wangaratta
DATE OF HEARING:	23, 24, 25, 26 May 2016, 4 July 2016
DATE OF JUDGMENT:	8 September 2016
CASE MAY BE CITED AS:	Clarke v Greater Shepparton City Council
MEDIUM NEUTRAL CITATION:	[2016] VSC 542

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NEGLIGENCE – Duty of care – Existence and content of common law duty – Whether plaintiff exercising reasonable care for own safety – Plaintiff tripped and fell over raised stormwater pit whilst crossing reserve at night – Neither likelihood nor magnitude of danger presented by stormwater pit obvious to a person in position of plaintiff – Gosling v Lorne Foreshore Committee of Management Inc & Anor [2009] VSCA 228 – Plaintiff’s failure to take reasonable care for own safety in jogging rather than walking across the reserve was not relevant to obviousness of risk.

NEGLIGENCE – Statutory duty – Statutory construction – Whether defendant owed statutory duty to plaintiff in its role as ‘road authority’ under the Road Management Act 2004 s 40 – Whether reserve in which plaintiff fell and suffered injury ‘pathway’ or ‘roadside’ as defined in Road Management Act 2004 – Consideration of statutory text – Ordinary and natural meaning – Provision in context of Act as a whole – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited.

NEGLIGENCE – Duty of care – Defences – Breadth of operation of s 107 of the Road Management Act 2004 – Whether Road Management Act 2004 s 107 protects the defendant when performing a role other than ‘road authority’ – Whether section 107 provides a defence where the defendant otherwise owed a statutory or common law duty to the plaintiff as infrastructure manager.

NEGLIGENCE – Breach – Proper identification of risk of harm – Lack of prior complaint not determinative – Defendant in breach of common law and statutory duties as road authority and infrastructure manager by failing to take precautions in response to the hazard presented by the raised stormwater pit.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti QC with Mr M Seelig	Nevin Lenne Gross
For the Defendant	Mr C Blanden QC with Mr D Oldfield	Moray & Agnew

HIS HONOUR:

Introduction

The plaintiff alleges that at about 8.00pm on 14 September 2008 he tripped on a raised stormwater drain pit (the stormwater pit) located on a reserve in Shepparton, fell and suffered injury. The reserve is bordered by Balaclava Road to the south, Balaclava Service Road to the north, Fahey Street to the east and Packham Street to the west (the reserve) and was referred to by witnesses as being part of the Sherbourne Reserve. The plaintiff brings a claim for damages for his injuries, alleging that the defendant breached duties which it owed to him as the authority with responsibility for management and control of the reserve and the stormwater pit.

The reserve is located within suburban Shepparton and is part of a parkland area under the control of and maintained by the defendant. The duty of the defendant to pedestrians using the reserve was said to arise first at common law, second pursuant to s 40 of the Road Management Act 2004 (RMA) in that the reserve met the definition of ‘pathway’ in that Act, and third pursuant to Sch 7 of the RMA in that the stormwater pit was non-road infrastructure and the defendant owed a duty as infrastructure manager.

By its defence, the defendant pleaded reliance on a number of common law and statutory defences. By the time of final submissions, the defendant’s position had been refined and it became clear that the real issues in dispute were as follows:

Factual dispute

(a) Has the plaintiff discharged the onus of proving the circumstances in which he suffered injury?

(b) If it is found that the plaintiff tripped, fell and suffered injury as described, was he walking, jogging or running at the time that the incident occurred?

(c) Was the stormwater pit visible in the conditions in the reserve on 14 September 2008 when the plaintiff tripped and fell?

Common law duty

Was the plaintiff exercising reasonable care for his own safety at the time he was crossing the reserve, and if not, was a duty owed at common law by the defendant to the plaintiff in relation to the reserve and the stormwater pit?

RMA defence
Does s 107 of the RMA provide the defendant with a good defence to the plaintiff’s action?
Breach and causation

(a) Was there breach by the defendant of a duty it owed to the plaintiff?

(b) Was breach by the defendant of a duty it owed the plaintiff a cause of the plaintiff’s injury?

If the plaintiff successfully navigated the issues of duty, breach and causation, there remained to be dealt with contributory negligence and the appropriate assessment of damages.

Background

The plaintiff gave evidence that shortly before 8.00pm on 14 September 2008 he left the residence at 7 O’Connell Court, Shepparton, intending to walk to a fish and chip shop in King Street, Shepparton to purchase his dinner. After leaving 7 O’Connell Court the plaintiff walked along footpaths until he reached the Chas Johnson Reserve, where he turned to walk in an easterly direction cutting across the reserve until he reached the Balaclava Service Road. The plaintiff continued walking in an easterly direction for some distance along the Balaclava Service Road, before crossing the road from north to south and stepping onto the reserve. The plaintiff said that he then commenced to walk at an angle across the reserve, between the Balaclava Service Road and Balaclava Road, walking roughly in a south-easterly direction, intending to emerge on Balaclava Road adjacent to a gate entry to the Gowrie Street Primary School. He intended to cut through the primary school, exiting on King Street close to the fish and chip shop.

The plaintiff said that as he was crossing the Balaclava Service Road, a car was coming behind him, so he did a ‘half walk-, half jog-type situation, so it’s a fast walk, a slow run’ to get across the service road and onto the reserve. He said he then slowed to a walk before reaching the stormwater pit, though this was strongly disputed by the defendant. The plaintiff said that he was looking straight ahead when he tripped, and that he did not see anything at that time because it was too dark. He said when he tripped and fell, his knee hit something, which he thought was ground or ‘whatever’, and he ended up with a broken hip, pelvis and fractured back. As he was lying on the ambulance stretcher, he looked around and noticed the cement structure. He said he had been back to the reserve since, and confirmed that he fell on to the stormwater pit.

Evidence was received at the trial by two former employees of the defendant, Mr Harford, the parks and gardens coordinator, and Mr Sidebottom,[1] now deceased, the Manager Operations. Both witnesses described the reserve in which the plaintiff said he fell as part of Sherbourne Reserve, which was made up of a series of parks located north of Balaclava Road and east of Packham Street in Shepparton. A report of licensed surveyor, Jeffrey Clarke, dated 2 June 2014, was tendered. In that report Mr Clarke expressed the following view:

The ‘grassed reserve’ that is subject to these proceedings is situated within a Government Road commonly referred to as Balaclava Road. Legal road status has been acquired by proclamation pursuant to s 25(3)(c) of the Land Act 1958 (Vic) and by diagrammatic representation on the relevant Proclaimed Roads Plan and diagrammatic representation of road abuttals on original Crown Grants.

Mr Harford said the reserve had been designated as open native park by the defendant. A number of photographs of the reserve were tendered, showing it to be flat with a dry grass or earth surface and irregularly positioned native trees.

[1]Mr Sidebottom died sometime prior to the trial. A signed statement of his evidence was tendered.

There is a stormwater drainage system running through Sherbourne Reserve. A number of tendered photographs showed stormwater pits and pit lids which formed part of the stormwater drainage system. Most of the stormwater pits appeared to be level with the surrounding earth. One pit is shown to be raised approximately 120–130 millimetres above the surrounding earth. One of the photographs of this stormwater pit, taken looking approximately south-east across the reserve, shows the Gowrie Street Primary School in the background. The plaintiff identified this raised stormwater pit as the object on which he tripped and fell.

Public open space records maintained by the defendant recorded that officers of the defendant regularly attended the reserve to perform tasks such as mowing, whipper snipping, weeding, spraying, edging and litter removal. Mr Harford said that depending on the season, council officers would attend to work at Sherbourne Reserve more than six to eight times a year, and that parks and gardens employees of the defendant performed various forms of maintenance activities on the reserve on a regular basis in 2008. This involved tasks of mowing with a tractor-mounted mower, whipper snipping, tidy-up work and spraying. Mr Harford said that these activities were undertaken in accordance with the reserve’s designation as an ‘open native park’, the other three categories of reserve requiring maintenance being ‘significant’, ‘general’ and ‘undeveloped’.

The plaintiff’s ex-wife, Donna Clarke, gave evidence that she had lived at 7 O’Connell Court since about 1983. Ms Clarke said that for many years she had observed people crossing over the reserve and walking their dogs there, children playing games on the reserve including football and cricket, and children crossing the reserve on their way to the high school located to the north of the reserve. Photographs taken in 2014 and 2015 by Ms Clarke were tendered, showing people on the reserve, including children and a woman with a pram. A video and a photograph showing an employee of the defendant mowing the reserve were also tendered. Another photograph showed a ‘children crossing’ traffic sign on Balaclava Service Road leading to the reserve, which Ms Clarke said had been in that position for as long as she had lived in the area. Ms Clarke identified two photographs which she said showed a watering system in the reserve, and said that the defendant used to water the reserve until well and truly into the drought, when it stopped. The Gowrie Street Primary School is located across Balaclava Road from the reserve. In 2008 there were approximately 300 to 400 students attending the school.

The stormwater pit is located approximately 9 metres in from the edge of the reserve bounded by Balaclava Service Road. The nearest streetlight is located to the north of the service road and is about 33 metres from the stormwater pit. The plaintiff said that at the point he fell, it was very dark.

Ms Clarke said that a severe storm went through the area sometime after 2008, and a number of the gumtrees on the reserve had been blown down. She also said there had been a change in the street lighting around the reserve, which had become brighter in more recent years.

Mr Harford said that he had walked over the reserve a number of times, and was aware of the stormwater drain that protruded about 120 or 130 millimetres above ground level. He was aware that people go through the reserve during the day and possibly at night. He agreed that for persons going over the reserve at night there was no lighting, and pedestrians at night would have very little opportunity to observe the stormwater pit. Mr Harford agreed with the proposition that the pit surround would constitute a tripping hazard at night.

The defendant admitted that it was the road authority with responsibility for the Balaclava Road reserve, and that it was the infrastructure manager responsible for the stormwater system which ran through the reserve, including the stormwater pit.

Factual dispute

There was no independent witness to the incident in which the plaintiff suffered injury. Therefore, when resolving factual disputes between the parties in relation to the circumstances of the incident, it is important to consider the extent to which reliance can be placed on the plaintiff as a witness. This is particularly so because the plaintiff’s credit was put squarely and seriously in issue by the defendant.

Plaintiff’s evidence

The plaintiff told the Court he was born on 17 August 1955 and was 60 years of age at the time of trial. He is a single man. He was born in Hastings and attended Broadmeadows Technical School, where he unsuccessfully attempted Form 3 and then left school. Between the ages of 8 and 17 the plaintiff spent substantial periods in institutions such Turana, Baltara and Malmsbury, which were described as ‘boys homes’ in a question put to him in evidence-in-chief. After leaving school and up to 1995 the plaintiff worked in employment such as truck driving, panel beating, spray painting and seasonally at the Ardmona cannery in Shepparton.

The plaintiff moved to Shepparton in 1975 and married Donna Clarke in 1976. There are four children of that marriage aged between 34 and 39 years, and 11 grandchildren. He and Ms Clarke divorced in 1990, but recommenced their relationship one year later. They remained together for a further 14 years and finally separated in about 2004. Since then they have remained firm friends. Since separation he had, for the most part, continued to live at Ms Clarke’s residence at 7 O’Connell Court, Shepparton, not in the house itself, but in a former car transporter that had been converted into a small bungalow-type residence.

In about 1980 he became interested in drag racing, and for some years he competed in events right across Australia. In 1995 he was involved in a very bad accident while racing at Calder Raceway. His car blew up and rolled. It took him about two years after the accident to start using his right arm, and it gradually recovered to virtually full use now. Because of his injuries he could not regain employment, though he did continue to do some mechanical work for his children and friends to earn a few dollars, which he was allowed to do while on the pension.

The plaintiff said in evidence-in-chief that he had lived at O’Connell Court for 32 years. He said this was apart from a brief period of perhaps three to six months immediately prior to his fall in September 2008, when he lived with a female friend elsewhere in Shepparton. He could not recall the exact length of this period. The plaintiff was challenged on this history in cross-examination and it only then became clear that he had moved to live in Bendigo in about 2004 after he separated from Ms Clarke. While in Bendigo he travelled back to O’Connell Court in Shepparton for family events such as Christmas and birthdays. On 23 February 2006 the plaintiff was convicted of various offences including possession of prohibited weapons, trafficking amphetamines and state false name, and was sentenced to a cumulative term of two years and six months’ imprisonment, with a credit of 61 days already served. An appeal against sentence was heard in the County Court on 17 November 2006 and the sentence was affirmed. The plaintiff served the last part of his sentence at Dhurringile in Tatura, and was released on parole in around early March 2008. The plaintiff did not concede the nature of most of the charges against him. When asked in cross-examination why it was he had not told the Court about these matters the plaintiff said:

Yes, your Honour, because they had nothing to do with me falling over a stormwater drain.

The plaintiff said he had never previously walked across the reserve. The plaintiff was asked a number of times in examination-in-chief and in cross-examination about the speed at which and manner in which he was moving when he got to the stormwater pit and tripped. He said in examination-in-chief he jogged or ran across Balaclava Service Road in front of the oncoming car, that he stopped jogging shortly after he got onto the reserve, and that he was walking by the time he reached the stormwater pit. Counsel for the defendant challenged the plaintiff on this evidence, on the basis of contemporaneous histories given by the plaintiff to the ambulance officers who attended shortly after the incident, and recorded in the Goulburn Valley Base Hospital records where the plaintiff was taken that evening.

The ambulance report records that a call was received at 7.59pm, the ambulance was with the plaintiff at 8.12pm, and arrived with the plaintiff at the hospital at 8.33pm. The case description records:

pt running over medium [sic] strip and fell onto raised concrete manhole. pt unable to ambulate and pain into l [left] hip region unable to straighten legs due to pain

As was noted by the defendant the vital signs survey in the ambulance report records:

Eyes – spontaneous
Verbal – oriented
Motor – obeys command
GCS score – 15.

On the other hand I also note that on the same survey pain is recorded as 10 out of 10 at 8.12pm, and 8 – severe at 8.30pm.

The police note records an attendance by police at the scene of the incident at 8.14pm, by which time the ambulance officers were in attendance. The circumstances were recorded in the police note as:

Suffering from pelvis injuries from tripping over concrete manhole cover in parklands.

A treating hospital report dated 18 March 2009 records:

Steven is a 53-year-old gentleman who injured his left leg whilst jogging in September 2008.

When cross-examined about whether he said to the ambulance officers or at the hospital that he had a fall while jogging, the plaintiff said that he did not recall that, and:

I don’t remember saying anything. I don’t remember anything at all.

The plaintiff’s attention was also directed to the second paragraph of a letter dated 2 February 2008 which he sent to the defendant, which relevantly reads:

On September 14^th 2008 at approximately 8.00 pm I was jogging across the grassed area (median strip) between Balaclava Road and Service Road, Packham Street and Faye [sic] Street and I had a fall which has resulted in permanent injury.

The plaintiff said that Ms Clarke wrote the letter. He agreed that he had signed it and said that he had assumed that he would want to ensure that the details in the letter were his best recollection of events before signing it.

The plaintiff said that after he tripped and hit the ground he was in severe pain and he screamed for help for about 15 to 20 minutes. It seemed like an eternity. Eventually a male nurse came to his assistance. In evidence-in-chief he said he thought that the nurse grabbed his phone and rang the ambulance. The plaintiff did not know his assistant, and has not seen him again.

In examination-in-chief the plaintiff said that some months prior to the incident he had developed a relationship with a woman. In cross-examination the plaintiff confirmed that woman to be Larissa Collinda. The plaintiff further conceded that in fact Ms Collinda attended the scene shortly after he fell. He said that Ms Collinda was not with him prior to, or at the time of, his fall. He was not clear how it was that she came to attend the scene. The plaintiff had his mobile phone with him and was attempting to make calls, but found that very difficult because of the pain that he was in. The plaintiff conceded in cross-examination that it may have been Ms Collinda who called the ambulance. The transcript of the 000 call shows that the call was made to Ambulance Victoria from a mobile telephone number by a woman who I accept was Ms Collinda. Other than the fact of Ms Collinda’s presence there is nothing in that transcript inconsistent with the version of the incident given by the plaintiff in evidence-in-chief. For instance the caller confirms that the accident happened ‘… about half an hour ago’, that the plaintiff was on his back with a broken leg/pelvis, and that he was in a park just off the road.

The plaintiff was asked why it was Ms Collinda was not coming to court to give evidence in his case. He explained at some length in cross-examination and in re-examination the circumstances and extent of the breakdown of his relationship with Ms Collinda. To an extent those circumstances were confirmed by a handwritten note and by documents from a local solicitor relating to an alleged loan agreement between the plaintiff and Ms Collinda, both of which were tendered in evidence. When asked why he did not want Ms Collinda anywhere near the court for this case, the plaintiff said that while he was in prison Ms Collinda had developed a relationship with his son, that she was an ‘ice’ user, that she had loaned money to his son, that his son had not repaid the money, that Ms Collinda then made repeated demands of the plaintiff to repay that money, and that she would ask him when he was going to court because she wanted her money. The plaintiff said Ms Collinda had caused a great deal of trouble in his life, but he had now thrown her out of his life, and that was why he had not mentioned her name and had ‘… left her out of it.’ No questions were asked of Ms Clarke in relation to Ms Collinda, though she may have had something relevant to say. I accept the plaintiff’s explanation for not involving Ms Collinda in the case as a witness. I conclude that no inference should be drawn against the plaintiff as a consequence of the failure to call Ms Collinda. However, that does not deal with the plaintiff’s failure to say that Ms Collinda was at the scene when he was initially asked about the incident circumstances.

The plaintiff was cross-examined about why he had chosen to walk to the King Street fish and chip shop on this night when he had never previously done so. He said, in effect, that was just a choice he made that night because he felt like walking that night. The plaintiff was also cross-examined about why he had chosen to cut through the Chas Johnson Reserve and the Sherbourne Reserve, rather than following roads and footpaths. He said:

Well, if you’re walking somewhere and you can take a shortcut you take a shortcut.

The plaintiff did accept that he could have chosen, rather than taking these shortcuts, to walk down the streets and footpaths that were available.

The plaintiff’s credit

In submissions, counsel for the defendant listed what was said to be 18 examples of evidence given by the plaintiff which was selective, internally inconsistent, and at times inherently improbable. In my view, there is little substance in most of the examples given.

For instance, counsel criticised the plaintiff for describing the Malmsbury and Turana facilities in which he said he spent time as a boy as ‘boys homes’, whereas in fact both were Youth Training Centres. The description ‘boys homes’ came from a question in examination-in-chief, not from any answer given by the plaintiff. The significance of the difference between the terms ‘boys homes’ and Youth Training Centre was not explored with the plaintiff. When challenged on the basis that he was in those establishments because of crimes he had committed the plaintiff said:

Penal, whatever, I just remember being placed in those places when I was a kid.

There is nothing in the evidence given by the plaintiff on this topic which undermines or adversely affects his credit.

Counsel criticised the plaintiff for saying that he had recovered from his drag racing injuries after two years and was fit and able to undertake all activities, when the plaintiff in fact continued to receive a disability support pension from the date of that accident. However, reading the plaintiff’s evidence as a whole it is clear that he said that he did not recover fully from the drag racing injuries, and that he had not returned to work because of those injuries. Again I consider there is no substance in this criticism.

I will not analyse each of the 18 criticisms said to go to the plaintiff’s credit made by counsel for the defendant. In my view most of those criticisms fall away when the evidence is properly analysed.

There are, however, criticisms of substance which can be levelled against the plaintiff. I do not accept the plaintiff’s explanation for his failure to tell the Court about his history of criminal conviction and incarceration in the two-year period prior to the incident. The plaintiff was asked to give a number of historical details about his life. The picture the plaintiff painted was of a happy pre-accident life. The fact that he omitted to tell the Court details of the criminal conviction and period of incarceration, facts which might be thought not to show him in a good light, and which are inconsistent with the picture of a happy and settled life pre-accident, does adversely impact the plaintiff’s credit.

Further, the plaintiff’s evidence about his relationship with Ms Collinda and, in particular, his failure to tell the Court that Ms Collinda was present at the scene after the incident and probably rang the ambulance, were unimpressive. Whilst I accept the plaintiff’s explanation for not calling Ms Collinda as a witness, that does not explain the plaintiff’s failure to give accurate evidence about his relationship with Ms Collinda and about her presence at the scene after the incident.

These two factors caused some hesitation on my part in accepting uncorroborated evidence from the plaintiff in relation to the circumstances of the incident of which he suffered injury.

The defendant made two challenges to the factual case advanced by the plaintiff. First, it was submitted that the plaintiff failed to prove that he suffered his injuries when he tripped and fell onto the stormwater pit. In advancing this submission the defendant relied on the opinion of general surgeon Mr Schutz that the plaintiff’s injuries were not consistent with the trip and fall he described and must have been caused by an incident involving higher forces, such as being struck by a motor vehicle. Second, that if it is concluded that the plaintiff suffered the injuries after tripping on the stormwater pit then he was running or jogging, rather than walking, at the time the incident occurred.

Circumstances of injury

Despite having some concern as to the reliability of the plaintiff as a witness, for a number of reasons I conclude that the plaintiff has discharged the onus of proving the circumstances in which he suffered injury. First, the transcript of the 000 call is consistent in a number of ways with the evidence of the accident circumstances as given by the plaintiff. The caller says the plaintiff is off the footpath in a park close to Balaclava Road and the Gowrie Street Primary School. The accident is said to have happened ‘about half an hour ago’, which is consistent with the plaintiff’s evidence that after he fell he waited 15 to 20 minutes before somebody came to his aid. The caller, Ms Collinda, does not respond to a question from Ambulance Victoria as to the circumstances in which the plaintiff suffered injury. This is consistent with the plaintiff’s evidence that Ms Collinda was not present at the time of the incident but arrived some time later.

Second, the accident circumstances recorded in the ambulance notes, and in the police notes a very short time after the incident occurred, are consistent with the plaintiff suffering injury after tripping on the stormwater pit. The hospital report is also consistent with that history.

Third, the medical witnesses, apart from Mr Schutz, accept that the plaintiff suffered the injuries in the circumstances described by him. For instance, in his report of 18 March 2009, orthopaedic registrar, Dr Loch of Goulburn Valley Health records:

Steven is a 53 year old gentleman who injured his left leg while jogging in September 2008. He suffered a dislocation of his hip with a fracture of the posterior wall of the acetabulum.

In his report of 12 February 2014, Dr Todhunter, treating pain specialist, records:

The history given by Mr Clarke was that in September 2008 he was jogging on a grassed area and tripped on a raised manhole as a result of which he fell heavily… Apparently he had a fractured dislocation of his left hip and a plate put in the posterior wall of the acetabulum (the cup and the pelvis that the head of the femur fits into in the hip).

In his report of 30 September 2014, Dr Pedrotti, the treating GP records:
I first saw this man on 2^nd of October 2008 when he told me that he had fallen in a manhole two weeks previously and suffered a fractured dislocation of his left hip for which he had undergone surgical treatment in Melbourne.

In a medico-legal report dated 22 November 2011, orthopaedic surgeon, Mr Leitl records:
Mr Steven Clarke now aged 56, has sustained severe injuries to his left hip, left knee and lower back consistent with the mechanism of injury that he described that occurred on or about 14 September 2008.

Similarly Mr Brearley (report dated 28 August 2013), medico-legal general surgeon; Mr McLean (report dated 6 February 2014), medico-legal orthopaedic consultant; Mr Wallace (report dated 17 February 2004), medico-legal neurosurgeon; and Mr Kelman (report dated 2 October 2014), medico-legal orthopaedic surgeon, all accept that the injuries were caused in the circumstances described by the plaintiff. Mr Schutz is the only practitioner to conclude that the forces involved in the accident as described by the plaintiff are likely to be insufficient to have caused the injuries sustained by the plaintiff. As is plain from the above, all of the evidence going to the circumstances in which the plaintiff suffered injury, including the balance of the medical evidence, weighs heavily in favour of the conclusion that the injuries were sustained in the circumstances described by the plaintiff, that is tripping and falling onto the stormwater pit.

I conclude that the plaintiff has discharged the onus of establishing the circumstances of the incident in which he suffered injury.

Walking, jogging, running?

The ambulance report, which I accept is likely to have been completed by an ambulance officer based on information obtained at the scene sometime between 8.12pm and 8.30pm, records the history that the plaintiff was running over the reserve when he fell on the stormwater pit. The plaintiff’s lack of recall of what he said to the ambulance officers may be explained by the severe pain he was experiencing at the time, and the time which has elapsed since. I note that at 8.15pm the plaintiff was given 3 millilitres of Methoxyflurane, which I understand to be an opiate analgesic.

Leaving aside the reference to running, the incident as described in the ambulance report is consistent with the plaintiff’s evidence. Given that there was no witness to the incident, that information must have come from the plaintiff, either directly or indirectly. The reference to running in the ambulance report is also likely to have come from the plaintiff, either by direct report to the ambulance officers or by second hand report from some other person present.

Finally, there is the reference to jogging in the letter from Mr Clarke to the defendant dated 2 February 2010. Ms Clarke, whom I found to be an impressive and reliable witness, gave the following evidence in relation to the letter:

Q. Where did the word, ‘jogging’, come from, in the letter?
A.Probably a bad choice of words – sorry – I didn’t write the letter specifically. The word ‘jogging’ was when we were talking about that particular day, and don’t [quote] me for word for word, but it was on the lines of, ‘well, I was coming up; I seen a car come, so I jogged across the road,’ so that’s where the word ‘jogging’ come from. He wasn’t jogging in the sense of a health/fitness exercise.

Ms Clarke said that sometime after the incident when Mr Clarke had recovered sufficiently they did talk about the accident, but she cannot recall word for word what they talked about. She said that she typed the letter in the back office on her own and that:

We would have discussed – when we done this, it’s not something that, again, I have sat down and thought, ‘I better remember what we said. I better remember who was where, what was what’. We discussed it and the reason we discussed it is because at that time, as I stated before, I realised he needed help. So we talked about it, he went through, you know, going to the shop – he could have said ‘jogging’, ‘running’, whatever, across the road. I’m the one that typed the letter, I’m the one that used the word ‘jogging’. I possibly should have said, you know, ‘walked quickly’, ‘jogged across the road to get out of the way out of a car’, ‘slowed down’. I didn’t because this letter was mainly written to try and help get medical treatment. I can’t say anything further on the letter.

Ms Clarke did agree that the information in the letter was information that she and the plaintiff had discussed on that day or possibly the night before the letter was written.

I have concluded that the history of running or jogging recorded in the ambulance report and in the letter typed by Ms Clarke has come from the plaintiff. I consider the most likely explanation to be that this history is accurate, and that the plaintiff was jogging at the time he tripped and fell onto the stormwater pit.

The plaintiff described in evidence the speed at which he crossed the service road as being:

Half walk, half jog type situation, so it’s a fast walk, a slow run.

I accept this is likely to be the sort of speed at which the plaintiff was moving when he tripped on the stormwater pit, that is something more than a walk and something like a slow jog.

The state of the light and the visibility of the stormwater pit

The plaintiff’s evidence was that when he tripped and fell on the stormwater pit there was sufficient light to allow him to visualise a path between the trees across the reserve, but it was too dark for him to be able to see what lay ahead of him on the ground. The nearest streetlight was approximately 33 metres from the stormwater pit, and was directly behind the plaintiff. The plaintiff has given evidence about the trees around him at the time. In evidence-in-chief he was asked:

Q:When you got on the reserve, was that light of any use to you in enabling you to see what was around you and what lay ahead?

A: I couldn’t see because it was too dark.

The plaintiff was also asked about climatic conditions at the time:
Q: The sky I’m talking about.
A: Yeah, it was dark, there was no — there was no moon, it was cloudy.
Q:There are various forms of darkness, how do you describe to his Honour how dark it was as you got onto the reserve?
A:Now your Honour, I — I had — well it was cloudy, there was trees around, poor lighting and I just visualised a path between the trees and took that path.
Q:How dark was it, was the question?
A:Very dark.

In cross-examination the plaintiff was asked:

Q:Into an area that you say is pitch black dark where you can’t see anything?
A:Into an area that I couldn’t see directly, the ground, but I could see the fence across the road, the lights on the street, and so forth, believing that the ground was just flat.

Two consulting engineers gave evidence at the trial. Consulting engineer, Mr Lightfoot, attended on the reserve at the scene of the accident at 8.00pm on 14 September 2013. When he did so, he sought to measure two things. One was the degree of light or light intensity at the stormwater pit. The other was the degree of contrast between surfaces. A second consulting engineer, Mr Culvenor, who was called by the defendant, similarly gave evidence about light intensity. Mr Culvenor did not measure contrast, but made a subjective assessment as to the visibility and discernibility of the stormwater pit which took into account contrast.

Mr Lightfoot said that contrast between different surfaces made a significant difference to the capacity of a person to perceive an object and changes in height. He put it this way:

If you’ve got a grey on grey, it’s very, very difficult to discern; whereas if you’ve got red and orange, that provides quite a significant difference. You have a meter, you zero the meter on a white tablet, and then you put the meter on the surface and you get a reading and you compare the two and the aim is then to determine the contrast as it assists people in their ability to recognise either changes in height, or indeed, where they’re going to put their feet, and it just helps in that recognition.

Mr Lightfoot said after measuring the contrast on the top of the stormwater pit, on the vertical face of the pit and the surrounding earth, that there was not sufficient contrast. Mr Lightfoot was asked the following questions:
Q: Firstly, tell his Honour, what’s the significance of contrast?
A:Well, as I indicated before, a contrast to be able to determine a difference between the surface of the contrast such that you can identify when you’ve got a very plain surface, if it’s illuminated in two different planes, you can then pick up the contrast, so that helps to be able to determine that there is a change in height.
…

Q:So what you’re doing is measuring the response or the visibility of each of those surfaces and the contrast between them?
A:Yes, effectively, the contrast between the ground and the concrete so that you can look at identifying if they are matched together or indeed displaced, because if you can see a difference in contrast, you’ll perceive, “Oh, well, there’s a difference in the surface,” and you can look at a rise.
Q:So that enables you to perceive [the stormwater pit] and that is at a different height to the surrounding ground?
A:Yes, yes, your Honour.
Q:So that’s what you’re trying to determine? Whether somebody approaching that can differentiate?
A:Yes, that there is a sufficient contrast so that they recognise that there is something there.

Mr Lightfoot and Mr Culvenor differed as to light intensity measurements made when they attended the scene. I found the readings of light intensity taken by the expert witnesses to be of limited value for the following reasons. First, I accept the evidence of Ms Clarke (supported by evidence from the plaintiff) that the current street lighting is brighter than the lighting at the time of the plaintiff’s fall. Second, I conclude that the light intensity at the stormwater pit would vary from time to time, because of environmental conditions. Mr Culvenor accepted that this was so. This is likely to be one reason for the difference in light intensity measurements recorded by Mr Lightfoot and Mr Culvenor. Third, I accept the evidence of Ms Clarke that there were more trees on the reserve in 2008 and that there was a storm some time later which resulted in a reduction in the number of trees. Shadowing of light caused by additional trees is one reason why light intensity at the stormwater pit may have been lower in September 2008 than when it was measured some years later by Mr Lightfoot or Mr Culvenor. The plaintiff said that when he got onto the reserve that there were a couple of trees to his right, more trees to his left and trees in front of him.

I conclude that light intensity at the stormwater pit when the plaintiff fell in 2008 was as described by the plaintiff in his evidence. I accept that the plaintiff was looking forward as he proceeded across the reserve, but that he could not see or perceive the existence of the stormwater pit because of the relatively poor lighting and because of the lack of contrast between the surfaces of the pit and the surrounding earth.

Was the plaintiff exercising reasonable care for his own safety?

Counsel for the defendant gives nine reasons in support of the submission that the plaintiff has failed to establish that at the time of the incident causing his injury he was exercising reasonable care for his own safety. Some of the factors raised by counsel for the defendant fall away in light of the factual findings that I have already made. Other issues do need to be addressed.

Counsel for the defendant submits that it would have been obvious to a reasonable person exercising care for their own safety that there were present, in the unlit reserve, certain tripping hazards, such as trees or uneven earth surface, and that a person traversing the reserve in the dark would need to exercise particular care to avoid anything that might cause them to trip. The plaintiff accepted in evidence that he could have chosen to continue to walk along footpaths rather than to cut through the reserve as he did. There was no path across the reserve. The plaintiff said that he had not previously walked across the reserve. However, the photographs show the reserve to have a flat and even surface. I accept that the plaintiff was very familiar with the reserve because he had lived close by for many years and had been past it on numerous occasions. He believed that the ground was flat. The plaintiff said the light was sufficient for him to see the trees around him, and I infer that he could avoid them. There is no evidence of any other particular tripping hazard or unevenness in the surface of the reserve. There is no suggestion the plaintiff knew of the raised stormwater pit prior to the incident. To a pedestrian crossing the reserve at night in the sort of dark conditions experienced by the plaintiff, the stormwater pit represented a significant hazard, both in terms of the likelihood of tripping and the seriousness of injury that might be sustained as a result. That risk was not obvious in terms of the likelihood of occurrence or the magnitude of the danger it represented. Counsel for the defendant submit that there was no evidence that the reserve was used by pedestrians at night time. The reserve is located in suburban Shepparton. It is located immediately across the road from a primary school, close to a secondary school, close to the King Street shops, and across the road from various residences. I consider it improbable that pedestrians did not, from time to time, cross the reserve at night. Mr Harford acknowledged that possibility. I do not consider that by choosing to cross the reserve on foot at night the plaintiff failed to take reasonable care for his own safety.

I have already concluded that at the time he tripped and fell the plaintiff was jogging. I consider that in jogging across the reserve in conditions in which it was difficult to see the ground ahead of him the plaintiff was, to a degree, failing to take reasonable care for his own safety. However, walking rather than jogging would not have allowed the plaintiff to see and avoid the stormwater pit.

Common law duty

An authority such as the defendant, with responsibility for an area such as the reserve and non-road infrastructure in the reserve, owes a duty to pedestrians to take reasonable care to eliminate or reduce hazards which a pedestrian, taking reasonable care for his or her own safety, would not see and avoid. In Boroondara City Council v Cattanach,[2] Chernov JA, with whom Winneke P and Bongiorno AJA agreed, expressed the duty in these terms:

Thus, it seems plain enough that a council is not under a duty to prevent or eliminate all dangers in footpaths. Ordinarily, where a council knows, or ought to know, of an impediment in a footpath, it will owe a duty to render it harmless to users of the path only if the danger arising from it would not be obvious to an ordinary, reasonable pedestrian exercising proper care for his or her own safety. Reference has already been made to the recognition in Brodie of the importance in the formulation of such a duty of the obligation of such a pedestrian to exercise reasonable care for his or her own safety … [I]t is for the plaintiff to establish that the hazard was not one which, with the exercise of reasonable care by the plaintiff, could have been seen and avoided.[3]

[2](2004) 10 VR 109.

[3](2004) 10 VR 109, [15].

The question of whether or not the hazard was obvious is to be viewed objectively.[4]
[4]Burch v Shire of Yarra Ranges [2004] VSC 437, [105].

In Whittlesea City Council v Merie,[5] in a joint judgment Warren CJ, Buchanan JA and Byrne AJA considered such a duty and commented as follows:

Her Honour does not in terms state that the condition of the ramp at the time was such that it created a hazard to the suppositious pedestrian taking reasonable care for their own safety. She did, however, analyse the position of Mrs Merie and in particular, whether she as a pedestrian who did not see the hole, should have seen it in the circumstances. Her Honour’s conclusion was that the plaintiff’s failure to see the hole was not, to adopt the words of Gillard, AJA. in the passage from Pearce’s case which we quoted above, a failure to ‘exercise reasonable care for her own safety’.
This, it was submitted, was to fall into the error which was identified by Chernov, JA in Pearce’s case, that of investing the suppositious careful pedestrian with the particular characteristics of the plaintiff. We think not: it is clear from the cases in this Court to which we have referred that the duty in question is a duty which is or is not owed to the plaintiff. The plaintiff is entitled to the benefit of the duty if, at the relevant time, she falls within the class of reasonable pedestrians of ordinary physical capacity exercising sufficient care to see where they are going and perceiving and avoiding obvious hazards, subject always to acts of mere inadvertence. Her Honour’s approach to the question of duty of care was consonant with that of this Court in Moyne Shire Council v Pearce.

[5][2005] VSCA 199, [15]–[16] (citations omitted).

And in Gosling v Lorne Foreshore Committee of Management Inc & Anor,[6] Ashley and Redlich JJA and Kyrou AJA commented as follows:

Counsel for the appellants further submitted that his Honour erred in treating the risk as ‘obvious’ and determinative of what was a reasonable response to that risk. In our view, once the risk was properly characterised, neither the likelihood nor the magnitude of the danger would have been obvious to a person in the position of the deceased. As his Honour in substance found, the drop-off and the concrete drain cover could not be seen at night from the top of the embankment. The risk which they created, in combination with the slope of the embankment generally, was not obvious to a person in the position of a user of the embankment.
This was not, therefore, a case where it could be said that the deceased chose to take a risk that was obviously present. We doubt that it can rightly be maintained that SG ’failed to take reasonable care to protect [herself]’ where critical aspects of the danger were hidden, and where there was no evidence that she knew of those aspects. That said, it is not a matter we need stay to consider. We are not here concerned with the existence of the duty of care or with contributory negligence. In the context of breach of duty, even if a person in SG’s situation might be said to have assumed a risk in descending a steep embankment, such person could not be said to have assumed the risk posed by the unknown and hidden drop-off and the concrete cover below it. We consider that the analogy which his Honour drew with the facts in cases like Romeo, Vairy or Mulligan was unsound.

[6][2009] VSCA 228, [39]–[40].

Here, the risk was that a pedestrian crossing the reserve at night would encounter the stormwater pit and come to grief upon it. Neither the probability nor the magnitude of the risk were obvious to pedestrians crossing the reserve at night. I conclude that there was no lack of reasonable care on the part of the plaintiff, which goes to the question of whether the defendant owed a common law duty to the plaintiff or to the standard of care which it was required to meet.

The defendant conceded that it was the responsible road authority in relation to Balaclava Road and the reserve, and that it was the responsible infrastructure manager in relation to the stormwater pit. As the authority with those responsibilities, the defendant owed a duty to take reasonable care to keep safe pedestrians using the reserve, including the plaintiff.

Statutory duties

A statutory duty of road authorities in respect of public roads is created by s 40 of the RMA, which provides:

(1)Subject to Part 6, a road authority has a statutory duty to inspect, maintain and repair a public road—
(a)to the standard specified in the road management plan for that public road or a specified class of public roads which includes that public road; or
(b)if paragraph (a) does not apply, to the standard specified in a policy in respect of that public road; or
(c)if no standard is specified for that public road or in relation to a particular matter, to a reasonable level having regard to the matters specified in paragraphs (a) to (e) of section 101(1).
Note
Section 101 sets out principles for determining whether there is a duty of care and if there is a duty of care, the standard of care.

…
(3)The statutory duty to inspect applies to any part of a public road which is—
(a)a roadway;
(b)a pathway;
…

(4) The statutory duty to inspect does not apply to—
…
(b)any roadside or other area of a public road that has not been developed by a road authority for use by the public as a roadway or pathway; or
(c)non-road infrastructure which is installed in the road reserve.

Section 101 of the RMA is relevant to the question of the standard required in performance of road management functions. It provides:

(1)In determining whether a road authority, infrastructure manager or works manager has a duty of care or has breached a duty of care in respect of the performance of a road management function, a court is to consider the following principles (amongst other relevant things including the principles specified in section 83 of the Wrongs Act 1958)—
(a)the character of the road and the type of traffic that could reasonably be expected to use the road;
(b)the standard of maintenance and repair appropriate for a road of that character used by traffic of that type;
(c)the state of repair in which a reasonable person would have expected to find a road or infrastructure of that character;
(d)whether the road authority, infrastructure manager or works manager knew, or could reasonably be expected to have known, the condition of the road or infrastructure at the time of the relevant incident;
(e)in the case where the road authority, infrastructure manager or works manager could not have reasonably been expected to repair the road or infrastructure or take other preventative measures before the relevant incident, whether the road authority, infrastructure manager or works manager did display, or could be reasonably expected to have displayed, appropriate warnings.

Schedule 7 of the RMA deals with infrastructure and works on roads. Paragraph 6 of that schedule provides:

Duty to maintain non-road infrastructure or related works to a satisfactory standard
An infrastructure manager must take reasonable measures to—
(a)maintain the non-road infrastructure or related works to a satisfactory state of repair;
(b)avoid causing damage to the roadway, road infrastructure or non-road infrastructure;
(c)repair any damage caused to the roadway, road infrastructure or non-road infrastructure by a failure of infrastructure for which the infrastructure manager is responsible;
(d)take reasonable precautions to ensure that anything placed on a roadway or pathway does not cause an obstruction or inconvenience;
(e)take reasonable precautions to ensure that anything placed on a roadway or pathway does not cause an obstruction or danger to any person with a disability;
(f)in the case of any part of a road used for rail infrastructure, ensure that the condition of the surface is maintained to a standard which is equivalent to the standard of the adjacent road surface.

Example
A road authority, a utility or a provider of public transport which has infrastructure in a road must take care that its pit lids, access hole covers, gratings and similar things are kept flush with the surrounding surface of the roadway or pathway so that they do not cause a hazard or adversely affect the smooth passage of traffic.

Clause 14 of sch 7 of the RMA details principles applying to infrastructure managers and provides:
(1)An infrastructure manager or a works manager must have regard to the principles specified in this clause in the provision of non-road infrastructure on roads.
(2)The primary purpose of a road is use by members of the public and authorised uses must be managed as far as is reasonably practicable in such a way as to minimise any adverse impacts on the primary purpose.
(3)Without limiting the generality of subclause (2), authorised uses must be managed so as to –
…
(d)minimise any risk to the safety and property of road users and public generally;
Definitions are contained within s 3 of the RMA, and relevantly include:

infrastructure means road infrastructure and non-road infrastructure;
infrastructure manager means—
(a)in relation to road infrastructure, the responsible road authority under section 37; or
(b)subject to subsection (5), in relation to non-road infrastructure, the person or body that is responsible for the provision, installation, maintenance or operation of the non-road infrastructure;

non-road infrastructure means infrastructure in, on, under or over a road which is not road infrastructure;
pathway means a footpath, bicycle path or other area constructed or developed by a responsible road authority for use by members of the public other than with a motor vehicle but does not include any path—
(a)which has not been constructed by a responsible road authority; or
(b)which connects to other land;

public highway means any area of land that is a highway for the purposes of the common law;
public road means a public road within the meaning of section 17;

road includes—
(a)any public highway;

road reserve means all of the area of land that is within the boundaries of a road;
roadside means any land that is within the boundaries of a road (other than the shoulders of the road) which is not a roadway or a pathway and includes the land on which any vehicle crossing or pathway which connects from a roadway or pathway on a road to other land has been constructed;

roadway means—
(a)in the case of a public road, the area of the public road that is open to or used by members of the public and is developed by a road authority for the driving or riding of motor vehicles;

Both parties plead that the reserve is part of a public road. In final written submissions, counsel for the plaintiff argued that the reserve did not form part of a road reserve. This argument was inconsistent with the plaintiff’s pleadings. In any event, given the evidence of licensed surveyor Mr Clarke, I have no hesitation in concluding that the reserve is part of Balaclava Road. The parties proceeded from that point on the basis that Balaclava Road, including the reserve, was a public road as defined in the RMA. In its defence to the further amended statement of claim, the defendant pleaded that the reserve was that part of a public road which came within the definition of ‘roadside’ in the RMA and that as a consequence, pursuant to s 107 no duty is owed by it. Counsel for the plaintiff disagree, and argue that the reserve comes within the definition of ‘pathway’ in the RMA, so that s 107 has no application to this case. Section 107 provides:

107 Liability of road authority
A road authority does not have a statutory duty or a common law duty to perform road management functions in respect of a public highway which is not a public road or to maintain, inspect or repair the roadside of any public highway (whether or not a public road).

Pathway or roadside

In support of the plaintiff’s position, counsel argues first that the reserve does not come within the definition of ‘roadside’ because the land in question did not ‘fall within the boundaries of the road’, but rather within the boundaries of four roads enclosing it. This is so, it is said, because the Act provides that the boundary of a road (if no boundary has been fixed), when it adjoins freehold land, is the boundary of that land.[7]
[7]RMA sch 5 cl 3(1).

Second, that the reserve meets the definition of ‘pathway’ because it is an area which has been extensively developed by the defendant ‘for use by members of the public other than with a motor vehicle’. As features of development, the plaintiff relies upon the placement of rubbish bins on the reserve, provision of park seats, regular performance of tasks such as mowing, edging and spraying weeds, placing an irrigation system within the reserve and using it to irrigate the reserve, and clearing litter from the reserve.

Counsel for the defendant argue, with reference to the definition, that to characterise the reserve as ‘pathway’ is inconsistent with the ordinary natural meaning of the term; that there is no evidence of the grassed area where the plaintiff’s injury occurred having been ‘constructed’ or ‘developed’ by the defendant; and that well-established principles of statutory construction, most especially ejusdem generis and noscitur a sociis, require the reference to ‘other area’ in the definition of pathway to be construed in the context of the balance of the definition and that as such the term ‘other area’ is constrained by the more specific references to ‘footpath’, ‘bicycle path’ and ‘any path’. The defendant also placed some reliance on the explanatory memorandum to the RMA, which it argued made clear that the definition ‘pathway’ dealt with paths.

As outlined above, a good deal of evidence was led by the plaintiff in respect of the various activities undertaken by the defendant on the reserve, including mowing, weeding, spraying and litter removal, as well as the construction and use of the irrigation and stormwater systems. Mr Harford gave evidence that of the four categories of area requiring council maintenance only one — not being the category to which the reserve belonged — was labelled ‘undeveloped’. The reserve is located in suburban Shepparton. The evidence is that it is regularly used by members of the public. In his statement, Mr Sidebottom said that he would regularly run through the reserve.

The starting point in any exercise in statutory interpretation is a consideration of the text itself.[8] General words in a statutory provision should be given their ordinary and natural meaning.[9] Words must be construed in the context of the provision in which they appear and in the context of the Act as a whole.[10] Extrinsic materials may provide context but cannot displace the meaning of the statutory text.[11] The words of a provision should be given a construction which gives effect to the purpose of the provision,[12] and constructions which produce an unreasonable, irrational or capricious result should be avoided if there is a competing construction which is reasonably open and does not produce such a result.[13]
[8]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46 [47].
[9]Ibid, 31 [4].
[10]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).
[11]Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503, 519 [39].
[12]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [79] (McHugh, Gummow, Kirby and Hayne JJ).
[13]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 304–5 (Gibbs CJ), 320–2 (Mason and Wilson JJ).

Here the text to be construed is:

… or other area … developed by a responsible authority for use by members of the public other than with a motor vehicle …

The text of the definition incorporates the reserve. I accept the submission by counsel for the plaintiff that the reserve has been developed, by the defendant, for use by members of the public. The context in which those words appear in the legislation relates to an imposition of a duty on the authority in respect of those parts of a public road developed by the authority for use by members of the public. There is a clear contrast between the reserve and the examples of ‘roadside’ included with the s 3 definition and with s 40, which make clear that the authority’s duty does not extend to ‘a foot trodden track over roadside’ or to ‘roadside bush land’. It would be an irrational result in my view if an area such as the reserve, located in suburban Shepparton close to schools, shops and residences, regularly used by members of the public and which had been developed and maintained by the defendant in the manner described was not an area in respect of which the defendant as the road authority had a duty to inspect, maintain and repair. I conclude therefore that the reserve comes within the definition of pathway in the RMA.
Section 107 defence

Because the parties both plead that the reserve is part of a public road, and because I have concluded that the reserve comes within the definition of ‘pathway’ and not ‘roadside’, the defendant cannot rely on s 107 of the RMA to establish a defence to the plaintiff’s claim.

In case I am wrong in this conclusion, and because the parties have advanced argument in relation to the s 107 defence, I will address the issue. Counsel for the defendant submit that because the reserve is part of the ‘roadside’, s 107 of the RMA establishes that the defendant does not owe a statutory duty as a road authority or infrastructure manager, or a common law duty ‘… to maintain, inspect or repair’ the reserve. In support of that submission, counsel for the defendant makes the following points. First, the plaintiff’s pleadings do not seek to avoid the operation of s 107, so such an argument should not now be countenanced. Second, s 107 applies to a road authority regardless of whether it is acting as a road authority or in some other capacity. An alternate construction would fail because it would require words to be read into the section so that it reads ‘a road authority when acting as a road authority does not have a statutory or common law duty …’. Third, the construction contended for by the defendant is consistent with the purpose of the provision, which is to ensure that road authorities can devote their limited resources to roadways and pathways actually forming part of the public road network.

Road authority is defined in s 3(1) to mean ‘… a person or body specified in or under section 37’. Section 37(1) relevantly reads:

(1) … the responsible road authority is
(e)if the road is a municipal road, the municipal council of the municipal district in which the road or part of the road is situated;

The duties of the road authority specified in s 40 are ‘to inspect, maintain and repair a public road’. Section 107 of the Act absolves a road authority of that duty to maintain, inspect or repair in respect of that part of the road which is roadside.

In paragraphs 2(e) and 13 of the defence to the further amended statement of claim, the s 107 defence is pleaded as follows:
In accordance with section 107 of the Act, as a road authority, it did not owe a statutory duty or a common law duty to maintain, inspect or repair the large grassed reservation.
…
Further and alternatively, the defendant did not have a statutory duty or a common law duty to maintain, inspect or repair the large grassed reservation which constituted ‘roadside’ pursuant to section 107 of the Act.
For the following reasons, I do not agree with the submission by counsel for the defendant as to the breadth of the operation of s 107. First, there is nothing about the pleadings which prevents the plaintiff from arguing that s 107 has limited application to the facts of this case. The plaintiff pleads, and the defendant admits, that the stormwater pit was non-road infrastructure and that the defendant was the infrastructure manager within the meaning of the RMA. In the further amended statement of claim, the plaintiff pleads breach by the defendant of its duties as infrastructure manager, which the defendant denies. The defendant does not plead s 107 in its defence to this part of the plaintiff’s pleading. The s 107 defence, as pleaded by the defendant, is couched very much in terms of a response to pleaded statutory and common law duties of the defendant as road authority.

Second, the text of s 107 leads to the conclusion that its effect is limited to road authority duties. The heading and content of the section refer to ‘road authority’. The context provided by the RMA makes plain that road authority is a role or responsibility imposed on a statutory body. That same body may have, and in the case of the defendant, does have other roles, responsibilities and duties. Section 107 is designed to limit the circumstances in which a duty is owed by a body in its role as a road authority. The section does not speak to any duty imposed on the defendant carrying out any of the other roles it performs.

The section only relevantly absolves a road authority from a statutory or common law duty to maintain, inspect or repair the roadside of a public road. The section does not absolve a body of any other statutory or common law duty owed by it, in this case a statutory or common law duty owed by it in a different role as infrastructure manager of non-road infrastructure.

If, contrary to the position I have reached above, the reserve is roadside and not pathway as defined in the RMA, then I conclude that:

(a)by reason of s 107, the defendant owes no common law or statutory duty as a road authority to maintain, inspect or repair the reserve; and
(b)section 107 has no application to, and does nothing to restrict or inhibit, any other statutory or common law duty owed by the defendant as infrastructure manager in respect of the stormwater pit.

Sections 102 and 105 defences

The defendant pleaded reliance on ss 102 and 105 of the RMA. However, in final written and oral submissions, counsel for the defendant did not press reliance on either of these sections as raising a maintainable defence to the plaintiff’s action against it. Section 102 provides that a road authority is not liable for failure to remove, or give warning of, a hazard unless it is proved that the authority had actual knowledge of the particular risk, the materialisation of which resulted in the harm. The evidence is that in the years up to the date of Mr Clarke’s fall in 2008, employees of the defendant regularly attended to work on the reserve, performing functions including mowing and whipper snipping. Necessarily those workers would have had to deal with the raised stormwater pit. Use of the reserve by pedestrians would have been well known to the defendant. Mr Harford knew of the stormwater pit and accepted that it was a tripping hazard for pedestrians crossing the reserve at night. I have no hesitation in concluding that the defendant had actual knowledge of the particular risk which the stormwater pit posed to pedestrians crossing the reserve at night. The s 102 defence is not made out.

The defendant led no evidence to make out the s 105 defence. Accordingly, there is no need to further address that aspect of the pleaded defence.

Breach and causation

The particulars of breach of the alleged common law or statutory duty pleaded by the plaintiff fall into the following categories:

(a)failure to warn of the existence of the stormwater pit hazard;
(b)failing to remove the hazard by building up the area around the stormwater pit;
(c)failing to make obvious the hazard by delineating the stormwater pit or providing lighting such that it could be seen; and
(d)failing to place a guard or barrier around the stormwater pit.

In addition, the plaintiff alleges breach by the defendant of its statutory duty as infrastructure manager by:

(a)failing to maintain the stormwater pit in a satisfactory state of repair; and
(b)failing to take precautions to ensure the stormwater pit did not cause an obstruction.

Although the road management plan for Greater Shepparton was tendered, no argument was advanced by either party that that document specified the standard applicable to the s 40 duty to inspect, maintain and repair the reserve. Therefore, the principles in s 101(1) of the RMA as to the standard of care and breach in the performance of road management functions must be considered. I was not addressed by counsel for either party in relation to the operation of s 101(1).

Whether the duty is created by statute or is a common law duty, the question of breach must be determined in accordance with s 48 of the Wrongs Act 1958, which provides:

(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.

(3)For the purposes of subsection (1)(b)—
(a)insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b)risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.

The s 48 analysis begins with the proper identification of the risk of harm.[14] I identify the risk in this case as being that a pedestrian crossing the reserve at night would encounter the stormwater pit and come to grief upon it. Section 48 requires an analysis of foreseeability, the probability of occurrence of the risk of harm, the magnitude of that risk and, in all the circumstances including those listed in subsection (2), what a reasonable person in the position of the defendant would do (if anything) in response to the risk. It is important not to take a ‘mechanical or formulaic approach in applying the three prerequisites specified in s 48(1)’.[15] The breach analysis must be undertaken prospectively, and not in retrospect with the benefit of hindsight.
[14]Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330.
[15]Erickson v Bagley [2015] VSCA 220, [37].

As I have previously stated, the reserve is in suburban Shepparton, located close to schools, shops, roads and residences. It is a flat, relatively open reserve, which was mown and tended regularly by the defendant. The surface of the reserve was dry grass or earth. Pedestrians regularly crossed the reserve and used it for activities such as sport and walking dogs. Mr Sidebottom regularly ran through the reserve. I consider that it was clearly foreseeable that pedestrians would cross the reserve at night.

I have concluded that in the area where the plaintiff tripped and fell the light was poor and that the plaintiff could see across the reserve to Balaclava Road and the Gowrie Street Primary School, but could not see the ground in front of him or the stormwater pit. Mr Harford gave the following evidence:

Q:You were aware that all sorts of people at all sorts of ages might be anticipated to be walking over Sherbourne Reserve?
A:Yes, yes. People do go through there, yes.
Q:Heaps of people, both day and night?
A:Yeah, I’m not sure about night, but yes.
Q:Well, you’d expect that, wouldn’t you?
A:Possibly, yes.
Q:And you would agree that at night for pedestrians walking over Sherbourne Reserve — or firstly there was no lighting in the reserve?
A:No.
Q:And you would agree that pedestrians walking over Sherbourne Reserve at night would have very little if any opportunity to observe the existence of a raised pit surround, correct?
A:Correct.
Q:And that, accordingly, at night, it would constitute a tripping hazard, correct?
A:Yes. Yes, correct.

The stormwater pit was raised more than 120 millimetres above the level of the surrounding earth. It is a solid concrete structure. I have already concluded that for a pedestrian walking across the reserve at night the raised stormwater pit was not obvious. A pedestrian encountering the stormwater pit at night might easily trip on it. It was foreseeable that a pedestrian tripping and falling on the stormwater pit may suffer serious injury. The stormwater pit clearly represented a hazard to a pedestrian who might encounter it at night, both in terms of the probability of coming to grief and magnitude of the harm which may result.

The duty in sch 7 cl 6 of the RMA requires the infrastructure manager to ‘take reasonable precautions to ensure that anything placed on a … pathway does not cause an obstruction …’. The example given in the Act is as follows:

A road authority, a utility … which has infrastructure in a road must take care that its pit lids, … are kept flush with the surrounding surface of the … pathway so that they do not cause a hazard …

Clearly, the stormwater pit was not flush with the surrounding surface. I have concluded that it did cause a hazard to pedestrians crossing the reserve at night. In relation to the allegation that the defendant breached its statutory duty as infrastructure manager, counsel for the defendant repeat previous arguments that:
(a)the reserve is not ‘pathway’ as defined in the RMA, and accordingly the duty in sch 7 cl (6)(d) is not relevant to the circumstances of this case; and
(b)the protection afforded by s 107 of the Act extends to any statutory or common law duty which the defendant would otherwise owe, acting in its role as infrastructure manager.

For the reasons stated above, I do not accept either of these arguments. In relation to the first of the arguments if I am wrong, and the reserve is ‘roadside’ rather than ‘pathway’ such that the sch 7 cl 6(d) duty does not apply, I conclude in the circumstances of this case that the defendant owed a common law duty as infrastructure manager to take reasonable steps to ensure that the stormwater pit located in the reserve did not constitute a hazard to pedestrians. The defendant is not absolved from the duty by s 107 of the RMA.

In a related argument, counsel for the defendant submitted that any action taken by the defendant to reduce the hazard would have been action taken as a road authority, not as an infrastructure manager. That was so, it was argued, because the fault, if there was one, was with inspection and maintenance of the reserve, not of the stormwater pit. As a consequence, relying on the submission that the reserve was roadside and not pathway, the plaintiff’s claim failed because of s 107. I disagree. The hazard created by the raised stormwater pit clearly fell within the responsibilities of the defendant as infrastructure manager. The submission of counsel for the defendant on this point is inconsistent with the terms of sch 7 cls 6(d) and 14(3)(d) of the RMA.

Counsel for the defendant relied on the fact that there had been no complaint in relation to the stormwater pit prior to the plaintiff’s fall. However, whilst each of Mr Harford and Mr Sidebottom said they had not received a complaint in relation to the pit, the evidence of each left open the possibility of complaints having been made to, and recorded by others. Mr Harford said there was a system for reporting hazards in his department, and that he could not recall receiving any complaint from officers about the stormwater drainage or manholes in Sherbourne Reserve. He said that if a member of the public made a complaint to the council, it would be entered in the ‘Merit system’, and that complaint would be generated to the department that looked over those assets. In cross-examination Mr Harford accepted that complaints in relation to stormwater drains would go to the asset team, not to his department, and he would not know whether any complaints had been made. He said the defendant’s system for recording complaints, defects and repairs should still exist in its computer records. I note that despite requests by the plaintiff, no discovery was made by the defendant in relation to the record systems identified by Mr Harford. Mr Sidebottom also gave evidence about the defendant’s recordkeeping system. He identified two other former employees who were personally responsible for carrying out inspections of stormwater pits within the defendant’s municipality. One of these former employees was available yet was not called by the defendant. He said the aim was to inspect every pit once a year, but that there were approximately 8000 pits within the Greater Shepparton City Council and it was physically impossible to achieve that goal. The stormwater pits in the reserve were inspected only on an as-needs basis by the two workers. To the best of Mr Sidebottom’s knowledge no one in the last 10 years had ever lodged a complaint, with him personally or to the council, regarding the stormwater pits in the reserve. In the absence of the complaints system records it is not possible to conclude, on the basis of the evidence given by Mr Harford and Mr Sidebottom, that no complaint had been made to the council in the years prior to the plaintiff’s fall in relation to the stormwater pit. Further, even if there were no history of formal complaint recorded by the council, that does not mean the stormwater pit had not been recognised by members of the public as a hazard, or that there had not been previous incidents in which members of the public came to grief on the stormwater pit. An incident may simply not have been reported by a member of the public. I note that the plaintiff, having suffered severe injuries, did not report the incident for approximately 18 months. In any event, lack of complaint is only one circumstance to take into account in assessing the degree and magnitude of risk and the reasonable response to it.

Counsel for the defendant submits that no evidence was led by the plaintiff as to what precautions the defendant should have taken, acting reasonably, to avoid the risk of harm. Reliance was place on a number of factors, which can be summarised as follows:

(a)the height of the stormwater pit was set by reference to flood levels of the nearby Goulburn River, and could not be altered;
(b)the stormwater pit had been in situ for over 50 years;
(c)there were over 8000 stormwater pits under the responsibility of the defendant;
(d)neither Mr Harford, the parks and gardens coordinator, nor Mr Sidebottom, the manager operations, were aware of any previous complaint in relation to the stormwater pit;
(e)there was no evidence led as to the type or location of any warning the defendant should reasonably have provided, the type of guarding or barricade the defendant should reasonably have installed, or the type of lighting which the defendant should have provided to delineate the manhole cover; and
(f)no evidence was led of the means by which the defendant should have raised the surrounding land to the level of the manhole cover, or as to the cost involved in so doing.

Counsel for the defendant contended that the absence of any evidence that any of the proposed precautions were reasonably available to the defendant means that any duty which was owed was not relevantly breached.

I accept the evidence of Mr Sidebottom that the stormwater pit had been in place for 50 years and that the level of the pit was set by a reference to flood levels of the Goulburn River, and could not be altered. However, I do not accept that the plaintiff’s case fails because of any lack of evidence as to the cost or practicality of raising the ground surface surrounding the pit to remove the hazard. Tendered photographs demonstrate the reserve to be a relatively flat and open area. There is no feature of the reserve which would lead me to conclude that the task of raising the earth surface in a graded fashion around the pit would be burdensome. Mr Sidebottom gave the following evidence in relation to this issue:

As previously indicated, council would not inspect junction pits unless a complaint had been made and a defect was found. In other words, in the absence of a complaint, council would not proactively/routinely check whether junction pits are level with the ground surface of the reserve and raise or lower the ground surface or the stormwater pits if there was a height differential, unless it was formally reported by the parks and gardens maintenance teams on their QA sheet.

Mr Sidebottom gave evidence as to the engineering complication which prevented the stormwater pits being lowered (the Goulburn River flood levels). He did not suggest any complication associated with raising the ground surface to make it level with the stormwater pit. Given the evidence of the photographs and taking a common sense approach, I conclude that the task of raising the earth surface around the stormwater pit to remove the hazard could have been easily and cheaply performed by the defendant prior to the plaintiff’s fall. Mr Sidebottom recognised this as an approach the defendant might take in response to a raised stormwater pit. This is consistent with the duty on the defendant imposed by sch 7 cl (6)(d) of the RMA and, I conclude, at common law.

I accept the submission of counsel for the defendant that there was no evidence which would enable me to reach a conclusion in relation to the nature or cost of a barricade or fence which the defendant might have erected in response to the risk of harm.

The plaintiff’s evidence was that at the time he fell there was some light. That evidence is consistent with the existence of the streetlights and lights from housing creating general ambient light across the reserve. Although they differ in relation to the light intensity measurements they took, both Mr Lightfoot and Mr Culvenor conclude that the stormwater pit was not in total darkness. I accept Mr Lightfoot’s evidence that the difficulty a pedestrian would have in seeing or perceiving the existence of the stormwater pit at night was caused by a combination of poor light and lack of contrast between the surfaces of the stormwater pit and the surrounding earth. Mr Lightfoot’s evidence makes it clear that even in relatively low light intensity, painting the pit lid in such a way as to establish contrast would act as a warning to pedestrians of the hazard. Simple warning signs erected on or above the pit lid are likely to have achieved the same result. Had these precautions been taken, it is likely that the hazard constituted by the stormwater pit would have been made sufficiently obvious to enable a pedestrian crossing the reserve to avoid it. I conclude that these were precautions a reasonable authority in the position of the defendant, whether acting as a road authority or infrastructure manager, would have taken in response to the foreseeable risk which the stormwater pit represented.

The plaintiff gave evidence that as he approached the point at which he fell he was looking forward. I conclude that had the pit lid been painted to establish contrast it is likely the plaintiff would have seen and avoided it as he crossed the reserve. Similarly, had a warning sign been erected on or above the pit, the plaintiff would have seen the warning sign and avoided the hazard.

Consideration of the s 101 principles support the conclusion that there was a breach by the defendant of its duties as road authority and infrastructure manager. Briefly, I repeat:

(a) the reserve is located in suburban Shepparton close to schools, shops and residences and could reasonably have been expected to be used by pedestrians both at day and at night;

(b) an appropriate standard of maintenance required that precautions be taken in response to the tripping hazard created by the stormwater pit;

(c) a reasonable person would expect the reserve not to include such a hazard;

(d) the frequency of attendance of officers of the defendant to work on the reserve leads to the conclusion that the defendant knew of the hazard. This is confirmed by Mr Harford’s evidence;

(e) I have concluded that the defendant could reasonably have been expected to display appropriate warnings in relation to the hazard.

I conclude that the defendant was in breach of its common law and statutory duties as road authority and infrastructure manager by failing to take precautions in response to the hazard caused by the raised stormwater pit. I conclude that, acting reasonably, the defendant should have built up the earth surrounding the pit to remove the hazard. I conclude that for so long as the hazard was allowed to remain the defendant, acting reasonably, should have given warning to pedestrians by painting the stormwater pit and erecting a warning sign above it. Had any of these precautions been taken, the plaintiff’s fall and his injuries would have been avoided.

Contributory negligence

I have concluded that by jogging across the reserve to the point where he tripped and fell onto the stormwater pit the plaintiff was not taking reasonable care for his own safety. The reduction of damages for contributory negligence is dealt with by s 26(1)(b) of the Wrongs Act, which provides:

the damages recoverable in respect of the wrong must be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.

As counsel for the defendant observe in submissions, the task of apportionment involves comparison of the culpability of the parties and the relative importance of the acts of the parties in causing the damage.[16] A finding on a question of apportionment is one of ‘proportion, of balance and relative emphasis, and of weighing different considerations’.[17]

[16]Wynbergen v Hoyts Corporation Ltd (1997) 149 ALR 25, 29.

[17]Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529, 532.

Counsel for the defendant point to a number of acts of the plaintiff which they argue justify a very significant finding of contributory negligence. Most of these points fall away because of previous factual findings that I have made. As stated, the one that remains is that the plaintiff was jogging at the time he fell.

However, I have also concluded that in the circumstances the fact that the plaintiff was jogging made no difference to his capacity to observe and avoid the hazard constituted by the raised stormwater pit.

Against this should be measured the following factors:

(a)the defendant was the responsible authority with the control and management of the reserve and the stormwater pit;
(b)the condition of the stormwater pit, raised as it was above the surrounding earth, would have come to the attention of the defendant over a significant period of time, on each occasion that employees of the defendant attended the reserve to undertake tasks such as mowing and whipper snipping;
(c)it seems from the evidence of Mr Sidebottom that the requirement to maintain stormwater pits level with the ground surface was understood by the defendant; and
(d)clearly the defendant knew of the hazard constituted by the stormwater pit. It should have foreseen that a pedestrian tripping and falling on the stormwater pit might suffer serious injury.

In summary, the defendant was aware of the hazard, in control of the hazard, and should have foreseen the probability of risk of injury and the magnitude of injury which might ensue from the hazard. In the circumstances, and contrary to the submission of counsel for the defendant, in my view the defendant should bear the majority of responsibility for the plaintiff’s fall and injury. I apportion responsibility 85 per cent to the defendant and 15 per cent to the plaintiff.

Damages

The plaintiff said that he was first taken by ambulance to the Goulburn Valley Base Hospital, where some x-rays were taken, then he was transported by ambulance to the Alfred Hospital, where an operation was performed on his left hip. He was then bedridden and could not walk. He remained in hospital for three days and was then discharged home. He returned to the Mason Street unit and was bedridden there for a month or so, during which time he was cared for by Ms Collinda. She helped him do everything, including going to the toilet, showering, dressing, feeding and administering medication.

After a month, he returned to his transporter at 7 O’Connell Court. At that stage he was on crutches and was able to get around a little. He was taking Oxycontin, Valium and Endone. From that time Ms Clarke was his carer, and she cooked, washed all his dishes, helped him to the shower, helped him to the toilet and ‘basically did everything’. This included driving him around to doctors, physiotherapy, hydrotherapy, to collect his scripts and ‘basically everything else’. Physiotherapy and hydrotherapy continued for a month or so.

The plaintiff said that he could not recall how long he was on crutches, perhaps two or three months. As time passed he was able to do more for himself. Ms Clarke made some alterations to the bathroom to cater for his disability. After he ceased using crutches he used a walking stick to get around, and that has been the case since. He needs the walking stick because he cannot put weight on his left knee and left hip, and that is because of the pain he suffers. He wears a knee brace on his left knee pretty much all the time because his knee pops out.

The plaintiff described the symptoms he continues to suffer, and the effect that the injuries have had on his life. His left hip feels like he is sitting on a bolt which is causing continuous pain. He has sciatic pain, which starts at his lower back and goes down to his left big toe; the pain is there 24 hours a day. The pain varies with medication, ranging from as low as 4 out of 10 up to 8 out of 10. The back pain is there constantly. His right knee is now causing problems, because he is putting all his weight on that side. At the present time the plaintiff’s medication is Oxycontin 80 milligrams twice a day; Endone 5 milligrams twice a day; Lyrica 170 milligrams once a day; and Valium 5 milligrams twice a night. Currently there is surgery planned for his left knee and left hip, the latter being a full hip replacement. He is waiting to see Dr Todhunter to have some injections for his back. He wears a brace for his back.

The plaintiff said that his quality of life had dropped considerably. He has great difficulty interacting with his grandchildren, which upsets him. He is no longer able to attend drag racing meetings, or to go fishing, which he used to do regularly. Prior to his fall he was independent, but now he depends on Ms Clarke a lot. He used to be able to help friends and family doing mechanics work. Now he can give verbal assistance, but is unable to do any of the mechanical work. Prior to his accident he had a gym and a punching bag, and he trained regularly. He enjoyed kicking the football, socialising and interacting with his family. The plaintiff says that he now lives a bit like a hermit in his trailer.

Ms Clarke said that she gave the plaintiff considerable help after he came home from hospital, with tasks such as showering, dressing and eating, taking him to doctors’ appointments, as well as picking up scripts for him. For the first month, he was unable to stand unaided in the shower at all, and Ms Clarke assisted him with showering for quite a few months after the accident. The entire process, including waking the plaintiff, waiting for his pain medication to become effective, then showering and dressing him, took Ms Clarke at least two hours and would take place every second day or so. Ms Clarke said she would also wash the plaintiff while he was lying down on some days. In the months following the fall in 2008, Ms Clarke also prepared all of the plaintiff’s meals. She would lay out his medication for him, and did all his washing and ironing, and cleaned the unit in which he was living. Her evidence was that, during those first few months, she provided on average four or five hours of assistance per day to the plaintiff, though somewhat less on weekends. She had not undertaken any of these activities for the plaintiff before the accident. After the plaintiff came home from hospital some modifications were done to the house and his trailer to make things easier for him. Most of the work was done by family members, but the cost of the modifications was between $700 and $1,000.

Ms Clarke gave evidence that, up to the present date, the plaintiff remains unable to do basic things to support her around the house. She has seen him cry in pain and become very depressed, and said that he often has difficulty at family events doing things like standing at the barbeque for a period of time. He is in pain nearly every day and often sleeps through the day, and it is impossible to plan things in advance because they never know whether the plaintiff will be able to go. Ms Clarke still makes the plaintiff’s breakfast and lunch, and cooks his main meal. She washes the dishes, does his washing and ironing, changes his sheets and makes his bed, and vacuums the carpet in the area in which he lives. She still sweeps the outdoor area for his benefit, and picks up his prescriptions for him regularly, as well as taking the time to ensure that he attends medical appointments. On the plaintiff’s ‘bad days’, Ms Clarke helps him go to the toilet. She also massages him and prepares heat bags for him regularly. The plaintiff still drives, and owns a car. Ms Clarke’s estimate was that she spends some ten to fifteen hours a week caring for the plaintiff, and that the level of care that she provides has tapered down to that weekly duration over the years since the incident.

In a report dated 30 September 2014, the plaintiff’s GP, Dr Pedrotti, confirmed the plaintiff’s injuries as a fracture dislocation of the left hip requiring surgery, internal derangement of the left knee with anterior and posterior cruciate tears, and aggravation of pre-existing degenerative disease of the lower spine. He described the plaintiff as significantly disabled, and said that he walked with a limp using a walking stick. Dr Pedrotti said the plaintiff’s recreational activities were restricted, and that he required help with normal domestic duties. He thought the plaintiff would require a left total hip replacement and reconstruction of his left knee. He considered the plaintiff’s prognosis to be poor.

Orthopaedic specialist, Mr McLean, provided a report following examination on 4 February 2014. Mr McLean agreed with Dr Pedrotti as to the likely need for total left hip replacement, but said that further studies were required before considering surgery to the left knee. He considered the prognosis was very guarded, and thought that the injuries to the plaintiff’s left hip, left knee and low back caused significant limitations in relation to social, domestic and recreational activities.

Orthopaedic surgeon, Mr Kelman, provided a report dated 2 October 2014 following examination on 16 September. His opinion was very similar to those of Dr Pedrotti and Mr McLean. He considered that in addition to the significant orthopaedic injuries to the left hip, left knee and low back that there was evidence of illness behaviour. As to prognosis, he thought the plaintiff’s condition would remain as it is for the foreseeable future.

In a report dated 9 May 2013, following examination on 24 April, general surgeon Mr Schutz expressed the opinion that the plaintiff had suffered a posterior acetabular fracture/dislocation involving the left hip. However, Mr Schutz doubted there was any injury to the left knee or lumbar spine in the accident. All other practitioners who have considered the issue, in particular the orthopaedic surgeons, take a contrary view to Mr Schutz on this point. I prefer the opinions of the orthopaedic surgeons and the treating GP, Dr Pedrotti, to that of Mr Schutz.

I conclude that the plaintiff has suffered, by reason of the fall, a fracture dislocation involving the left hip and left acetabulum requiring surgery, causing ongoing pain and stiffness in the left hip and the development of osteoarthritic change which will lead to the need for total left hip replacement surgery; ligamentous injury to the left knee causing pain, restriction of movement and giving rise to the possible need for left knee reconstructive surgery; and injury of the lower back by way of aggravation of pre-existing degenerative change causing pain and restriction in the lower back with some referred symptoms into the left leg. I conclude that the plaintiff suffers significant ongoing disability as a consequence of these injuries, with resultant incapacity to perform some aspects of domestic and personal tasks which he is assisted with on an ongoing basis by Ms Clarke.

Counsel for the defendant propose that $150,000 is a fair and reasonable sum to compensate the plaintiff in respect of pain and suffering. By contrast counsel for the plaintiff propose a figure of $350,000.

In reaching a conclusion as to the appropriate award for general damages, I consider I should take some account of the 1996 drag racing injuries, which caused permanent incapacity for employment and which I conclude must have resulted in some level of ongoing pain, disability and restriction in activity. I conclude that in this regard, and in relation to the circumstances surrounding the police charges and the period of incarceration, the plaintiff’s life before the fall was not as rosy as the picture that he painted in his evidence. Taking all these matters into account, I conclude that an appropriate figure for general damages is $275,000.

The plaintiff makes no claim for loss of earnings or loss of earning capacity.

There is little evidence as to past medical expenses. The defendant accepts past medical expenses at $12,710. The plaintiff claims a slightly higher figure. Given the state of the evidence in relation to the matter, I conclude that I should allow $12,710 under this head of damage.

The plaintiff claims future medical expenses for consultations with treating doctors and the cost of prescription medication at $41,500, together with the cost of left hip replacement at between $15,000 and $25,000. The defendant proposes a global figure of $15,000 to take account of the need for left hip replacement at some indefinite time in the future, together with some medical expenses. There is little evidence as to the probable cost of future medical treatment. I accept the likelihood that a left hip replacement will be required, probable sooner rather than later. I conclude that the plaintiff will incur future medical expenses in addition to the cost of the hip replacement, including some rehabilitation following surgery, attendances with his general practitioner and cost of prescription medication. There is the possibility of left knee surgery. Given the limited evidence available to me, I conclude that an appropriate allowance for future medical costs is $25,000.

The plaintiff claims damages for gratuitous attendant care at a rate of $26.84 per hour which is, in accordance with s 28IB of the Wrongs Act, an amount equivalent to one-fortieth of average weekly total earnings of all employees in Victoria. I consider this to be the appropriate rate for the calculation of gratuitous attendant care services.

Counsel for the defendant submit that there is no evidence that the plaintiff required or requires any attendant care services. I take this to be a submission that there is a lack of medical evidence on this point. Ms Clarke gave evidence as to the attendant care services she provides in response to what she perceives to be the need of the plaintiff by reason of his injuries.

In any event, I disagree with the submission of the defendant as to a lack in the medical evidence. Whilst they do not go into specifics, the evidence of the treating GP, Dr Pedrotti, and orthopaedic surgeon, Mr McLean, is clearly consistent with the plaintiff suffering incapacity and requiring assistance from others in relation to the performance of domestic duties. Other medical witnesses gave similar evidence. For instance, orthopaedic surgeon, Mr Leitl, in a report dated 22 November 2011, expressed the opinion that the plaintiff had suffered severe injuries to his left hip, left knee and lower back, resulting in impairment and significant disruption of domestic life. Mr Leitl thought the prognosis was poor. General surgeon, Mr Brearley, in a report dated 28 August 2013, came to a similar conclusion in relation to the injuries and said that the plaintiff was unable to do the heavier aspects of his housework and that these needed to be done by his ex-wife. The evidence supports the conclusion that the plaintiff’s injuries have been stable since the examinations of Mr Leitl and Mr Brearley, on which those opinions were based.

Evidence in relation to gratuitous attendant care services and the calculation of such damages are inherently imprecise. In the period following the fall Ms Clarke was very involved in the plaintiff’s care, performing tasks such as showering, dressing, transporting, feeding and other domestic tasks, such as doing his washing, changing the sheets, vacuuming and cleaning. Ms Clarke estimated that in the first three or four months following the injury she spent four or five hours per day caring for the plaintiff, but less on the weekends. Ms Clarke said that since then the time she spends performing domestic tasks for the plaintiff has reduced to about 10 or 15 hours per week. I have already expressed the view that I consider Ms Clarke to be an impressive and credible witness. I accept that she was doing her best with this evidence, but I consider that she has somewhat overestimated the real need of the plaintiff for attendant care services for a number of reasons. Firstly, I consider it likely the plaintiff could perform some of the tasks which have been and are currently being performed for him by Ms Clarke. Secondly, I conclude that some of the time spent by Ms Clarke was in part for Mr Clarke’s benefit, and in part for the benefit of others including herself. This includes things such as shopping, washing and meal preparation. Thirdly, as I have already noted, the task of estimating hours spent performing these sorts of duties is inherently difficult. Doing the best I can I conclude that it is appropriate to allow care at an average rate of three hours per day for the first 10 weeks following the fall, and at an average rate of five hours per week to date and into the future. On that basis, at a rate of $26.84 per hour for 21 hours per week, the first 10-week period calculates at $5,636. Each subsequent week calculates at $134. The total period from the 10-week mark to date is 404 weeks. This period calculates at a total value of $54,136.

I accept that the value of attendant care continues at a rate of $134 per week for five hours’ care. The 5 per cent multiplier applicable to the plaintiff is 753.7. On that basis future attendant care calculates at $100,995. I discount this figure for uncertainties related to the possible improvement of the plaintiff’s capacities post-surgery and for vicissitudes. Discounting by 40% leaves a figure of $60,597 for future gratuitous care services.

On that basis I allow a total award for damages under this head of $120,000.

Therefore the total assessment of damages is calculated as follows:

General damages  $        275,000
Past medical expenses  $          12,710
Future medical expenses  $          15,000
Past and future gratuitous attendant
care services  $        120,000
Total$        422,710

This figure is to be reduced by 15 per cent for contributory negligence. Therefore the damages I award the plaintiff total $359,303.

I will hear from the parties in relation to appropriate orders, including as to costs.

[2016] VSC 542

8 September 2016