De Roma v Inner West Council & Ausgrid

[2022] NSWDC 425

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

De Roma v Inner West Council & Ausgrid [2022] NSWDC 425

Hearing dates:

15, 16, 17, 18 & 19 August 2022

Date of orders:

23 September 2022

Decision date:

23 September 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [363] for orders.

Catchwords:

TORTS – negligence – occupiers liability – plaintiff injured following trip over uneven margin of sunken utility pit lid on footpath – findings on negligence and contributory negligence – rejection of defence of obvious risk – plaintiff unsuccessful in claim against first defendant – plaintiff successful in claim against fourth defendant; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5F, s 5G, s 5H, s 5R, s 5S, s 45

Civil Procedure Act 2005 (NSW), s 58(2)

Evidence Act 1995 (NSW), s 60

Occupational Health and Safety Act 2000

Cases Cited:

Angel v Hawkesbury Council [2008] NSWCA 130

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479

Baker v Willoughby [1970] AC 467; [1969] UKHL 8

Binetter v Binetter [2022] NSWCA 169

Blacktown City Council v Hocking [2008] NSWCA 144

Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29

Commissioner for Railways v Ruprecht (1979) 142 CLR 563

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

DMN Mining Pty Ltd v Barwick [2004] NSWCA 137

Faulkner v Keffalinos (1971) 45 ALJR 80

Goode v Angland [2017] NSWCA 311

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

Gordon v Truong; Truong v Gordon [2014] NSWCA 97

Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369

Hunter and New England Local Health District v McKenna; Hunter and New England Local District Health Service v Simon [2014] HCA 44

Leotta v Public Transport Commission of NSW (1976) 9 ALR 437

Lloyd v Thornbury [2019] NSWCA 154

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Mason v Demasi [2009] NSWCA 227

McKenna v Hunter and New England Local Health District [2013] NSWCA 476

Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254

Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60

Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346

Penrith City Council v Parks [2004] NSWCA 201

Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42

Selby v Bankstown City Council [2013] NSWDC 84

State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5

Tapp v Australian Bushmen's Campcraft & Rodeo Association Limited [2022] HCA 11

Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326

Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320

Warren v Gittoes [2009] NSWCA 24

Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12

Wollongong City Council v Williams [2021] NSWCA 140

Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85

Category:

Principal judgment

Parties:

Lynda Gabriel de Roma (Plaintiff)
Inner West Council (First defendant)
Ausgrid Operator Partnership t/as Ausgrid (Fourth defendant)

Representation:

Counsel:
Mr L Robison (Plaintiff)
Mr J Guihot (First defendant)
Mr C O’Neill (Fourth defendant)

Solicitors:
Turner Freeman Lawyers (Plaintiff)
Moray & Agnew (First defendant)
Norton Rose Fulbright (Fourth defendant)

File Number(s):

2020/32201

Publication restriction:

None

Judgment

Table of Contents

Nature of case and parties	[1] – [4]
Factual background	[5] – [7]
Issues	[8] – [9]
Summary of outcome	[10]
Dismissal of a procedural application by first defendant	[11] – [14]
Evidence overview	[15] – [16]
Summary of the oral evidence and reliability conclusions	[17] – [47]
The plaintiff	[18] – [19]
The plaintiff’s son	[20]
Dr John Cooke – expert architect	[21] – [26]
Mr Colin Casha – Ausgrid employee	[27] – [47]
Document review – defendant’s documents	[48] – [80]
Inner West Council documents	[49] – [58]
Ausgrid documents	[59] – [80]
Factual findings on relevant matters	[81] – [174]
(1) Interpretation of Inner West Council records	[82] – [87]
(2) Ausgrid records	[88] – [92]
(3) State of the pit lid at the time plaintiff tripped and fell	[93]
(4) Plaintiff’s background prior to the fall	[94] – [95]
(5) Plaintiff’s previous health	[96] – [102]
(6) Circumstances of injury	[103] – [117]
(7) Injuries	[118]
(8) Initial treatment	[119] – [120]
(9) Medical investigations, assessments and reviews	[121] – [123]
(10) Illness since the subject fall	[124] – [125]
(11) Evaluation of medical opinions	[126] – [150]
(12) Disabilities that remain	[151] – [153]
(13) Effects on plaintiff’s employment	[154] – [163]
(14) Effects on plaintiff’s domestic capabilities	[164] – [169]
(15) Mitigation	[170]
(16) Plaintiff’s most likely circumstances but for the fall	[171] – [173]
Issue 1 – Ausgrid’s criticism of plaintiff’s pleaded case	[175] – [184]
Issue 2 – Relevant risk of harm	[185] – [191]
Issue 3 – Duty of care, scope and content	[192] – [204]
Issue 4 – Breach of duty of care	[205] – [239]
Particulars of negligence	[206] – [207]
The duty of the plaintiff	[208]
The duty of the defendants	[209] – [220]
Legislative provisions: s 5B & s 5C of the CL Act	[221] – [222]
Consideration of the claim against the Council	[223] – [226]
Consideration of the claim against Ausgrid	[227] – [238]
Conclusions as to negligence	[239]
Issue 5 - Causation	[240] – [245]
Legislation: s 5D of the CL Act	[241]
Consideration and conclusions as to causation	[242] – [245]
Issue 6 – Obvious risk	[246] – [272]
Legislation: s 5F, s 5G & s 5H of the CL Act	[247] – [250]
Submissions as to obvious risk	[251] – [259]
Consideration of the obvious risk defence	[260] – [271]
Conclusion as to obvious risk	[272]
Issue 7 – Alleged contributory negligence	[273] – [309]
Submissions	[274] – [282]
Legislation: s 5B, s 5C, s 5R & s 5S of the CL Act	[283] – [284]
Relevant principles	[285] – [289]
Particulars of contributory negligence	[290]
Consideration and conclusion as to contributory negligence	[291] – [309]
Issue 8 – Assessment of damages	[310] – [360]
Plaintiff’s probable life span	[311] – [315]
Non-economic loss	[316] – [322]
Past economic loss	[323] – [333]
Past loss of employer funded superannuation	[334]
Future economic loss	[335] – [342]
Future loss of employer funded superannuation	[343]
Future out-of-pocket treatment expenses	[344] – [345]
Future domestic assistance	[346] – [348]
Past out-of-pocket expenses	[349] – [359]
Summary of damages assessment	[360]
Disposition	[361]
Costs	[362]
Orders	[363]

Nature of case and parties

1. On 2 February 2017, the plaintiff, Ms Lynda de Roma, was injured when she tripped and fell whilst walking over the sunken surface of a checker-plate metal utility pit cover embedded within the footpath surface near a bus stop adjacent to premises at 195 Parramatta Road, Ashfield, New South Wales.

2. The plaintiff claims the sunken configuration and height discrepancy within the structure where she fell was a trip hazard for pedestrians. Consequently, by an amended statement of claim filed on 7 October 2021, the plaintiff brings these personal injury damages proceedings alleging public liability negligence against the first defendant, the Inner West Council (“Council”), and the fourth defendant, a partnership of five entities trading as the Ausgrid Operator Partnership (“Ausgrid”). The claim is that the defendants were the occupiers responsible for the inspection, maintenance and safety of the pit cover and footpath.

3. The Ausgrid partnership comprises Blue OP Partner Pty Limited as trustee for the Blue OP Partner Trust, Eric Alpha Operator Corporation 1 Pty Limited as trustee for Eric Alpha Operator Trust 1, Eric Alpha Operator Corporation 2 Pty Limited as trustee for Eric Alpha Operator Trust 2, Eric Alpha Operator Corporation 3 Pty Limited as trustee for Eric Alpha Operator Trust 3, and Eric Alpha Operator Corporation 4 Pty Limited as trustee for Eric Alpha Operator Trust 4 t/as the Ausgrid Operator Partnership (Ausgrid) (ABN 78 508 211 731).

4. In the plaintiff’s original statement of claim filed prior to the 7 October 2021 amendment, she had joined Transport New South Wales (formerly Roads and Maritime Services) and Telstra as the former second and third defendants. Following some post-filing liability investigations as to the correct identity of the occupiers of the site in question, she no longer proceeds against those defendants. The correct defendant occupiers are the Council and Ausgrid. The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) (“CL Act”).

Factual background

5. At about 11.00am daylight saving time on Thursday 2 February 2017, the plaintiff, then aged 53 years, was walking on the footpath near 195 Parramatta Road, Ashfield, near the intersection of that road with Bland Street. She was proceeding towards a bus stop intending to board a bus she knew was waiting for her when she sustained injury after tripping over the raised edge of a metal frame which formed part of an Ausgrid utilities pit embedded within the surface of the concrete footpath.

6. The metal checker-plate surface of the pit cover was sunken below the height of its surrounding housing frame. The checker-plate surface was not flush with the top of that frame that housed it within the concrete footpath. When the plaintiff tripped and fell she sustained multiple injuries, contusions and abrasions to her face, chest, fingers, hands, and knees.

7. It was common ground between the parties that the appearance of the pit cover at the time of the incident was as is shown in the following photograph that has been extracted from the evidence:

Issues

8. From my review of the pleadings, the evidence, and the submissions of the parties, in addition to determining relevant foundation matters of fact, the issues calling for decision in these proceedings may be identified as follows:

1. Consideration and determination of Ausgrid’s criticism of the form in which the plaintiff’s case was pleaded. My findings on this issue appear between paragraphs [175] to [184] of these reasons;

2. Identification of the relevant risk of harm for the purposes of the consideration of the application of s 5B, s 5F and s 5G of the CL Act. My findings on this issue appear between paragraphs [185] to [191] of these reasons;

3. The scope and content of the duty of care owed by the respective defendants as occupiers of the site where the plaintiff tripped. My findings on this issue appear between paragraphs [192] to [204] of these reasons;

4. Whether the plaintiff has satisfactorily proven that either of the defendants had respectively breached the duty of care they owed to her in order to sustain a finding of negligence against them according to the requirements of s 5B and s 5C of the CL Act. My findings on this issue appear between paragraphs [205] to [239] of these reasons;

5. Whether, in terms of s 5D of the CL Act, the plaintiff’s injuries were relevantly caused by the negligence of the defendants. My findings on this issue appear between paragraphs [240] to [245] of these reasons;

6. Whether the plaintiff’s injuries occurred as a result of the materialisation of an obvious risk within the meaning of s 5F and s 5G of the CL Act. My findings on this issue appear between paragraphs [246] to [272] of these reasons;

7. Whether and to what extent there was contributory negligence on the part of the plaintiff as alleged by the defendants, and whether such contributory negligence was a relevant cause of the plaintiff’s injury. My findings on this issue appear between paragraphs [273] to [309] of these reasons;

8. The assessment of the plaintiff’s entitlement to damages. My findings on this issue appear between paragraphs [310] to [360] of these reasons.

9. The parties made disparate submissions on quantum. The plaintiff’s submitted quantum assessment was in the amount of $737,294. The quantum submissions made on behalf of the defendants were in the amount of $44,884. In the event the defence of obvious risk was not sustained, the plaintiff’s alleged contributory negligence was submitted to be 100 per cent. This was disputed by the plaintiff.

Summary of outcome

10. For the reasons that follow I have found the plaintiff has failed to establish her claim against the first defendant Council but she has succeeded in establishing her claim against the fourth defendant Ausgrid. I have assessed the plaintiff’s damages in the sum of $354,142.38, which required discount by 20 per cent due to the findings made as to the plaintiff’s contributory negligence. The plaintiff therefore obtains a judgment against Ausgrid in the sum of $283,314.

Dismissal of a procedural application by first defendant

11. At the commencement of the hearing, the first defendant Council made an oral application for leave to amend its filed defence. That application was advanced without any of the customary supporting documentation. The application was opposed by the plaintiff. The proceedings were stood down for a short time to enable the first defendant to formalise its application for amendment, supported by evidence.

12. The first defendant subsequently filed its application in Court seeking leave to amend its defence. If allowed, this would have enabled the first defendant to rely on the liability sheltering provisions of s 45 of the CL Act. After argument that application was refused: T23.24. At that time the parties were informed that my reasons for refusing that application would be included in these reasons for judgment.

13. Those reasons now follow in a shorter form than was originally anticipated, for two reasons. First, as the transcript records, the basis of the refusal was made sufficiently plain in the exchanges that occurred during argument at the time the ruling was made refusing the application. Secondly, given the outcome where the first defendant has succeeded on its filed defence, the foreshadowed reasons can be stated with greater economy than was previously anticipated, as follows.

14. In my view, after a total of 42 interlocutory case management and interlocutory listings, between 24 March 2020 and 1 August 2022, an application seeking leave to amend a defence, left to the morning of the hearing, without prior service of supporting affidavit material and documents, represented an unacceptable ambush to the plaintiff: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346. Those circumstances deservedly attract the criticisms identified in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, at [5], [27], [35]-[36], and as per the plurality, at [72], [90], [98] and at [111].

Evidence overview

15. The parties provided a series of compendious Court Books containing the main documentary evidence. The plaintiff’s documentary evidence comprised two Court Books: Exhibit “C”, pp 1 – 501, augmented by Exhibit “D”, pp 1 – 47. The first and fourth defendants tendered a joint Court Book: Exhibit “1”, pp 1 – 147. The first defendant augmented the joint Court Book: Exhibit “4”, pp 1 – 252. The fourth defendant augmented the joint Court Book with further documentary materials: Exhibit “2”, pp 1 – 8. Those materials, and the other documentary exhibits that were tendered will be referred to where it becomes necessary to do so.

16. The plaintiff and her son, Mr Evan de Roma, and Dr John Cooke, an expert architect from UNISEARCH, who was retained by the plaintiff’s solicitor, were the only witnesses to give oral evidence in her case. The fourth defendant called one of its employees, Mr Colin Casha, an Ausgrid electrical engineer and projects portfolio manager, to explain aspects of its business records relating to the inspection and maintenance of Ausgrid assets, including the particular utility pit and lid in question. The first defendant did not call any oral evidence, although a number of its employees with relevant information were identified by name in the documentary evidence.

Summary of the oral evidence and reliability conclusions

17. A summary of the evidence of the respective witnesses now follows.

The plaintiff

18. In my assessment, the plaintiff was a truthful and generally reliable witness who gave her evidence without embellishment. In reaching that conclusion I have not overlooked that she was mistaken as to when a particular photograph of the pit lid was taken: Exhibit “E”; T45.20 – T45.50.

19. In my view, that error was understandable given the way in which the questions on that matter had unfolded. In my view, no adverse credit issue attaches to her evidence on that account. She candidly qualified her answers in reference to that photograph by saying she was unsure. It was understandable that she had limited recollection as to some details of the events due to the passage of time. However, overall, and except for her mistaken evidence as to the timing of the taking of the photograph in question, I am satisfied that the plaintiff’s account of the events of her injury and its sequelae was reliable and truthful. I have drawn upon her evidence in making findings on relevant matters of fact.

The plaintiff’s son, Evan de Roma

20. The plaintiff’s son Evan de Roma was called to give evidence describing his before and after impressions of the plaintiff and to support aspects of her claim for damages, including in relation to the claim for damages for domestic assistance. Relevant aspects of his evidence will be cited in that context. In my view, he was a careful and truthful witness whose evidence should be accepted. No adverse credit issues arise from his evidence.

Dr John Cooke – expert architect

21. Dr Cooke, a consultant architect, prepared an expert report dated 30 September 2020, at the request of the plaintiff’s solicitor: Exhibit “C”, pp 198 – 482. He also gave oral evidence on the liability issues where he expressed opinions on matters of pedestrian safety. No credit issues emerged from his evidence.

22. In essence, the expert opinion within the report of Dr Cooke was to the effect that the surface height discrepancy that was evident between the level of the surface of the concrete footpath, and the level of the surface of the pit lid was more than 6mm in height, and therefore, by reference to identified relevant guides concerning accepted traffic engineering practice, it posed a recognised trip hazard. Those opinions, which accord with a common-sense analysis, will be referred to in greater detail in the liability analysis on the issue of breach of duty of care.

23. Dr Cooke gave evidence at the request of the defendants who required him for cross-examination on the content of his report. By leave, before cross-examination commenced, he gave some short additional evidence-in-chief to augment that report by reference to the evidence that he had observed to have been given by Ausgrid’s employee Mr Casha, whose evidence was to the effect that the pit in question was assumed to have been inspected by Ausgrid personnel on 30 December 2015, without a further inspection having taken place in the ensuing 5 years. After acknowledging those additional matters of assumption, Dr Cooke saw no reason to alter the opinions he had expressed in his report: T188.48 – T189.7.

21. In answers to questions posed to him in cross-examination by counsel for the first defendant Council, Dr Cooke stated that:

1. he had assumed the photograph attached to his report and marked Annexure C showed the appearance of the pit and its lid which was assumed to have been taken at approximately the time of the plaintiff’s fall: T189.36 – T189.50;

2. to his trained eye, at the time of his inspection, he could see a height discrepancy of up to 10mm between the (surface of) the lid and the surrounding concrete surface, and he was able to mark a point of reference which based that conclusion: Exhibit “C”, p 203; T190.10 – T190.25;

3. he had measured the height difference between the top of the metal pit lid cover and the top of the supporting frame and concrete surround as being 8mm – 10mm: T197.46 – T198.16;

4. in addition to a height difference at the point assumed to be where the plaintiff had tripped, there was a height difference at the other end between the pit lid and the concrete surround: T198.48 – T199.11;

5. he had considered the content of the Council records concerning the plaintiff having reported the presence of a trip hazard at the site, but he did not see it as part of his role to further investigate the note which identified the lid as being sunken in order to clarify the meaning of that expression: T192.47 – T193.20. That evidence raised a question as to the need to consider the significance of the Council officer’s description of the pit lid cover as not being properly located in place when it was inspected on 7 February 2017;

6. he inspected and assessed the pit as it appeared on site on the day of his inspection and measured the height difference between the top of the lid and the top of the frame, and stated his observations were consistent with those of Mr Casha: T193.31;

7. he had simply measured the height discrepancy and related the discrepancy to the body of professional evidence and literature known and available to him concerning trip hazards: T195.15 – T195.19;

8. he had formed the opinion the pit had sunk and considered that as being a factor relevant to constitute a tripping mechanism: T195.33 – T195.42;

9. when he stood on the metal pit lid cover at the time of his inspection, he had observed that the lid had moved underfoot when he walked on it in the direction the plaintiff had walked, and he indicated by demonstrating a vertical pivoting movement with his hands, that the metal pit lid cover moved “laterally-longitudinally” in his direction of travel, which I interpret to mean that there was a fulcrum located proximally that had caused a distal movement of the pit lid cover: T196.30 – T197.39.

25. At the conclusion of the cross-examination of Dr Cooke as was undertaken on behalf of the first defendant Council, counsel reserved the right to further cross-examine him on receipt of further photographic material: T200.15. Ultimately, that proposed course was not further pursued.

26. In answers to questions posed to Dr Cooke in cross-examination by counsel for Ausgrid, Dr Cooke stated that:

1. in relation to an identified 6mm height differential, there should not be a dip, deviation or ridge of more than 5mm in terms of concreting specifications, which he referenced in Appendix D to his report: T201.22;

2. according to research, a 6mm difference in height should be seen to be the cut-off-point for deciding whether or not something is a recognised trip hazard: T201.42. He also identified the terms of some other more extreme research to the effect that a deviation of 1mm is sufficient for some pedestrians to trip: T202.3;

3. the raised portions on the metal checker-plate surface of the pit lid cover were estimated to be of the order of 2mm – 3mm in height: T203.22. Plainly, that was not intended to represent a precise measurement;

4. in his opinion, the WorkCover documentary guide linked to the Occupational Health and Safety Act 2000 (as it was then) also has general application to external surfaces as to cut-off points for identifying trip hazards in guiding traffic engineering practice: T205.20 – T206.15;

5. in his opinion, the photograph at page 96 of Exhibit “1” was misleading in its appearance because, on his inspection of the site, there appeared to be almost no misalignment between the concrete edge of the pit, whereas this particular photograph appears to show a slight difference: T207.4 – T207.18. That evidence emphasises the need for the exercise of caution in the interpretation of photographic evidence when making findings on disputed matters of fact;

6. the raised portions on the surface of the checker-plate lid were intended to minimise the slip hazard that would otherwise have been created by the presence of a flat steel surface. The extent to which this might be so seems to have been dependent upon the profile of a particular shoe sole: T208.20 – T208.30.

Mr Colin Casha – Ausgrid employee

27. Mr Casha gave explanatory factual evidence concerning Ausgrid’s pit lid inspection and maintenance records. He stated that the pit number in question, as referred to on page 86 of Exhibit “1”, is identified in the records as being LE 50453: T140.18.

28. Whilst I am satisfied that Mr Casha gave his evidence truthfully to the best of his knowledge and recollection, I consider that his evidence was of limited assistance in resolving the liability issues in dispute.

29. Mr Casha is an electrical engineer who has been employed by Ausgrid in that capacity for 24 years. He commenced his employment in 1998. Since 2018, that is, after the plaintiff’s fall, he has been a portfolio manager for Ausgrid’s work projects. In that role he supervises eight engineering crews and he is in the team that issues job orders for electrical work to be carried out by Ausgrid field crews over a very wide area that includes the site where the plaintiff was injured.

30. During Mr Casha’s work with Ausgrid, from about 2000 and until about 2014, he had a background in design and construction, including in relation to pit lids. In that regard, he confirmed that in respect of the concrete paved areas that surround pit lids, that area was required to be level with the surrounding surface, and if this was found not to be the case, Ausgrid would take steps to either arrange for the local Council to repair the area, or as has sometimes occurred in the past, Ausgrid’s practice was to get its own contractors to carry out a repair as needed: T136.1 – T136.40.

31. Part of Mr Casha’s role with Ausgrid involved him undertaking a consideration of whether to renew or replace items of aged infrastructure that had been inherited by Ausgrid, including pit lids of the kind involved in the plaintiff’s accident. He was unable to shed meaningful light on the age of particular pit lids other than by looking at the apparent age of the galvanised coating on the steel surface. He considered that galvanising of the kind evident on the pit lid in question in this case might be expected to last some 30 to 40 years. The implication was that Ausgrid had inherited this particular asset from a previous entity or utility authority.

32. Mr Casha explained that since late 2008, Ausgrid’s assets, and the information about those assets, became the subject of an inter-linked digital software management system called SAP, where multiple Ausgrid personnel have access to the system to make entries. The acronym SAP was not precisely defined in the evidence but it was explained in the following extract of his evidence:

“Q. Is the information within Ausgrid managed digitally somehow?

A. Yes, so a lot of the information we brought in a SAP system in late 2008.

HIS HONOUR

Q. What does the acronym SAP stand for?

A. I don't know. It's a German system and it is basically managers - it keeps a record of our assets and a record of what we do to the assets, whether it be repair, maintenance et cetera, and it also keeps financial information about those assets.

Q. And who has access to it?

A. A lot of people at Ausgrid. I have access to it.

HIS HONOUR

Q. By access, is that just viewing access or modification access?

A. For me it'll be both and all my project officers have both as well.

Q. So when you look at the final entry or final appearance of an entry in the records, does it give you the modification history or just the end result?

A. It should tell you the - there will be a separate system which will tell you what and when happened to it. For example, if we change switch gear it'll be in the project system. And then in terms of the ongoing maintenance, that'll be in the plant, PM system.

Q. So this is a hyperlink method?

A. Sort of. It's in between two systems in the one SAP piece of software.

O'NEILL: I was going to come to that later your Honour, but would your Honour like to see that part now while it's fresh in your Honour's mind?

HIS HONOUR: I just have one other question and you can clarify in result or ignore it as you wish.

Q. Is the person who makes the entry in the SAP system for the purpose of keeping a record the same person who has done the work that is the subject of the entry?

A. Not necessarily. It might go to a supervisor who might then enter and close off, so your notification, so no.

Q. Generally speaking, how contemporaneous is the making of a record to work?

A. What does that mean?

Q. What's the relationship in time between when the work is done and when it's described on the SAP system as having been done?

A. It varies. It generally happens, it could happen within a few days, depending what it is, it could happen within a few months. But generally just a couple of days.”

[T133.41 – T134.42]

33. The above extract of Mr Casha’s evidence, and his evidence generally, leads me to conclude that on factual matters in dispute concerning the products of inspection and maintenance carried out on the pit lid which is the subject of this case, the entries in the data within the SAP record system as tendered, provides only limited guidance to determining factual matters in dispute.

34. I have reached that view because it is not clear as to who had made some critical data entries recorded in Ausgrid’s SAP system. Nor was it clear as to how contemporaneous and therefore factually accurate or reliable those entries are. This casts some doubt on the reliability of those records as a basis for determining matters of disputed fact, especially where the documents tendered do not necessarily capture all the relevant data because not all of the available dropdown menus within the SAP system were printed by Mr Casha.

35. Mr Casha had no personal knowledge of the requirements for the height or tolerance levels for paving around pit lids. He said that for such information he would have to refer to documents. In that regard, referring to the relevant document (Exhibit “1”, Tab 5, p 81), he described the visual inspection process, which seemed somewhat subjective, as follows:

“…

A. So this is a document that the field crews utilise to do the inspection of the pit, and there's some actions there. And it's a visual inspection, and points 5, 6, 7 and 8 are the main ones when they do the visual inspection. So they see if the pit's obstructed, for example if someone's built over the top of it. They look at the pit surrounds, is it degraded, is there subsidence, or is the ground level. And they look for misalignment or impact damage. That means someone's driven over it. They also look for corrosion. In this case it was a steel cover, so they'd see the extent of any corrosion. So provided that's all okay, in the system they probably would have signed it off and said it's satisfactory. So in terms of the different tolerances, there's nothing mentioned in that.”

[T137.15 – T137.25]

36. Mr Casha stated that on his understanding of Ausgrid’s systems, the person carrying out a particular inspection of Ausgrid assets would sign off on that inspection based on a visual judgment made as to whether there was apparent compliance with the relevant Ausgrid maintenance standard: T137.31.

37. Mr Casha differentiated between the separate Ausgrid tasks of inspection and maintenance:T138.45. He said that in respect of this particular pit lid, the Ausgrid records show that inspections are carried out every 5 years, and that one was carried out on 27 January 2016 (T139.15; T162.15 – T163.13), but this was not followed up by any maintenance or repair work on the pit lid at that site: T138.41 – T138.50. He confirmed that Ausgrid’s SAP system did not record the name of the particular person who carried out the inspection in 2016, unlike the record of the 2021 inspection: T139.10.

38. Mr Casha stated that an empty data field appearing within the screen shot documents (including any dropdown box menu accessed by the placement of a cursor by the operator) indicated that there was no corresponding document for the particular activity described in that field: T145.22 – T146.1.

39. Mr Casha explained that the Ausgrid records copied in Exhibit “1” were incomplete, as some parts of the SAP system have not been the subject of a print-out, for example, to follow through and identify the name of the person who had closed off the inspection job in 2016: T139.34 – T139.41.

40. Mr Casha described the whole SAP system as a notification record. He could not elaborate upon questions such as work orders other than to identify the SAP system as a means of booking a field crew, but this did not mean that field crew would “book to that order number”: T146.10 – T146.42.

41. Mr Casha could not recall precisely when in July 2022 he had inspected the pit and pit lid in question in order to take photographs with his iPhone for the purpose of preparing for this case: T172.44 – T173.15; T150.47. He confirmed that the pit in question was as shown in the photographs appearing in Exhibit “1”, Tab 11 and following: T147.2.

42. Mr Casha looked at the appearance of the pit lid and differentiated between the phenomena of the processes of corrosion and rust, describing the pit lid as being rust affected because the “galvanising had gone on it.” (T148.17 – T148.28), and he said that this was not a structural problem: T148.42.

43. Mr Casha explained that his objective in taking the photograph represented at Exhibit “1”, Tab 13, page 95, was to show that it was difficult to gauge the height differential between the actual lid and the frame upon which it is seated (T149.1 – T149.14), with the frame being level with the concrete surround and there being a difference between that level and the level of the checker-plate lid, which he subjectively described as being “a slight difference”: T149.31 – T149.50.

44. Mr Casha explained that his purpose in obtaining the photographs of the pit lid taken in July 2022 (which are copied at pp 95 – 97 of Exhibit “1”), was to see if there was any hazard present: T151.19 – T151.27. He said that he took the photographs appearing at page 91 of Exhibit “1” to try and capture an image showing the difference in height between the lid and the frame of the pit: T153.6 – T153.13. That material was of limited persuasive value in view of the timing when it was obtained.

45. In any event, the photographic evidence must be viewed with considerable caution on the question of whether the height difference was a trip hazard on account of the well understood limitations on making fact findings based on the interpretation of photographs: Blacktown City Council v Hocking [2008] NSWCA 144, at [7]-[10], [167]-[170]; Angel v Hawkesbury Council [2008] NSWCA 130, at [69]-[72]; Warren v Gittoes [2009] NSWCA 24, at [2]-[3]; Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85, at [8], [20]-[29]; Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326, at [66]; Goode v Angland [2017] NSWCA 311, at [89]-[96].

46. Mr Casha’s measurement of the identified height difference appears to have been variable, in that he said it was no more than 10 millimetres, and that an allowance should be made for 3 millimetres for the height of the walking surface of the checker-plate elements that were raised: T150.24 – T150.44. In that context, I did not understand those estimates to have been proffered as precise measurements.

47. Mr Casha perceived the pit lid frame and the surrounding concrete to be flush on visual inspection (T152.7 – T152.23), and said that the frame was seen to sit proud of the lid itself by about 10 millimetres: T152.35 – T152.46. He confirmed that no work had been done at that pit site since his visit in July 2022: T152. 33.

Document review – defendant’s documents

48. The documentary evidence produced by the defendants as relied upon by the parties on the liability issues is identified and summarised in the following paragraphs.

Inner West Council documents

49. The Inner West Council’s documentary evidence does not disclose whether the Council had a system for regular inspection of the footpath and its component parts in the area for determining whether any maintenance or repair was required.

50. There is no specific evidence to show that before the plaintiff’s fall, the Council had been made aware of a problem of any kind at that location, including any problems requiring repair or maintenance. There is no specific evidence to indicate when, if at all, the Council had inspected the area before the plaintiff’s fall. The topic appears not to have been the subject of discovery, subpoena, or interrogatories.

51. The records of the Inner West Council show that on 6 February 2017, following the plaintiff’s earlier visit to her general practitioner, the plaintiff reported the fact of her fall to a Mr Kotrevski, who is identified as an officer of that Council. The plaintiff made that report by telephone. Mr Kotrevski created a note of the conversation. Subsequently, another Council officer, Mrs Leanne Treasure, modified that note: Exhibit “4”, Tab 7, pp 79 – 80.

52. Following the plaintiff’s report, a Council manager, Mr P Polieri, created a civil works plan for an inspection of the pit cover to take place. Although it appears that the initial plan was for an inspection to be carried out within 10 days of the report, the inspection in fact occurred on the day following the report by the plaintiff.

53. At 8.23am on 7 February 2017, another Council officer, Mr Giulio Russo inspected the location where the plaintiff had fallen and he made the following note:

“Investigated this is a Telstra pit lid not sitting properly on pit (Mr G Russo – 07/02/2017)This pit lid has been placed properly on pit completed 7/2/2017 (Mr G Russo - 07/02/2017)”

[Exhibit “4”, p 79]

54. The short notation by Mr Russo as cited above raises some ambiguities. My interpretation of that note proceeds in the following sequence:

1. On 7 February 2017, 5 days after the plaintiff’s fall, Mr Russo found the pit lid was not sitting properly on or in the pit;

2. After his inspection, Mr Russo, or perhaps someone working under his direction, took remedial action to ensure that the pit lid was properly placed over the pit;

3. Mr Russo’s cited note was responsive to the plaintiff’s complaint of having fallen at that location on 2 February 2017. The note was made after Mr Russo had inspected the pit lid;

4. Initially, according to Mr Russo’s note, the pit lid was incorrectly assumed to have been a Telstra asset. This error may explain why in the original version of the plaintiff’s statement of claim, the plaintiff’s solicitor had sued Telstra before that aspect of the claim was later abandoned.

55. At 8.24am on 7 February 2017, Mrs Leanne Treasure, whose Council job description was that of a DWIS secretary, signed off on the completion of the Council’s remedial action following the plaintiff’s report. She made the following notation:

“This pit lid has been placed properly on pit completed 7 February 2017 (Mr G Russo – 7/2/2017) (Mrs L Treasure – 7/2/2017)”

[Exhibit “4”, pp 79 - 80]

56. It remains ambiguous as to whether that note was meant to record that when Mr Russo inspected the lid it had already been placed properly on the pit or whether Mr Russo had found it to have been placed in situ incorrectly, following which he took the remedial step of properly placing the lid on the pit.

56. I infer from the evidence of Mr Casha, that the task of moving and then correctly positioning the pit lid cover required the insertion of specialised implements or keys in order to lift the lid as Mr Casha had described in his evidence: T147.48. The apertures for the insertion of those lifting implements are evident in the photograph copied at paragraph [7] above, and in the photographs taken by Mr Casha.

57. The Council’s documentary record concluded with some incomplete data fields which made reference to “User ANONYMOUS 2013”: Exhibit “1”, p 80. That entry remained unexplained as the first defendant did not call any witnesses to give evidence, and there was no agreement between the parties on that matter.

Ausgrid documents

59. Ausgrid tendered a series of documentary records: Exhibit “1”, Tabs 8 – 10, pp 81 – 92. Those records are described in the paragraphs that now follow.

Ausgrid Maintenance Standard

60. The first Ausgrid document was identified to be an Ausgrid Maintenance Standard. It was dated 7 July 2016. It set out the inspection and action requirements for Ausgrid patrols when examining its assets comprising pits and lids: Exhibit “1”, Tab 8, p 81. That standard identified the need for Ausgrid staff to give attention to the following matters when examining its pits and pit lids:

1. Building works or landscaping affecting, or potentially affecting, safety clearances and access to assets;

2. Examining infrastructure for excessive damage / degeneration / erosion;

3. Examining any warning signs for structural integrity;

4. Examining any warning signs to ensure correct fitting and location.

61. More specifically to pits and lids, that Ausgrid standard identified the need to:

1. Examine pits for obstructions to access;

2. Examine surrounds for signs of degradation, subsidence or altered ground level;

3. Examine pits for misalignment and impact damage;

4. Examine pit lids for corrosion.

62. In light of the suggestion in the evidence that there was a contemporaneous history of major building projects having been undertaken in the area, possibly involving vehicles traversing footpaths, the need for Ausgrid patrols to examine the surrounding area for signs of structural degradation, subsidence, altered ground level, mis-alignment or impact damage, was understandable.

63. In light of that evidence, the detail within Ausgrid’s identified inspection standards calls into question the adequacy of Ausgrid’s periodic assets inspection cycles because Ausgrid would not necessarily have staff on site to tend to or maintain the integrity of its assets during the currency of such nearby works.

Ausgrid Technical Maintenance Plan for underground cables

64. The second Ausgrid document (Exhibit “1”, Tab 9, pp 82 – 84) related to the technical maintenance plan or system for underground cables. Specific to pit lids, the plan provided for 5 yearly visual inspections by Ausgrid patrols with a margin for latitude of plus or minus 6 months: Exhibit “1”, Tab 9, p 83. These documents show the location of high voltage cables and related infrastructure, including pits and lids of the kind under present consideration.

Ausgrid Assets Management records – SAP

65. The third Ausgrid document (Exhibit “1”, Tab 10, pp 85 – 92) comprised a series of 8 screen shot prints of the Ausgrid computerised SAP programme of assets management software system. The screen shots, which included evidence of the existence of some drop-down menus, had been created by Mr Casha when he viewed the SAP system on screen for the purpose of providing evidence for this case. Those screen shots contained the following entries of a factual nature:

1. Ausgrid required the pit lid in question to have been inspected by its patrols by 27 January 2016 and then by 29 June 2021, with an allowance in each instance for a 6 months’ latitude for an acceptable variation in those dates: Exhibit “1”, Tab 10, p 85;

2. The respective inspections scheduled for 27 January 2016 and 29 June 2021 each had allocated “Notification” numbers (1106136985 and 1108889007), and order numbers (1100201193 and 1100392457), but there is nothing on the document described as “Change Notifications: List of Notifications” to explain the numerals, symbols, and words used to describe the fields in the document for “Functional Location”, “Mn.wk.ctr”, “User Status”, “Description”, “Lights Aff”, “CounDifFig”, “Contact Em” or “Contact I”: Exhibit “1”, Tab 10, p 85. The fact that notification and order numbers were identified as referred to in parentheses above suggests that either an Ausgrid employee made those entries in retrospect in response to work done, or alternatively, those numbers may have been automatically and prospectively generated by the SAP system software. Those possibilities were not fully explored or explained in the evidence;

3. There is no record of the Ausgrid employee, or the designation of that employee, who was responsible for inspecting the pit lid by 27 January 2016 (plus or minus 6 months), whereas in contrast, the person who was required to have inspected the pit by 29 June 2021 was named as Mr Jeff Graham: Exhibit “1”, Tab 10, p 85. This evidence suggests either that the person who was responsible for the inspection by 27 January 2016 failed to carry out the inspection, or alternatively, that person simply failed to annotate Ausgrid’s records to identify himself or herself. Neither of those possibilities were further explored or reliably explained in the evidence;

4. In light of Mr Casha’s evidence that will shortly be cited (at sub-paragraphs (2) to (5) of paragraph [79] below), the Ausgrid employees who either filled in the fields or left some fields blank on this form were not the employees who were charged with the task of carrying out the actual inspections scheduled for 27 January 2016 and 29 June 2021, plus or minus 6 months, in each instance;

5. In describing the screen shot comprising page 85 of Exhibit “1”, Mr Casha stated that he made the following additional explanatory entry on the screen shot: “Note: These are the only two maintenance tasks in our SAP System. The top one was completed prior to 2017”. It is plain that he made that note in the course of the fourth defendant’s preparation for this case, based on assumptions, rather than on the basis of verifiable facts.

66. The person or persons who made the two inspection entries referred to above were not called to give evidence.

67. Mr Casha stated that in relation to the form and the content on page 85 of Exhibit “1”, if an Ausgrid inspector had found or had perceived a maintenance or repair problem to exist in the course of a visual inspection of the pit lid, he would have expected the SAP system to be the subject of a related notation for follow up for maintenance and repair. In stating that view, he acknowledged this was on the basis of an assumed opinion formed by the inspector to that effect: T144.18 – T144.34.

Ausgrid SAP record – p 86 of Exhibit “1”

68. Mr Casha stated that the print-out of the screen shot at page 86 of Exhibit “1” contained some default dates that should be seen as being prospective entries and not retrospective factual records of events that had actually occurred: T140.50 – T141.4.

Ausgrid SAP record – p 87 of Exhibit “1”

69. Mr Casha stated that apart from identifying the pit number in question, there was nothing of relevance recorded in the screen shot that was represented by page 87 of Exhibit “1”. He said that there are many fields left blank in the SAP system as they are not used: T141.15 – T141.25.

Ausgrid SAP record – p 88 of Exhibit “1”

70. Mr Casha stated that there was nothing of relevance recorded in the screen shot represented by page 88 of Exhibit “1”. The document contains some data which contains some fields that he could not understand or explain: T142.15 – T142.21.

Ausgrid SAP record – p 89 of Exhibit “1”

71. Mr Casha stated that he interpreted page 89 of Exhibit “1” as indicating that at 13:32:02 hours on 30 December 2015, some unnamed person, presumably someone on behalf of Ausgrid, had carried out and had completed an inspection of the pit. His opinion in that regard was expressed on the basis that the data field on the form had been completed, although the inspector who carried out that work had not been identified: T142.26 – T142.49.

Ausgrid SAP record – p 90 of Exhibit “1”

72. Mr Casha stated that he was “not too sure” what the data field described as a “Maintenance Plan”, at page 90 of Exhibit “1”, actually meant: T143.20 – T143.28.

Ausgrid SAP record – p 91 of Exhibit “1”

73. Mr Casha stated that there was nothing of relevance noted within page 91 of Exhibit “1”: T144.45.

Ausgrid SAP record – p 92 of Exhibit “1”

74. Mr Casha was unable to explain a number of the acronyms and initialled references appearing at page 92 of Exhibit “1”: T144.49 – T145.12.

Incomplete data fields

75. In addition to the factual records as noted and analysed above, it is apparent that the Ausgrid screen shots identified a number of incomplete data fields concerning the pit lid in question.

Ausgrid “Dial As You Dig” documents

76. Ausgrid tendered a series of search documents relating to works that were proposed and had most likely been carried out around its assets in the area of the site in question: “Dial Before You Dig” search documents located at Tab 14 of Exhibit “1”. Mr Casha explained these documents as being searches carried out by contractors before carrying out works in the vicinity and relating to the location of underground high voltage electricity cables.

77. These searches were carried out over an extensive range of dates, namely 9 February 2016, 8 March 2016, 10 March 2016, 18 March 2016, 7 April 2016, 6 May 2016, 13 May 2016, 19 May 2016 (2), 25 May 2016, 16 June 2016, 23 June 2016, 24 June 2016, 18 July 2016, 8 August 2016, 10 August 2016, 15 August 2016, 16 August 2016, 18 August 2016, 23 August 2016, 12 October 2016, 1 November 2016, 4 November 2016, 11 November 2016, 14 November 2016, 22 November 2016, 8 December 2016, 9 December 2016, 14 December 2016, 3 January 2017 (2), 4 January 2017 (2), 12 January 2017, 24 January 2017, 15 January 2017, 31 January 2017 (2): T156.44 – T157.34.

78. It is plain from those dates that these search documents reveal a systemic awareness within Ausgrid that in the days leading up to the plaintiff’s fall, extensive works were being contemplated, if not actually carried out, in the vicinity of its assets, or in the vicinity of the utility pit in question in these proceedings. That said, this did not mean that Ausgrid would have been aware of any interference with the integrity or the fitting of the pit lid cover.

79. In answers to questions asked of him in cross-examination on behalf of the plaintiff, Mr Casha relevantly stated:

1. In relation to page 85 of Exhibit “1, that was all that he was able to locate on the SAP system: T160.49;

2. He explained that employees who attend the Ausgrid sites did not have access to the SAP system: T161.15;

3. He believed that there was no record kept of Ausgrid employees who had attended at the site to do a visual inspection: T162.35 – T162.48;

4. He was unable to explain some functions within the SAP recordkeeping system: T164.4; T169.33; T170.19;

5. At the time of the 2015 inspection of the pit lid, Ausgrid’s system for recording who had carried out inspections on particular sites did not exist, therefore those names are not ascertainable: T166.48. The system that preceded the SAP system was an Excel spreadsheet which did not contain that information: T167.9;

6. He could not confidently say whether an inspection of the pit lid had actually occurred on 30 December 2015: T170.40 – T170.43;

7. He confirmed that in relation to the photograph appearing at page 95 of Exhibit “1”, there appeared to be a gap between the casing or the frame that housed the pit lid, and the surrounding concrete surface of the pavement: T175.32;

8. He did not expect the pit lid to have sunk to any measurable degree between 30 December 2015 and when the plaintiff fell in February 2017: T176.3.

Photographs tendered by Ausgrid

80. Ausgrid tendered a series of copy photographs: Exhibit “1”, Tabs 11 to 13, pp 93 – 97. Two of those photographs were representative of the appearance of the pit and lid at around the time of the plaintiff’s fall (pp 93 – 94), and the remainder (pp 95 – 97), were taken by Mr Casha in about July 2022 on his iPhone, as explained at paragraph [41] above, involving different angles and perspectives. As observed at paragraph [45] above, it is necessary to observe great caution in interpreting these photos when making findings on matters of fact in dispute.

Factual findings on relevant matters

81. In the paragraphs that now follow, I set out my findings on relevant factual matters concerning: (1) the interpretation of the Inner West Council records concerning the footpath and pit lid; (2) interpretation of Ausgrid’s records concerning the footpath and pit lid; (3) the state of the pit lid at the time of the plaintiff’s trip and fall; (4) the plaintiff’s background; (5) her pre-injury state of health; (6) the particular circumstances of the injury; (7) her injuries; (8) the initial treatment she received; (9) her subsequent medical investigations, assessments and treatments; (10) her subsequent illness; (11) evaluation of competing medical and allied opinions; (12) her ongoing disabilities; (13) the resultant adverse effects on her employment; (14) the adverse domestic effects that have resulted from her injuries; (15) the steps she has taken to mitigate her damages; and (16), what would have been the plaintiff’s most likely circumstances but for the injuries she sustained.

(1) Interpretation of Inner West Council records

82. The Inner West Council documents relating to the plaintiff’s fall and the Council’s actions thereafter are summarised at paragraphs [49] to [58] above.

83. As no Council officers were called to give evidence, and no other documents were tendered, no particular conclusions can be reliably drawn on whether the Council had a system of periodic inspection in respect of the safety and maintenance of the pit lid and its surrounds.

84. Therefore, no reasoned conclusions can be drawn as to whether any system for inspection and maintenance the Council might have had was adequate, or otherwise.

85. The only reasonable conclusions available to be drawn from the Council records that were created following the report of the plaintiff’s fall are first, days later, on 7 February 2017, the area was inspected and in the opinion of Mr Russo, the pit lit was found to have been placed incorrectly on the pit, and secondly, Mr Russo, who made that observation, took appropriate responsive steps to ensure that the lid was properly placed over the pit.

86. I infer from that evidence that the lid was found to have been incorrectly seated and the subsequent evidence of completion of proper placement, that before Mr Russo’s inspection, the pit lid somehow became dislodged from its properly seated position within its frame, but when Mr Russo’s task was completed, it was left properly seated in its housing frame. This would necessarily mean that there would have been a height discrepancy between the lid surface and the surrounding top of the frame which was, on the evidence, most likely level with the surrounding concrete footpath.

87. However, in view of the fact that there was a 5 day period that had elapsed between the plaintiff’s fall and Mr Russo’s subsequent inspection, taken together with the fact that there were works planned to be carried out in the area in the days preceding the plaintiff’s fall, as identified at paragraph [77] above, no reasonable inference arises as to a presumed continuance of a misplaced or misfitted lid until rectified on 7 February 2017. The interval of time involved indicates that a positive inference in that regard would involve impermissible speculation: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19, at 358; following Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, at 5.

(2) Ausgrid records

88. The Ausgrid documents relating to the pit lid where the plaintiff fell are summarised at paragraphs [59] to [80] above. Mr Casha’s evidence on those documents and Ausgrid’s systems is summarised at paragraphs [27] to [47] above.

89. It would be reasonable to infer that since Ausgrid’s proactive SAP system had designated that an inspection should take place within 6 months of 30 December 2015, and since no data existed in Ausgrid’s records as to a named person having carried out that scheduled inspection, that the planned inspection for within 6 months of that date did not take place until after the plaintiff’s fall.

90. That said, it is also possible to infer that such an inspection did take place prior to the plaintiff’s fall but the person undertaking the inspection had not made proper arrangements for entering data into the SAP system to record that an inspection had in fact taken place.

91. In choosing which of those two possible interpretations should be preferred as being more likely to be correct, I infer from the fact that there is a proactive system that prompts tasks and from the fact an order number had been allocated, as explained at sub-paragraph (2) of paragraph [65] above, that an inspection had most probably occurred as was planned, most probably by means of a visual inspection, as explained by Mr Casha: T137.15 – T137.25.

92. It is also reasonable to infer from the evidence of Mr Casha that first, the height differential between the pit lid surface and the surrounding pavement had not materially changed for some years before the plaintiff tripped and fell, and secondly, had the area been inspected by an Ausgrid patrol before the plaintiff’s fall, the height differential ought to have been recognised. This would have raised the question of what if anything by way of precaution should have been done about that height difference from the perspective of pedestrian safety and the discharge of the duty of care owed by Ausgrid. That question will be taken up in the consideration of Issues 2 and 3.

(3) State of the pit lid at the time the plaintiff tripped and fell

93. In relation to the state of the component parts comprising the Ausgrid pit and its surrounds at the time when the plaintiff tripped and fell, I record the following findings:

1. The concrete footpath surrounding the pit was level;

2. The top part of the metal pit lid frame that housed the pit lid was flush and level with the concrete surrounds of the footpath;

3. The gap between the metal frame of the pit lid and the adjacent concrete paving of the footpath that surrounded the pit was small, and of itself was unlikely to constitute a trip hazard;

4. The pit lid was seated in its housing frame. If it were otherwise, such as when observed on 7 February 2017 by Mr Russo, when it was found to have been sitting improperly, the plaintiff would most likely have seen and noted that fact after she had tripped and fallen;

5. When the pit lid was seated in a proper position within the confines of its housing frame it was sunken, as was described by Dr Cooke, with an 8mm – 10mm height differential between the pit lid surface and the top of the frame;

6. The sunken position of the pit lid was unlikely to be a defect that had evolved over time. It was more likely to be an inherent longstanding feature that had been present for many years as a function of the method of construction of the structure as a whole;

7. There is no reliable evidence to suggest that at the time the plaintiff traversed the pit lid, it had moved underfoot in the pivoted manner that was observed and described by Dr Cooke when he inspected it in 2020 for the purpose of preparing his opinion to be used in these proceedings;

8. There is no basis within the evidence to suggest that the plaintiff had simply slipped on the metal surface of the pit lid. I find the suggested mechanism of a slip to be improbable;

9. When the plaintiff walked towards the pit lid on her way to board the waiting bus it was about 11am daylight saving time, or about 12 noon Eastern Standard time. In infer from such timing that it was improbable there would have been any shadows cast from the raised portion of the pit frame towards the lid itself so as to suggest, to the view of an approaching pedestrian, that there was a height difference within the structure;

1. There was no warning comprising yellow strips or other brightly coloured painted edges around the concrete or the frame that housed the pit lid which would have served to alert or warn pedestrians to the fact that there was a height difference within the structure and therefore a trip hazard in that location;

2. As the plaintiff approached the pit lid she did not see any indication of a height difference as she walked towards and crossed over the pit lid;

3. It is not known as to which part of the plaintiff’s flat-heeled shoes had made contact with the raised portion of the pit lid frame which caused her to trip. It is immaterial as to whether it was either her heel or the front part of her shoe.

(4) Plaintiff’s background prior to the fall

94. The plaintiff is presently aged 59 years. She had left school aged 15 years. After leaving school, she worked as an apprentice hairdresser for about 4 years. She married at age 19 years and she divorced at age 38 years. Her daughter was born in 1982. Her son was born in 1986.

95. The plaintiff has had a steady and stable employment history in the retail sector. She has worked as a shop assistant in a department store, a handbag store, a jewellery store, a souvenir store, a card shop, and in a pharmacy. At the time of her injury, she was living alone in mortgaged accommodation and was self-supporting. At the time of her accident she was on her way to attend a job interview with an employment agency for a retail managerial position in a dress shop. Notwithstanding her injuries, ultimately she was successful in securing that position but only for a limited time. This is a matter to which I shall return in the consideration of the claim for damages for past economic loss.

(5) Plaintiff’s previous health

96. It is relevant to review the plaintiff’s pre-injury medical history. The summary which follows is extracted from the compendious copy of her comprehensive medical records, which commenced in 1988: Exhibit “4”, pp 1 – 252.

97. In 1988, the plaintiff had successful remedial bilateral cosmetic breast augmentation surgery with the insertion of silicone implants on account of a condition described in the evidence as pectus escavatum, a structural deformity of the anterior chest wall. Thereafter she had regular breast and ultrasound examinations to check on the integrity of those implants: T51. In 2010 the plaintiff had abdominal surgery for a hysterectomy.

98. In February 2013, the plaintiff was diagnosed as having generalised anxiety. This was a longstanding condition which she managed in consultation with her family doctor who prescribed anxiolytic medications. This enabled her to function and to work notwithstanding her anxiety issues.

99. In May 2013 the plaintiff was diagnosed as having an ovarian cyst. She then had oophorectomy surgery to remove her ovaries. In November 2013 she was noted to have bowel adhesions. Those were possibly as a result of the earlier abdominal surgeries. Those adhesions later became increasingly painful for her.

100. In 2014, the plaintiff began treatment for elevated lipids, and osteopenia, a skeletal condition involving a reduction in bone density. In that year she began taking prescribed medications to manage those conditions. In September 2016, the plaintiff experienced gastrointestinal problems. She underwent a colonoscopy and an upper gastrointestinal tract endoscopy to investigate those problems. As a consequence of those investigations she was diagnosed with diverticular disease, a diagnosis which was revised after her accident to reveal adhesions, the symptoms of which abated after appendectomy surgery.

101. Before her trip and fall, the plaintiff was under regular dental surveillance by her dentist, Dr Andrew See, whom she saw 10 times for dental maintenance and associated treatment between 6 October 2015 and 6 September 2016. His pre-injury management of the plaintiff’s dentition is well described in detail in his report: Exhibit “C”, pp 25 – 31.

102. With the exception of the abdominal pain, none of those pre-existing conditions seem to have had any significant or adverse impact on the plaintiff’s pre-injury work history or on her ability to enjoy the amenity of her life.

(6) Circumstances of injury

103. My findings now follow on the particular circumstances of the plaintiff’s injury, first, as to the events occurring in the immediate lead-up to her injury, and secondly, as to the most probable sequence of events involved in the injury.

Events immediately preceding injury

104. The plaintiff was proceeding on foot towards a bus stop on Parramatta Road when, from across the road, she saw the bus she was intending to catch. By means of eye contact she had made with the bus driver, and the driver waving to her, she understood the driver to have indicated for her to proceed to the bus stop where he would wait for her to board the bus.

105. Having acknowledged that communication, the plaintiff waited for the traffic lights to change colour in her favour. She then crossed Bland Street, she successfully negotiated the different levels of the roadside kerb and gutter, and walked towards where the bus was waiting for her. She gave a very broad rough estimate of that position to be some 10, 20 or 30 feet from the intersection where she had crossed Parramatta Road. Those variations would be consistent with the plaintiff walking at the time she made progressive observations.

106. In final submissions Ausgrid asserted there was some controversy over whether the plaintiff was running or walking quickly at the time she tripped, and that her attention had been diverted to the bus, and that she did not want to be impolite and make the bus wait. In my view, there was no “controversy”. In my view, the “controversy” was the submission itself, which remains unproven. I find that the plaintiff was walking quickly, but not running at the time she tripped and fell.

107. The plaintiff said, and I accept, that in those events she had walked quickly towards the bus, that is, faster than was usual for her (T112.38), but she did not run. The plaintiff denied the suggestion that immediately before she had tripped she had been running: T76.29; T77.11; T77.44. No eyewitness evidence was called to contradict her denial, which I accept.

108. In reaching the conclusion that the plaintiff was not running at the time she tripped, I have not overlooked the content of the notes taken by the plaintiff’s general practitioner, Dr Driver, at a consultation on 4 February 2017, where he made the note “running for bus”.

109. In my view, those notes were an interpretative aide memoir made by her doctor and it was not a transcript. Without specific explanatory evidence from the author of those notes, where they did not form part of a liability investigation, they are not in a form which could reasonably be taken to constitute a relevant admission by the plaintiff that she was running at the time of her injury: Mason v Demasi [2009] NSWCA 227, at [2].

110. The plaintiff said, and I accept, that she was looking where she was going as she was walking (T65.46) and was conscious that the bus was waiting for her. The plaintiff agreed that she had started to walk “a little bit quicker” (but not running) because she did not want the people on the bus to have to wait for her: T109.36 – T109.50. She described her movement as being a fast walk: T110.3.

111. In those events she saw the pit cover some distance ahead of her on the footpath in the direction she was walking. There was nothing about the pit lid or its surrounds that would or ought to have attracted her attention at that time because from that distance, there were no readily apparent features which would have alerted her and put her on notice of the need to keep it under closer and more constant observation as she approached the bus stop. She said she looked at the footpath to where she was going and was not expecting the trip: T67.3.

112. I infer from the cited evidence of the plaintiff, and from the fact that her view of the path ahead, from eye level whilst walking, that it would have been difficult for her to discern any height differential between the pit lid surface and the surrounding frame and pavement. I consider that to have been so even when taking in the observations of her surroundings whilst she was making her way to the bus stop.

113. Neither party explored the question of whether there was any significant volume or density of other pedestrian traffic walking ahead of, or around the plaintiff, or whether there were any other distracting events or activity in a nearby location that might have obscured a more detailed or close inspection by the plaintiff of the pit lid and its surrounding structure as she walked towards and over that structure.

114. The plaintiff had not observed the pit cover to be “not properly in position”. She could not recall precisely where she had placed her foot when she was walking over the pit cover. She had not observed the metal cover to be sloping downwards towards the direction in which she was walking and, there was no reliable evidence to suggest it was in that state. She was wearing flat non-healed closed-in shoes at the time: T110.21 – T110.27. In those circumstances she was concentrating on getting to the bus and she did not recognise the existence of a trip hazard comprising a height differential between the level of the pit lid and the surrounding frame and footpath: T111.5.

Sequence of events leading to injury

115. The plaintiff stated that whilst walking she tripped and fell in a split second: T72.47. At that time she was not running: T76.29; T77.11. She fell forward onto her face, her chest, her abdomen, and her right knee. She was holding a handbag at the time which probably meant she was unable to fully use her hands to cushion the impact of her fall.

116. The photograph of the site of the plaintiff’s fall as copied at paragraph [7] above has been marked with a cross. The plaintiff explained that her solicitor had placed the cross on that photograph in the course of a discussion with her on how and where she had tripped. I infer that this marking was agreed to by the plaintiff and was intended at that time to indicate approximately where she had tripped: T72.49 – T74.6.

117. The plaintiff acknowledged that she could see “what was in front of [her] foot” when she placed her foot on the metal checker-plate surface of the utility pit cover: T70.10 – T70.12. At that time, she was walking at a quick momentum but was not running. At the time she was wearing closed-in flat-heled shoes. She also agreed with the general proposition that she was aware of the existence of the phenomena of utility pit covers embedded in footpaths in the general area and she also agreed with the general proposition that she knew it was important to make sure she could see where she was placing her foot when walking on a footpath: T70.27 – T70.30.

(7) Injuries

118. When the plaintiff fell, she sustained injuries to her chin, to a number of her teeth, and to her jaw through what I infer to be transmitted forces. The fall was a shocking experience for her. It was subsequently discovered that in the fall she had suffered split fingernails, multiple contusions grazes and abrasions, and bilateral ruptures of her indwelling breast implants. Notwithstanding those injuries, the full severity of which she did not appreciate at the time, she boarded the bus in order to go to her scheduled job interview.

(8) Initial treatment

119. Immediately following her fall, the plaintiff was assisted by the bus driver and by passengers on the bus. She was given tissues and water. She later left the bus and went to a pharmacy where she obtained dressings for her fingers and wounds before going to the scheduled interview, albeit in a shocked state.

120. Two days later, the plaintiff saw her general practitioner in relation to the injuries she had sustained in the fall. In accordance with her doctor’s suggestion, she later contacted the first defendant Council to report her injury. The Council’s record of the report she made was that there was a metal utility pit cover in the footpath that had sunk and the lip edge was a trip hazard and this was a concern: Exhibit “C”, p 79. When that evidence was explored, she did not recall the actual words she used in making that report (T70.37 – T70.50; T72.33), however, she was adamant she was not running when she tripped.

(9) Medical investigations, assessments and reviews

121. The oral evidence and the tendered medical records show that over the course of time, as a result of her injuries, the plaintiff sought out a variety of assistance and medical treatment from a variety of sources. Between 4 February 2017 and 8 May 2018, the plaintiff attended her general practitioner on some 27 occasions: Exhibit “4”, pp 63 – 72. It is not necessary to summarise the dates and the content of all of those consultations.

122. The chronology of the significant matters of a medical nature to emerge from the tendered medical evidence is as follows:

1. On 4 February 2017, the plaintiff attended the practice of her general practitioner, and saw Dr Brian Driver, who, as recorded at Exhibit “4”, page 63, made the following record summarising his understanding of that consultation:

“Saturday February 4 2017 14:54:30

Dr Brian Driver

Visit type:

Surgery Consultation

running for bus , slipped. 10.45 am last Thursday 02/02/207

bruising 3 cm right medial aspect of the right knee.

bruise abrasion lateral aspect 1.5 x 2 cm . then left lower abdomen 3 x 1.5 cm bruise.

mouth upper lip bruised, ? graze left central upper tooth . tender upper cheek on examination (sic) of left side of mouth. Mild

bruising left side of chin. bandage on the right index finger.

heat, panadol 2 qid, peroide and betadine.

right knee no patellae tapp , external bruising tenderness.

Reason for contact:

Fall”;

2. On 5 May 2018, the plaintiff underwent an MRI    scan of her breast implants which demonstrated bilateral intracapsular ruptures, with the extent of the collapse being greater on the right side: Exhibit “C”, p 19;

3. On 14 May 2018, Dr Roger Haddad, a plastic and reconstruction surgeon, examined the plaintiff for abdominal symptoms and breast implants that had been in situ for about 30 years, but which had been ruptured in the accident. He advised removal of the implants within the following 6 months, noting that implants commonly rupture after 10 – 15 years. His report implied the possibility that the ruptures may have preceded the fall: Exhibit “C”, pp 20 – 21. His statement to that effect involved speculation that requires evaluation in terms of the causation issues. The plaintiff’s evidence tended to rebut that potential mechanism in this case by reference to her pre-accident annual breast examinations and pre-injury ultrasounds at which no abnormality had been detected: T51.19; T52.27 – T52.31;

4. On 30 May 2018, the plaintiff consulted Dr Ellis Choy, a plastic and cosmetic surgeon regarding her complaint of discomfort in both breasts, requesting that her breast implants be removed. He advised bilateral explantation and capsulectomy, with mastopexy to optimise the aesthetic result: Exhibit “C”, p 22;

5. On 26 July 2018, the plaintiff was re-examined by Dr Choy. He noted she was extremely distressed and anxious, including reporting extreme discomfort in both breasts, low self-esteem, and loss of confidence, and profound dissatisfaction with the appearance of her breasts, and an associated psychological reaction. On 5 June 2020, he described having performed bilateral breast explantation and concurrent mastopexy surgery as he had recommended, in order to optimise the plaintiff’s aesthetic outcome following the effects of her injury: Exhibit “C”, pp 23 – 24;

6. On 21 January 2019, Dr See, the plaintiff’s dentist since 2015, replaced the crown on the plaintiff’s tooth 12, as it had become unstable: Exhibit “D”, p 1;

7. On 9 May 2019, Dr See extracted the plaintiff’s tooth 22 as it was loose and painful to bite upon, and was considered to be unrestorable: Exhibit “D”, p 1;

8. On 12 June 2019, the plaintiff’s general practitioner prepared a health summary relating to the plaintiff. He attached her clinical notes for the period between 1988 to 10 June 2019: Exhibit “C”, pp 74 – 75;

9. On 20 June 2019, Dr See wrote to the plaintiff to outline a detailed dental treatment plan following the extraction of her tooth 22, setting out the alternatives: a cast removable partial denture plate which would place the surrounding teeth at risk of gum disease and decay; a bridge ($6479); implants ($8695): Exhibit “D”, pp 2 – 6;

10. On 9 August 2019, the plaintiff underwent psychological testing which led to a diagnosis of Major Depression and anxiety which has reportedly caused her extreme difficulty in concentrating, sleeping, managing her day-to-day stresses, and which has also led her to have issues with her memory: Exhibit “C”, pp 71 – 72;

11. On 18 March 2020, the plaintiff underwent a CT scan of her left temporo-mandibular joint which was reported as showing bilateral TMJ osteoarthritis, mild on the right, and severe on the left, with the presence of a loose body on the left: Exhibit “C”, p 95 – 96;

12. On 27 March 2020 and on 9 April 2020, at the request of Dr See, the plaintiff was examined by Dr Lydia Lim, an oral and maxillo-facial surgeon. She reviewed the CT scan of the TMJ pathology and noted there was reduced joint space and condylar head flattening, with a loose body identified, with associated jaw clicking discomfort, and grinding. Dr Lim proposed a conservative treatment plan to reduce joint and muscle inflammation, NSAIDs, heat packs, and jaw physiotherapy, and the provision of an occlusal splint, with possible left TMJ arthroscopy and arthrocentesis procedures after COVID-19 restrictions are lifted: Exhibit “C”, pp 91 – 92; p 94;

13. On 8 May 2020, Dr See prepared a very detailed report of his pre-accident dental treatment of the plaintiff between 6 October 2015 and 6 September 2016, and the post-accident treatment he provided to the plaintiff between 2 June 2017 and 4 May 2020. He described the plaintiff’s reported self-consciousness and loss of confidence in facing customers due to her missing front tooth prior to its replacement: Exhibit “C”, pp 25 – 32;

14. On 13 May 2020, the plaintiff underwent an MRI scan of both of her temporo-mandibular joints which revealed moderately advanced degeneration of the left TMJ and an associated globally degenerated and attenuated articular disc. On the right side, mild osteoarthritis was noted with a better preserved condylar translation compared to that seen on the left side: Exhibit “C”, p 93;

15. On 30 May 2020, Dr See wrote a letter stating that prior to the accident the plaintiff had no prior issues with her teeth or her gums: Exhibit “D”, p 1;

16. On 4 June 2020, the plaintiff underwent x-rays of both knees to investigate her complaint of pain in her right knee. No abnormality was detected: Exhibit “C”, p 33;

17. On 20 June 2020, Dr See wrote a detailed report describing his post-accident dental treatment of the plaintiff comprising replacement of the crown on tooth 12, treatment of her injury-related loose teeth and swollen gums, the extraction of tooth 22, and the replacement of 6 front teeth with implant and bridgework at a total cost of $15,174: Exhibit “D”, pp 2 – 6;

18. On 10 November 2020, the plaintiff commenced osteopathic treatment with Ms Ainslie Windle for post-accident neck and thoracic pain, right shoulder pain and TMJ pain, and headaches. It was noted that her symptoms were aggravated by lifting her arms at work and standing for long hours. Stress and anxiety were noted, which increased jaw clenching and TMJ stress: Exhibit “C”, pp 34 – 40;

19. On 13 September 2021, at the request of her solicitors, the plaintiff was examined by Dr Andrew Howe, a dental surgeon. His report of that examination as dated 15 September 2021: Exhibit “C”, pp 52 – 69;

20. On 25 October 2021, at the request of her solicitor, the plaintiff was examined by Dr Mohammed Assem, a general practitioner and rehabilitation specialist. He noted the plaintiff had been depressed and had suicidal ideation, and had been admitted to a psychiatric unit on account of those problems. He noted her physical problems to be neck pain and discomfort, and that the plaintiff avoided lifting items weighing more than 10kgs. He also noted the plaintiff’s complaints of right shoulder restriction, right knee clicking, and jaw problems. He also noted that her son assisted her with the heavier housework. He reviewed the plaintiff’s imaging scans. He suggested treatment by way of analgesia and physiotherapy to manage the plaintiff’s physical complaints, including a knee strengthening programme, the provision of a knee brace, and an exercise programme: Exhibit “C”, pp 41 – 45;

285. That standard of care was more recently restated to be a question to be determined objectively by asking whether the plaintiff had taken the degree of care for her own safety that an ordinary reasonable person would have taken: Lloyd v Thornbury [2019] NSWCA 154, at [92]-[94], following Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139, at [54], [94].

286. The background to a consideration of s 5R of the CL Act is whether, according to the mandatory preconditions imposed by s 5B(1) of the CL Act, the plaintiff took the precautions that an ordinary reasonable person would have taken against the risk of injury: Gordon v Truong; Truong v Gordon [2014] NSWCA 97, at [14]-[15].

287. In the event that a finding of contributory negligence is to be made, there must be an apportionment according to what is just and equitable in the circumstances. This requires a comparison between the respective degrees of departure from the standard expected of a reasonable person in the circumstances and the relative importance of the actions or inactions of the parties in causing the damage incurred. This exercise requires an examination of the whole of the conduct of each negligent party in relation to the circumstances of the injury to determine the relative causative potency of their respective acts of negligence: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, at 494; [1985] HCA 34, at [10].

Particulars of contributory negligence

290. Ausgrid relied upon the following particulars of contributory negligence:

1. Failure to keep a proper lookout.

2. Failure to perceive and avoid an obvious risk.

3. Failure to take appropriate care for her own safety.

4. Failure to secure a proper foothold.

5. Failure to watch where she was walking.

6. Failure to act reasonably in the circumstances.

7. Failure to give due care and attention to her environment.

Consideration and conclusion as to contributory negligence

291. The consideration of Ausgrid’s claim of contributory negligence requires an examination of the pleaded particulars of contributory negligence, followed by a reprised review of the facts relevant to that claim, and the identification of the material omissions which would base a Podrebersek analysis.

292. As to the particulars of contributory negligence identified at paragraph [290] above, in my view, particulars (a) to (d) and particular (f) are general and formulaic, and as such, they are not particularly informative for the specific consideration required of a contributory negligence defence.

293. The allegation that the plaintiff failed to watch where she was walking (particular (e) above), and the allegation of a failure to give due care and attention to the environment (particular (g) above), are relevant to the circumstances of this case in determining whether Ausgrid has established its contributory negligence defence.

294. As to the facts relevant to the consideration of contributory negligence, it is appropriate that I reprise a number of findings, as follows.

295. The first is that the plaintiff was not running at the time she tripped and fell. Secondly, the quick or faster than usual pace at which she was walking was nevertheless still a walking pace which of itself did not intrinsically suggest that she had placed herself in a situation of harm. Thirdly, the suggestion that the plaintiff was preoccupied with the need to avoid being impolite to the passengers waiting on the bus involves ill-founded speculation as the argued diversion of gaze within the impugned conduct was a continued diversion and it unwarrantedly assumes that the plaintiff’s faster pace of walking was somehow inherently blameworthy such as to amount to a breach of her duty of self-care. Fourthly, the analogy of the plaintiff having successfully negotiated the gutter shortly beforehand is a problematic and false analogy as the terrain involved different considerations of height difference. Sixthly, the fact that she was carrying things in her hands is both unremarkable and irrelevant, absent any evidence that carrying such things had distracted her attention.

296. Those factual observations lead to a consideration of whether the plaintiff was truly inattentive to the circumstances to an extent that justifies a contributory negligence finding.

297. The starting point of that consideration is to record the observation that a momentary or fleeting inattention in the course of events does not necessarily lead to a conclusion that such inattention amounts to proof of contributory negligence. Something more is required.

298. As the plaintiff was not running and was just walking at a faster than her usual pace, that of itself does not sustain a conclusion that she failed to observe the need for requisite self-care when walking on an apparently level footpath.

299. The plaintiff conceded that she had noticed the presence and location of the pit ahead of her as she continued her approach to the bus stop. She was obviously concerned to reach and board the bus without delay. She had looked to where she was placing her feet but she did not notice the height discrepancy as she walked towards and over the pit lid to the point where she tripped. I have found that discrepancy to be a trip hazard. It was not obvious to her at the time.

300. On my assessment of the plaintiff’s evidence as a whole on this topic, she most probably momentarily glanced away from the view of the footpath and its surrounds which were ahead as she continued to walk towards the bus instead of maintaining a more constant or a more frequently checked view of the component parts of the footpath surface on which she was walking.

301. In those circumstances, I find that an element of a lack of due self-care occurred on the plaintiff’s part because as she approached the pit lid there was a need for her to consider whether the pit lid and its structure was a safe thing to walk upon as it may not have been a uniform area of uninterrupted pavement.

302. I find that in those circumstances, the plaintiff failed to observe the height discrepancy of the pit lid and its surrounding frame as it came into closer view at a time when she ought to have done so. Consequently, I find that she failed to take a required avoidant course, which resulted in her tripping on a trip hazard: s 5B and s 5D of the CL Act.

303. In those circumstances, although the plaintiff was in a general sense keeping a proper lookout, in that particular respect she failed to keep a proper lookout at the time she traversed the pit lid and its surrounding frame whilst she momentarily looked towards her destination which was further away. At that time, because she looked away she remained unaware of the existence of the trip hazard because it was not observable to her as being an obvious risk. In those events, I find that she was contributorily negligent: s 5B, s 5C and s 5R of the CL Act.

304. I also find that but for that inattention the plaintiff failed to take an avoidant course and this was a contributing cause to her injury: s 5D(1)(a) of the CL Act.

305. In those circumstances, an application of the cited Podrebersek test requires a relative comparison of the respective departures by the parties from the expected standards of care.

306. In my assessment, Ausgrid’s negligence permitted the continued existence of a static danger in the form of a trip hazard that whilst not obvious, was nevertheless ever-present, and liable to cause unwary or unsuspecting pedestrians to trip.

307. In comparison, the plaintiff’s own negligence was no more than a momentary instance of inattention whilst purposefully walking on a footpath designated for that purpose without having noticed any obstacles or trip hazards. Her omission was that she did not continue to look at the footpath and its components at the split-second time that she encountered the height difference in the components of the pit lid structure which caused her to trip and fall. This occurred at a moment when she should have been looking at the pit lid as a matter of self-safety.

308. In those circumstances, I consider that in terms of degrees of responsibility for the plaintiff’s trip and fall, on account of the static nature of the circumstances Ausgrid had allowed to continue, Ausgrid’s failure to take the precaution of providing an effective warning, was the more seriously causative departure from the expected standard of care. Therefore, the major share of the responsibility for the plaintiff’s injury should lay with Ausgrid and the lesser share should lay with the plaintiff. The plaintiff was not in the situation of negotiating an obstacle course that required her to remain on a higher level of alert for dangers as she walked along the footpath towards a bus stop. Her failure to take the precaution of looking more closely at the pit lid was more momentary or fleeting.

309. In my assessment, the causative potency of the respective departures from the expected standards of care requires the just and equitable apportionment for the harm suffered by the plaintiff in her fall is 80 per cent apportioned to Ausgrid and 20 per cent apportioned to the plaintiff. I so find.

Issue 8 – Assessment of damages

310. My assessment of the plaintiff’s damages follows the preliminary consideration of the plaintiff’s most likely remaining life span.

Plaintiff’s probable life span

311. The plaintiff has been undergoing and is yet to complete chemotherapy treatment for breast cancer, a life-threatening illness which was diagnosed on 23 February 2022.

312. Accordingly, the parties considered it prudent to jointly obtain expert evidence as to her likely remaining life span. To that end, they obtained evidence in the form of a joint expert report dated 10 June 2022 commissioned from Dr Annabel Goodwin, the plaintiff’s treating oncologist, as has already been referred to at sub-paragraph (26) of paragraph [122] above.

313. In that report, Dr Goodwin expressed the opinion that the plaintiff’s 5-year statistical survival prediction is between 90 and 97 per cent, with her statistical 10-year survival prediction being between 75 and 93 per cent.

314. On the basis of that evidence, I consider it more probable than not the plaintiff’s remaining life span is more than 10 years, and sufficiently similar to a normal life expectancy such that her damages should not be discounted by more than a slightly higher than conventional discount rate of 20 per cent for potential adverse vicissitudes: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, at pp 642 – 643; [1990] HCA 20.

315. I now turn to the assessment of the particular heads of damage that are claimed.

Non-economic loss

316. On behalf of the plaintiff, it was submitted that her damages for non-economic loss should be assessed pursuant to s 16 of the CL Act at 35 per cent of an extreme case. In contrast, the defendants submitted that the plaintiff’s non-economic loss should be assessed at 20 per cent of a most extreme case.

317. The required assessment task, which involves the application of a statutory artifice, is an invidious but necessary evaluative exercise in which the plaintiff’s injured circumstances and the impairments which followed her injuries must be ascribed a percentage for her injury-caused impairment and a loss of the enjoyment and the amenity of her life when compared to the statutory standard of “a most extreme case”.

318. The factors that I consider to be relevant to that assessment comprise the plaintiff’s pre-injury level of functioning, as described at paragraphs [171] to [173] above, the nature of her injuries, her medical treatment, her remaining disabilities, and the effects that those matters have had on her life (as described at paragraphs [151] to [169] above), including the circumstance of her recent supervening diagnosis of breast cancer, for which she is presently receiving treatment.

319. Of particular importance is the plaintiff’s post-injury changed psychological status. Her pre-injury generalised anxiety disorder, which was being well managed before her injury, has been overtaken by a much more disabling depression and adjustment disorder, and her previous anxiety levels have materially changed. She could ill-afford those changes to her situation, and those changes, along with her injury-related physical problems have materially and significantly altered the amenity and enjoyment of her life.

320. In my view, the supervening event of the plaintiff’s breast cancer, which in reality is a crystalised adverse contingency, should only have a limited reducing impact on the assessment of damages for non-economic loss. This is because it arose in February 2022, some 5 years after her injury, where in that time she has been significantly and adversely affected by her identified disabilities, the effects of which still continue.

321. It is recognised that contingencies can be positive or negative in their impact. Absent compelling evidence to the contrary, an intervening or supervening event, in this case breast cancer, does not necessarily break the chain of causation of loss. Accordingly, except in circumstances where there is satisfactory scope in the evidence to discern a starkly defined significant differential effect on longevity, a supervening injury or illness does not necessarily reduce the damages that call for assessment due to the earlier compensable event, other than by way of a contingency to be taken into account; Faulkner v Keffalinos (1971) 45 ALJR 80, at p 85; Baker v Willoughby [1970] AC 467; [1969] UKHL 8; DMN Mining Pty Ltd v Barwick [2004] NSWCA 137, at [40]-[41].

322. Taking into account the plaintiff’s disabilities, earlier summarised, including a heightened level of psychological disability that goes well beyond her pre-existing well managed condition of a generalised anxiety disorder, and her ongoing physical symptoms, I consider that the appropriate assessment of damages for non-economic loss is 30 per cent of a most extreme case. This is the statutory equivalent of $159,500. I therefore assess the plaintiff’s damages for non-economic loss in the amount of $159,500.

Past economic loss

323. The plaintiff’s claim for past economic loss comprises two components. The first involves the initial closed period when the plaintiff was unable to work after her injury. The parties are agreed that this particular component of economic loss should be assessed in the amount of $7200 net.

324. The second component of the plaintiff’s claim for past economic loss extends to a further amount of $81,500 comprising a claimed weekly loss of $500 per week net over 163 weeks. That second period of loss is based on the premise that by July 2019, the plaintiff felt compelled as a result of her disabilities to step down to a lesser paid role to work as a casual employee rather than continuing to work as a full-time store manager. The claim is that this loss continued until the diagnosis of her breast cancer on 23 February 2022, when she stopped work whilst she pursued appropriate treatment.

325. The defendants did not accept the validity of that second component of the plaintiff’s claim for past economic loss. That claim is examined in the paragraphs that now follow.

326. I accept that the plaintiff’s physical and psychological disabilities as recorded at paragraphs [151] to [153] above have had a significant limiting and adverse effect on her ability to maintain her income and her earning capacity in her full-time managerial role, and as a result, the plaintiff’s earning capacity was impaired from the time she relinquished that position.

327. I also accept that by July 2019, it was plain the plaintiff was not coping with her full-time work with the result that she had to step down to a part-time role. This was in circumstances where her physical limitations were limiting her ability to fully carry out the physical demands of her role, which was also causing some staff friction at her work.

328. Whilst these events were coincidental with the re-arrival of a former store manager at the plaintiff’s workplace who wished to return to her former role, the plaintiff’s action of stepping down, which in my assessment, was a reasonable mitigatory response to her disabilities at the time. This has led to her incurring a continuing loss of income from the end of July 2019.

329. However, at present, that additional period of loss must be seen to be limited to the period between July 2019 and 23 February 2022, which was when the plaintiff received her diagnosis of breast cancer and commenced treatment for that condition. That treatment has been debilitating and it has interrupted her ability to work. Therefore, her claim for loss of earning capacity remains suspended at that time whilst she completes her chemotherapy for that cancer.

330. The period between the end of July 2019 and 23 February 2022 is, in rounded terms, the equivalent of 132 weeks. At the submitted rate of loss of $500 per week net, this amounts to $66,000. The combined total of those amounts is $73,200. The evidentiary basis for the claim of a loss of $500 per week is found in the economic loss documents tendered as part of Exhibits “C” and “D”.

331. In my assessment it would be artificial and therefore excessive to award the total claimed sum of $73,200 as compensation for past economic loss because the plaintiff was, by July 2019, already experiencing some difficulty managing her full-time role and that difficulty was in part multifactorial, including her unrelated abdominal symptoms.

332. That said, I do not accept Ausgrid’s past economic loss submissions, which are based only on the need for mitigatory breast surgery and the proposition that the plaintiff’s other problems had resolved entirely without an ongoing impact on economic loss. The plaintiff’s other post-fall difficulties, as found at paragraphs [151] to [162] above, take the plaintiff’s economic loss claim well beyond that limited proposition advanced on behalf of the defendants.

333. In my view, in this case a discounted buffer amount would be the most appropriate method of compensating for economic loss in the period between July 2019 and February 2022. I assess that buffer in the amount of $40,000, to which the agreed sum of $7200 must be added. I therefore assess the plaintiff’s damages for past economic loss in the combined amount of $47,200.

Past loss of employer funded superannuation

334. On behalf of the plaintiff, it was submitted, correctly, that an allowance should be made for damages to compensate her for the loss of past employer funded superannuation benefits that would have ordinarily accrued on her probable past earnings if she had remained uninjured. In accordance with convention, this should be assessed at 11 per cent of the award of damages for past economic loss of $47,200, which yields the amount of $5192. I therefore assess the plaintiff’s damages for past loss of employer funded superannuation benefits in the sum of $5192.

Future economic loss

335. On behalf of the plaintiff, it was submitted that her damages for future economic loss should be assessed in the sum of $197,050. That submission had two components.

336. The first element of that claim was based on a submitted projection of $500 per week net on the 5 per cent tables over the likely remaining years of her working life, namely a further 8 years (x 345.6), less 15 per cent for potential adverse vicissitudes. The plaintiff submitted that an additional component of a buffer amount of $50,000 should be added on account of an assumed need for the plaintiff to take an early retirement as a result of her injuries. There was only meagre evidence for that latter proposition. In contrast, the defendants submitted that there should be no award of damages for future economic loss.

337. In my opinion, for the reasons that follow, neither of those submissions should be accepted

338. In my opinion, Ausgrid’s future economic loss submission fails to pay due regard to the impact of the plaintiff’s accident-related and work-limiting disabilities as summarised at paragraphs [151] to [169] above. I consider those disabilities not only continue to impede the plaintiff in the exercise of her earning capacity, but they are also most likely to be productive of economic loss once the plaintiff completes her presently ongoing chemotherapy treatment for her breast cancer which was diagnosed in February 2022.

335. In my opinion the plaintiff’s future economic loss submissions insufficiently reflect the continuing degree of uncertainty as to what the plaintiff’s state of health might be from a fitness to work perspective after she finishes her chemotherapy treatment, and those submissions insufficiently apply a discount for the potentially adverse vicissitude that she might be further limited in her earning capacity by the residual effects of her breast cancer treatment, where such potentially work-limiting effects have not been the subject of a comprehensively focussed evidentiary medical analysis.

336. Furthermore, the plaintiff’s submissions do not adequately reflect the as yet uncertain date on which she might have recovered sufficiently from her chemotherapy and related hair loss to enable her to confidently resume work in retail, even in the lesser role she had when she left work to commence her treatment. Therefore, the starting point for the recommencement of the claim for future economic loss remains unknown.

337. In those circumstances, I consider the most appropriate means by which to compensate the plaintiff for her fall-related, and difficult to assess future loss of earning capacity, is to award damages in the form of a discounted buffer sum: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72].

338. The buffer should not only reflect those identified uncertainties but also the possibility that the effects of the chemotherapy may have the result of an even further and unrelated reduction in her earning capacity. In those circumstances, I consider a buffer amount of $80,000 to be appropriate compensation. I therefore assess the plaintiff’s damages for future economic loss in the buffer sum of $80,000.

Future loss of employer funded superannuation

343. On behalf of the plaintiff, it was submitted that damages for the loss of future employer funded superannuation benefits should be assessed at 12 per cent of the amount awarded as damages for future economic loss: 12 per cent of $80,000, namely $9600. I therefore assess the plaintiff’s damages for future superannuation loss in the sum of $9600.

Future out-of-pocket treatment expenses

344. On behalf of the plaintiff, it was submitted that a buffer allowance should be made for future treatment expenses in the amount of $15,000. In contrast the defendants submitted that a buffer amount of $3000 should be allowed. Both of those sums seem arbitrary.

345. In my view, the plaintiff’s ongoing accident-related disabilities of a physical and psychological nature as summarised at paragraphs [151] to [153] above, indicate that the plaintiff will continue to require significant and regular ongoing accident-related treatment and assistance in the form of general practitioner and specialist consultations, including psychological support, and an allowance should be made for the cost of prescribed medications. To reflect the uncertainty of the cost of those treatments I assess a discounted general buffer sum of $6000 for that lifetime cost. I therefore assess the plaintiff’s damages for future treatment of out-of-pocket expenses in the sum of $6000.

Future domestic assistance

346. On behalf of the plaintiff it was submitted that there should be a combined buffer award of $50,000 for the value of both past and future domestic assistance. A difficulty which precludes an acceptance of that submission is that no claim for past gratuitously provided domestic assistance has been particularised and the defendants therefore justifiably object to any such allowance being made.

347. However, it is plain that the plaintiff’s accident-related physical restrictions identified at paragraph [152] above, as also explained by her son, justify the making of a general allowance for future domestic assistance.

348. At present the plaintiff’s son provides domestic assistance to the plaintiff and the plaintiff’s mother. That gratuitous assistance cannot be presumed to continue indefinitely as her son has his own life to lead. In my view, it is therefore appropriate to make a modest buffer allowance referrable only to the plaintiff’s needs on an intermittent commercial basis that will commence on an uncertain date when her son’s assistance is likely to cease. I therefore assess the plaintiff’s damages for future domestic assistance in the discounted buffer sum of $10,000.

Past out-of-pocket expenses

349. After some debate, ultimately the parties reached a series of conditional agreements on out-of-pocket expenses: Exhibit “J”. The overall agreement was mathematical in the sense of an agreed total of $49,246.62. That amount comprised separate sub-totals for the following items:

1. $10,049 in respect of the plaintiff’s dental treatment in the event of a finding that the plaintiff’s injuries to teeth numbered 12 and 22 were causally related to the accident. Alternatively, in the event of a finding that only tooth numbered 22 was found to have been causally affected in the accident, the agreed cost of treatment was identified to be $5,024.50;

2. $24,324 in respect of breast surgery and ancillary expenses in the event of a finding that the plaintiff’s breast injuries and subsequent removal of her breast implants were causally related to the accident;

3. $12,596.24 in respect of abdominal and gastroenterological issues in the event of a finding that the plaintiff’s stomach, appendix and other gastroenterological issues were causally related to the accident;

4. $336.95 in respect of temporo-mandibular joint physiotherapy in the event of a finding that the plaintiff’s jaw and temporo-mandibular joint problems were causally related to the accident;

5. $429.65 in respect of general practitioner consultations in the event of a finding that the plaintiff’s claimed attendance on her general practitioner were causally related to the accident;

6. $1,510.78 in respect of psychological treatment in the event of a finding that the plaintiff’s psychological treatment was causally related to the accident.

350. Those conditional agreements required causality findings, which now follow.

Dental expenses

351. The plaintiff fell on her face injuring her jaw and her teeth. Her initial observations of those injuries suggested her teeth were damaged. She sought dental attention for those injuries. As explained at paragraphs [127] to [136] above, I have accepted the opinions of Dr See and Dr Howe in relation to those dental injuries and their cost consequences in preference to the contrary opinions of Dr Short. I therefore assess the plaintiff’s out-of-pocket expenses for dental treatment in the amount of $10,049.

Breast surgery

352. When the plaintiff fell, she did so forcefully hitting her chest on the pavement. Her breasts absorbed the shock of that sudden impact. Subsequent ultrasound examination of her breasts revealed bilateral silicone implant rupture had occurred which necessitated surgery for implant removal and related mastopexy, as explained by Dr Choy. I accept his unchallenged evidence in that regard.

353. In reaching that conclusion I have not overlooked the opinion of Dr Haddad which suggested the plaintiff’s breast implant ruptures were possibly due to spontaneous degradation of those implants over time because of the length of time they had been in situ. I conclude that Dr Haddad’s opinion in that regard involved unsupported speculation that did not meet the standard of reasoning for acceptance of expert testimony: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87]. I have therefore discounted that opinion and I have instead preferred the more contemporaneously-reasoned evidence of the treating surgeon, Dr Choy, based on the plaintiff’s complaints to him at the time.

Abdominal and gastroenterological issues

354. As recorded at paragraph [139] of these reasons, I have found that the plaintiff’s abdominal surgery for the gastrointestinal issues concerning her appendicectomy and the release of bowel adhesions was not causally related to her fall. Therefore her claim for the cost of that surgery in the amount of $12,596.24 should be disallowed.

Temporo-mandibular joint physiotherapy

355. The plaintiff claims out-of-pocket expenses of $336.95 for temporo-mandibular joint physiotherapy. In conformity with my findings at paragraphs [129] and [140] above, to the effect that her need for such treatment was fall-related, that claimed sum should be allowed.

General practitioner consultations

356. The plaintiff claims $429.65 for general practitioner consultations. Having regard to the chronology of those consultations in Exhibit “4”, and the subject matter of those consultations, I find that this component of her claim should be allowed.

Psychological treatment

357. The plaintiff claims $1510.78 for psychological treatment by Ms Picciau, a clinical psychologist. Her notes of those consultations are comprehensive and serve as justification for that claim, which I allow.

Summary of findings on out-of-pocket expenses

358. In summary, I accept that the plaintiff has incurred the following out-of-pocket expenses due to the effects of her fall:

(a) Dental treatment	$10,049
(b) Breast surgery	$24,324
(c) Abdominal surgery	$Nil
(d) TMJ physiotherapy	$336.95
(e) General practitioner	$429.65
(f) Psychologist	$1,510.78
Total	$36,650.38

359. I therefore assess the plaintiff’s past out-of-pocket expenses in the amount of $36,650.38.

Summary of damages assessment

360. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non-economic loss	$159,500
(b) Past economic loss	$47,200
(c) Past loss of employer funded superannuation	$5,192
(d) Future economic loss	$80,000
(e) Future loss of employer funded superannuation	$9,600
(f) Future out-of-pocket expenses	$6,000
(g) Future domestic assistance	$10,000
(h) Past out-of-pocket expenses	$36,650.38
Total	$354,142.38

Disposition

361. The plaintiff has established her claim in negligence against the fourth defendant but not the first defendant. The fourth defendant has established its contributory negligence defence which has been assessed at 20 per cent. The plaintiff’s damages assessed at $354,142.38 must therefore be reduced by 20 per cent to $283,314.

Costs

362. As the plaintiff has succeeded in obtaining a judgment in her favour against the fourth defendant, she should have an order that the fourth defendant should pay her costs of the proceedings against that defendant. The first defendant’s costs in respect of the plaintiff’s unsuccessful claim against it should be paid by the plaintiff. Those costs should be on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

363. I make the following orders:

1. Verdict and judgment for the first defendant on the plaintiff’s claim against that defendant;

2. The plaintiff is to pay the first defendant’s costs on the ordinary basis unless a party can show an entitlement to costs on some other basis;

3. Verdict for the plaintiff against the fourth defendant in the assessed amount of $354,142.38;

4. After applying the contributory negligence finding of 20 per cent, judgment for the plaintiff against the fourth defendant in the amount of $283,314;

5. The fourth defendant is to pay the plaintiff’s costs of the proceedings against that defendant on the ordinary basis unless a party can show an entitlement to costs on some other basis;

6. The exhibits may be returned;

7. Liberty to apply on 7 days’ notice if further or other orders are required.

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Amendments

10 October 2022 - Image at paragraph [7] inserted

Decision last updated: 10 October 2022