Gladstone v Public Transport Authority of Western Australia - [2022] WADC 6

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   GLADSTONE -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [2022] WADC 6
CORAM:   MACLEAN DCJ
HEARD:   11-14 AUGUST 2020 (CLOSING SUBMISSIONS 2 DECEMBER 2020)
DELIVERED          :   11 FEBRUARY 2022
FILE NO/S:   CIV 4435 of 2018
BETWEEN:   JAMES WILLIAM GLADSTONE
Plaintiff
AND
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Defendant

Catchwords:

Occupiers' liability - Negligence - Ankle injury - Duty of care - Duty to warn - Obvious risk - Standard of care - Damages

Legislation:

Civil Liability Act 2002 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr A A Nolan
Defendant	:	Mr G P Bourhill SC

Solicitors:

Plaintiff	:	Simon Walters
Defendant	:	Clyde & Co (Perth Office)

Case(s) referred to in decision(s):

Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Houlahan v Pitchen [2009] WASCA 104
Nikolich v Webb [2020] WASCA 169
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Winiarczyk v Tsirigotis [2011] WASCA 97

MACLEAN DCJ:

The slip

In 2014 William James Gladstone was living in Bassendean and working in West Perth as a health and safety manager. His routine included driving from his home to the Bassendean Train Station, parking there and then taking the train to work.
On 26 May 2014 Mr Gladstone arrived at the Bassendean Train Station and looked for a place to park. He noticed construction work and saw a temporary car park (Temporary Car Park) adjacent to Prospector Loop. Mr Gladstone parked there. The Temporary Car Park was different to the main car park. It was unmarked and the surface was blue metal gravel. The main car park was bituminized with marked parking spaces. This was the first time Mr Gladstone had used the Temporary Car Park. Mr Gladstone got out of his car, orange bunting presented as a barricade to a footpath, and he turned to walk toward the road. Crossing the threshold between the Temporary Car Park and the road he looked for traffic and stepped with his left foot on the verge onto the road with his right foot from the Temporary Car Park and his right foot rolled and twisted and strained his right ankle. The inside of his foot came up and the outside of his foot came down. Mr Gladstone felt the stone under his shoe. There was an issue as to whether Mr Gladstone had said that he stood on one stone or more than one blue metal stone. Nothing turns on this.
I find that Mr Gladstone was an accurate witness.
After he rolled his ankle Mr Gladstone partially collapsed. He leant on his car for support to keep the weight off his ankle and he experienced intense pain from his ankle to his knee. Mr Gladstone composed himself. He was distraught. He was saying to himself 'I can't go through this again; I can't go through this again'. While leaning against his car Mr Gladstone saw some blue metal gravel on the road and saw the blue metal gravel spread started from the roadside edge of the kerb and extended 20 cm or 30 cm into the road. The blue metal gravel ranged in size from 1 cm ‑ 5 cm in diameter.
Mr Gladstone drove home to treat his leg and spent about two hours doing this. He strapped his ankle, changed his business shoes for safety boots and returned to the area where he had injured himself and he took a photograph of that area.
After reporting the matter to construction workers at the train station and getting the contact information for the project manager of the construction site, Mr Gladstone went to work.
A month later Mr Gladstone returned and took photographs of where he parked.

The injury and the treatment - The ankle prior to 26 May 2014

Mr Gladstone was treated by a physiotherapist on three occasions. He also received treatment from his general practitioner Dr Jooste and was prescribed anti-inflammatory and pain medication. He also received an MRI.
Dr Jooste is an experienced general practitioner. He examined Mr Gladstone on 29 May 2014. Mr Gladstone's ankle was strapped following treatment by a physiotherapist. Dr Jooste removed the strapping and saw that Mr Gladstone had a small effusion of the ankle. Dr Jooste considered:
Any effusion of the ankle is a significant one. That's a collection of fluid within the joint space. He was tender of the ligaments on the lateral, the outside, aspect of the ankle, ... most noticeably at the anterolateral ligaments called the anterior talofibular ligament, which is a common place for injury with rolled ankles he was also tender at the outside of the calf along with a group of muscles called the peroneal muscles that extend a tendon down to the lateral aspect of the foot. The two injuries are often co‑existent.
Dr Jooste's opinion was the objective signs that he observed were consistent with Mr Gladstone's symptoms and that Mr Gladstone complained of those symptoms on the first examination and this consistency between the objective signs and symptomology remained on the third and final occasion on 2 November 2015 when Dr Jooste saw Mr Gladstone. On the third examination the recorded symptoms were continued discomfort on the lateral aspect of his ankle, more with prolonged use and prolonged standing, a reduced range of movement, loss of utility of the ankle and foot causing psychological distress and the loss of enjoyment of recreational activities.
Mr Gladstone saw Dr Jooste on three occasions. Amongst the advice and treatment Dr Jooste offered he recommended Mr Gladstone see the orthopaedic surgeon, Dr Reza Salleh, for review. Dr Salleh had previously successfully treated an injury that Mr Gladstone suffered to his right ankle.
That treatment included surgery and substantial rehabilitation. Mr Gladstone, although pleased by the results of the treatment, did not wish to experience a similar course of treatment and was fearful of seeing Dr Salleh again. Additionally, Mr Gladstone has a phobia of needles. This phobia increased the difficulty and fear Mr Gladstone experienced contemplating a further treatment with Dr Salleh.
Apart from review by medical specialists for the course of these proceedings, Mr Gladstone did not seek any other medical assistance. A lengthy consultation with Dr Jooste in September 2015 was preceded by a request for a medical report for these proceedings.
I accept Dr Jooste's evidence.

Consequences after 26 May 2014

Mr Gladstone experienced difficulties following the slip. These included walking for a distance over 50 m before experiencing pain to his ankle. Pain in swimming, pain which prevented him from playing squash or scuba diving. Mr Gladstone now avoids any physical activity where he believes he may roll his ankle. He now undertakes fewer activities with his daughter and avoids social interactions and sports in the community.
Mr Gladstone is now employed in the Pilbara with a miner. Not all his work is in an office. He does go on site and does walk. He actively avoids areas where there is rubble and describes himself as overly cautious. Mr Gladstone's self-described caution and ankle soreness were the main clinical presentations that he presented to Mr Harper, a medical practitioner and experienced occupational and public health physician.
Mr Gladstone's account of the rating of the pain when he saw the physiotherapist as being 2 ½ ‑ 3 out of 10 differed from the account Mr Harper recalled being given in April 2017 as it being 5 out of 10. Nothing turns on this. I accept that the disability was as described by Dr Harper as 'one where he walks for a period and standing after a period of time so in fact his problems come after that activity'.
Mr Gladstone's injury was an orthopaedic injury. He did not seek treatment from an orthopaedic surgeon. I accept the experiences of his previous surgery and his recuperation and his needle phobia positively dissuaded him from seeking orthopaedic review.
Mr Gladstone's physical injury brought another impairment into sharp relief. Accordingly, Mr Gladstone was reviewed by the psychiatrist, Dr De Felice. Dr Edward-Smith who is also a psychiatrist was engaged by the Public Transport Authority (PTA) to review Mr Gladstone.
Dr De Felice's evidence, which I accept, and which I did not understand was contradicted, challenged or overwhelmed by Dr Edward‑Smith's evidence, was, Mr Gladstone has a phobia of re‑injuring his right ankle and that he, at the time of Dr De Felice's review on 2 May 2019 continued to display ongoing symptoms of his phobia. Dr De Felice's opinion was that the phobia was precipitated by the accident of 2014. To the extent that Dr De Felice's evidence and Dr Edward‑Smith's evidence differed as to the cost of future medical treatment I preferred Dr De Felice's evidence. Dr Edwards‑Smith conceded that Dr De Felice's conclusion was based on his assessment and was valid; just as her view was based on her assessment and in her view was also valid.
A phobia is a recognised psychiatric condition. I am satisfied Mr Gladstone is left with a residual disability of 7.5% arising from this condition. I am satisfied that this phobia is in part influenced by his earlier injury. Such seems apparent from his almost contemporaneous expression of dread following the accident. I cannot find to which degree, but I do find that the major contribution was most likely the accident of 26 May 2014.
Dr Goodheart a medical practitioner of 35 years' experience and a consultant neurologist for 30 years considered that Mr Gladstone had a soft tissue injury to his ankle. There was no neurological finding of relevance to this claim.

The Public Transport Authority

The PTA had the care, management and control of the Bassendean Train Station. It constructed the Temporary Car Park and was the occupier of the train station and the Temporary Car Park.
The PTA denied:
•That Mr Gladstone slipped on blue metal gravel in the Temporary Car Park.
•If he did, it was on Prospector Loop, a road adjacent to the car park.
•It was not the occupier of the road.
•Mr Gladstone suffered the injuries.
Three potential sources of legal duty arise from the common law, the Occupiers' Liability Act 1985 (WA) (OLA) and Civil Liability Act 2002 (WA) (CLA).
The fundamental issue in this confluence of claims and prospective liabilities was, as explained by counsel for the PTA:
whether the presence of some blue metal at the side of a temporary car park and on a road way was or was not a hazard of such a level as required the PTA to take some steps to remove it because otherwise it posed a foreseeable risk of injury to Mr Gladstone.
Mr Gladstone's claim against the PTA was in negligence and under the common law and breach of a statutory duty of care under the OLA. The way that the case was presented the parties agreed that the outcome would not be different whether the claim was in negligence or under the OLA.

Pleadings

The particular allegation of negligence and breach of s 5 of the OLA, taken from but not quoted from Mr Gladstone's statement of claim is that the PTA was negligent in failing to:
(a)institute an adequate procedure involving inspection and maintenance of the premises to ensure it was safe for pedestrians;
(b)ensure a safe walkway from the premises to the Bassendean Train Station;
(c)designate staff cleaning duties to minimise the risk of slipping hazards on the premises;
(d)erect warning signs to warn Mr Gladstone that there was debris on the ground posing a slipping hazard; and
(e)observe the existence of the slipping hazard on the ground and take immediate action to avoid a slipping hazard to Mr Gladstone.
And that the PTA was in breach of its statutory duty by failing to:
(f)warn of dangers inherent in premises;
(g)take reasonable precautions to ensure that Mr Gladstone would not suffer injury or damage;
(h)consider the likely gravity of possible injury to Mr Gladstone; and
(i)take steps to warn Mr Gladstone of the risk of injury in circumstances where it would be easy to warn of the danger.
The PTA position, taken from but not quoted from its defence, was that:
(a)it was a public body as defined in s 5U of the CLA;
(b)it is responsible for the care and management of all public train stations and bus stops throughout Western Australia;
(c)sweeping roads is not part of its usual activities and that it would have had to pay for a street sweeper to sweep the road frequently and regularly;
(d)pursuant to s 5W of the CLA the functions it was required to exercise were limited by the financial and other resources that were reasonably available to it for exercising those functions;
(e)the probability that harm would eventuate as a result of a person such as Mr Gladstone slipping on blue metal gravel on the road adjacent to the Temporary Car Park was low because:
(i)the risk was obvious;
A.the Temporary Car Park was constructed of blue metal gravel;
B.blue metal gravel surfaces are common in outdoor areas in Perth;
C.blue metal gravel on the ground adjacent to a blue metal gravel surface is common in outdoor areas in Perth;
D.Mr Gladstone's accident occurred in the morning during daylight hours;
E.members of the public including Mr Gladstone could have seen the blue metal gravel on the road during daylight hours;
F.it was obvious to any reasonable person in Mr Gladstone's position who saw blue metal gravel on the road that walking on the gravel presented a foreseeable risk of slipping and injury;
(ii)prior to 26 May 2014, the PTA was not aware of any other person slipping on the blue metal gravel in the Temporary Car Park or adjacent to the Temporary Car Park;
(iii)the blue metal gravel on the road was on the edge of the road next to the kerb and there were few pieces of blue metal gravel on the road and those pieces could easily be avoided by a pedestrian; and
(iv)the Temporary Car Park was in place for no longer than six months.
(f)a person in the position of the PTA, being a public body with limited resources, would not have taken any precautions in response to the risk of a person slipping on blue metal gravel on the road because the risk was obvious, there was low probability of injury and the burden of sweeping the debris from the road on a frequent and regular basis was greater than the probability that harm would eventuate;
(g)if blue metal gravel on the ground posed a slipping hazard (which was denied), the PTA said that the danger was an obvious risk to members of the public, including Mr Gladstone in accordance with the definition of 'obvious risk' set out in s 5F of the CLA; and
(h)pursuant to s 5O of the CLA the PTA did not owe Mr Gladstone a duty to warn of the obvious risk of slipping on blue metal gravel on the road.

How was the injury caused?

I am satisfied that Mr Gladstone suffered an injury and that he did so on Prospector Loop adjacent to the Temporary Car Park as he described.
I am satisfied that the injury took place when Mr Gladstone stepped with his right foot onto the road and that this foot met loose blue metal gravel which was scattered on the road.
I am also satisfied that the blue metal gravel had spilled over from the Temporary Car Park.
I am also satisfied that Mr Gladstone's right foot met blue metal gravel like that he saw later in the day when he returned to the scene. I am satisfied his ankle inverted and he experienced intense pain and agony following which he rested before going home to treat his ankle.

Obvious risk

Section 5O of the CLA provides:
5O.No duty to warn of obvious risk
(1)A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
Section 5M provides that in div 6 'obvious risk' has the meaning given by s 5E. In turn, s 5E states that 'obvious risk' has the meaning given by s 5F. Section 5F then provides:
5F.Term used: obvious risk
(1)For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2)Obvious risks include risks that are patent or a matter of common knowledge.
(3)A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous, or physically observable.
Subject to s 5O (2), on its proper construction s 5O removes any duty of care to warn of an obvious risk.
I adopt and apply the principles as enunciated by the Court of Appeal in Nikolich v Webb [2020] WASCA 169 [90] - [92].
I do not accept that a reasonable man in Mr Gladstone's position would expect to find a firm solid bituminized surface underfoot at the time that he was walking from the Temporary Car Park to the road and at the time that he entered upon the road. It was obvious that blue metal gravel would slip in the way that it did in this case.
There was nothing unusually, innately, or uniquely slippery about the Temporary Car Park or the area where Mr Gladstone slipped.
Mr Gladstone and a reasonable person in his position, exercising ordinary perception, intelligence and judgment, would have known that there was construction taking place, that the car park was temporary, that he was walking across a Temporary Car Park which had a blue metal gravel surface and that blue metal gravel moves.
Based on my findings of fact I am satisfied that a reasonable person in the position of Mr Gladstone would have known:
1.A dry sealed car park without loose blue metal gravel is safe to walk.
2.A car park covered with blue metal gravel, presents at least a moderate risk of slipping.
To walk across the Temporary Car Park safely, it would be necessary to pay attention to where one was walking and tread carefully.
These observations are all matters of common knowledge and patently obvious to any adult with experience of walking outdoors. I am satisfied that the risk of slipping and suffering significant injury on a part of the Temporary Car Park on 26 May 2014 was an obvious risk within the meaning of s 5F of the CLA. It follows that because of the operation of s 5O of the CLA, the PTA did not owe a duty of care to Mr Gladstone to warn him of that obvious risk.
A blue metal gravel surface is a hazard of an ordinary character that a person walking around the Temporary Car Park could be expected to encounter and could be expected to watch out for.

Duty of care owed

The PTA owed Mr Gladstone a duty of care, at common law, such as to prevent, as reasonably practicable, the foreseeable risk of injury or harm to Mr Gladstone as a member of the public who interacted, that is, crossed, stepped or walked in, over or adjacent to the Temporary Car Park.
The PTA also owed a duty under s 5 of the OLA to exercise reasonable care to avoid risk of physical injury to Mr Gladstone by reason of any danger due to the state of the Temporary Car Park or to anything done or omitted to be done by them.
Section 5 of the OLA provides:
Duty of care of occupier
(1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.

The PTA admitted it occupied the Temporary Car Park.
Section 5(4) of the OLA provides:
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a)the gravity and likelihood of the probable injury; and
(b)the circumstances of the entry onto the premises; and
(c)the nature of the premises; and
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e)the age of the person entering the premises; and
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
The starting point is whether the blue metal gravel was a danger which was due to the state of the premises. I consider that there was a danger that a pedestrian may slip, fall or injure themselves after stepping on blue metal gravel.
The second question is whether the PTA took such care as in all the circumstances of the case was reasonable to see that no person suffered injury due to the danger, considering the matters in s 5(4) of the OLA.
Any fall onto a hard surface may be considered to have potentially serious results, in terms of physical injuries and consequential losses.
Section 5(4)(g) of the OLA is particularly relevant in this scenario.
The principles in s 5B of the CLA are also relevant:
5B.General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
I find the risk of a slip and a fall precipitated by standing on blue metal gravel was foreseeable. The precise mechanism of any and every fall was not foreseeable.
What was a reasonable response to the risk? And what was the burden of otherwise taking precautions against the risk, compared to that risk?
I consider that the likelihood of an accident at the Temporary Car Park was very small, due to several facts: Blue metal gravel surfaces are commonplace; construction at train stations is commonplace and temporary car parks are commonplace. Thus, the risk itself was of a low probability of occurring. The potential injury from a fall could vary from minor to serious.
The common law and statutory duties did extend to ensuring that the loose blue metal gravel which comprised the surface of the Temporary Car Park did not spill over onto Prospector Loop and pose a risk of injury or harm to members of the public including Mr Gladstone who walked on the part of Prospector Loop immediately adjacent to the Temporary Car Park.
Those duties extended to ensuring that blue metal gravel which spilt from the surface of the Temporary Car Park was cleared in a timely manner. This is a matter of balancing. A single stone would not require a rapid response. Equally, if a large volume of blue metal gravel spilled from the Temporary Car Park this would increase the need for action that the care required.

Did the Public Transport Authority breach the required standard of care? What precautions should they reasonably have taken against the foreseeable risk of injury?

The common law and statutory duties respond to dangers that are a condition that presents a foreseeable risk of injury.
It was foreseeable that loose blue metal gravel may scatter onto the roadway. Obviously if a person were to step on a piece of blue metal gravel that person may roll their ankle or lose their balance.
The risk in this case that Mr Gladstone might step onto scattered blue metal gravel on the roadway was amplified, since there was orange bunting in place at the front of the Temporary Car Park that either worked as a physical barrier to the footpath which ran from the Temporary Car Park to the station or as a pedestrian disincentive to access the footpath or to investigate whether there was a passage through to it. However, there was a risk if there were no barrier to pedestrian traffic moving the other way over the car park to access the footpath.
Certainly, the risk of stepping onto scattered blue metal gravel on the roadway and suffering injury in the way Mr Gladstone did was foreseeable.
It was even possible for the blue metal gravel to become camouflaged with the surface of the road.
Having regard to the burden on the PTA by taking precautions to avoid the risk of harm I do not accept Mr Gladstone's submission that a reasonable person in the PTA's position would have inspected and maintained the Temporary Car Park to prevent the blue metal gravel from spilling and wonder how this was possible. A higher step from the car park to the road - which would have introduced another danger? Barricading both sides of the Temporary Car Park or abolishing the Temporary Car Park entirely? I do not accept that the PTA should have implemented a system to ensure that the road was swept and cleared of blue metal gravel. How might this have been done? By street sweeper patrolling and sweeping the edge of the road; pausing for vehicles and pedestrians leaving and returning to their cars and creating a new and different danger?
It was obvious that the works were being undertaken. The bunting clearly marked the Temporary Car Park. It was obvious that the surface of the Temporary Car Park was loose. It was obvious that blue metal gravel may fall onto the road.
I find that a reasonable person in the position of the PTA would not have taken any action in the circumstances of this case.
At the time of the accident the Town of Bassendean was already sweeping the full town four times per year. The cost of each sweep is between $11,000 and $12,000. The total cost per year is between $44,000 and $48,000. What was the PTA to do additional to that sweeping?
I cannot make a finding on the evidence as to the cost of sweeping services to sweep the road. I am satisfied that it would not have been as high as $11,000. The call out charge was $100 per hour but this was the contractors fee only. It is not clear what costs would have been incurred by the PTA and/or the Town of Bassendean in checking, calling for and later inspecting the work. It is not clear how long the work would take, and it is not clear how often it would have to be undertaken.
I do not consider that there is evidence to allow me to find, without speculating, that the cost of having the PTA task one of its employees to manually sweep the small portion of the roadway at varying intervals would be even less. It is not clear how often this would be required, or whether the road would have to be closed for the manual sweeping, how long the manual sweeping would take and what the hourly rate for an employee to do this work might be if a safe system of work for the employee could be created having regard to traffic moving both ways and cars entering and exiting the Temporary Car Park.
I do not accept that a reasonable person in the position of the PTA would have created a safe walkway from the Temporary Car Park to Bassendean Train Station. The existing walk from the car to the train station by the roadway allowed drivers access to the road. Opening the bunting would work to divert pedestrians on the footpath to crossing the footpath to the road over the loose blue metal gravel exposing them to risk and to more blue metal gravel being spread. Opening the bunting would work to increase the risk of spreading blue metal gravel to the footpath.
The works were temporary. They were not exceptional or unusual.
The CLA applies when determining whether the defendant has breached its duty of care to Mr Gladstone. Mr Gladstone bears the onus of proving a breach of duty and must, therefore, prove, on the balance of probabilities, those matters set out in s 5B(1). The CLA does not modify or supplant the common law principles which determine whether a duty of care exists: Department of Housing and Works v Smith [No 2] [2010] WASCA 25.
I do not accept that the PTA breached either its common law or statutory duty of care.
Mr Gladstone's claim must be dismissed.
If I am wrong in my conclusion that reasonableness required no response to the risk, even though it was obvious and the reasonable expectation that other people will take care for their own safety then I would consider that pt 1C of the CLA applies to require me to consider that the functions exercised by the PTA are limited by the financial and other resources that are available to it.
Blue metal gravel, coming from the Temporary Car Park, would be an ongoing issue while the works were being undertaken. This would require regular, perhaps daily, sweeping.
The Town of Bassendean did not sweep the Temporary Car Park or the immediate area in April or May of 2014.
There was no specific evidence as to the daily cost of regular or daily sweeping. The evidence was that in addition to the officer from the Town of Bassendean going to look at the area and making a decision as to whether cleaning was required, there was an hourly rate of $100 per call out, according to the engineering works supervisor Cristafa Kim Mann. Mr Mann was employed by the Town of Bassendean. He was not involved in the PTA's decision-making process about sweeping. Due to budget restraints he was encouraged to try to limit the number of additional sweeps in the town.
The cost of daily sweeps would be unreasonable having regard to the risk posed by the blue metal gravel and the probability that the risk could be managed by pedestrians taking care as they walked through the area.

Alleged negligence by Mr Gladstone

If I am wrong about liability, I am persuaded that Mr Gladstone failed to take care for his own safety. I believe it is more likely than not that he misjudged his step in the transition from the driveway to the road, placing his foot on the blue metal gravel. In my view, this is something that a careful person would be unlikely consciously to choose to do. I believe that he misjudged the situation, probably unconsciously, stepped on the blue metal gravel, and unfortunately rolled his ankle. The pleading that he 'failed to take care for his own safety' is thus made out.
My conclusions therefore require that Mr Gladstone's claim be dismissed.
Had I found in favour of Mr Gladstone, I would have assessed his damages as follows.

Medical evidence and injuries

Mr Gladstone claimed that because of the injuries he sustained a partial disability of the right ankle which produced:
(a)pain, stiffness and tenderness of the right knee, right lower leg and right ankle;
(b)limitation of movements of the right leg and right ankle;
(c)a phobia regarding ankle injuries;
(d)psychological symptoms including anxiety and mood changes; and
(e)headaches and discomfort together with sleep disturbance,
and which will continue in the future.
I accept Mr Gladstone suffered extreme pain immediately upon suffering his injury. I accept that he applied first aid and rested his ankle for approximately two hours before returning to the accident scene to report his injury.
I accept also that he suffered intermittent and variable pain and I accept that the effect on Mr Gladstone's day-to-day life has been as described in Dr Harper's report dated 24 April 2017:
He is working 40 hours a week dividing his time between field inspections and administration. He is not losing any time from work but does experience aggravation in tenderness and soreness in the right ankle. He is also experiencing specific symptoms of anxiety. Ankle symptoms are aggravated by prolonged walking and standing. After work he stands and rests. Before work in mornings he says that his ankle is 'not too bad' …
Current treatment is Panadol once a month. He swims 3 times a week but avoids kicking as this aggravates ankle pain. There is no physiotherapy. There is no follow up with his family doctor. There are no plans for further treatment, but he will consider pursuing the referral to Dr Salleh.
I accept Dr De Felice's evidence that Mr Gladstone is hypervigilant and engages in avoidant behaviour, and that Mr Gladstone suffered from a phobia of re-injuring his right ankle.
I accept Dr Goodheart's evidence that in his opinion Mr Gladstone suffered mainly a soft tissue injury to his ankle and that Mr Gladstone sustained a 10% loss of the full efficient function of his right leg below the knee as a result of his injuries and that when assessing permanent disability he would defer in his opinion to an orthopedic surgeon and that:
With the description of his symptoms and his associated discomfort with activity, I felt he was likely to have symptoms which would persist for the foreseeable future, which under the circumstances to me suggests a permanent disability
and that in the assessment of that disability he would have taken into account Mr Gladstone's previous injury although Mr Gladstone told him that he had made a pretty good recovery from that injury.
Dr Goodheart also gave evidence, which I accept, that his specialty was as a neurologist and that having reviewed Mr Gladstone there was no neurological problem for him to really express an opinion about.
I accept Dr Leeks' evidence that on examination of Mr Gladstone on 25 February 2020 that she was unable to identify any tenderness over the lateral malleolus or the anterior aspect of the distal fibular aspect of Mr Gladstone's right ankle.
Dr Edwards‑Smith also gave evidence that Mr Gladstone was suffering from a specific phobia related to a fear of re-injury to his right ankle.
I accept that a specific phobia is classified as an anxiety disorder under the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) classification system and is a mental disorder categorized by fear of an object or circumstance being disproportionate to the reality of the case.
I accept Mr Gladstone suffers from two phobias, a phobia of needles and a phobia of re-injury and that collectively these have accounted for his lack of attendance on medical practitioners for treatment.
As between Dr Edwards‑Smith and Dr De Felice there was a difference as to the number of treatment sessions that were required. On balance I prefer Dr De Felice's assessment given the impact of the phobia upon Mr Gladstone to - in the period proximate to the injury - work to dissuade him from pursuing treatment and would - if I had found that the PTA liable for the injury suffered by Mr Gladstone I would have awarded the amount claimed by Mr Gladstone for future medical treatment in the sum of $4,000 as well as an amount of special damages in the amount of $491.75 reflecting the agreed amount of past medical expenses incurred by Mr Gladstone.

Non-pecuniary loss

The amount assessed as damages for non-pecuniary loss must be fair and reasonable having regard to the injuries received and the disabilities caused having regard to current general notions of fairness and moderation: Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (judgment of the court). The amount must also be proportionate to the situation of the particular plaintiff: Houlahan v Pitchen [107], Winiarczyk v Tsirigotis [71].
In this case, the award of damages for non‑pecuniary loss is affected by the provisions of s 9 and s 10A of the CLA.
Pursuant to s 9(1) of the CLA, no damages for non‑pecuniary loss are to be awarded if those damages are assessed to be less than Amount A or less, which is presently set at $23,000. Where damages fall between Amount A and Amount C (presently $66,500), the damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over Amount A: s 9(2).
In my view in respect to non-pecuniary lossesI have already set out my findings about the injuries suffered by Mr Gladstone. In the immediate aftermath of the accident Mr Gladstone experienced pain and discomfort and there is also some ongoing discomfort and a minimal loss of function to his right leg below the knee together with the phobia of re-injuring his right ankle.
In my view these impact on Mr Gladstone's enjoyment of life and I assess damages for non‑pecuniary loss in the sum of $20,000. By reason of s 9(1) of the CLA and because the award of non‑pecuniary loss is less than Amount A no damages are awarded for non‑pecuniary loss.
By reason of my findings on liability I dismiss the action against the PTA. I will hear counsel as to costs after these reasons are delivered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JH
Associate to Judge D. MacLean
8 FEBRUARY 2022