Greenwood v Richmond Riparian Management Landcare Inc

[2007] NSWDC 185

CITATION:	Greenwood v Richmond Riparian Management Landcare Inc [2007] NSWDC 185 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12 June 2007, 13 June 2007, 14 June 2007, 15 June 2007, 10 August 2007, 13 August 2007, 14 August 2007, 15 August 2007, 16 August 2007 and 17 August 2007
JUDGMENT DATE:	20 September 2007
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for plaintiff against the defendant in amount of $368,305.62; parties to be heard on costs
CATCHWORDS:	Negligence - Personal injury - Lose footing, slide on sloped land into a hole - Ankle injury - Occupier’s liability - Planting of trees organised by defendant on site prepared by it - Performed by volunteers - Land owned by member of defendant - Environmental aspects - Whether contributory negligence of plaintiff - Damages
LEGISLATION CITED:	Civil Liability Act 2002, ss 5B, 5C, 5D, 5F, 5G, 5H and 16
CASES CITED:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Bassett v Host [1982] 1 NSWLR 206 Donoghue v Stevenson [1932] AC 562 Fennell v Supervision and Engineering Services Holdings Pty Ltd and Santos Ltd (1988) 47 SASR 6 State of New South Wales v Seedsman (2000) 217 ALR 583
PARTIES:	Verity Greenwood – Plaintiff Richmond Riparian Management Landcare Inc – Defendant
FILE NUMBER(S):	Matter No 2453 of 2007
COUNSEL:	Mr A Quinlivan (Plaintiff) Ms J C Chapman (Defendant)
SOLICITORS:	Leitch Hasson Dent (Plaintiff) Phillips Fox (Defendant)

JUDGMENT

1 A tree-planting project on the slopes of a property near the Hawkesbury River at Richmond on Sunday, 28 April 2002 was intended to maintain and improve the environment by stabilising the banks of the river against soil erosion. The planting was undertaken by volunteers who were concerned about environmental issues and they provided their labour and time on an unpaid basis. The plaintiff, Verity Greenwood, was a participant in the planting and who proposed also to provide a barbeque lunch for the other volunteers. In moving from the top of the slope she lost her footing, slid down on her buttocks and caught her left foot in a hole at the bottom of the slope and thereby sustained a severe injury to the left ankle. After surgical repair, consequent disabilities were said to have affected the plaintiff’s personal, domestic and working life in a continuing way.

2 The defendant, Richmond Riparian Management Landcare Incorporated, admitted it was the organiser of the tree-planting event on 28 April 2002 at the subject site, that it prepared the site for the purposes of the event and supplied the trees and some tree-planting tools. It was incorporated in 1998 from a group of owners of five local farms for the purpose of stopping the erosion of the river banks by the planting of trees; also, in order for the farmers to obtain a water licence from the Department of Land and Water Conservation they had to plant trees along a 10-metre strip of the riverbank for each farm which occupied a total of five kilometres of river frontage. The defendant was a non-profit organisation with a nominal membership fee to cover miscellaneous expenses, such as postage, but dependent upon funding from the federal government – reliance was placed on volunteers for manual labour who were arranged through an environmental organisation, known as Men-of-the-Trees, which itself was made up of volunteers. Voluntary labour came from scout groups, Duke of Edinburgh Award candidates, persons on “work for the dole” programmes, prisoners through the Department of Corrective Services, community groups and the like. One such group was the Macquarie University Chapter of Golden Key International Honour Society which was concerned with programmes of academic excellence of an environmental nature for its university students whose members participated from time-to-time in tree-planting events.

3 The present tree-planting event was arranged and organised by the defendant through Men-of-the-Trees using labour from members of the Macquarie Chapter of the Golden Key Society of which the plaintiff was a member and office-bearer. The site for the planting was on the property of the defendant’s President. Consistent with such occasions, the planting was to be a family occasion with a barbeque lunch.

Course of the trial

4 At the outset, it is only appropriate to make some comments about how this litigation arose against the present defendant and the course of the ensuing hearing of the matter. For that purpose, it is necessary to understand that following the injury to the plaintiff she sued originally Men-of-the-Trees (DC Matter No 1505 of 2005) but, on accepting that that was the wrong defendant, the matter was settled on 18 September 2006 by a consent verdict for the then defendant with each party to bear its own costs. Apparently, agreement was reached through the legal representatives of the present defendant, who acted also for the original defendant, for fresh proceedings to be commenced against it in respect of the subject injury to the plaintiff.

5 The hearing of the trial was set down for three days plus, say four days in length, starting on 12 June 2007. It occupied nine full hearing days, plus one day of mediation by an Assistant Registrar of the Court on 25 June 2007, and was completed on 17 August 2007 when judgment was reserved. Even then, counsel had to be given leave to provide written details to the Court by 29 August 2007 of outstanding issues relating to the calculation and quantification of damages but that material was not provided until 14 September 2007.

6 The plaintiff gave evidence over a period of about three and a half days during the first four days of hearing made up of one and a quarter days in-chief and two and a quarter days in cross-examination. That exercise involved detailed probing into most aspects of her life.

7 The remainder of day four and day five of the hearing occupied other witnesses for the plaintiff until late on day five an issue arose about particulars given to the defendant of domestic assistance to the plaintiff which resulted in amendment sought to the claim of sizeable proportions in terms of both the scope of assistance and quantum. Most of day six of the hearing, notwithstanding attempts by the Court to facilitate and expedite the scope of the issues, was taken up with debate on those issues – the defendant then served on the plaintiff a request for further and better particulars asking 120 questions which that day were answered by the plaintiff. Then, at the commencement of day seven of the hearing the plaintiff withdrew the application to amend the particulars and the hearing proceeded with nearly two days of evidence for the defendant and, finally, submissions on the ninth hearing day.

8 The matter was hard fought and all aspects of liability, contributory negligence and damages were contested. It became obvious, as I remarked to counsel early in the proceedings, that the matter “was growing like topsy”, and, so, in the absence of any earlier meaningful discussions between the parties, on the fourth hearing day on 15 June 2007 I ordered mediation to occur on 25 June 2007 – it was, as it happened, unsuccessful, but even so was an endeavour to contain the proceedings after the estimated time required had expired, or, hopefully, resolve the issues in whole or in part.

9 The matter proceeded with no agreement or even any accommodation on anything. Indeed, in final submissions it was put for the defendant that the plaintiff’s case was a fabrication – there was no hole in which her left foot caught, it was impossible for the accident to have occurred as she said, the first time her version of what occurred was when she gave evidence and none of the medical evidence or other documents supported the mechanics of her fall; it was put also that the medical evidence did not support her claims of continuing disability or inability to engage in gainful full-time employment and the domestic assistance claimed was not required.

10 For instance, to make the point, there was not even any agreement on the mathematics of the plaintiff’s claim for past out-of-pocket medical expenses as to either need or quantum, no doubt due to some extent by the plaintiff’s failure to provide the defendant with details thereof and of receipts. There was no offer by the defendant of a suggested percentage of a most extreme case for non-economic loss, but, presumably, the position was taken it was less than the 15 per cent threshold under s 16 of the Civil Liability Act 2002. There was no acknowledgement of the hourly rates for domestic assistance at the relevant times or of hourly rates for calculating economic loss. Those were the sorts of matters the Court had itself to raise at the conclusion of the hearing to be provided by 29 August 2007 and, I suspect, due no doubt to non-communication between the parties before and during the trial.

11 It may be given that the case was difficult. However, I have to say my perception of the trial as conducted by both partied showed a decided lack of prior preparation on the plaintiff’s side as to the time estimation in what would be involved in the proper conduct of the trial and on the defendant’s part an approach of overly diligent attention to matters of detail. One detected a certain tension between the parties and an unwillingness to communicate. The concern I have is not to allow such approaches to litigation to go unsaid. Parties to litigation have an entitlement to know how long their case might reasonably take. After all, this case was between an injured individual plaintiff who had freely given her time and labour to the defendant, no doubt backed and funded by an insurer, for the direct benefit of the defendant’s environment in improving the property of one of its farmer members. It was a case, in my overall view of the circumstances, which fell within the type of case regularly seen in the courts and as involving the happening of a straightforward injury with consequent disabilities of a readily identifiable nature. The original estimated time for hearing of three days plus was reasonable – the actual time taken of nine days, effectively ten days with the additional written material, only goes to demonstrate the points I have been endeavouring to make.

12 It was remarked by Hope JA in Bassett v Host [1982] 1 NSWLR 206 at 207 that “a trial is not a game; it is an attempt, on behalf of the community, to resolve in accordance with law the questions at issue between the parties.” I would respectfully adopt his Honour’s comment. The conduct of litigation, in my view, has important public interest considerations in proceeding in a timely, efficient and cost effective way. Where that does not occur, as in this case, then I think the Court has a duty to say so. I am not concerned to apportion blame, and expressly do not do so, rather one would hope my comments are seen as constructive, as they are intended to be, and to be had in mind for the future in the more accurate estimation of hearing time required and containing the hearing within the estimate.

The claim and the defence

13 The plaintiff was a visitor to the subject site at Richmond to perform the voluntary work of planting trees. The defendant was a non-profit organisation which organised from time-to-time occasions for the planting of trees, in this case tube-stock, on the properties of its member farmers along the banks of the Hawkesbury River to avoid soil erosion and thereby qualify for a water licence. In so agreeing to perform the planting on 28 April 2002, the plaintiff pleaded she was directed by the defendant to work on a slope prepared by the defendant to do so when she slipped down the slope and into a hole and suffered severe injury of a fractured left ankle, shock and sequelae. The action was brought in negligence for breach of the alleged duty of care owed to the plaintiff to take reasonable care for her safety by treating the grass on the slope with poison, failing to remove the dead grass, digging holes on the slope and directing the plaintiff to work in an area which had an unusual risk of injury; if the defendant did not treat the grass on the slope with poison, it was alleged in the alternative that the circumstances in which the plaintiff was directed to work gave rise to an unusual risk of injury and a non-delegable duty on the defendant to take precautions to avoid the risk of injury to the plaintiff, including by the provision of a safe system of work. Particulars of negligence included an alleged failure by the defendant to properly supervise and train the plaintiff so as to avoid the foreseeable risk of injury. As the matter was argued, the breach of the duty of care concentrated on the condition of the thick, dead grass on the slope and the presence of a large hole.

14 The defendant did not admit the work performed by the plaintiff was for it but rather for the Golden Key Society and denied the direction to the plaintiff to work on the slope prepared by it. The mechanics of the plaintiff’s fall and its causes were denied. The particulars of injuries and disabilities were denied.

15 Further, and in the alternative, the defendant pleaded contributory negligence by the plaintiff in failing to keep any proper lookout for her own safety and in failing to take any adequate precautions. Sections 5F, 5G and 5H of the Civil Liability Act as to “obvious risks” were relied upon as a defence to the action in that walking down a steep grass slope carried a risk of injury that, in the circumstances, was obvious to a reasonable person so that there was no duty on the defendant to warn the plaintiff of any risk.

16 The provisions of the Civil Liability Act apply to the determination of this matter, including, as the case was argued, ss 5B, 5C and 5D as to the duty of care and causation.

Plaintiff’s background

17 The plaintiff was born on 3 November 1950 so that at the time of the accident she was 51 years of age and nearly 57 years as at the date of trial. She had led a particularly active life in terms of education and training, employment and in her family life. She first married in 1973 while a constable of police, divorced in 1979, and a second marriage in 1982; in the period from 1975 to 1993 bore six children, three sons and three daughters; her then second husband died unexpectedly in 1995. In 1997 she married her present husband, John Graham, who was then an inspector of police and who retired from the NSW Police Force in 2004 age 60 years after 42 years’ service.

18 Although leaving school for family financial reasons in 1966 at the end of Year 10 with the School Certificate, the plaintiff later had an impressive educational and employment history. She first commenced in 1968 a part-time diploma course in medical technology at the Institute of Technology of four nights a week while employed as a trainee medical technologist at Lewisham Hospital but discontinued the course in 1972. In April 1970 she entered the NSW Police Academy and became a sworn constable on 22 June 1970 with initial duties in lecturing to schools and community groups on traffic matters. Thereafter, her police service covered periods in the Criminal Investigation Branch and in the homicide, breaking and entering, armed hold-up and drug squads as well as in the Crime Intelligence and Electronics Surveillance Sections. She took maternity leave to have her first three children during the police service and completed with distinction a number of training courses; she was awarded the National Medal for Diligent Police Service in 1987. During a police career of about 17 years, the plaintiff had a wide exposure to police functions, including undercover and decoy work, court duties, escorts, domestic disputes, murder, drug crime, special weapons and operations, fraud squad, “white collar” crime and corporate affairs, and she developed curricula for and lectured in various training courses. After sustaining “hurt on duty” injury to two discs in her lower back while working with the Fraud Squad in 1985 carrying a typewriter, she was eventually in 1987 discharged on medical grounds with the rank of Detective Sergeant 3rd Class.

19 The plaintiff then concentrated on home duties on a full – time basis with her family and closely engaged in the activities of her children. She maintained she was able to manage her back condition at a satisfactory level. Apart from involvement with school activities, the plaintiff said she had a strong social network, with events at her home and elsewhere, and she played tennis, bushwalked and rode horses and trail-bikes.

20 After the sudden death of her then husband in 1995, the plaintiff commenced part-time study in 1997 as an external student at Macquarie University in a Bachelor of Arts course (majoring in psychology) and transferred to full-time study the following year. It was at that time she joined the Golden Key Society at Macquarie University and was elected as the Environmental Officer. She then in 1999 enrolled in a combined Bachelor of Arts / Bachelor of Laws degree, but changed the Arts major to human geography and natural resources. The Arts degree was completed in 2000 and in 2002 first class honours were awarded to her for a thesis on the funeral industry, no doubt undertaken because of her earlier interest in medical technology, and which involved research in interacting with funeral directors, corporations, institutions and the general public across the State.

21 The plaintiff’s interest in environmental matters resulted in her election in 2000 as President of the Macquarie Chapter of the Golden Key Society and she became heavily involved in community projects and represented the university locally, nationally and internationally as both a speaker and guest at events for the public and the academic fraternity. Since leaving the Police Force in 1987, the plaintiff had not been engaged in employment in the workforce and since 1997 to the end of 2001 she had been a full-time student and performing home duties attending to the needs of her relatively large family. However, her academic endeavours led to recognition with a number of awards, some of an extra-curricula nature to her studies, such as prizes for human geography and a national heritage study award; of note was her development of a conservation control plan for Willoughby Shire Council which required three months of footwork, taking photographs and many interviews. Her Golden Key Society activities involved attendance at seminars and conferences in Atlanta, Los Angeles and Chicago where she conducted workshops in relation to community service and leadership skills. Of note, in 2001 the plaintiff was awarded the Golden Key GEICO Adult Scholar Award for academic excellence, community service and in recognition of the ability to overcome problems in life so as to excel at university. In all of her endeavours in those respects, the plaintiff affirmed she was able to engage in them notwithstanding her 1985 back injury in the Police Force.

22 Sadly, in 2001 the plaintiff’s 17-year old son died and her mother contracted motor neurone disease requiring the plaintiff as her mother’s attorney to provide assistance additional to her existing family duties in attending to the needs of a large household. Even so, the plaintiff in December 2001 started employment as a project officer with the Northern Area Health Service located at Hornsby Hospital for three days a week in establishing what was called an integrated social indicator statistics project. This involved looking at the community in the context of society and the environment as to education, health, infrastructure and transport; it required extensive interviews with government officials and private organisations. Significantly, as this work was performed the plaintiff said she was offered consultancy work in relation to environmental matters because of her skill in interviewing and dealing with people. Then, in addition to continuing that work, the plaintiff resumed full-time law studies at the beginning of 2002. Her net earnings from the project officer job were $16.30 per hour for 20 hours a week, that is, $326.00 per week.

23 For recreation, the plaintiff acquired an interest in a farm at Little Hartley on the western side of the Blue Mountains and with her husband, Mr Graham, and children went there every second weekend to engage in horseriding, tennis, swimming, bushwalking and trail-bike riding. She, with Mr Graham, had an interest in horticulture and gardening and developed a garden on their 10-acre residential property at Galston. Again, her back condition did not inhibit those activities.

24 The emergent picture of the plaintiff was of a strong-willed lady in middle-age who had had an extremely busy and active life. She had experienced a number of setbacks in both her family and working life but, somewhat remarkably and stoically, she met them and moved forward. In doing so, she accepted new challenges in new fields and displayed an enviable degree of success. For instance, at 49 years of age she commenced a Law degree course with the intention, as she said, of becoming an “environmental lawyer where I was doing the work ... I’d studied and planned to do, which was working in the field ... doing social impact assessments, environmental assessments, heritage studies and so on”. Although she abandoned the intention of becoming a lawyer shortly after the subject April 2002 accident, the plaintiff did not sit idly by but completed the Law degree by the end of 2004 and enrolled in a PhD course in Human Geography at the beginning of that year. During that period she resumed part-time employment with the Northern Area Health Service and tutored at Macquarie University in Human Geography. She continued to attend to the needs of her ill mother and maintain a family relationship with her husband and children.

25 One could not help but be impressed by the plaintiff’s attitude and approach to life and work. If anything, she tended to take on too heavy a load and even after the injury to her left ankle that same approach continued. However, as will appear, the injury eventually had a disabling effect on her activities but not without the will to overcome them. The plaintiff’s presentation and background only goes to make credible the nature and disabling effect on her of the injury received in the accident.

Circumstances of the accident

26 The Environmental Officer of the Macquarie Chapter of the Golden Key Society in 2001-2002 was Lee Squires. Employed as the Executive Manager of the Rookwood Necropolis Trust, he was a part-time student at Macquarie University undertaking an Arts honours degree in philosophy. He explained that one of the main activities of the Society every year was to engage in a volunteer effort to do something for the environment, such as the planting of trees. Previously, such events had been arranged through the Greening Australia group but in 2002 that group had other activities and, so, Mr Squires arranged a tree-planting day through Men-of-the-Trees for Sunday, 28 April 2002 at the subject property on the banks of the Hawkesbury River at Richmond. Apparently, however, Men-of-the-Trees had another commitment that day so that Mr Squires was referred by Francis Braybrooks of Men-of-the-Trees to John Low of the defendant for final arrangements.

27 Mr Squires arrived at the site about 9.00am with his family and met a dozen or so others being friends and family of Golden Key Society members; more people arrived as the working progressed. They were met by people from inside the property who directed them down a track to the riverbank where there was a trailer loaded with tube-stock trees and tools comprising shovels, Hamilton planters and mattocks. Mr Low and his wife were responsible for distributing the tools. Mr Squires, like the others present, helped himself to the materials and set about planting the tube-stock on the slope – there was no induction by Mr Low or anyone on behalf of the defendant, as Mr Squires said, “the people who took us down to the site didn’t show us anything about what to do or anything. It was fairly obvious what had to be done and we just set to it.” He said below the track the ground sloped down to the river and on the other side there was a slope on which the trees were to be planted and which was “covered pretty thickly in Kikuyu grass.” After planting some trees on the subject slope, about 10.30 or 11.00am Mr Squires moved about 100 metres further downstream to join his family and at lunch-time they went to the barbeque area where Mr Squires learned the plaintiff had been taken to hospital. He had not seen her earlier that day but knew she was there because he had spoken to Mr Graham.

28 Mr Squires was shown a number of photographs taken on the day of the slope area near the trailer where the plaintiff was injured. The photographs, clearly, amply demonstrated the nature of the slope and the grass coverage of thick matted brown grass where trees were being planted; significantly, it was apparent from the photographs that the slope was quite steep, overall a gradient of about 30 degrees. Mr Squires described the vegetation on the slope as “pretty consistent” and added that “it was rough ground overgrown with long grass, long kikuyu grass ... quite a lot of roots all up entangled all over the place ...”

29 In terms of the condition of the slope and the performance of work on it, Mr Squires gave the following evidence:

Q. Before you commenced to plant the trees on the slope, was it obvious to you that doing so – that is, being on the slope – carried with it some risks?
A. Well, it was a slope, and it was in long grass which was being cleared and that. So one had to be careful on the grounds.

Q. Why did one have to be careful?
A. Well, if one wasn’t careful one would easily take a tumble on the slope.

Q. It was uneven ground underneath your feet. Correct?
A. Yes. It was uneven because it was overgrown, and one couldn’t actually see the surface of the ground.

Q. There was also obvious holes – you were aware that holes were being dug in the vicinity, which had to be looked out for?
A. Yes, that’s right, yes.

Q. It’s fair to say that the people present and participating in this day could choose where they wanted to work?
A. Yes. There was no formal organisation, and it was a case of when people arrive they just joined in, and they took up whatever tools or processes they wanted to do.

30 Jeanie Wood, a PhD student at Macquarie University in 2002 and a member of the Golden Key Society, attended the tree planting at the subject site on 28 April 2002 with her son Stuart Wood who was then 26 years of age. On arrival at about 9.00am Ms Wood said she drove her car down the track to the site where the planting was to be done and there was a vehicle with trees in tubes, buckets and digging tools – she selected a tool described by her as a “cookie cutter” which she was instructed how to use to remove soil sufficient to enable the tube-stock to be planted; another tool was available which was, as she said, “like two spades put together with a sort of scissor action. It was very big ... like huge tongs ... wasn’t something that I thought I could manage.”

31 Ms Wood and her son went to the top of the subject slope at about 9.30 am. She said it was “a very steep hill” and the vegetation on “the whole bank was just dry, dead grass.” She used the cookie cutter to dig holes and her son got the trees, a bucket of water, water saving crystals, stakes and plastic to put around the planted trees. They then proceeded with the planting, moving along the face of the slope and downwards.

32 Importantly, as Ms Wood was working she noticed a man and a woman arrive at the bottom of the slope about mid-morning. The woman was wearing a dark green polo type shirt with the word “LANDCARE” on it (it is to be noted that the defendant’s name was “Richmond Riparian Management Landcare Incorporated”). Ms Wood said the man started to dig holes in a random fashion using the large scissor action spades starting at the bottom of the slope and working his way up the slope to within about 5 metres from where she was working – there were “quite a few” holes dug by him below where the plaintiff was working but the woman went away and they did not plant any trees in the holes, just dug them. The holes were considered by Ms Wood to look “dangerous”, as being “about the size of a dinner plate ... about 12 to 14 inches deep”. She said “they were bigger than a normal hole and the grass covered everything, you couldn’t see anything ... because the grass was there.” For that reason, Ms Wood said she planted some trees in up to six of the holes around her position on the slope; by that stage, 11.30am, she decided to leave the project and as she and her son did so she warned him “just watch out where you’re walking down ... because he’s been digging holes down there; you can’t see them.” At the time of leaving, Ms Wood said the plaintiff was planting trees further up the bank but at no time did she see Mr Graham on the slope. Relevantly, when she went back down the slope Ms Wood said “I just slid down on my bottom because it was steep ... wriggled down ...”

33 I interpose that Mr Squires went to the place on the slope where the plaintiff was injured after being told of the incident. He said he noticed a number of holes, “at least a dozen ... about 3 metres or 4 metres up the slope from the bottom ... there were no trees in it ... generally they were in the form of an inverted pyramid ... The opening of the hole was ... about a foot square … 300 millimetre square ... they were smaller as they went down ... typical holes that one might make with a mattock ...”

34 Mr Wood gave confirmatory evidence to that of his mother in relation to arrival at the site, selection of tools and the condition of the grass on the slope, including the instruction of the procedure to plant the trees; he worked in a team with his mother at the top of the slope and did a little of the digging but mainly that was done by Ms Wood and he obtained the tube-stock and related material. Because people were working in teams, Mr Wood during the process noticed a man working by himself “just digging holes”, albeit at a location in the top half of the slope. Ms Wood had referred to a man digging holes at the bottom of the slope who worked his way up the slope to within 5 metres of where she was working at the top. Mr Wood said the man was using a big tool with “two handles on it ... like the size of a normal full-size shovel.” The man was seen to dig about a dozen holes and Mr Wood said he had to be really careful where the holes were as he walked up and down the slope because “I didn’t want to trip in them ... it was already quite slippery on the grass ... a steep sort of hill ... I just had to be conscious of where he was so I wouldn’t go over there ... and cause damage to myself ... It was a little bit hard to see his holes because of the grass covering it and so on ... he was digging, he was like getting right into it so he was making a fairly deep sort of ...” Each hole was circular in shape and 20 to 30 centimetres in diameter. Mr Wood said he and his mother planted their last trees in four of these holes dug by the man. He said they left the site about 11.30am.

35 Mr Graham narrated the events of what occurred at the site. He accompanied the plaintiff, who drove the car, with three of her children aged 9, 13 and 14 years and they arrived at the site of the tree-planting about 11.00am and drove down the track to the slope; he noticed the completely brown grass on the slope and the trailer with plants and various pieces of equipment. The plaintiff and the three children alighted from the vehicle and Mr Graham drove it a short distance to the car park area where the barbeque was to be held. After about 10 minutes he returned to the area of the slope and noticed his wife almost at the top and the children playing on an adjacent green area of grass. Mr Graham then returned to the car to get his hat and as he was walking back to the slope he heard the plaintiff call out in pain. Being about 20 to 30 feet away, he saw the plaintiff “on the bottom of the hill, laying on her side ... calling out in pain;” she was on “the dry ... dead grass.”

36 On running to his wife, Mr Graham described what he saw in this way:

She was lying on her right-hand side with her right leg in a position closer to the bottom of the slope and her left leg was positioned on a hole, over the hole. And she called out to me, she said, ‘I’ve broken my ankle. I’ve broken my ankle.’ I said, ‘Are you sure?’ and she said, ‘Yes, I heard it snap.’ And she said, ‘It’s gone into that hole’ ... There was dead grass around [her left foot]. There was a hole probably a foot in diameter that had been dug there, probably about the same depth. And her foot was sort of positioned at the top of that hole.

37 Mr Graham immediately went to the family car and drove it along the track to where the plaintiff lay. A lady was there present and assisted him to put the plaintiff in the car and he drove her to Hawkesbury Hospital; friends looked after the three children.

38 The vegetation around the subject hole was described by Mr Graham as “thickly matted kikuyu grass ... surrounding the hole ... anything from 6 inches to 9 inches thick ... in depth.” He did not notice any other holes. The next day, Mr Graham returned to the site and took a photograph of the area of his wife’s fall which showed a tree planted where the hole had been but around the tree was an indented area relative to the rest of the land surface indicating an excavation of a circular or square nature of about 12 to 18 inches in width. The photograph confirmed too Mr Graham’s description of the vegetation.

39 On arrival at the tree-planting site around 11.00am, the plaintiff said with the three children she was introduced to a man named “Frank”, no doubt Francis Braybrooks from Men-of-the-Trees, who gave her an auger, but without any instruction or direction what to do, and she was told to go up the slope about 15 to 20 metres near to Frank’s wife who was about one-quarter of the distance from the top. She said the slope had very thickly thatched brown grass on it in an extensive area and “you had to sort of step over it a bit because it was so thick.” Introductions were made between the plaintiff and Ms Braybrooks, known as “Libby”, then, after pleasantries were exchanged and photographs taken of the group, the plaintiff used the auger to dig holes and planted trees brought to her by her children – she did so from a seated position. Then, on noticing Ms Wood leaving the site, the plaintiff thought it timely to stop her planting and go down the slope to get things ready for the barbeque – it was then about 11.30am. What then occurred was stated by the plaintiff as follows:

I started walking down the slope ... [diagonally] ... I started walking over the clumpy grass and when I got to my second step, my foot slipped ... I went forward ... then the rest of me started sliding down the hill ... I went onto the ground and just started sliding down ... It wasn’t affecting me in any way. I was just sliding down and then I reached a point where my left foot went into a large hole ... The rest of me kept going ... the foot wedged in the hole and I kept going and the foot ended up virtually in the small of my back ... In the hole ... I heard a loud crack ... From my [left] leg and foot ... I ended up with the foot still stuck in the hole and me lying [back] flat on the ground ... Facing the bottom of the slope [about 2 feet from the bottom].

40 The plaintiff said she was in “excruciating pain” and screamed “I’ve broken my leg”; she saw her husband running towards her from the track below and he lifted the foot out of the hole and then went to get their car. Ms Braybrooks arrived and sat with the plaintiff until Mr Graham arrived with the car and she was placed on the rear seat. A Ms Tess Howes from Macquarie University offered to look after the children as the plaintiff was driven to Hawkesbury Hospital.

41 The plaintiff said she saw the hole into which her left foot had gone for the first time as her foot was being removed from it – the hole was “a foot or more wide ... resembled a crater ... rough, circular ... [demonstrates about 9 inches in depth]”.

42 Mr Braybrooks, a past-president for Men-of-the-Trees for 15 years, had been organising tree-plantings along the Hawkesbury River for the last three years. He gave evidence for the defendant. He participated in the present tree-planting on 28 April 2002 with his wife, Elizabeth (Libby) Braybrooks. They arrived at the site at 10.45am and, after meeting Mr Squires and selecting a long-handled pointed shovel from the trailer, he and his wife went up to the top of the slope to plant – the procedure was that Mr Braybrooks dug the holes and Ms Braybrooks positioned the trees. He said the holes dug were about five or six inches deep and a “neat slot” was made with the shovel to insert the tree roots. After planting for about an hour, Mr Braybrooks, who was on the track at the trailer, became aware the plaintiff had been injured when he heard a cry and saw her sitting on the ground with her feet in front and then she lay back. With his wife he said he assisted in putting the plaintiff in a car; he had not met her before. Beforehand, he said he noticed the plaintiff at the top of the slope with her family but at the other side to where he was. He said he heard a continuing and heated discussion lasting 10 minutes between the plaintiff and a man, who he took to be her husband, about how busy she was with work and how difficult it was to fit everything in. Shortly thereafter he saw the man take a mattock to a castor oil tree. Mr Braybrooks said he did not supply the plaintiff with any equipment or supervise her work in any way.

43 As to the condition of the slope, Mr Braybrooks said it was not slippery but “firm” under foot and he did not see any holes in the area where the plaintiff sustained injury or any hole underneath where her feet were. He said the slope was “moderate ... around 20 degrees.”

44 Ms Braybrooks confirmed participation with her husband in the tree-planting event and said they arrived at the site about 10.30am. She said they were planting at the top of the slope and saw the plaintiff arrive. At the time of the plaintiff’s injury Ms Braybrooks had finished planting and she was on the track at the bottom of the slope. Although not seeing the incident, she went to her assistance straight away about the same time as Mr Graham arrived. She said the plaintiff was “sitting down, feet down the slope ... propped on her elbows, sort of half sitting, half lying.” She did not see any hole near the plaintiff’s legs or in the general vicinity. With Mr Graham and her husband she helped the plaintiff into a motor car.

45 Strangely, but unlike Mr Braybrooks, Ms Brayrooks’ recollection of an agitated discussion between the plaintiff and Mr Graham was about a dead castor oil tree, a weed, which Mr Graham hit with a mattock and which lasted for “maybe a few minutes”; her recollection of comments by the plaintiff about her work and how busy she was, again unlike Mr Braybrooks who said the comments were between the plaintiff and Mr Graham, were made in a discussion she had with the plaintiff when the plaintiff was sitting down at the top of the slope; however, she could not remember whether the plaintiff was then planting trees. Again, unlike her husband who said he directed the plaintiff on arrival to go up the slope where his wife was, Ms Braybrooks said she recalled meeting the plaintiff on the track at the foot of the slope before the Braybrooks’ ascended it.

46 Mr Low gave evidence for the defendant. He was instrumental in the formation of the defendant in 1998. Either he or his wife was approached by Mr Braybrooks to accommodate a group of volunteers from the Golden Key Society for the tree-planting on 28 April 2002 and, so, he made arrangements for that to occur on the subject property of the defendant’s President. He said he “made sure that the area that was to be planted had been mown – well, I actually did it myself with a tractor and slasher – parking area was available, the toilet was set up, first aid facilities and that we would have tools and equipment available and the trees there for when persons came onto the site.” However, Mr Low later admitted that in fact the subject slope where the planting occurred and the plaintiff was injured was not mown or slashed by him but only the track and the car park area. One may say from the photographs that it was obvious the slope had not been mown or slashed as the grass, as Mr Braybrooks said, was still connected to the earth and was of various heights from flat matted grass to about nine inches – the grass was dead and plainly had been treated, such as with poison, and Mr Low was aware only that it had been attended to in the last two years by persons from the work-for-the-dole programme and in October 2001 the area had been burnt by the Fire Brigade.

47 The nature of the slope was described by Mr Low as being from 5 to 15 degrees and “reasonably comfortable to walk on” but on testing he conceded it was up to 30 degrees in sections of it. Effectively, Mr Low accepted he had not prepared the slope for planting. He admitted no one was supervising the tree-planting work on the day as it proceeded and it was only he and his wife present as representatives of the defendant; specifically, no instruction or direction was given as to what was to be done or any warning given about the condition of the slope. Mr Low “assumed”, as he said, that volunteers who attended were experienced in the sort of work involved and he was aware they covered a wide age range from young children through to quite mature adults.

48 Insofar as equipment was concerned, Mr Low identified only six Hamilton planters and three shovels with long handles, although there could have been one mattock – there was an abundance of other evidence that a number of mattocks were provided on the Low’s trailer. Also, contrary to Mr Braybrooks’ evidence, he said Mr Braybrooks brought his own long-handled shovel.

49 As to the incident in which the plaintiff was injured, Mr Low said he did not see it but was in the general vicinity at the time. As he saw a number of people with the plaintiff, he decided not to get involved and only came within 10 metres of her. He had not seen the plaintiff beforehand and said “I wouldn’t recognise anyone’s faces. I wasn’t introduced to anyone on the day. I was a busy little bee. My wife always kept me busy ...” Even so, he gave evidence that he noticed an earlier conversation between the plaintiff and a man, which was “a heavy discussion” that lasted for 20 minutes, but he did not know the subject-matter. It was shortly thereafter the plaintiff’s accident occurred. He could not identify the plaintiff or Mr Graham sitting in court at the hearing. Putting aside identification problems, a real issue on this aspect, which seemed to be used to support a submission that the plaintiff’s fall was as a result of her agitated state, Mr Low’s estimate of the conversation lasting for 20 minutes was strongly at odds with Mr Braybrooks’ time of 10 minutes and Ms Braybrooks’ of a few minutes. The plaintiff and Mr Graham denied any such discussion, including that Mr Graham used a mattock to attack a castor oil tree.

50 Mr Low said he saw the plaintiff being carried after her fall and placed in a car but he “kept my distance.” Remarkably, it has to be said, and even though Mr Low was the defendant’s representative on the day, he admitted to having “No, not at the time” any interest in why the plaintiff had fallen. Indeed, even when giving evidence, Mr Low admitted to having no idea whether there was a hole in the ground in the vicinity of the plaintiff’s fall. But the following evidence was given by him:

Q. But, of course, a hole of that type (one foot in diameter and about one foot deep) on a slope of the type that was being planted that day, strewn with the dead kikuyu grass, as you would accept, I think, would cause you to have another concern, wouldn’t it, besides it being a wasted effort?
A. If I had seen that sort of thing happen.

Q. What would the concern have been?
A. I would have spoken to them and said, you know, this is not what we’re required to do and I didn’t notice anyone that had dug holes that size. I didn’t see any hole that size.

Q. I know, but wouldn’t you not have regarded a hole of that type being dug and then being left unattended, unmarked, unfilled in, whilst the person went on to dig another such hole, as being presenting a danger to workers on the slope?
A. Well, it’s quite possible it would be.

Q. Is there any doubt about it?
A. Well, no, not really, I suppose. Had I have been doing it, I would have been aware of it but, you know, with a group of people I would have – had I have seen that sort of a hole. I would have brought it to their attention.

Q. And told them to stop?
A. Exactly.

Q. And told them to fill in the holes?
A. Well, yeah, that would have been appropriate ... or plant straight away, you know, fill it in and put a tree in it.

51 I find the evidence of Mr Low to be unreliable; he did not answer questions directly and was somewhat unsure and off-handed in doing so. He displayed a detached and remote attitude to what had occurred, not only to the plaintiff but also as to the performance of the planting work on the day by the volunteers. On his evidence, he was occupied with arranging the facilities for the supply of water through hoses on the slope so that his supervision and direction of the work was, at best, minimal or non-existent; his attention to the proper and safe preparation of the slope for people to work on it was equally non-existent, notwithstanding his admission about the danger of holes on the slope. He tended to minimise any risks inherent for workers on the slope. As counsel for the defendant submitted as to Mr Low’s evidence, one “may well conclude that he misunderstood some of the questions and ... he wasn’t the best witness.” I think that concession by counsel was properly made.

52 The mechanics of the plaintiff’s accident, as I have said earlier, was very much in issue, particularly as to how she moved down the slope and the existence of a hole. The record of the Emergency Department of Hawkesbury Hospital, taken on examination of the plaintiff in the rear seat of the car on arrival, stated “fracture lower leg, fell on river bank – slid down a slope”; on being seen by the doctor, the notes recorded, “fell down river bank, presented with left ankle injury. Denies any other injury.” There was no mention of the presence of a hole in the slope but, it may be taken I think, that fine detail would not have been called for in the medical circumstances at the time. However, in a claim form made by the plaintiff to her health fund, HCF Life Insurance Co Pty Limited, regarding the injury dated 27 June 2002 she described how the accident happened in this way:

I was attending a tree planting and conservation day in conjunction with ‘Men-of-the-Trees Inc’ and ‘Landcare.’ I was walking back down [the banks of the Hawkesbury River] a relatively steep grass slope when I started to slide down the slope. As I said my left foot twisted to the side on contact with a tree hole and caught in the hole while the rest of my body continued sliding.

53 An earlier certificate dated 5 June 2002 from Dr Graham Campbell, the plaintiff’s general practitioner, to HCF Life of an accident requiring surgery said the injury to the left ankle of a comminuted fracture was directly related to the accident on 28 April 2002 when the plaintiff “slid down an embankment and left foot became stuck in hole in ground, body kept going.”

54 There was no witness who actually saw the plaintiff’s movement down the slope, but the claim form to HCF Life was entirely consistent with the plaintiff’s evidence of the occurrence and, apart from the hole on which I have commented already, the hospital’s clinical notes were consistent also. Although Mr Braybrooks and his wife did not see a hole, the plaintiff and Mr Graham were adamant a hole was present at the bottom of the slope where the plaintiff‘s foot caught and the plaintiff was unshaken that her left foot caught in it. Mr Squires saw a number of holes, at least a dozen in the area concerned, and both Ms Wood and her son, Stuart, saw a man digging holes in that area. Those witnesses all thought the holes were about one foot wide. The photograph taken by Mr Graham the following morning of the exact spot where the plaintiff was injured depicted a tree planted in an excavation which was consistent with a hole of the dimensions alleged having been dug. I prefer that evidence over that of Mr and Ms Braybrooks to find the existence of a hole. As earlier noted, there were certain inconsistencies in their evidence and, I think, they simply were not looking for any holes. As to the plaintiff slipping on the grass and sliding down the slope, I find that explicable having in mind the gradient of the slope and the condition of the grass; the evidence of Ms Wood supported this view.

55 As I have said, I found the plaintiff’s evidence to be impressive and credible. I accept the mechanics of her fall on the slope, that is, that she slipped on the grass on commencing her descent from near the top of the slope, slid down on her buttocks to just before the bottom near the track where her left foot caught in the hole thereby arresting her fall but fracturing her left ankle as the momentum carried her body forward and she then lay on her back with the left foot under her in the small of her back.

Injury to the plaintiff and consequences

56 On the event happening, the plaintiff said she thought it as “unbelievable” and there was “excruciating pain”. When put in her family’s car, she noticed, “the pain was overwhelming. I remember screaming, crying ... The foot was sort of twisted the wrong way ... It was sideways.” The plaintiff said she had a painful time on admission to Hawkesbury Hospital, with gas through a mask to take the edge off the pain but no medication, and she eventually after some three hours underwent surgery by Dr Michael Stening, an orthopaedic surgeon, who repaired the left ankle fracture and inserted a metal plate and screws. The left leg was swollen and discoloured; an open cast was fitted to the left leg from the foot to above the knee. She was discharged on 3 May 2002 after five days but still experiencing a lot of pain and with the need to use crutches. Mr Graham took her back to the Galston residence.

57 The plaintiff used the crutches for about 10 weeks until the cast was removed by Dr Stening following which she used a wheelchair for about one month. From the time of returning home, which was a large two-storey dwelling, Mr Graham took over the housework even though he was still a serving inspector of police. He carried the plaintiff upstairs to the bedroom in the days after her discharge from hospital, took her to the toilet and the bathroom to give assistance as she was virtually confined to bed and recuperating; that continued until about 11 May 2002 and thereafter the plaintiff moved around on her buttocks taking stairs one at a time to “bump my way up and down.” She was taking strong analgesics for the pain which she said made her “very dopey” and Mr Graham drove her to various appointments with doctors.

58 In the early days, she had a fall in the kitchen at home while using the crutches and landed heavily in the marble floor on her knee. Although still in some distress, the plaintiff attended her brother’s wedding on 11 May 2002 and sat in a chair the whole time but left the reception after the meal before the main celebrations and socialising because she “felt so bad.” She was on medication for the pain during this period prescribed by her general practitioner, Dr Campbell, and she attended for physiotherapy sessions a couple of times each week. In order to attend to the plaintiff in the weeks following the accident, Mr Graham took leave of absence from the Police Force and, effectively, managed the household and attended to the children’s needs.

59 The accident did not prevent the plaintiff, notwithstanding her resultant condition and distress, from resuming her studies in law. Indeed, in her endeavours after the accident, she displayed the same kind of enthusiasm and involvement to get on with her life in the face of adversity as I have commented on during the pre-accident period. For instance, she resumed legal studies a couple of weeks after the accident, albeit from her bed with the use of tapes of lectures; presented in September 2002 at the graduation ceremony for the award of her degree in Arts; attended functions of the Golden Key Society; returned to the project work employment with the Northern Area Health Service in September 2002; commenced tutoring at Macquarie University in human geography in first semester 2003; supervised TAFE exams during July 2003; in 2004 commenced a PhD programme in human geography; and in February 2005 completed the requirements for the degree in law. It ought not be thought these activities were unaffected by her disability from the subject accident. They were, but she persisted, as she said, because “I was really determined to get back on my feet, so to speak.” However, I think it plain from her evidence, and I accept, that the plaintiff in these years following the accident experienced a complete change in her lifestyle as she struggled to recover and to resume her life in an occupational employment sense and with her family’s activities.

60 By the end of 2002, the plaintiff conceded her mobility had improved but medication was still required for the continuing left leg pain and the leg swelled causing her to hobble around; it affected her sleep. In December 2002, then working only one day a week to finish the Northern Area Health Service project, her employment was terminated because of the employer’s concern her leg was causing difficulty in the workplace; the plaintiff acquiesced in that, as she said, “I knew that I really actually couldn’t take anything on at that stage, anyway. During the coming holiday period she took the opportunity for complete rest but, unlike earlier years, did not go anywhere because of her leg condition. The leg pain continued with less frequent swelling and so she felt able to resume the law lectures in 2003 and started tutoring. Even so, she found sitting for long periods difficult causing her to withdraw from one law subject at that time as concentration was a problem. Employment with the Northern Area Health Service resumed in May 2003 for three days a week at the employer’s request until March 2004 when the project finished.

61 Interestingly, in February 2003 the plaintiff was offered a full-time salaried position by the Golden Key Society in Atlanta in the United States but she declined because the ongoing left ankle and leg problems, including concentration difficulties, did not permit her to travel, sit for long periods, negotiate with people and network with high profile universities, corporations and institutions. For similar reasons, she declined also a position with the Golden Key Society in Sydney – she said, ”I just could not commit myself to an organisation that would expect the most from me.”

62 During late-2004 and early-2005, the plaintiff experienced problems as her left ankle kept giving way as she walked causing some bad falls. For example, in 2004 she split her foot open and broke a toe walking through the bedroom onto the edge of the bathroom tiles – she said she needed seven stitches and now has a scar. The plaintiff explained that her left ankle “just gives way ... as it there’s no ankle holding me up any more.” In the result, the plaintiff consulted Dr Stening who, on 9 February 2005, performed arthroscopic surgery and removed the metal plate and screws from the left ankle. In a report dated 22 April 2005, Dr Stening said he reviewed the plaintiff on 21 March 2005 and despite the surgery there was “[no] significant improvement in her ankle function from pre-operatively” and concluded:

... this lady has a permanent disability of her ankle due to capsular contracture as a direct result of the fracture of her ankle sustained on 28 April 2002. Consequently she walks with a limp, complains of early morning stiffness and a dull ache that is worse towards the end of the day. In addition the ankle the ankle occasionally gives way and has resulted in recurrent falls.

63 After this further operation, the plaintiff said her ankle was extremely painful and she got a golden staph infection at the operation site which affected her mobility for six months. Her husband retired from the Police Force in August 2004 so that assistance around the home was provided by him. Effectively, because of her condition, the plaintiff deferred her university activities at this time but by then she had completed the Law degree and was embarking on the PhD degree which was seen as an opportunity for her and as giving income from a scholarship of $17,000 per annum tax free for three years – by that time she had dismissed going to the College of Law and practising as a solicitor due to poor concentration and was looking for some alternative in a field within her interest and experience of human geography. She is due to complete the PhD by September 2008 but has concerns because of her ankle condition that that will not be achieved. Her intent, if successful in the higher degree, would be to have articles published and perhaps write a book.

64 In the subsequent period leading up to the present time, the plaintiff continued to experience ankle pain and problems with her left leg, including further falls with the ankle giving way. She takes medication for the condition which she said costs $30 to $35 per week and sees her general practitioner, Dr Campbell. During the trial, photographs were taken of her left ankle showing the scarring and discolouration which were admitted into evidence; the plaintiff expressed embarrassment about the appearance and consequently wears slacks to hide it.

65 For the future, the plaintiff was aware that Dr Stening and other doctors had suggested further surgery may be medically recommended. She said if she received advice to have surgery she would do so.

66 Domestically, the plaintiff said Mr Graham had provided assistance since the April 2002 accident by doing all of the principal tasks she did beforehand, such as cooking, general cleaning, vacuuming, ironing and shopping. However, by the end of 2002 the plaintiff had been able to prepare simple meals and do light shopping but even at the present time she said Mr Graham “runs the house”. The plaintiff remains independent for her own self-care and is able to drive an automatic car.

67 Mr Graham outlined in his evidence the domestic arrangements which existed in the home both before and after the plaintiff’s accident. He concentrated on developing and maintaining the garden on the 10-acre property and the plaintiff attended to the domestic chores, including the children’s needs and their transport to and from school. It was necessary after the accident for Mr Graham to take leave of absence from work until late May 2002 to take over from the plaintiff the running of the house and caring for the children; thereafter, until his retirement in August 2004, he changed his work routine by going to work later in the morning so as to attend to the children. As his wife became more mobile she started to prepare more meals but he has continued to do the washing, ironing, general cleaning and the main shopping. Being eligible to retire at age 60 years, Mr Graham said with his wife’s distress from the ankle injury he decided to do so because, as he said, “I really needed to make myself available to the family.”

68 In quantifying the amount of domestic assistance he provided to the plaintiff and the children after the accident, Mr Graham agreed it was about 56 hours per week until August 2002; from August 2002 to November 2002 it was about 21 hours per week; and thereafter to date it was about 5 or 6 hours per week. The significant change to the hours in August 2002 was, said Mr Graham, because the plaintiff “was able to do a few more things for herself, and the children were becoming a bit more independent ... [the plaintiff did] her own breakfasts, lunches. She was able to move around the house with a bit more freedom.”

69 For the future, Mr Graham indicated a desire for more time to himself so that as to washing, ironing, cleaning and mopping he would like to engage commercial assistance which, on his enquiries, would cost $20 to $25 per hour.

70 Overall, the evidence of Mr Graham as to the consequences of the injury on the plaintiff in terms of her condition and domestic assistance needs was consistent with and complementary to that of the plaintiff.

Negligence – whether breach of duty of care

71 Essentially, the negligence alleged against the defendant was its failure to provide a safe system and place of work for the tree – planting on the slope. The particulars of negligence focused upon, in that respect, a lack of supervision, inadequate training, absence of any warning, creation of an unusual risk and exposure to a foreseeable risk of injury which was avoidable by reasonable care. As the matter was argued, attention was directed to the plaintiff’s fall at the top of the slope on the thickly matted dead grass and the presence of the large hole near the bottom of the slope in which her foot caught. However, counsel for the plaintiff conceded that although the defendant was liable for contributing to her slip such a finding was strictly unnecessary for negligence to be made out. As counsel put:

It is submitted that the Defendant’s liability for the Plaintiff’s accident is clear in the circumstances of its said duty and the mechanism of the accident. Liability arises in the circumstances of the large, deep and unmarked hole having been made in a context of completely inadequate (or entirely absent) instruction, supervision and oversight of the Defendant’s tree-planting event. All of these breaches of duty were causative of the Plaintiff’s accident. They all increased the risk of the Plaintiff’s accident happening and the risk came home.

72 For the defendant, it was admitted that it was the organiser of the tree-planting event, prepared the site for that purpose and supplied the trees and some planting tools for the event. Although making no concession, counsel for the defendant made no submissions against a finding that it had a duty of care towards the plaintiff, only that the obviousness of the risk may be relevant to the existence of such a duty as opposed to breach of the duty. Assuming the defendant did owe a duty of care to the plaintiff, counsel submitted that the scope of the duty owed did not encompass the particular risk which occurred even if the plaintiff’s version be accepted. Specifically, counsel put that any risk was not foreseeable, it was impossible to guard against holes which were required to plant trees, the question was what was reasonable in the circumstances and the scope of any duty owed was limited having regard to the relationship between the parties, the nature of the area and the obvious risks it carried. Section 5B of the Civil Liability Act was expressly relied upon in terms of foreseeability.

73 Given that the main issues were whether the slope was excessively steep and slippery and whether large holes had been dug by someone who was not supervised and stopped in doing so, the defendant counsel put a submission against liability in this way:

When examining the scope of the duty owed, one must strike a balance between the activities of the Defendant and the threat of harm to the Plaintiff.

It is unreasonable to expect a non-profit organisation reliant on volunteers which acts for the purpose of regenerating the environment to have more than the Defendant has in terms of people overseeing the event, together whilst simultaneously carrying out their other duties, or to be in a position to stop such action immediately or within a short timeframe of 20 to 30 minutes.

It would be unreasonable to require that of the Defendant. It would not be practical in terms of financial resources.

On the whole, it is too demanding and would not reflect community standards. It would not be expected of the Defendant on a recreational, fun tree planting day where people are free to participate or not.

What is it that the Defendant did not do that it should have? The evidence reveals that there was clearly an induction and instructions given which referred to working in teams, and to John Low’s observation people were working.

74 I am satisfied that it has been shown, indeed admitted, that the defendant organised the tree-planting event at the subject site; it prepared the site and supplied the trees and equipment to do so. Far from being an event engaged in by volunteers to merely provide a community recreational fun day, the tree-planting was a targetted programme organised by the defendant, albeit by using volunteers, for the benefit of its member farmers to improve their properties and also to qualify for a water licence – even if a non-profit organisation, which in any event I do not see to be presently relevant, there was thus a very real commercial value from the tree-planting. Of importance also, the circumstances in terms of the performance of work are not to be assessed as if done by regular employees experienced in the work on a site of the condition of the slope here and familiar to them. To the contrary, the work was to be done for the defendant’s advantage by volunteers in a wide age range from young children through to middle-age adults, male and female, no doubt with varying experiences and, importantly, unfamiliar with the site concerned. In such a situation, my view is that the defendant was required in exercising reasonable care for the volunteer tree-planters, who after all were doing it because of their interest in and concern for the environment, to do so with added attention to training and supervision and, fundamentally, the safe and proper preparation of the site. The defendant’s submissions to the contrary have no merit.

75 In my view, at all times during the tree-planting on 28 April 2002 at the Richmond site the defendant had the care and control of the area where the planting was conducted and, as such, was the occupier of the site in a temporal sense. It follows, in my view, that the defendant had a duty of care towards the plaintiff. The scope of such a duty was to take such care as was reasonable in the circumstances so as to avoid the foreseeable risk of injury to those, including the plaintiff, engaged in the planting according to the standards of the reasonable person: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.

76 In any event, I think the defendant owed the plaintiff a duty to take care for her safety in terms of ordinary principle in that there was a sufficient relationship of proximity between the plaintiff as a volunteer worker for the benefit and advantage of the defendant in relation to its member farmers: see Donoghue v Stevenson [1932] AC 562 as applied by the Court of Appeal in State of New South Wales v Seedsman (2000) 217 ALR 583 per Meagher JA.

77 Earlier, I have found for the reasons given that it was explicable in the condition of the slope that the plaintiff slipped and slid down it. I have found too the presence of a hole in which her foot caught. The mechanics of her fall and consequent injury have been accepted. Relevantly, the evidence disclosed that in fact the defendant did nothing to the slope, which plainly was very steep, to properly and safely prepare it for the planting of trees but rather let it remain covered in thick matted and dead kikuyu grass; the plaintiff was directed to plant trees towards the top of the slope, without any instruction or supervision in doing so and with no warning about the risks the slope may impose to persons walking on it – she was indeed left to her own devices. A number of large holes were dug near the foot of the slope without trees being planted in them and where Mr Low, as the defendant’s representative on the site, was not supervising the work but rather himself attending to the pumps and hoses for the supply of water. He just assumed the volunteers would know what to do. I am satisfied as against the defendant that it breached the duty of care to the plaintiff in respect of the condition of the slope without proper preparation for planting, the lack of any instruction or training in the work to be done and in the failure to properly supervise the work by permitting the digging of the large holes on the slope without the immediate planting of trees in them. Those failures, in my view, were negligent. Thereby, the plaintiff sustained the injury to her left ankle when the risks materialised and for which the defendant is liable.

78 In reaching this conclusion, I have had in mind the terms of s 5B of the Civil Liability Act. Mr Low conceded a hole of the type and dimensions described on the steep slope strewn with dead kikuyu grass would cause him concern as presenting a danger to workers on the slope. Such a risk as befell the plaintiff was therefore foreseeable and Mr Low ought to have known about it with proper preparation of the site, appropriate instruction and supervision. The resultant risk was not, in my view of what the plaintiff suffered, insignificant and a reasonable person in Mr Low’s position would have taken precautions against it. The defendant’s counsel relied very much on s 5B(2) as to the taking of precautions and I have recited those submissions earlier. In rejecting them for the reasons then stated, the factors set out in the subsection have been addressed in a manner as would only require the defendant to have taken precautions. Indeed, Ms Wood had sufficient concern about the condition of the slope to warn her son to be careful as he walked on it and to be aware of the holes which she had seen. Of course, as other evidence showed, those holes were not readily visible with the thick grass around them and where the plaintiff, involuntarily, had her left foot caught in one of those holes as she slid down the steep slope.

79 Mention should be made of the defendant’s reliance on ss 5F, 5G and 5H of the Civil Liability Act as to the obviousness of the risk here to avoid liability. Even if, as it might be inferred from Ms Wood’s evidence that the grass slope posed an obvious risk, the presence of the hole could in no way be said to have been obvious to the plaintiff. As she slid down the slope, really without control, she had no opportunity to avoid the subject hole and her foot caught in it causing the ankle injury – she disclaimed any injury from the slide itself. This defence is not made out.

Contributory negligence

80 I find no contributory negligence in the plaintiff.

81 The defendant pleaded contributory negligence in the plaintiff failing to keep any proper lookout and in failing to take any adequate precautions for her own safety. On the facts as found as to the occurrence of the accident and consequent injury, I do not see how those alleged particulars could be said to have been satisfied. The plaintiff simply could not have avoided the offending hole. Even if in some way she failed to take proper care in walking down the slope, which she denied and which the very condition of the grass on the slope would deny, I do not think that that meets the test of contributory negligence, particularly where she was doing work on an unfamiliar site. As King CJ observed in Fennell v Supervision and Engineering Services Holdings Pty Ltd and Santos Ltd (1988) 47 SASR 6 at 12, “misjudgment is not contributory negligence.” In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310, Mason, Wilson and Dawson JJ distinguished contributory negligence as “negligence rendering [the plaintiff] responsible in part for the damage” rather than “mere inadvertence, inattention or misjudgment.” At most, in my view, the plaintiff misjudged her step on the slope as she walked down and inadvertently slipped on the thick matted grass.

82 The claim for contributory negligence is dismissed.

Medical evidence

83 As the case was argued, and despite the medical reports relied upon by the defendant, I think the various reports of the medical practitioners for the plaintiff made no real issue against the seriousness of the plaintiff’s medical condition from the accident and its physical consequences.

84 Her treating orthopaedic surgeon, Dr Stening, provide three reports of 16 August 2002, 22 April 2005 and 19 September 2006. In the first report, Dr Stening related the history and confirmed his surgery to the plaintiff’s left ankle at Hawkesbury Hospital on 28 April 2002 of open reduction internal fixation and discharge several days later mobilising non-weight bearing with crutches. He saw her on 7 May 2002 and, after removal of the stitches, applied a complete below-knee cast; the plaster was removed on 13 June 2002 and physiotherapy commenced. Following examination on 2 July 2002, Dr Stening noted “residual global swelling about the ankle ... associate stiffness with lack of full range motion” but considered “a good prognostic outlook” with “maximum improvement ... one year post injury.” He then considered that on recovery walking aids would not be needed and all daily activities without restriction could be performed. In the meantime, Dr Stening saw difficulty involving prolonged walking or using flights of stairs; he considered sedentary activities such as desk work to be within the plaintiff’s ability as well as driving an automatic car.

85 However, after examining the plaintiff on 21 March 2005 after arthroscopic surgery and removal of the plate and screws on 9 February 2005, Dr Stening in his report of 22 April 2005 said despite arthroscopic debridement of the scarred tissue there was not any demonstrated improvement in her ankle function. He then expressed the conclusion I have recited earlier in these reasons as to the plaintiff’s condition, continuing symptoms of a limp, early morning stiffness and a dull ache with the ankle occasionally giving way. He then calculated 35 per cent permanent impairment of the left foot and ankle equating to 25 per cent lower extremity and 10 per cent whole person impairment.

86 In the final report of 19 September 2006, Dr Stening said he reviewed the plaintiff on 14 September 2006 and recorded her then current symptoms with the ankle of throbbing pain radiating into the foot associated with “a stinging sensation”; pain being exacerbated after prolonged walking and the ankle giving way were noted; as was the fact, Mr Graham did the majority of domestic chores. Dr Stening on examination found tenderness in the ankle and sensitivity to touch with a restricted range of movement. He concluded:

... early traumatic degenerative osteoarthritis of her left ankle. This was apparent at the time of arthroscopy with significant scarring in the medial gutter as well as a minor chondral damage of the medial malleolus.

The injury she sustained was an intraarticular ankle fracture which pre-disposes, despite open reduction internal fixation to degenerative traumatic osteoarthritis.

Currently she does not require further surgical treatment. It will probably transpire however that in approximately five to ten years time she will develop worsening degenerative change and pain which will result in further surgery in the form of an ankle arthroplasty or fusion.

The estimated cost of such treatment would be in the vicinity of $10,000 to $15,000 depending upon the procedure required.

Prior to this surgery, she may benefit from the occasional intraarticular cortisone injection. The estimated cost of this if required to be done under x-ray control would be approximately $200.

87 An occupational health and safety physician and medico-legal consultant, Dr Thomas Sheehan, examined the plaintiff on 2 December 2005 and again on 14 November 2006. In his report of 2 December 2005, Dr Sheehan referred to the plaintiff’s chronic left ankle joint symptoms and that it was “hardly surprising that her husband now has to do all the family’s housework ... reasonable ... for her to immediately be provided with six hours of domestic assistance each fortnight.” In terms of work capacity, Dr Sheehan thought she was “permanently unfit for any job which might require prolonged standing or the negotiation of stairs, ladders or uneven ground” and that her “capacity to lead a normal life has been badly affected by her foot injuries.” In indicating a then stage of maximum medical improvement, Dr Sheehan assessed a 25 per cent permanent loss of the efficient use of the left leg below the knee.

88 Dr Sheehan further examined the plaintiff on 14 November 2006 and in a report dated 29 November 2006 gave an opinion that she “remains significantly symptomatic ... complaints should be considered to be reasonable and consistent ... she was not prone towards overstatement and no exaggerated behaviour was witnessed.” He then added:

Attention is drawn to her examination findings and those objective clinical signs encountered including restricted left ankle joint movements and extensive scarring which is definitely cosmetically unattractive. Because of her chronic symptoms and ankle joint limitations it is my view that Mrs Greenwood should be provided with 6 hours of domestic assistance each week and that help should be ongoing throughout the foreseeable future.

... it seems inevitable that she will eventually have to undergo either an ankle joint replacement or fusion.

...

Meanwhile Mrs Greenwood will need to consult her GP on a quarterly basis in order to obtain prescribed medications to limit her pain.

Besides that she will need to consult Dr Stening at least once a year.

When she undergoes surgery the costs of same including her post-operative rehabilitation are estimated at $20,000.00.

This woman has been rendered permanently unfit for her former occupations.

Also she has been rendered permanently unfit for any job which might require prolonged standing or the regular negotiation of stairs, steps, ladders or uneven ground.

The cause of that incapacity for work is believed to be a direct result of what happened in April 2002. This woman’s capacity to lead a normal life has been badly affected by her accident.

Mrs Greenwood’s prognosis in the medical sense is considered to be poor.

89 The plaintiff was examined for the defendant on 16 November 2005 by Dr John Stephen, a surgeon in paediatrics, orthopaedics and the spine. In his report he stated a diagnosis of “ a severe tri-malleolar fracture of the left ankle ... a significant restriction of movement nevertheless in the left ankle when compared with the right. There is also some tenderness over the upper part ... There is a potential for early onset degenerative change.”

90 Dr Stephen made the following main points –

• The fracture of the left ankle is consistent with the manner in which it was alleged to have occurred as are the fractures of the toes.
• There is a permanent impairment of the left ankle equivalent to 6 per cent whole person impairment with mild hind foot impairment of 1 per cent whole person impairment.
• No impairment of the toes of the left foot.
• No evidence of functional overlay.
• There is the possibility of early onset osteoarthritis of the left ankle.
• Capable of carrying normal household activities; does not require any assistance with personal care.
• Requires occasional anti-inflammatories.
• If early onset of osteoarthritis of the left ankle may require a fusion procedure.
• Fully able to engage in pre-injury occupation.
• Fully capable of continuing university studies.
• Not identified any physical activities not capable of undertaking.

91 Dr Michael Morris, a surgeon, examined the plaintiff on 21 May 2007 and, in an objective sense, he considered the repair of the fractured left ankle to be a good result – permanent loss of use of the left leg was assessed at 5 per cent with the main complaint being nocturnal pain than actual loss of function. Perhaps surprisingly in light of Dr Stening’s role and his expressed views, Dr Morris in his report considered the accident on 28 April 2002 had nothing to do with the plaintiff’s present problems. Even so, he thought it possible she may develop degenerative change in the left ankle as a result of the initial injury. He considered the prognosis to be good and with no restriction of her activities of daily living from the accident, including as to employment activities. Apart from occasional medication for pain, Dr Morris saw no likelihood for the need for future medical treatment.

92 In a report of 14 June 2007, Dr Morris said that he had the opportunity to consider Dr Stening’s reports of 9 February 2005 and 19 September 2006. Whilst accepting Dr Stening’s specialty in the area of ankle surgery, Dr Morris on general grounds thought it unlikely the plaintiff would develop degenerative change and pain of such a degree as to warrant arthroplasty or fusion of the left ankle. Otherwise, his earlier opinion was unchanged.

Resultant condition of the plaintiff

93 The plaintiff’s evidence of her condition over the years after the subject accident is supported by the reports of her treating surgeon, Dr Stening, and that of Dr Sheehan as an occupational physician who complemented Dr Stening’s views. On the other hand, Dr Morris saw no continuing disabilities but his opinion is very much at odds with Dr Stening who saw early traumatic degenerative osteoarthritis of the left ankle at the time of the arthroscopy in February 2005. Even Dr Stephen noted a severe fracture resulting in significant restriction of movement with tenderness and the potential for degenerative change needing a fusion procedure.

94 I prefer the opinions of Dr Stening and Dr Sheehan over those of Dr Stephen and Dr Morris to the extent of any inconsistencies. Specifically, I accept the plaintiff’s complaints of her present condition and limitations from the injury to her left ankle and that there is a likelihood of the need for further surgery in 5 to 10 years in the nature of ankle joint replacement or fusion. In the meantime, she remains unable to engage in regular full-time employment involving prolonged standing or walking, particularly with the regular use of stairs and over uneven ground; she has a limited residual capacity for a sedentary occupation, such as office work but requires domestic assistance.

Damages

95 The context in assessing damages is of an active and involved middle-age lady with a very high work ethic who had met adversities in her life by becoming involved in further activities. She had five children at the time of the subject accident living at home, in a then age range from 9 to 27 years and, with her husband, had a very full family, social and recreational life. An added strain, however, was the death about one year earlier of her 17-year old son, diagnosis of her mother with a serious disease and incapacity of her father until he died in 2006. Before the accident the plaintiff ran the household but after it her husband has assumed that role. And all of this in a situation where she sustained a serious back injury, since successfully managed, working in the Police Force and was retired after 17 years’ service in 1987.

96 The plaintiff engaged in part-time work during studies towards an Arts/Law degree with the intent of becoming an environmental lawyer, together with participation in the Golden Key Society and the giving of her time in a volunteer capacity. It was in that latter activity the subject accident occurred. Nevertheless, she completed the Arts/Law course and in 2004 commenced a PhD as opening up another career opportunity in human geography when the avenue of law was considered closed to her because of the injuries. However, the consequences of the injuries have frustrated her completion of that higher degree. She is now nearly 57 years of age. Various job opportunities have been offered to her but declined due to continuing pain and disabilities with the left ankle. For the future, and even if the PhD is completed by the target date of September 2008, the plaintiff only envisages writing articles on environmental matters for publication and the writing of a book. She is willing, should it be medically recommended, to undergo further surgery to the left ankle.

97 Non-economic loss: Counsel for the plaintiff claimed an appropriate assessment would be 33 to 35 per cent of a most extreme case based on the devastation done to her domestic and economic life. I think that is somewhat of an overstatement, but counsel submitted also, I think with some force, that the plaintiff’s academic life had been compromised by the accident and injuries sustained and that she will be left in continuous pain with reduced mobility and the need for anti-inflammatory and analgesic medication. Notwithstanding the success of the initial surgery, further surgery in 5 to 10 years for ankle-replacement or fusion is likely with the onset of early degenerative change. The left ankle remains badly scarred and does not provide stability. Overall, I accept counsel’s submission that the plaintiff’s loss of amenities as a mother, wife and worker is substantial and permanent.

98 For the defendant, counsel suggested a range for this element of 18 to 22 per cent.

99 The defendant’s approach to the assessment of this element would be consistent with the views of Dr Morris as to what occurred to the plaintiff and of her continuing condition. However, I have preferred the opinions of Dr Stening and Dr Sheehan; even Dr Stephen for the defendant noted a “severe fracture” of the left ankle occurred resulting in “significant restriction of movement” and the “potential for early onset degenerative change.”

100 Having in mind my findings detailed above as to the circumstances of the accident, surgery, medical treatment given and to be expected and her continuing condition as stated by the plaintiff, I assess non-economic loss at 30 per cent of a most extreme case, for which the maximum amount under s 16(2) of the Civil Liability Act is $427,000. A severity of 30 per cent attracts an amount, which I will allow, of $98,000.

101 Past out-of-pocket expenses: The parties were agreed that at least $5,578.36 should be allowed to cover hospital, surgery, scans, general practitioner and pharmaceutical expenses. The plaintiff claimed in addition an amount of $9,035 to cover pharmaceuticals at the rate of $32.50 per week from the time of the accident to date; the defendant resisted this on the basis there was only $92.21 covered by pharmacy receipts for the period concerned. The plaintiff’s evidence was that over the period since the accident she has taken non-prescription Panadol as well as prescribed analgesics for the pain and prescribed anti-inflammatory medication; medicinal cream to apply to her ankle was also obtained. The accepted medical evidence of the need for medication supported the plaintiff’s evidence, which I accept, and the cost of which she put at $30 to $35 per week.

102 I will allow for past medication $32.50 per week for the 279-week period since the accident, a total amount of $9,067.50. With the agreed amount of $5,578.36, the resultant figure for this element is $14,645.86.

103 Future out-of-pocket expenses: The claim for the plaintiff was $37,617.50 made up of $10,155 for future surgery, deferred for eight years, and $27,462.50 at the rate of $32.50 for the plaintiff’s life expectancy of 27.38 years. The defendant accepted the cost of future surgery, discounted by 50 per cent to reflect the chance it would not occur and deferred for 8 years, at $5,077.50; pharmaceuticals were conceded at $121.86 to cover 12 weeks following any future surgery in 8 years time of $15 per week less 15 per cent for vicissitudes – thus, the defendant put this element at $4,419.46.

104 The plaintiff’s evidence was clear that if medically recommended she would undergo future surgery. Dr Stening saw that as a probability in 5 to 10 years time by way of arthroplasty or fusion; Dr Sheehan considered such surgery “inevitable”. Dr Morris also considered a fusion procedure to the ankle joint may be required if, as Dr Stening and Dr Sheehan considered, there was early onset of osteoarthritis. I think the high probability is that the plaintiff will come to surgery in, say, 8 years’ time; I assess the probability at 90 per cent at a cost of $15,000. In the meantime, as Dr Stening said, the plaintiff may require occasional intraarticular cortisone injections for pain at a cost of about $200 each; it would be reasonable to allow $1,000 for such procedures. Accordingly, the amount I will allow for future surgery is $9,139.50 (90 per cent of $15,000 deferred for 8 years by a multiplier of 0.677) plus $1,000 for injections in the interim, a total of $10,139.50.

105 The remaining part of this claim is for future pharmaceutical expenses. The plaintiff’s counsel sought this for life at the rate of $32.50 per week without discount. Effectively, the defendant was prepared to make only a token provision to cater for future surgery.

106 Dr Stening accepted in the years to come that the plaintiff would develop increasing traumatic degenerative change and pain; Dr Sheehan considered pain medication was required. The plaintiff herself was adamant about her continued need for medication. On the medical evidence, future surgery would be designed to remedy or, at least, relieve the continuing pain. I consider it appropriate to allow for medication expenses for 8 years at the rate of $32.50 per week (multiplier of 345.6 on 5 per cent tables) with a buffer or cushion of $2,500 thereafter to address recurrent pain but of an irregular nature. This approach makes it unnecessary to allow for vicissitudes. The resultant amount is $11,232 plus $2,500, a total for future medication of $13,732.

107 The total which will be allowed for future out-of-pocket expenses is, therefore, $23,871.50.

108 Past economic loss: The defendant would not allow any award for loss of wages other than, as an alternative, six weeks after the initial surgery and six weeks after the February 2005 surgery in the total amount of $3,420 based on a net weekly wage of $285. The submission was that the plaintiff would have been a full-time student in any event and/or would not have entered the workforce until at least the end of 2004 or the end of 2005 when her honours degree was completed by which time she was fit for full-time employment as a lawyer or in other sedentary /office type employment. It is to be pointed out, however, that the plaintiff completed her Arts honours degree in September 2002 and the Law degree was completed in February 2005 and she commenced the PhD in March 2005. Also, the evidence was that the net earnings with the Northern Area Health Service were not $285 per week but $326 per week. I have to say that the defendant’s approach is contrary to my findings on the condition of the plaintiff and, indeed, against the views which I have accepted of Dr Stening and Dr Sheehan.

109 Counsel for the plaintiff approached the assessment of this element according to a net weekly wage of $325 for a period of 34 weeks from the accident date to September 2002, when the plaintiff resumed part-time employment with the Northern Area Health Service and then from December 2002, when that employment was terminated, to May 2003 when it re-commenced – the claim for those periods was $11,050. Thereafter, when in March 2004 the Northern Area Health Service employment was completed, it was put that but for the injury the plaintiff would have been able to earn at least average net weekly earnings of $900 (inclusive of superannuation) for the three-year period to date less scholarship income received giving a resultant amount of $96,000. The total claim for this element was thus $107,500.

110 I accept as reasonable on the evidence the approach of the plaintiff’s counsel to support an award of the amount of $11,050 in the period after the accident up to May 2003. However, the calculation for the period after March 2004 when the plaintiff’s employment contract with Northern Area Health Service ended is not as straightforward. By then she had the honours Arts degree, was to complete the Law degree in February 2005 and commenced the PhD in March 2004. On her evidence, pain and disabilities with the left ankle ruled out full-time employment, although the medical evidence suggested at least part-time employment in some sedentary occupation not involving prolonged standing or walking and the use of stairs. It follows, in my view, that the plaintiff from March 2004 had a residual capacity for part-time gainful employment.

111 Having in mind the plaintiff’s qualifications and experience, in assessing any wages loss I think it reasonable to look to average weekly ordinary time earnings for full-time adult females. In the period of 180 weeks from 1 April 2004 to date such earnings, according to the Australian Bureau of Statistics, averaged approximately $950 gross or about $730 net. Of that net weekly amount, I would assess the plaintiff as able to earn $330, leaving a loss to her for the period by reason of incapacity from the injury of $400. Therefore, the amount of wages loss for the 180 weeks to date is $72,000 but from which is to be deducted $51,000 being the proceeds from the PhD scholarship of $17,000 net for each of three years, resulting in an amount of $21,000 for this period.

112 The total amount of past economic loss is, therefore, $32,050.

113 Future economic loss: Being of the view the plaintiff was fit for full-time employment, counsel for the defendant submitted no amount should be allowed for this element other than a buffer of from $5,000 to $10,000. For the plaintiff, an amount of $342,090 was claimed based on loss of earnings of $900 net per week for 8 years until her retirement at age 65 years.

114 Continuing my reasoning for past economic loss, I propose to allow for the future 8 years to the plaintiff’s retirement an amount of $400 per week net giving $117,504 (multiplier of 345.6 on 5 per cent tables less 15 per cent for vicissitudes).

115 Loss of superannuation benefits: An amount for this component was included by the plaintiff in the calculations for past and future economic loss. I have not done so and, so, it is to be considered separately. The defendant accepted that the appropriate percentage of 9 per cent should be added to any award. I think the defendant’s approach is reasonable.

116 For the past, 9 per cent of $32,050 is $2,884.50; and, for the future, 9 per cent of $117,504 is $10,575.36 – the total, which I will allow, is $13,459.86.

117 Domestic Assistance: On the available evidence, this was a difficult component to calculate. The plaintiff claimed gratuitous domestic care from her husband for the past in the sum of $47,946 pursuant to s 15 of the Civil Liability Act and $55,741.50 for the future on a commercial basis. For the defendant, its counsel opposed any award for this element because, as it was submitted, the 6 hours per week for not less than 6 months threshold was not met and, in any event, the services provided by Mr Graham were not solely for the benefit of the plaintiff but rather for his benefit and that of the children.

118 The evidence of both the plaintiff and her husband was clear, namely, that after the subject injury he assumed the role from the plaintiff of running the household, particularly in respect of the main shopping, cooking, washing, ironing and cleaning. Dr Sheehan considered in December 2005 that six hours per fortnight of domestic assistance was required. Mr Graham estimated the care given the plaintiff was about 56 hours per week until August 2002 to November 2002 and thereafter 5 or 6 hours per week; he sought respite from the tasks in the future as to washing, ironing, cleaning and mopping by the use of outside assistance on a commercial basis.

119 The plaintiff’s left leg was in an open cast for 10 weeks after the accident and for a further 4 weeks she used crutches or a wheelchair for mobility. Thereafter, she has been quite limited in the ability to move around and continues unable to do ironing, washing, cleaning and the main shopping.

120 Doing the best I can on the evidence, I accept as reasonable for this component in the past 35 hours each week for 14 weeks after the accident to August 2002, 14 hours each week for 13 weeks to November 2002 and 6 hours each week to date. The hourly rate I will use is $18 for the first 27 weeks and $20 per hour for the remaining 252 weeks. The resultant amount for past gratuitous domestic care is $42,336.

121 I am satisfied that the present level of domestic care on a gratuitous basis would continue for the foreseeable future, until at least any further surgery in eight years’ time to relieve the plaintiff’s level of pain. However, in view of Mr Graham’s position in retirement and need to tend a large garden, I consider it reasonable also that such care be from an outside provider at commercial rates for cleaning and ironing functions for, say, 4 hours per week at $22.50 per hour for a period of 8 years. The amount for the future calculates at $26,438.40 (multiplier of 345.6 on 5 per cent tables less 15 per cent for vicissitudes).

122 Past and future domestic assistance is, therefore, $68,774.40.

123 Summary of damages: The damages I will allow comprise the following elements: non-economic loss of $98,000; past out-of-pocket expenses of $14,645.86; future out-of-pocket expenses of $23,871.50; past economic loss of $32,050; future economic loss of $117,504; loss of superannuation benefits of $13,459.86; and domestic assistance of $68,774.40. The total is $368,305.62.

Conclusion and orders

124 The plaintiff is entitled to a verdict against the defendant in the amount of $368,305.62.

125 I will hear the parties on costs before making final orders.

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